Republic

SUPREME
Manila

of

the

Philippines
COURT

THIRD DIVISION
G.R. No. 173526

August 28, 2008

BENJAMIN
BITANGA, petitioner,
vs.
PYRAMID CONSTRUCTION ENGINEERING
CORPORATION, respondent.
DECISION
CHICO-NAZARIO, J.:
Assailed in this Petition for Review under Rule
451 of the Revised Rules of Court are: (1) the
Decision2 dated 11 April 2006 of the Court of
Appeals in CA-G.R. CV No. 78007 which affirmed
with modification the partial Decision3 dated 29
November 2002 of the Regional Trial Court (RTC),
Branch 96, of Quezon City, in Civil Case No. Q-0145041, granting the motion for summary judgment
filed by respondent Pyramid Construction and
Engineering Corporation and declaring petitioner
Benjamin Bitanga and his wife, Marilyn Bitanga
(Marilyn), solidarily liable to pay P6,000,000.000 to
respondent; and (2) the Resolution4 dated 5 July
2006 of the appellate court in the same case denying
petitioners Motion for Reconsideration.
The generative facts are:
On 6 September 2001, respondent filed with the
RTC a Complaint for specific performance and
damages with application for the issuance of a writ
of preliminary attachment against the petitioner and
Marilyn. The Complaint was docketed as Civil Case
No. Q-01-45041.
Respondent alleged in its Complaint that on 26
March 1997, it entered into an agreement with
Macrogen Realty, of which petitioner is the
President, to construct for the latter the Shoppers
Gold Building, located at Dr. A. Santos Avenue
corner Palayag Road, Sucat, Paraaque City.
Respondent commenced civil, structural, and
architectural works on the construction project by
May 1997. However, Macrogen Realty failed to
settle respondents progress billings. Petitioner,
through his representatives and agents, assured
respondent that the outstanding account of
Macrogen Realty would be paid, and requested
respondent to continue working on the construction
project. Relying on the assurances made by
petitioner, who was no less than the President of
Macrogen Realty, respondent continued the
construction project.

In August 1998, respondent suspended work on the

construction project since the conditions that it
imposed for the continuation thereof, including
payment of unsettled accounts, had not been
complied with by Macrogen Realty. On 1
September 1999, respondent instituted with the
Construction Industry Arbitration Commission
(CIAC) a case for arbitration against Macrogen
Realty seeking payment by the latter of its unpaid
billings and project costs. Petitioner, through
counsel, then conveyed to respondent his purported
willingness to amicably settle the arbitration case.
On 17 April 2000, before the arbitration case could
be set for trial, respondent and Macrogen Realty
entered into a Compromise Agreement,5 with
petitioner acting as signatory for and in behalf of
Macrogen Realty. Under the Compromise
Agreement, Macrogen Realty agreed to pay
respondent the total amount ofP6,000,000.00 in six
equal monthly installments, with each installment to
be delivered on the 15th day of the month, beginning
15 June 2000. Macrogen Realty also agreed that if it
would default in the payment of two successive
monthly installments, immediate execution could
issue against it for the unpaid balance, without need
of judgment or decree from any court or tribunal.
Petitioner guaranteed the obligations of Macrogen
Realty under the Compromise Agreement by
executing a Contract of Guaranty6 in favor of
respondent, by virtue of which he irrevocably and
unconditionally guaranteed the full and complete
payment of the principal amount of liability of
Macrogen Realty in the sum ofP6,000,000.00. Upon
joint motion of respondent and Macrogen Realty,
the CIAC approved the Compromise Agreement on
25 April 2000.7
However, contrary to petitioners assurances,
Macrogen Realty failed and refused to pay all the
monthly installments agreed upon in the
Compromise Agreement. Hence, on 7 September
2000, respondent moved for the issuance of a writ
of execution8 against Macrogen Realty, which
CIAC granted.
On 29 November 2000, the sheriff9 filed a return
stating that he was unable to locate any property of
Macrogen Realty, except its bank deposit
of P20,242.33, with the Planters Bank, Buendia
Branch.
Respondent then made, on 3 January 2001, a written
demand10 on petitioner, as guarantor of Macrogen
Realty, to pay the P6,000,000.00, or to point out
available properties of the Macrogen Realty within
the Philippines sufficient to cover the obligation
guaranteed. It also made verbal demands on
petitioner. Yet, respondents demands were left
unheeded.
Thus, according to respondent, petitioners
obligation as guarantor was already due and

demandable. As to Marilyns liability, respondent

contended that Macrogen Realty was owned and
controlled by petitioner and Marilyn and/or by
corporations owned and controlled by them.
Macrogen Realty is 99% owned by the Asian
Appraisal Holdings, Inc. (AAHI), which in turn is
99% owned by Marilyn. Since the completion of the
construction project would have redounded to the
benefit of both petitioner and Marilyn and/or their
corporations; and considering, moreover, Marilyns
enormous interest in AAHI, the corporation which
controls Macrogen Realty, Marilyn cannot be
unaware of the obligations incurred by Macrogen
Realty and/or petitioner in the course of the
business operations of the said corporation.
Respondent prayed in its Complaint that the RTC,
after hearing, render a judgment ordering petitioner
and Marilyn to comply with their obligation under
the Contract of Guaranty by paying respondent the
amount of P6,000,000.000 (less the bank deposit of
Macrogen Realty with Planters Bank in the amount
of P20,242.23) and P400,000.000 for attorneys fees
and expenses of litigation. Respondent also sought
the issuance of a writ of preliminary attachment as
security for the satisfaction of any judgment that
may be recovered in the case in its favor.
Marilyn filed a Motion to Dismiss,11 asserting that
respondent had no cause of action against her, since
she did not co-sign the Contract of Guaranty with
her husband; nor was she a party to the
Compromise Agreement between respondent and
Macrogen Realty. She had no part at all in the
execution of the said contracts. Mere ownership by
a single stockholder or by another corporation of all
or nearly all of the capital stock of another
corporation is not by itself a sufficient ground for
disregarding the separate personality of the latter
corporation. Respondent misread Section 4, Rule 3
of the Revised Rules of Court.
The RTC denied Marilyns Motion to Dismiss for
lack of merit, and in its Order dated 24 January
2002 decreed that:
The Motion To Dismiss Complaint Against
Defendant Marilyn Andal Bitanga filed on
November 12, 2001 is denied for lack of
merit considering that Sec. 4, Rule 3, of the
Rules of Court (1997) specifically provides,
as follows:
"SEC. 4. Spouses as parties.
Husband and wife shall sue or be
sued jointly, except as provided by
law."
and that this case does not come within the
exception.12

Petitioner filed with the RTC on 12 November

2001, his Answer13 to respondents Complaint
averring therein that he never made representations
to respondent that Macrogen Realty would
faithfully comply with its obligations under the
Compromise Agreement. He did not offer to
guarantee the obligations of Macrogen Realty to
entice respondent to enter into the Compromise
Agreement but that, on the contrary, it was
respondent that required Macrogen Realty to offer
some form of security for its obligations before
agreeing to the compromise. Petitioner further
alleged that his wife Marilyn was not aware of the
obligations that he assumed under both the
Compromise Agreement and the Contract of
Guaranty as he did not inform her about said
contracts, nor did he secure her consent thereto at
the time of their execution.
As a special and affirmative defense, petitioner
argued that the benefit of excussion was still
available to him as a guarantor since he had set it up
prior to any judgment against him. According to
petitioner, respondent failed to exhaust all legal
remedies to collect from Macrogen Realty the
amount due under the Compromise Agreement,
considering that Macrogen Realty still had
uncollected credits which were more than enough to
pay for the same. Given these premise, petitioner
could not be held liable as guarantor. Consequently,
petitioner presented his counterclaim for damages.
At the pre-trial held on 5 September 2002, the
parties submitted the following issues for the
resolution of the RTC:
(1) whether the defendants were liable under
the contract of guarantee dated April 17,
2000 entered into between Benjamin
Bitanga and the plaintiff;
(2) whether defendant wife Marilyn Bitanga
is liable in this action;
(3) whether the defendants are entitled to the
benefit of excussion, the plaintiff on the one
hand claiming that it gave due notice to the
guarantor, Benjamin Bitanga, and the
defendants contending that no proper notice
was received by Benjamin Bitanga;
(4) if damages are due, which party is liable;
and
(5) whether the benefit of excussion can still
be invoked by the defendant guarantor even
after the notice has been allegedly sent by
the plaintiff although proper receipt is
denied.14
On 20 September 2002, prior to the trial proper,
respondent filed a Motion for Summary

Judgment.15Respondent alleged therein that it was

entitled to a summary judgment on account of
petitioners admission during the pre-trial of the
genuineness and due execution of the Contract of
Guaranty. The contention of petitioner and Marilyn
that they were entitled to the benefit of excussion
was not a genuine issue. Respondent had already
exhausted all legal remedies to collect from
Macrogen Realty, but its efforts proved
unsuccessful. Given that the inability of Macrogen
Realty as debtor to pay the amount of its debt was
already proven by the return of the writ of execution
to CIAC unsatisfied, the liability of petitioner as
guarantor already arose.16 In any event, petitioner
and Marilyn were deemed to have forfeited their
right to avail themselves of the benefit of excussion
because they failed to comply with Article 206017 of
the Civil Code when petitioner ignored respondents
demand letter dated 3 January 2001 for payment of
the amount he guaranteed.18 The duty to collect the
supposed receivables of Macrogen Realty from its
creditors could not be imposed on respondent, since
petitioner and Marilyn never informed respondent
about such uncollected credits even after receipt of
the demand letter for payment. The allegation of
petitioner and Marilyn that they could not respond
to respondents demand letter since they did not
receive the same was unsubstantiated and
insufficient to raise a genuine issue of fact which
could defeat respondents Motion for Summary
Judgment. The claim that Marilyn never
participated in the transactions that culminated in
petitioners execution of the Contract of Guaranty
was nothing more than a sham.
In opposing respondents foregoing Motion for
Summary Judgment, petitioner and Marilyn
countered that there were genuinely disputed facts
that would require trial on the merits. They
appended thereto an affidavit executed by
petitioner, in which he declared that his spouse
Marilyn could not be held personally liable under
the Contract of Guaranty or the Compromise
Agreement, nor should her share in the conjugal
partnership be made answerable for the guaranty
petitioner assumed, because his undertaking of the
guaranty did not in any way redound to the benefit
of their family. As guarantor, petitioner was entitled
to the benefit of excussion, and he did not waive his
right thereto. He never received the respondents
demand letter dated 3 January 2001, as Ms. Dette
Ramos, the person who received it, was not an
employee of Macrogen Realty nor was she
authorized to receive the letter on his behalf. As a
guarantor, petitioner could resort to the benefit of
excussion at any time before judgment was
rendered against him.19 Petitioner reiterated that
Macrogen Realty had uncollected credits which
were more than sufficient to satisfy the claim of
respondent.

On 29 November 2002, the RTC rendered a partial

Decision, the dispositive portion of which provides:
WHEREFORE, summary judgment is
rendered ordering defendants SPOUSES
BENJAMIN BITANGA and MARILYN
ANDAL BITANGA to pay the [herein
respondent], jointly and severally, the
amount of P6,000,000.00, less P20,242.23
(representing the amount garnished bank
deposit of MACROGEN in the Planters
Bank, Buendia Branch); and the costs of
suit.
Within 10 days from receipt of this partial
decision, the [respondent] shall inform the
Court whether it shall still pursue the rest of
the claims against the defendants.
Otherwise, such claims shall be considered
waived.20
Petitioner and Marilyn filed a Motion for
Reconsideration of the afore-quoted Decision,
which the RTC denied in an Order dated 26 January
2003.21
In time, petitioner and Marilyn filed an appeal with
the Court of Appeals, docketed as CA-G.R. CV
78007. In its Decision dated 11 April 2006, the
appellate court held:
UPON THE VIEW WE TAKE OF THIS
CASE, THUS, the judgment appealed from
must be, as it hereby is, MODIFIED to the
effect that defendant-appellant Marilyn
Bitanga is adjudged not liable, whether
solidarily or otherwise, with her husband the
defendant-appellant Benjamin Bitanga,
under the compromise agreement or the
contract of guaranty. No costs in this
instance.22
In holding that Marilyn Bitanga was not liable, the
Court of Appeals cited Ramos v. Court of
Appeals,23 in which it was declared that a contract
cannot be enforced against one who is not a party to
it. The Court of Appeals stated further that the
substantial ownership of shares in Macrogen Realty
by Marilyn Bitanga was not enough basis to hold
her liable.
The Court of Appeals, in its Resolution dated 5 July
2006,
denied
petitioners
Motion
for
24
Reconsideration of its earlier Decision.
Petitioner is now before us via the present Petition
with the following assignment of errors:
I
THE COURT OF APPEALS GRAVELY
ERRED IN AFFIRMING THE VALIDITY

OF
THE
PARTIAL
SUMMARY
JUDGMENT BY THE REGIONAL TRIAL
COURT OF QUEZON CITY, BRANCH 96,
DESPITE THE CLEAR EXISTENCE OF
DISPUTED GENUINE AND MATERIAL
FACTS OF THE CASE THAT SHOULD
HAVE REQUIRED A TRIAL ON THE
MERITS.

In a summary judgment, the crucial question is: are

the issues raised by the opposing party not genuine
so as to justify a summary judgment?28
First off, we rule that the issue regarding the
propriety of the service of a copy of the demand
letter on the petitioner in his office is a sham issue.
It is not a bar to the issuance of a summary
judgment in respondents favor.

II
THE COURT OF APPEALS GRAVELY
ERRED IN NOT UPHOLDING THE
RIGHT OF PETITIONER BENJAMIN M.
BITANGA AS A MERE GUARANTOR TO
THE BENEFIT OF EXCUSSION UNDER
ARTICLES 2058, 2059, 2060, 2061, AND
2062 OF THE CIVIL CODE OF THE
PHILIPPINES.25
As in the two courts below, it is petitioners position
that summary judgment is improper in Civil Case
No. Q-01-45041 because there are genuine issues of
fact which have to be threshed out during trial, to
wit:
(A) Whether or not there was proper service
of notice to petitioner considering the said
letter of demand was allegedly received by
one Dette Ramos at Macrogen office and not
by him at his residence.
(B) Whether or not petitioner is entitled to
the benefit of excussion?26
We are not persuaded by petitioners arguments.
Rule 35 of the Revised Rules of Civil Procedure
provides:
Section 1. Summary judgment for claimant.
A party seeking to recover upon a claim,
counterclaim, or cross-claim or to obtain a
declaratory relief may, at any time after the
pleading in answer thereto has been served,
move with supporting affidavits, depositions
or admissions for a summary judgment in
his favor upon all or any part thereof.
For a summary judgment to be proper, the movant
must establish two requisites: (a) there must be no
genuine issue as to any material fact, except for the
amount of damages; and (b) the party presenting the
motion for summary judgment must be entitled to a
judgment as a matter of law. Where, on the basis of
the pleadings of a moving party, including
documents appended thereto, no genuine issue as to
a material fact exists, the burden to produce a
genuine issue shifts to the opposing party. If the
opposing party fails, the moving party is entitled to
a summary judgment.27

A genuine issue is an issue of fact which requires

the presentation of evidence as distinguished from
an issue which is a sham, fictitious, contrived or
false claim. To forestall summary judgment, it is
essential for the non-moving party to confirm the
existence of genuine issues, as to which he has
substantial, plausible and fairly arguable
defense, i.e.,29 issues of fact calling for the
presentation of evidence upon which reasonable
findings of fact could return a verdict for the nonmoving party, although a mere scintilla of evidence
in support of the party opposing summary judgment
will be insufficient to preclude entry thereof.
Significantly, petitioner does not deny the receipt of
the demand letter from the respondent. He merely
raises a howl on the impropriety of service thereof,
stating that "the address to which the said letter was
sent was not his residence but the office of
Macrogen Realty, thus it cannot be considered as
the correct manner of conveying a letter of demand
upon him in his personal capacity."30
Section 6, Rule 13 of the Rules of Court states:
SEC. 6. Personal service. Service of the
papers may be made by delivering
personally a copy to the party or his
counsel, or by leaving it in his office with
his clerk or with a person having charge
thereof. If no person is found in his office,
or his office is not known, or he has no
office, then by leaving the copy, between the
hours of eight in the morning and six in the
evening, at the partys or counsels
residence, if known, with a person of
sufficient age and discretion then residing
therein.
The affidavit of Mr. Robert O. Pagdilao, messenger
of respondents counsel states in part:
2. On 4 January 2001, Atty. Jose Vicente B.
Salazar, then one of the Associates of the
ACCRA Law Offices, instructed me to
deliver to the office of Mr. Benjamin
Bitanga a letter dated 3 January 2001,
pertaining
to
Construction
Industry
Arbitration Commission (hereafter, "CIAC")
Case No. 99-56, entitled "Pyramid
Construction Engineering Corporation vs.
Macrogen Realty Corporation."

3. As instructed, I immediately proceeded to

the office of Mr. Bitanga located at the
12th Floor, Planters Development Bank
Building, 314 Senator Gil Puyat Avenue,
Makati City. I delivered the said letter to
Ms. Dette Ramos, a person of sufficient age
and discretion, who introduced herself as
one of the employees of Mr. Bitanga and/or
of the latters companies.31 (Emphasis
supplied.)
We emphasize that when petitioner signed the
Contract of Guaranty and assumed obligation as
guarantor, his address in the said contract was the
same address where the demand letter was
served.32 He does not deny that the said place of
service, which is the office of Macrogen, was also
the address that he used when he signed as
guarantor in the Contract of Guaranty. Nor does he
deny that this is his office address; instead, he
merely insists that the person who received the
letter and signed the receiving copy is not an
employee of his company. Petitioner could have
easily substantiated his allegation by a submission
of an affidavit of the personnel manager of his
office that no such person is indeed employed by
petitioner in his office, but that evidence was not
submitted.33All things are presumed to have been
done correctly and with due formality until the
contrary is proved. This juris tantum presumption
stands even against the most well-reasoned
allegation pointing to some possible irregularity or
anomaly.34 It is petitioners burden to overcome the
presumption by sufficient evidence, and so far we
have not seen anything in the record to support
petitioners charges of anomaly beyond his bare
allegation. Petitioner cannot now be heard to
complain that there was an irregular service of the
demand letter, as it does not escape our attention
that petitioner himself indicated "314 Sen. Gil Puyat
Avenue, Makati City" as his office address in the
Contract of Guaranty.
Moreover, under Section 6, Rule 13 of the Rules of
Court, there is sufficiency of service when the
papers, or in this case, when the demand letter is
personally delivered to the party or his counsel, or
by leaving it in his office with his clerk or with a
person having charge thereof, such as what was
done in this case.
We have consistently expostulated that in summary
judgments, the trial court can determine a genuine
issue on the basis of the pleadings, admissions,
documents, affidavits or counter affidavits
submitted by the parties. When the facts as pleaded
appear uncontested or undisputed, then there is no
real or genuine issue or question as to any fact, and
summary judgment is called for.35
The Court of Appeals was correct in holding that:

Here, the issue of non-receipt of the letter of

demand is a sham or pretended issue, not a
genuine and substantial issue. Indeed,
against the positive assertion of Mr. Roberto
O. Pagdilao (the private courier) in his
affidavit that he delivered the subject letter
to a certain Ms. Dette Ramos who
introduced herself as one of the employees
of [herein petitioner] Mr. Benjamin Bitanga
and/or of the latters companies, said
[petitioner] merely offered a bare denial. But
bare denials, unsubstantiated by facts, which
would be admissible in evidence at a
hearing, are not sufficient to raise a genuine
issue of fact sufficient to defeat a motion for
summary judgment.36
We further affirm the findings of both the RTC and
the Court of Appeals that, given the settled facts of
this case, petitioner cannot avail himself of the
benefit of excussion.
Under a contract of guarantee, the guarantor binds
himself to the creditor to fulfill the obligation of the
principal debtor in case the latter should fail to do
so. The guarantor who pays for a debtor, in turn,
must be indemnified by the latter. However, the
guarantor cannot be compelled to pay the creditor
unless the latter has exhausted all the property of
the debtor and resorted to all the legal remedies
against the debtor. This is what is otherwise known
as the benefit of excussion.37
Article 2060 of the Civil Code reads:
Art. 2060. In order that the guarantor may
make use of the benefit of excussion, he
must set it up against the creditor upon the
latters demand for payment from him, and
point out to the creditor available property
of the debtor within Philippine territory,
sufficient to cover the amount of the debt.38
The afore-quoted provision imposes a condition for
the invocation of the defense of excussion. Article
2060 of the Civil Code clearly requires that in order
for the guarantor to make use of the benefit of
excussion, he must set it up against the creditor
upon the latters demand for payment and point out
to the creditor available property of the debtor
within the Philippines sufficient to cover the
amount of the debt.39
It must be stressed that despite having been served a
demand letter at his office, petitioner still failed to
point out to the respondent properties of Macrogen
Realty sufficient to cover its debt as required under
Article 2060 of the Civil Code. Such failure on
petitioners part forecloses his right to set up the
defense of excussion.

Worthy of note as well is the Sheriffs return stating

that the only property of Macrogen Realty which he
found was its deposit of P20,242.23 with the
Planters Bank.
Article 2059(5) of the Civil Code thus finds
application and precludes petitioner from
interposing the defense of excussion. We quote:
Art. 2059. This excussion shall not take
place:
xxxx
(5) If it may be presumed that an execution
on the property of the principal debtor
would not result in the satisfaction of the
obligation.

GARCIA, J.:
In this petition for review under Rule 45 of the
Rules of Court, petitioner Asian Construction and
Development
Corporation
or
"ASIAKONSTRUKT," seeks the reversal and
setting aside of the decision1dated March 15, 2002
and the Resolution2 dated June 3, 2002 of the Court
of Appeals (CA) in CA-G.R. CV No. 68189. The
assailed decision affirm with modification the
Summary Judgment rendered by the Regional Trial
Court (RTC) of Makati City in an action for a sum
of money thereat commenced by the herein
respondent, Philippine Commercial International
Bank (PCIBANK) against the petitioner, while the
challenged resolution denied petitioners motion for
reconsideration.
The facts:

As the Court of Appeals correctly ruled:

We find untenable the claim that the [herein
petitioner] Benjamin Bitanga cannot be
compelled to pay Pyramid because the
Macrogen Realty has allegedly sufficient
assets. Reason: The said [petitioner] had not
genuinely controverted the return made by
Sheriff Joseph F. Bisnar, who affirmed that,
after exerting diligent efforts, he was not
able to locate any property belonging to the
Macrogen Realty, except for a bank deposit
with the Planters Bank at Buendia, in the
amount of P20,242.23. It is axiomatic that
the liability of the guarantor arises when the
insolvency or inability of the debtor to pay
the amount of debt is proven by the return of
the writ of execution that had not been
unsatisfied.40

On February 24, 1999, in the RTC of Makati City,

respondent PCIBANK filed a complaint3 for a sum
of money with prayer for a writ of preliminary
attachment against petitioner ASIAKONSTRUKT.
Docketed as Civil Case No. 99-432, the complaint
alleged, inter alia, as follows:
FIRST CAUSE OF ACTION
2.01 On various occasions, ASIAKONSTRUKT
obtained
U.S. dollar
denominated
credit
accommodations from PCIBANK in the amount of
Four Million Four Hundred Eighty Seven Thousand
U.S. dollars (US$4,487,000.00), exclusive of
interests, charges and fees thereon and the cost of
collecting the same. These credit accommodations
are covered by the following promissory notes:
xxx xxx xxx

WHEREFORE, premises considered, the instant

petition is DENIED for lack of merit. The Decision
of the Court of Appeals dated 11 April 2006 and its
Resolution dated 5 July 2006 are AFFIRMED.
Costs against petitioner.
SO ORDERED.
Republic
SUPREME
Baguio City

of

the

Philippines
COURT

2.02 Prompt and faithful payment of all the

foregoing promissory notes was secured by the
following deeds of assignment executed by
ASIAKONSTRUKT in favor of PCIBANK:
(a)
Deed
of
Assignment
of
Receivables/Contract Proceeds dated 20 July
1994 where ASIAKONSTRUKT assigned
its receivables from its Contract with the
National Power Corporation (NPC) in the
amount of .P54,500,000;

SECOND DIVISION
G.R. No. 153827

April 25, 2006

ASIAN
CONSTRUCTION
AND
DEVELOPMENT CORPORATION, Petitioner,
vs.
PHILIPPINE
COMMERCIAL
INTERNATIONAL BANK, Respondent.
DECISION

(b) Deed of Assignment of Receivables

dated
28
June
1995

where
ASIAKONSTRUKT
assigned
its
receivables from its Contract with the
NPC in the amount of P26,281,000.00;
(c) Deed of Assignment of Receivables
dated 28 August 1995 where
ASIAKONSTRUKT
assigned
its
receivables from its Sub-Contract with ABB

Power,
Inc.,
of P43,000,000.00;

in

the

amount

(d) Deed of Assignment of Contract

Proceeds dated 27 March 1996 where
ASIAKONSTRUKT
assigned
its
receivables from its contracts with PNOC
in the aggregate amount of P46,000,000.00;
and
(e) Deed of Assignment of Contract
Proceeds dated 20 February 1997
where ASIAKONSTRUKT assigned its
receivables from the Ormat Philippines, Inc.,
in
the
aggregate
amount
of
US$3,350,000.00;
2.03 All the foregoing deeds of assignments
stipulate, among others, the following terms and
conditions:

2.05 As a result of ASIAKONSTRUKTs refusal to

pay its outstanding obligations, PCIBANK was
constrained to refer the matter to counsel and
thus incur attorneys fees and legal costs.
2.06 The aggregate unpaid obligation of
ASIAKONSTRUKT to PCIBANK, as of 31
December 1998, amounts to US$4,553,446.06,
broken down as follows:
Principal

US$ 4,067,867.23

Interest

US$ 291,263.27

Penalties

US$ 194,315.56

TOTAL

US$ 4,553,446.06

For its second cause of action, PCIBANK alleged in

the same complaint as follows:

a) The assignment is for the purpose of

securing payment of the principal amount
and the interests and bank charges accruing
thereon, the costs of collecting the same and
all other expenses which PCIBANK may be
put in connection with or as an incident of
the assignment;

SECOND CAUSE OF ACTION

b) That the assignment secures also any

extension or renewal of the credit which is
the subject thereof as any and all other
obligations of ASIAKONSTRUKT of
whatever kind and nature as appear in the
records
of
PCIBANK,
which
ASIAKONSTRUKT accepts as the final and
conclusive evidence of such obligations to
PCIBANK, "whether contracted before,
during or after the constitution of [the
assignment agreement]";

4.02.1 Exemplary damages, in the interest of public

good and purposes of correction, in the amount of
not less than .P50,000.00;

c)
That
PCIBANK
authorizes
ASIAKONSTRUKT, at the latters expense,
to "collect and receive for [PCIBANK] all
the Receivables"; and
d) That ASIAKONSTRUKT "shall have no
right, and agrees not to use any of the
proceeds of any collections, it being agreed
by the parties that [ASIAKONSTRUKT]
divests itself of all the rights, title and
interest in said Receivables and the proceeds
of
the
collection
received
thereon."1avvphil.net
2.04 The promissory notes have remained not fully
paid despite their having become due and
demandable. Repeated verbal and written demands
were made upon ASIAKONSTRUKT, but to no
avail. It has failed and refused, and continues to fail
and refuse, to pay its outstanding obligations to
PCIBANK;

4.02 as a result of the fraudulent acts of

ASIAKONSTRUKT, PCIBANK suffered the
following
damages,
all
of
which
ASIAKONSTRUKT must be held to pay
PCIBANK:

4.02.2 Attorneys fees in the amount of not less than

. P1,800,000.00; and
4.02.3 Costs of suit.
In support of its prayer for a writ of preliminary
attachment embodied in the complaint, plaintiff
PCIBANK alleges the following:
3.02 ASIAKONSTRUKT is guilty of fraud in
contracting the debt, in the performance thereof, or
both, xxx;
303. PCIBANK agreed to enter into the abovementioned credit accommodations primarily
because of the existence of the deeds of assignment
listed above. However, from telephone inquiries
made with responsible officers of the National
Power Corporation, ABB Power, Inc., PNOC and
Ormat Philippines, Inc., PCIBANK was surprised to
learn that ASIAKONSTRUKT had long ago
collected the contract proceeds, or portions thereof,
which were previously assigned to PCIBANK.
However, to date, it has yet to turn over these
proceeds to PCIBANK. Worse, PCIBANK learned
that the contract proceeds were used by
ASIAKONSTRUKT for its own purposes clear
evidence of fraud, which has deprived PCIBANK of
its security. ASIAKONSTRUKTs unauthorized use

of the contract proceeds for its own purposes was

subsequently confirmed by Mr. Napoleon Garcia,
Vice President for Finance of ASIAKONSTRUKT,
in a telephone discussion on 12 January 1999 with
Ms. Maricel E. Salaveria of PCIBANK. xxx
Needless to say, ASIAKONSTRUKT has
fraudulently collected such receivables to the
prejudice of PCIBANK.

denies PCIBANKs allegations in the same

Complaint in support of its prayer for a writ of
preliminary attachment, particularly its having
fraudulently misappropriated for its own use the
contract proceeds/receivables under the contracts
mentioned in the several deeds of assignments,
claiming in this respect that it has still remaining
receivables from those contracts.

3.04 it is evident that ASIAKONSTRUKT never

had any intention of complying with the deeds of
assignment. ASIAKONSTRUKT only misled
PCIBANK into believing that it had sufficient
security to ensure payment of its loan obligations.

By way of defenses, defendant pleads in its Answer

the alleged "severe financial and currency crisis"
which hit the Philippines in July 1997, which
adversely affected and ultimately put it out of
business. Defendant adds that the deeds of
assignments it executed in favor of PCIBANK were
standard forms proposed by the bank as precondition for the release of the loans and therefore
partake of the nature of contracts of adhesion,
leaving the defendant to the alternative of "taking it
or leaving it." By way of counterclaim, defendant
prayed for an award ofP1,000,000.00 as and for
attorneys fees and P200,000.00 as litigation
expenses.

3.05 Alternatively, granting, in argumenti gratia,

that ASIAKONSTRUKT, at the time it executed the
foregoing deeds of assignment, really intended to
abide by their terms and conditions, it nevertheless
committed manifest fraud when it collected the
contract proceeds, and instead of remitting them to
PCIBANK, used them for its own purposes.
In an order4 dated April 13, 1999, the trial court,
after receiving ex parte PCIBANKs evidence in
support of its prayer for preliminary attachment,
directed the issuance of the desired writ, thus:
WHEREFORE, let a writ of preliminary attachment
issue against all the property of defendant not
exempt from execution or so much thereof as may
be sufficient to satisfy plaintiffs principal claim of
US$4,553,446.06, representing the alleged unpaid
obligation of defendant, inclusive of interest and
penalty charges, as of December 31, 1998, which is
equivalent to P174,260,380.72, upon plaintiffs
filing of a bond in an equal amount to answer for all
it may sustain by reason of the attachment if the
Court shall finally adjudge that plaintiff was not
entitled thereto.
SO ORDERED.
With plaintiff PCIBANK having posted the
requisite bond, a writ of preliminary attachment was
thereafter issued by the trial court. Per records,
defendant ASIAKONSTRUKT did not file any
motion for the quashal or dissolution of the writ.
Meanwhile, on August 27, 1999, defendant
ASIAKONSTRUKT filed its Answer,5 thereunder
making admissions and denials. Defendant admits,
subject to its defenses, the material allegations of
the Complaint as regards its indebtedness to
plaintiff PCIBANK and its execution of the various
deeds of assignment enumerated therein. It,
however, denies, for lack of knowledge sufficient to
form a belief as to the truth thereof, the averments
in the Complaint that it has not paid, despite
demands, its due and demandable obligations, as
well as the amounts due the plaintiff as itemized in
paragraph 2.06, supra, of the Complaint. It likewise

On January 24, 2000, plaintiff PCIBANK filed a

verified Motion for Summary Judgment,6 therein
contending that the defenses interposed by the
defendant are sham and contrived, that the alleged
financial crisis pleaded in the Answer is not a
fortuitous event that would excuse debtors from
their loan obligations, nor is it an exempting
circumstance under Article 1262 of the New Civil
Code where, as here, the same is attended by bad
faith. In the same motion, PCIBANK also asserts
that the deeds of assignments executed in its favor
are not contracts of adhesion, and even if they were,
the same are valid.
To the Motion for Summary Judgment, defendant
interposed an Opposition7 insisting that its Answer
tendered or raised genuine and substantial issues of
material facts which require full-blown trial,
namely:
1. Whether or not defendant received all or
part of the proceeds/receivables due from
the contracts mentioned in the deeds of
assignment at the time the complaint was
filed;
2. Granting that defendant received those
proceeds/receivables, whether or not
defendant fraudulently misappropriated the
same;
3. Whether or not defendant is virtually
insolvent as a result of the regionwide
economic crisis that hit Asia, causing the
Philippine peso to depreciate drastically; and
4. Whether the parties dealt with each other
on equal footing with respect to the

execution of the deeds of assignment as to

give the defendant an honest opportunity to
reject the onerous terms imposed therein.
Significantly, defendant did not append to its
aforementioned Opposition any affidavit in support
of the alleged genuine issues of material facts
mentioned therein.
Before the pending incident (motion for summary
judgment) could be resolved by the trial court,
plaintiff PCIBANK waived its claim for exemplary
damages and agreed to reduce its claim for
attorneys
fees
from P1,800,000.00
toP1,260,000.00, but made it clear that its waiver of
exemplary damages and reduction of attorneys fees
are subject to the condition that a full and final
disposition of the case is obtained via summary
judgment.
On May 16, 2000, the trial court, acting favorably
on PCIBANKs motion for summary judgment,
came out with its Summary Judgment, 8 the decretal
portion of which reads:
WHEREFORE, judgment is hereby rendered
ordering defendant to pay plaintiff:
1. the sum of US$4,553,446.06, or its
equivalent in Philippine currency at the time
of payment, with interest thereon at the rate
of 8.27% per annum from February 24, 1999
until fully paid;
2. P1,260,000.00 as and for attorneys fees;
and
3. the costs of suit.
SO ORDERED.
Explains the trial court in rendering its Summary
Judgment:
A thorough examination of the parties pleadings
and their respective stand in the foregoing motion,
the court finds that indeed with defendants
admission of the first cause of action there remains
no question of facts in issue. Further, the proffered
defenses are worthless, unsubstantial, sham and
contrived.
Considering that there is no more issue to be
resolved, the court hereby grants plaintiffs Motion
and renders Judgment in favor of the plaintiff
against the defendant based on their respective
pleadings in accordance with Section 4, Rule 35 of
the Rules of Court.
In time, petitioner went to the CA whereat its
appellate recourse was docketed as CA-G.R. CV
No. 68189. As stated at the threshold hereof, the

CA, in its decision9 of May 15, 2002, affirmed with

modification the Summary Judgment rendered by
the trial court, the modification being as regards the
award for attorneys fees which the CA reduced
to P1,000,000.00, to wit:
IN THE LIGHT OF ALL THE FOREGOING, the
appeal is PARTIALLY GRANTED. The "Decision"
appealed from is AFFIRMED with the
MODIFICATION THAT THE AWARD FOR
ATTORNEYS FEES is reduced to P1,000,000.00.
SO ORDERED.
With its motion for reconsideration having been
denied by the CA in its Resolution 10 of June 3,
2002, petitioner is now with us via the present
recourse, raising the following issues:
I WHETHER OR NOT THERE IS A GENUINE
ISSUE AS TO A MATERIAL FACT WHICH
RULES OUT THE PROPRIETY OF A
SUMMARY JUDGMENT.
II WHETHER OR NOT THE AWARD OF
ATTORNEYS FEES IS EXORBITANT OR
UNCONSCIONABLE.
We DENY.
As in the two courts below, it is petitioners posture
that summary judgment is improper in this case
because there are genuine issues of fact which have
to be threshed out during trial, to wit: (a) whether or
not petitioner was able to collect only a portion of
the contract proceeds/receivables it was bound to
deliver, remit and tender to respondent under the
several deeds of assignment it executed in favor of
the latter; and (b) whether or not petitioner
fraudulently misappropriated and used for its
benefit the said proceeds/receivables. Ergo, so
petitioner maintains, genuine triable issues of fact
are present in this case, which thereby precludes
rendition of summary judgment.
We are not persuaded.
Under Rule 35 of the 1997 Rules of Procedure, as
amended, except as to the amount of damages,
when there is no genuine issue as to any material
fact and the moving party is entitled to a judgment
as a matter of law, summary judgment may be
allowed.11 Summary or accelerated judgment is a
procedural technique aimed at weeding out sham
claims or defenses at an early stage of litigation
thereby avoiding the expense and loss of time
involved in a trial.12
Under the Rules, summary judgment is appropriate
when there are no genuine issues of fact which call
for the presentation of evidence in a full-blown trial.
Even if on their face the pleadings appear to raise

issues, when the affidavits, depositions and

admissions show that such issues are not genuine,
then summary judgment as prescribed by the Rules
must ensue as a matter of law. The determinative
factor, therefore, in a motion for summary
judgment, is the presence or absence of a genuine
issue as to any material fact.

the construction contracts at the time the

civil action was filed;

A "genuine issue" is an issue of fact which requires

the presentation of evidence as distinguished from a
sham, fictitious, contrived or false claim. When the
facts as pleaded appear uncontested or undisputed,
then there is no real or genuine issue or question as
to the facts, and summary judgment is called for.
The party who moves for summary judgment has
the burden of demonstrating clearly the absence of
any genuine issue of fact, or that the issue posed in
the complaint is patently unsubstantial so as not to
constitute a genuine issue for trial. Trial courts have
limited authority to render summary judgments and
may do so only when there is clearly no genuine
issue as to any material fact. When the facts as
pleaded by the parties are disputed or contested,
proceedings for summary judgment cannot take the
place of trial.13

(iii) Whether or not [petitioner] had become

virtually insolvent as a result of the regionwide economic crisis that hit Asia, causing
the Philippine peso to depreciate
dramatically; and

The CA, in its challenged decision, stated and we

are in full accord with it:
In the present recourse, the [petitioner] relied not
only on the judicial admissions in its pleadings,
more specifically its "Answer" to the complaint, the
testimony of Maricel Salaveria as well as Exhibits
"A" to "T-3", adduced in evidence by the
[respondent], during the hearing on its plea for the
issuance, by the Court a quo, of a writ of
preliminary
attachment.
Significantly,
the
[petitioner] did not bother filing a motion for the
quashal of the "Writ" issued by the Court a quo.
It must be borne in mind, too, that the [petitioner]
admitted, in its "Answer" the due execution and
authenticity of the documents appended to the
complaint . The [petitioner] did not deny its
liability for the principal amount claimed by the
[respondent] in its complaint. The [petitioner]
merely alleged, by way of defenses, that it failed to
pay its account because of the region-wide
economic crisis that engulfed Asia, in July, 1997,
and the "Deeds of Assignment" executed by it in
favor of the [respondent] were contracts of
adhesion:
xxx xxx xxx
The [petitioner] elaborated on and catalogued its
defenses in its "Appellants Brief" what it believed,
as "genuine issues".
"(i) Whether or not [petitioner] received all
or part of the proceeds/receivables due from

(ii) Granting that [petitioner] received the

proceeds/receivables from the construction
contracts, whether or not [petitioner]
fraudulently misappropriated the same;

(iv) Whether or not [respondent] and

[petitioner] dealt with each other on equal
footing with respect to the execution of the
deeds of assignment of receivables as to
give [petitioner] an honest opportunity to
reject the onerous terms imposed on it."
However, the [petitioner] failed to append, to its
"Opposition" to the "Motion for Summary
Judgment", "Affidavits" showing the factual
basis for its defenses of "extraordinary deflation,"
including facts, figures and data showing its
financial condition before and after the economic
crisis and that the crisis was the proximate cause of
its financial distress. It bears stressing that the
[petitioner] was burdened to demonstrate, by its
"Affidavits" and documentary evidence, that,
indeed, the Philippines was engulfed in an
extraordinary deflation of the Philippine Peso and
that the same was the proximate cause of the
financial distress, it claimed, it suffered.
xxx xxx xxx
Where, on the basis of the records, inclusive of the
pleadings of the parties, and the testimonial and
documentary evidence adduced by the [respondent],
supportive of its plea for a writ of preliminary
attachment, the [respondent] had causes of action
against the [petitioner], it behooved the [petitioner]
to controvert the same with affidavits/documentary
evidence showing a prima facie genuine defense. As
the Appellate Court of Illinois so aptly declared:
The defendant must show that he has a bona fide
defense to the action, one which he may be able to
establish. It must be a plausible ground of defense,
something fairly arguable and of a substantial
character. This he must show by affidavits or other
proof.
The trial court, of course, must determine from the
affidavits filed whether the defendant has interposed
a sufficiently good defense to entitle it to defend,
but where defendants affidavits present no
substantial triable issues of fact, the court will grant
the motion for summary judgment.

xxx xxx xxx

The failure of the [petitioner] to append to its
"Opposition" any "Affidavits" showing that its
defenses were not contrived or cosmetic to delay
judgment created a presumption that the
defenses of the [petitioner] were not offered in good
faith and that the same could not be sustained
(Unites States versus Fiedler, et al., Federal
Reported, 2nd, 578).
If, indeed, the [petitioner] believed it that was
prevented from complying with its obligations to
the [respondent], under its contracts, it should have
interposed a counterclaims for rescission of
contracts, conformably with the pronouncement of
our Supreme Court, thus:
xxx xxx xxx
The [petitioner] did not. This only exposed the
barrenness of the pose of the [petitioner].
The [petitioner] may have experienced financial
difficulties because of the "1997 economic crisis"
that ensued in Asia. However, the same does not
constitute a valid justification for the [petitioner] to
renege on its obligations to the [respondent]. The
[petitioner] cannot even find solace in Articles 1266
and 1267 of the New Civil Code for, as declared by
our Supreme Court:
It is a fundamental rule that contracts, once
perfected, bind both contracting parties, and
obligations arising therefrom have the force of law
between the parties and should be complied with in
good faith. But the law recognizes exceptions to the
principle of the obligatory force of contracts. One
exception is laid down in Article 1266 of the Civil
Code, which reads: The debtor in obligations to do
shall also be released when the prestation becomes
legally or physically impossible without the fault of
the obligor.
Petitioner cannot, however, successfully take refuge
in the said article, since it is applicable only to
obligations "to do," and not obligations "to give."
An obligation "to do" includes all kinds of work or
service; while an obligation "to give" is a prestation
which consists in the delivery of a movable or an
immovable thing in order to create a real right, or
for the use of the recipient, or for its simple
possession, or in order to return it to its owner.
xxx xxx xxx
In this case, petitioner wants this Court to believe
that the abrupt change in the political climate of the
country after the EDSA Revolution and its poor
financial condition "rendered the performance of
the lease contract impractical and inimical to the
corporate survival of the petitioner." (Philippine

National Construction Corporation versus Court of

Appeals, et al., 272 SCRA 183, at pages 191-192,
supra)
The [petitioner] even failed to append
any "Affidavit" to its "Opposition" showing how
much it had received from its construction contracts
and how and to whom the said collections had been
appended. The [petitioner] had personal and sole
knowledge of the aforesaid particulars while the
[respondent] did not.
In fine, we rule and so hold that the CA did not
commit any reversible error in affirming the
summary judgment rendered by the trial court as, at
bottom, there existed no genuine issue as to any
material fact. We also sustain the CAs reduction in
the award of attorneys fees to only P1,000,000.00,
given the fact that there was no full-blown trial.
WHEREFORE, the assailed CA decision is
AFFIRMED in toto and this petition is DENIED for
lack of merit.
Costs against petitioner.
SO ORDERED.
CANCIO C. GARCIA
Republic of the Philippines
Supreme Court
Manila
FIRST DIVISION
ANICETO
CALUBAQUIB,
WILMA
CALUBAQUIB,
EDWIN
CALUBAQUIB,
ALBERTO
CALUBAQUIB,
and
ELEUTERIO
FAUSTINO
CALUBAQUIB,
Petitioners,
- versus -

G.R. No. 170658

Present:
CORONA, C.J.,
Chairperson,
LEONARDO-DE
CASTRO,

DEL CASTILLO,
PEREZ, and
MENDOZA, JJ.

REPUBLIC OF THE
Promulgated:
PHILIPPINES,
Respondent.
June 22, 2011
x-------------------------------------------------------x
DECISION
DEL CASTILLO, J.:

Due process rights are violated by a motu

proprio rendition of a summary judgment.
Before the Court is a Petition for Review
on Certiorari[1] under Rule 45 of the Rules of Court
assailing the September 21, 2005 Decision,[2] as well as
the November 30, 2005 Resolution,[3] of the Court of
Appeals (CA) in CA-G.R. CV No. 83073. The two
issuances of the appellate court ruled against petitioners
and ordered them to reconvey the subject properties to
respondent Republic of the Philippines (Republic). The
CA upheld the April 26, 2004 Decision[4] of Branch 1 of
the Regional Trial Court (RTC) of Tuguegarao City, the
dispositive portion of which decreed as follows:
WHEREFORE, in the light
of the foregoing, the Court declares that
the Republic of the Philippines is the
owner of that certain property
denominated as Lot No. 2470 of the
Cadastral Survey of Tuguegarao with an
area of three hundred ninety two
thousand nine hundred ninety six
(392,996) square meters which is
registered in its name as evidenced by
Original Certificate No. 13562, and as
such, is entitled to the possession of the
same, and that the defendants illegally
occupied a five (5) hectare portion
thereof since 1992.
Defendants are then ordered
to vacate the portion so occupied by
them, and pay to the national
government the amount of Five
Thousand Pesos (P5,000.00) per year of
occupancy, from 1992 up to the time the
property is vacated by them.
Defendants counterclaim is
dismissed.
No pronouncement as to
cost.
IT IS SO ORDERED.[5]
Factual Antecedents

On August 17, 1936, President Manuel L.

Quezon issued Proclamation No. 80,[6] which declared a
39.3996-hectare landholding located at Barangay
Caggay, Tuguegarao, Cagayan, a military reservation
site. The proclamation expressly stated that it was being
issued subject to private rights, if any there

be. Accordingly, the respondent obtained an Original

Certificate of Title No. 13562[7] over the property, which
is more particularly described as follows:
A parcel of land (Lot No. 2470
of the Cadastral Survey of Tuguegarao),
situated in the barrio of Caggay,
Municipality of Tuguegarao. Bounded
on the E. by Lot No. 2594: on the SE,
by the Provincial Road: on the SW by
Lot Nos. 2539, 2538, and 2535: and on
NW, by Lot Nos. 2534, 2533, 2532,
2478 and 2594.

On January 16, 1995, respondent[8] filed before

the RTC of Tuguegarao, Cagayan a complaint for
recovery of possession[9] against petitioners alleging that
sometime in 1992, petitioners unlawfully entered the
military reservation through strategy and stealth and
took possession of a five-hectare portion (subject
property) thereof. Petitioners allegedly refused to vacate
the subject property despite repeated demands to do so.
[10]
Thus, respondent prayed that the petitioners be
ordered to vacate the subject property and to pay rentals
computed from the time that they unlawfully withheld
the same from the respondent until the latter is restored
to possession.[11]
Petitioners filed an answer denying the
allegation that they entered the subject property through
stealth and strategy sometime in 1992.[12] They
maintained that they and their predecessor-in-interest,
Antonio Calubaquib (Antonio), have been in open and
continuous possession of the subject property since the
early 1900s.[13] Their occupation of the subject property
led the latter to be known in the area as the Calubaquib
Ranch. When Antonio died in 1918, his six children
acknowledged inheriting the subject property from him
in a private document entitled Convenio. In 1926,
Antonios children applied for a homestead patent but
the same was not acted upon by the Bureau of Lands.
[14]
Nevertheless, these children continued cultivating
the subject property.
Petitioners acknowledged the issuance of
Proclamation No. 80 on August 17, 1936, but
maintained that the subject property (the 5-hectare
portion allegedly occupied by them since 1900s) was
excluded from its operation. Petitioners cite as their

basis a proviso in Proclamation No. 80, which exempts

from the military reservation site private rights, if any
there be.[15] Petitioners prayed for the dismissal of the
complaint against them.
The pre-trial conference conducted on August
21, 1995 yielded the following admissions of fact:
1. Lot No. 2470 of the Tuguegarao
Cadastre is a parcel of land situated in
Alimanao, Tuguegarao, Cagayan with
an area of 392,996 square meters. On
August 17, 1936, the President of the
Philippines issued Proclamation No. 80
reserving the lot for military
purposes. On the strength of this
Proclamation, OCT No. 13562 covering
said lot was issued in the name of the
Republic of the Philippines.
2. The defendants are in actual
possession of a 5-hectare portion of said
property.
3. The Administrator of the Camp
Marcelo Adduru Military Reservation
demanded the defendants to vacate but
they refused.
4. The defendants sought presidential
assistance regarding their status on the
land covered by the title in the name of
the Republic of the Philippines. The
Office of the President has referred the
matter to the proper administrative
agencies and up to now there has been
no definite action on said request for
assistance.[16]

The Court noticed that the

defendants in this case failed to raise
any issue. For this reason, a summary
judgment is in order.
Let this case be submitted for
summary judgment.
SO ORDERED.[19]
Ruling of the Regional Trial Court[20]
Subsequently, without any trial, the trial court
rendered its April 26, 2004 Decision[21] dismissing
petitioners claim of possession of the subject property in
the concept of owner. The trial court held that while
Proclamation No. 80 recognized and respected the
existence of private rights on the military reservation,
petitioners position could not be sustained, as there
was no right of [petitioners] to speak of that was
recognized by the government.[22]
Ruling of the Court of Appeals[23]
Petitioners appealed[24] to the CA, which
affirmed the RTC Decision, in this wise:
WHEREFORE,
premises
considered, the present appeal is hereby
DISMISSED for lack of merit. The
appealed decision dated April 26, 2004
of the Regional Trial Court of
Tuguegarao City, Cagayan Branch 1 in
Civil Case No. 4846 is hereby
AFFIRMED and UPHELD.
SO ORDERED.[25]

Given the trial courts opinion that the basic facts of the
case were undisputed, it advised the parties to file a
motion for summary judgment.[17] Neither party filed
the motion. In fact, respondent expressed on two
occasions[18] its objection to a summary judgment. It
explained that summary judgment is improper given the
existence of a genuine and vital factual issue, which is
the petitioners claim of ownership over the subject
property. It argued that the said issue can only be
resolved by trying the case on the merits.
On January 31, 2001, the RTC issued an Order
thus:

The CA explained that, in order to segregate the

subject property from the mass of public land, it was
imperative for petitioners to prove their and their
predecessors-in-interests occupation and cultivation of
the subject property for more than 30 years prior to the
issuance of the proclamation.[26] There must be clear,
positive and absolute evidence that they had complied
with all the requirements of the law for confirmation of
an imperfect title before the property became a military
reservation site.[27] Based on these standards, petitioners
failed to establish any vested right pertaining to them
with respect to the subject property.[28] The CA further
held that petitioners did not say what evidence they had
of an imperfect title under the Public Land Act.[29]

The CA denied reconsideration of its Decision,

hence petitioners appeal to this Court.
Petitioners Arguments
Petitioners maintain that the subject property
was alienable land when they, through their ancestors,
began occupying the same in the early 1900s. By
operation of law, they became owners of the subject
parcel of land by extraordinary acquisitive
prescription. Thus, when Proclamation No. 80 declared
that existing private rights, if there be any are exempt
from the military reservation site, the subject property
remained private property of the petitioners.
Petitioners then ask that the case be remanded to
the trial court for the reception of evidence. They
maintain that the case presents several factual issues,
such as the determination of the nature of the property
(whether alienable or inalienable) prior to 1936 and of
the veracity of petitioners claim of prior and adverse
occupation of the subject property.[30]
Respondents Arguments
Respondent, through the Office of the Solicitor
General, argues that petitioners were not able to prove
that they had a vested right to the subject
property prior to the issuance of Proclamation No.
80. As petitioners themselves admit, their application
for homestead patent filed in 1926 was not acted upon,
hence they did not acquire any vested right to the subject
property. Likewise, petitioners did not prove their
occupation and cultivation of the subject property for
more than 30 years prior to August 17, 1936, the date
when Proclamation No. 80 took effect.[31]
Issue[32]
The crux of the case is the propriety of rendering
a summary judgment.
Our Ruling
The petition has merit.

Summary judgments are proper when, upon

motion of the plaintiff or the defendant, the court finds
that the answer filed by the defendant does not tender
a genuine issue as to any material fact and that one
party is entitled to a judgment as a matter of law.[33] A
deeper understanding of summary judgments is found
in Viajar v. Estenzo:[34]
Relief by summary judgment
is intended to expedite or promptly
dispose of cases where the facts appear
undisputed and certain from the
pleadings, depositions, admissions and
affidavits. But if there be a doubt as to
such facts and there be an issue or issues
of fact joined by the parties, neither one
of them can pray for a summary
judgment. Where the facts pleaded by
the parties are disputed or contested,
proceedings for a summary judgment
cannot take the place of a trial.
An examination of the Rules
will readily show that a summary
judgment is by no means a hasty one. It
assumes a scrutiny of facts in a
summary hearing after the filing of a
motion for summary judgment by one
party
supported
by
affidavits,
depositions, admissions, or other
documents, with notice upon the
adverse party who may file an
opposition to the motion supported also
by affidavits, depositions, or other
documents x x x. In spite of its
expediting character, relief by summary
judgment can only be allowed after
compliance with the minimum
requirement of vigilance by the court in
a summary hearing considering that this
remedy is in derogation of a party's right
to a plenary trial of his case. At any rate,
a party who moves for summary
judgment has the burden of
demonstrating clearly the absence of
any genuine issue of fact, or that the
issue posed in the complaint is so
patently unsubstantial as not to
constitute a genuine issue for trial, and
any doubt as to the existence of such an
issue is resolved against the movant.[35]

A summary judgment is permitted only if there

is no genuine issue as to any material fact and [the]
moving party is entitled to a judgment as a matter of
law.[36] The test of the propriety of rendering summary
judgments is the existence of a genuine issue of fact,

[37]

as distinguished from a sham, fictitious, contrived or

false claim.[38] [A] factual issue raised by a party is
considered as sham when by its nature it is evident
that it cannot be proven or it is such that the party
tendering the same has neither any sincere intention
nor adequate evidence to prove it. This usually
happens in denials made by defendants merely for the
sake of having an issue and thereby gaining delay, taking
advantage of the fact that their answers are not under
oath anyway.[39]
In determining the genuineness of the issues,
and hence the propriety of rendering a summary
judgment, the court is obliged to carefully study and
appraise, not the tenor or contents of the pleadings, but
the facts alleged under oath by the parties and/or their
witnesses in the affidavits that they submitted with the
motion and the corresponding opposition. Thus, it is
held that, even if the pleadings on their face appear to
raise issues, a summary judgment is proper so long as
the affidavits, depositions, and admissions presented
by the moving party show that such issues are not
genuine.[40]
The filing of a motion and the conduct of a
hearing on the motion are therefore important because
these enable the court to determine if the parties
pleadings, affidavits and exhibits in support of, or
against, the motion are sufficient to overcome the
opposing papers and adequately justify the finding that,
as a matter of law, the claim is clearly meritorious or
there is no defense to the action.[41] The non-observance
of the procedural requirements of filing a motion and
conducting a hearing on the said motion warrants the
setting aside of the summary judgment.[42]
In the case at bar, the trial court proceeded to
render summary judgment with neither of the parties
filing a motion therefor. In fact, the respondent itself
filed an opposition when the trial court directed it to file
the motion for summary judgment. Respondent insisted
that the case involved a genuine issue of fact. Under
these circumstances, it was improper for the trial court to
have
persisted
in
rendering
summary
judgment. Considering that the remedy of summary
judgment is in derogation of a party's right to a plenary
trial of his case, the trial court cannot railroad the parties
rights over their objections.

More importantly, by proceeding to rule against

petitioners without any trial, the trial and appellate courts
made a conclusion which was based merely on an
assumption that petitioners defense of acquisitive
prescription was a sham, and that the ultimate facts
pleaded in their Answer (e.g., open and continuous
possession of the property since the early 1900s) cannot
be proven at all. This assumption is as baseless as it is
premature and unfair. No reason was given why the
said defense and ultimate facts cannot be proven during
trial. The lower courts merely assumed that petitioners
would not be able to prove their defense and factual
allegations, without first giving them an opportunity to
do so.
It is clear that the guidelines and safeguards for
the rendition of a summary judgment were all ignored
by the trial court. The sad result was a judgment based
on nothing else but an unwarranted assumption and a
violation of petitioners due process right to a trial where
they can present their evidence and prove their defense.
WHEREFORE, premises considered, the
petition is GRANTED. The April 26, 2004 summary
judgment rendered by the Regional Trial Court of
Tuguegarao City, Branch 1, and affirmed by the Court of
Appeals,
is SET ASIDE. The
case
is REMANDED to the Regional Trial Court of
Tuguegarao City, Branch 1, for trial. The Presiding
Judge is directed to proceed with dispatch.
SO ORDERED.
BENJAMIN G. TING vs. CARMEN M. VELEZTING
G.R. No. 166562, March 31, 2009
FACTS:
Benjamin Ting (Benjamin) and respondent
Carmen Velez-Ting (Carmen) first met in 1972
while they were classmates in medical school. They
fell in love, and they were wed on July 26, 1975 in
Cebu City when respondent was already pregnant
with their first child.

On October 21, 1993, after being married

between petitioner and respondent null and void.

for more than 18 years to petitioner and while their

The RTC gave credence to Dr. Oates findings and

youngest child was only two years old, Carmen

the admissions made by Benjamin in the course of

filed a verified petition before the RTC of Cebu

his deposition, and found him to be psychologically

City praying for the declaration of nullity of their

incapacitated

marriage based on Article 36 of the Family Code.

obligations of marriage.

She

claimed

that

Benjamin

suffered

to

comply

with

the

essential

from
petitioner appealed to the CA. On October

psychological incapacity even at the time of the

celebration of their marriage, which, however, only

19, 2000, the CA rendered a Decision reversing the

trial courts ruling. It faulted the trial courts

became manifest thereafter.

finding, stating that no proof was adduced to

In her complaint, Carmen stated that prior to

support

the

conclusion

that

Benjamin

was

their marriage, she was already aware that Benjamin

psychologically incapacitated at the time he married

used to drink and gamble occasionally with his

Carmen since Dr. Oates conclusion was based

friends. But after they were married, petitioner

only on theories and not on established fact,

continued to drink regularly and would go home at

contrary to the guidelines set forth in Santos v.

about midnight or sometimes in the wee hours of

Court of Appeals and in Rep. of the Phils. v. Court

the morning drunk and violent. He would confront

of Appeals and Molina.

and insult respondent, physically assault her and

force her to have sex with him. There were also
instances when Benjamin used his gun and shot the
gate of their house. Because of his drinking habit,
Benjamins job as anesthesiologist was affected to

Carmen filed a MR, it was denied then she filed a

petition for certiorari with the SC, SC directed CA
to decide on Carmens case. On review, CA
reversed its earlier ruling.

the point that he often had to refuse to answer the

call of his fellow doctors and to pass the task to
other

anesthesiologists.

Some

surgeons

even

ISSUE:

stopped calling him for his services because they

perceived petitioner to be unreliable. Respondent
tried to talk to her husband about the latters
drinking

problem,

but

Benjamin

refused

to

acknowledge the same.

In his answer, Benjamin denied being
psychologically incapacitated. He maintained that
he is a respectable person, as his peers would
confirm. He said that he is an active member of
social and athletic clubs and would drink and
gamble only for social reasons and for leisure. He
also denied being a violent person, except when
provoked by circumstances.
On January 9, 1998, the lower court
rendered its Decision declaring the marriage

Whether the CA violated the rule on stare decisis

when it refused to follow the guidelines set forth
under the Santos and Molina cases.
HELD:
The principle of stare decisis enjoins
adherence by lower courts to doctrinal rules
established by this Court in its final decisions. It is
based on the principle that once a question of law
has been examined and decided, it should be
deemed settled and closed to further argument.
Basically, it is a bar to any attempt to relitigate the
same issues, necessary for two simple reasons:
economy and stability. In our jurisdiction, the

principle is entrenched in Article 8 of the Civil

Code.

This doctrine of adherence to precedents or

stare decisis was applied by the English courts and
was later adopted by the United States. Associate
Justice (now Chief Justice) Reynato S. Punos
discussion on the historical development of this
legal principle in his dissenting opinion in Lambino
v. Commission on Elections is enlightening:

The latin phrase stare decisis

et non quieta movere means stand
by the thing and do not disturb the
calm. The doctrine started with the
English Courts. Blackstone observed
that at the beginning of the 18th
century, it is an established rule to
abide by former precedents where
the same points come again in
litigation. As the rule evolved, early
limits to its application were
recognized: (1) it would not be
followed if it were plainly
unreasonable; (2) where courts of
equal authority developed conflicting
decisions; and, (3) the binding force
of the decision was the actual
principle or principles necessary for
the decision; not the words or
reasoning used to reach the
decision.
The doctrine migrated to the
United States. It was recognized by
the framers of the U.S. Constitution.
According to Hamilton, strict rules
and precedents are necessary to
prevent arbitrary discretion in the
courts. Madison agreed but stressed
that x x x once the precedent
ventures into the realm of altering or
repealing the law, it should be
rejected. Prof. Consovoy well noted
that Hamilton and Madison disagree
about the countervailing policy
considerations that would allow a
judge to abandon a precedent. He
added that their ideas reveal a deep
internal conflict between the
concreteness required by the rule of
law and the flexibility demanded in
error correction. It is this internal

conflict that the Supreme Court has

attempted to deal with for over two
centuries.
Indeed, two centuries of
American case law will confirm
Prof.
Consovoy's
observation
although stare decisis developed its
own life in the United States. Two
strains of stare decisis have been
isolated by legal scholars. The first,
known as vertical stare decisis deals
with the duty of lower courts to
apply the decisions of the higher
courts to cases involving the same
facts. The second, known as
horizontal stare decisis requires that
high courts must follow its own
precedents. Prof. Consovoy correctly
observes that vertical stare decisis
has been viewed as an obligation,
while horizontal stare decisis, has
been viewed as a policy, imposing
choice but not a command. Indeed,
stare decisis is not one of the
precepts set in stone in our
Constitution.
It is also instructive to
distinguish the two kinds of
horizontal
stare
decisis

constitutional stare decisis and

statutory
stare
decisis.
Constitutional stare decisis involves
judicial interpretations of the
Constitution while statutory stare
decisis involves interpretations of
statutes. The distinction is important
for courts enjoy more flexibility in
refusing to apply stare decisis in
constitutional litigations. Justice
Brandeis' view on the binding effect
of the doctrine in constitutional
litigations still holds sway today. In
soothing prose, Brandeis stated:
Stare decisis is not . . . a universal
and inexorable command. The rule
of stare decisis is not inflexible.
Whether it shall be followed or
departed from, is a question entirely
within the discretion of the court,
which is again called upon to
consider a question once decided. In
the same vein, the venerable Justice
Frankfurter opined: the ultimate
touchstone of constitutionality is the
Constitution itself and not what we
have said about it. In contrast, the
application of stare decisis on
judicial interpretation of statutes is
more inflexible. As Justice Stevens
explains: after a statute has been

construed, either by this Court or by

a consistent course of decision by
other federal judges and agencies, it
acquires a meaning that should be as
clear as if the judicial gloss had been
drafted by the Congress itself. This
stance reflects both respect for
Congress' role and the need to
preserve
the
courts'
limited
resources.
In general, courts follow the
stare decisis rule for an ensemble of
reasons, viz.: (1) it legitimizes
judicial institutions; (2) it promotes
judicial economy; and, (3) it allows
for predictability. Contrariwise,
courts refuse to be bound by the
stare decisis rule where (1) its
application perpetuates illegitimate
and unconstitutional holdings; (2) it
cannot accommodate changing social
and political understandings; (3) it
leaves the power to overturn bad
constitutional law solely in the hands
of Congress; and, (4) activist judges
can dictate the policy for future
courts while judges that respect stare
decisis are stuck agreeing with them.
In its 200-year history, the
U.S. Supreme Court has refused to
follow the stare decisis rule and
reversed its decisions in 192 cases.
The most famous of these reversals
is Brown v. Board of Education
which junked Plessy v. Ferguson's
separate but equal doctrine. Plessy
upheld as constitutional a state law
requirement that races be segregated
on public transportation. In Brown,
the
U.S.
Supreme
Court,
unanimously held that separate . . .
is inherently unequal. Thus, by
freeing itself from the shackles of
stare decisis, the U.S. Supreme
Court freed the colored Americans
from the chains of inequality. In the
Philippine setting, this Court has
likewise refused to be straitjacketed
by the stare decisis rule in order to
promote public welfare. In La
Bugal-B'laan Tribal Association,
Inc. v. Ramos, we reversed our
original ruling that certain provisions
of
the
Mining
Law
are
unconstitutional.
Similarly,
in
Secretary of Justice v. Lantion, we
overturned our first ruling and held,
on motion for reconsideration, that a
private respondent is bereft of the
right to notice and hearing during the

evaluation stage of the extradition

process.
An examination of decisions
on stare decisis in major countries
will show that courts are agreed on
the factors that should be considered
before overturning prior rulings.
These are workability, reliance,
intervening developments in the law
and changes in fact. In addition,
courts put in the balance the
following determinants: closeness of
the voting, age of the prior decision
and its merits.
The leading case in deciding
whether a court should follow the
stare decisis rule in constitutional
litigations is Planned Parenthood v.
Casey. It established a 4-pronged
test. The court should (1) determine
whether the rule has proved to be
intolerable simply in defying
practical workability; (2) consider
whether the rule is subject to a kind
of reliance that would lend a special
hardship to the consequences of
overruling and add inequity to the
cost of repudiation; (3) determine
whether related principles of law
have so far developed as to have the
old rule no more than a remnant of
an abandoned doctrine; and, (4) find
out whether facts have so changed or
come to be seen differently, as to
have robbed the old rule of
significant
application
or
justification.

To be forthright, respondents argument that

the doctrinal guidelines prescribed in Santos and
Molina should not be applied retroactively for being
contrary to the principle of stare decisis is no longer
new. The same argument was also raised but was
struck down in Pesca v. Pesca, and again in Antonio
v. Reyes. In these cases, we explained that the
interpretation or construction of a law by courts
constitutes a part of the law as of the date the statute
is enacted. It is only when a prior ruling of this
Court is overruled, and a different view is adopted,
that the new doctrine may have to be applied
prospectively in favor of parties who have relied on
the old doctrine and have acted in good faith, in

accordance therewith under the familiar rule of lex

prospicit, non respicit.

respondent failed to prove that petitioners

defects were present at the time of the celebration
of their marriage. She merely cited that prior to their

II. On liberalizing the required proof for the

declaration of nullity of marriage under Article
36.

marriage, she already knew that petitioner would

occasionally drink and gamble with his friends; but
such statement, by itself, is insufficient to prove any

Now, petitioner wants to know if we have

pre-existing psychological defect on the part of her

husband. Neither did the evidence adduced prove

abandoned the Molina doctrine.

such defects to be incurable.

*** The intendment of the law has been to
We have not. By the very nature of cases

confine the application of Article 36 to the most

involving the application of Article 36, it is logical

serious cases of personality disorders clearly

and understandable to give weight to the expert

demonstrative of an utter insensitivity or inability to

opinions furnished by psychologists regarding the

give meaning and significance to the marriage. The

psychological temperament of parties in order to

psychological illness that must have afflicted a

determine the root cause, juridical antecedence,

party at the inception of the marriage should be a

gravity and incurability of the psychological

malady so grave and permanent as to deprive one of

incapacity. However, such opinions, while highly

awareness of the duties and responsibilities of the

advisable, are not conditions sine qua non in

matrimonial bond he or she is about to assume

granting petitions for declaration of nullity of

marriage. At best, courts must treat such opinions as
decisive

but

not

indispensable

evidence

in

determining the merits of a given case. In fact, if the

totality of evidence presented is enough to sustain a
finding of psychological incapacity, then actual
medical or psychological examination of the person

The evaluation of the two psychiatrists

should have been the decisive evidence in
determining whether to declare the marriage
between the parties null and void. Sadly, however,
we are not convinced that the opinions provided by
these experts strengthened respondents allegation
of psychological incapacity. The two experts

concerned need not be resorted to.

provided diametrically contradicting psychological

It was for this reason that we found it

evaluations: Dr. Oate testified that petitioners

necessary to emphasize in Ngo Te that each case

behavior is a positive indication of a personality

involving the application of Article 36 must be

disorder, while Dr. Obra maintained that there is

treated distinctly and judged not on the basis of a

nothing

priori assumptions, predilections or generalizations

Moreover, there appears to be greater weight in Dr.

but according to its own attendant facts. Courts

Obras opinion because, aside from analyzing the

should interpret the provision on a case-to-case

transcript of Benjamins deposition similar to what

basis, guided by experience, the findings of experts

Dr. Oate did, Dr. Obra also took into consideration

and researchers in psychological disciplines, and by

the psychological evaluation report furnished by

decisions of church tribunals.

another psychiatrist in South Africa who personally

wrong

with

petitioners

personality.

examined Benjamin, as well as his (Dr. Obras)

III.
incapacity.

On

petitioners

psychological

personal interview with Benjamins brothers.

Republic
SUPREME
Manila

of

the

Philippines
COURT

FIRST DIVISION
G.R. No. 144882

February 04, 2005

LUISA
BRIONES-VASQUEZ, petitioner,
vs.
COURT OF APPEALS and HEIRS OF MARIA
MENDOZA VDA. DE OCAMPO, respondents.
DECISION

promulgated a Decision7 and disposed of the case in

the following manner:
THE FOREGOING CONSIDERED, the contested
decision is hereby set aside; and declaring the 1970
sale with right of repurchase, Exhibit "A," as one of
an equitable mortgage.
SO ORDERED.8
Respondents filed a motion for reconsideration
which the Court of Appeals denied through a
Resolution,9 dated December 15, 1995. The Court
of Appeals Decision became final and executory
and entry of judgment was made on July 17, 1996.10

AZCUNA, J.:
This is a petition for certiorari under Rule 65 of the
Rules of Civil Procedure, assailing the Resolution
of the Court of Appeals in CA-G.R. CV No. 39025,
dated June 9, 2000, which denied petitioners
motion for clarificatory judgment and the
Resolution of the Court of Appeals, dated August 3,
2000, which denied the motion for reconsideration.
Under an agreement denominated as a pacto de
retro sale, Maria Mendoza Vda. De Ocampo
acquired a parcel of land from Luisa Briones. The
latter thereunder reserved the right to repurchase the
parcel of land up to December 31, 1970.1
Maria Mendoza Vda. De Ocampo passed away on
May 27, 1979.2 On June 14, 1990, Hipolita Ocampo
Paulite and Eusebio Mendoza Ocampo, the heirs of
Maria Mendoza Vda. De Ocampo, filed a petition
for consolidation of ownership, alleging that the
seller was not able to exercise her privilege to
redeem the property on or before December 31,
1970.3
The Regional Trial Court (RTC) of Pili, Camarines
Sur, Branch 32 rendered a Decision4 on January 30,
1992 as follows:
WHEREFORE, premises considered, judgment is
hereby rendered as follows:

Subsequently, at the RTC, both petitioner and

respondents filed their respective motions for a writ
of execution. The RTC issued a writ of execution.
However, the writ was returned unserved per
sheriffs return which reads as follows:
Respectfully returned to this Court thru the Clerk of
Court VI, RTC, Pili, Camarines Sur the herein
attached original copy of the Writ of Execution
issued in the above-entitled case with the following
information, to wit:
That the plaintiffs [herein private respondents] were
informed that the writ of execution was already
issued for implementation and that they should pay
the necessary sheriffs and kilometrage fees;
That [one of] the plaintiff[s] came to the Office of
the Clerk of Court VI but did not deposit any
amount for the kilometrage fee and for the expenses
in the implementation of the said writ, but instead
plaintiff said that he is not interested to implement
such writ;
That the 60-day period within which the said writ
should be implemented has already expired.
WHEREFORE, the original copy of the Writ of
Execution is hereby returned unserved.
Cadlan, Pili, Camarines Sur July 8, 1997

1. declaring that exh. "A " is a true pacto de retro

sale;
2. declaring that the defendant can still redeem the
property within 30 days from the finality of this
judgment, subject to the provisions of Art. 1616 of
the New Civil Code;

For the Clerk of Court VI and

Ex-Officio Provincial Sheriff
by:
(signed)

3. No costs.
EDDIE M. ROSERO
SO ORDERED.

Sheriff IV11
Plaintiffs therein -- herein private respondents -appealed the RTC Decision to the Court of
Appeals.6 On June 29, 1995, the Court of Appeals

Petitioner thereafter filed a motion for an alias writ

of execution. This was granted by the RTC:12

ALIAS WRIT OF EXECUTION

"WHEREFORE, the original copy of the Writ of

execution is hereby returned unserved."

T O : The Sheriff or any person authorized

WHEREAS, on July 18, 1997, the Hon. Nilo A.
Malanyaon issued an Order:

to serve process, RTC, Br. 32, Pili, C.s.

THRU : THE CLERK OF COURT VI and EXOFFICIO

"The motion for issuance of alias writ of execution

filed by counsel for the defendant, Atty. Lucille Fe
R. Maggay-Principe, is hereby granted.

PROVINCIAL SHERIFF
Consequently, the Clerk of Court of this Court is
directed to issue alias writ of execution."

Regional Trial Court

Pili, Camarines Sur
GREETINGS:
WHEREAS, on January 20, 1992, a decision was
rendered by this Court, the dispositive portion of
which reads as follows:
"WHEREFORE, premises considered, judgment is
hereby rendered as follows:
1. declaring that Exh. "A" is a true pacto de retro
sale;
2. declaring that the defendant can still redeem the
property within 30 days from the finality of this
judgment, subject to the provisions of Art. 1616 of
the New Civil Code.
3. No costs."
WHEREAS, in an order of this Court dated June 16,
1992, the notice of appeal filed by counsel for the
defendant has been granted and the Clerk of Court
V of this Court transmitted the entire records of the
case to the Court of Appeals, Manila;
WHEREAS, on June 29, 1995, a decision was
rendered by the Court of Appeals, Manila, the
dispositive portion of which reads as follows:
"THE FOREGOING CONSIDERED, the contested
decision is hereby set aside; and declaring the 1970
sale with right of repurchase, "Exh. "A" as one of an
equitable mortgage."
WHEREAS, on March 5, 1997, the Hon. Nilo A.
Malanyaon, Presiding Judge of this Court issued an
order granting the issuance of a writ of execution,
hereunder quoted as follows:
"It appearing that the decision of the Court
Appeals had become final and executory, and
entry of final judgment had already been issued
the Honorable Court of Appeals, let a writ
execution issue."

of
an
by
of

WHEREFORE, you the Provincial Sheriff of

Camarines Sur or his lawful deputy is hereby
commanded to effect the satisfaction of the abovequoted decision of the Honorable Court of Appeals,
Manila. Return this writ to this Court within sixty
(60) days from your receipt hereof.
WITNESS THE HON. NILO A. MALANYAON,
Judge of this Court, this 21st day of July, 1997, at
Cadlan, Pili, Camarines Sur.
(Sgd.) LALAINE P. MONSERATE
Officer-In-Charge
Legal Researcher II
The Sheriff was unable to effect the satisfaction of
the alias writ as stated in the sheriffs report, which
is worded thus:
This is to report on the status of the implementation
of the Alias Writ of Execution issued in the aboveentitled case, to wit:
That on August 6, 1997 the plaintiff[s] represented
by Sps. Policarpio Paulite and Hipolita Ocampo and
Eusebio M. Ocampo personally received copy of
the Alias Writ of Execution but they refused to sign
on the original copy of the said writ, together with
the letter of advise informing them to withdraw at
any time the amount deposited to the Office of the
Clerk of Court VI, RTC, Pili, Camarines Sur by
defendant Luisa Briones so that the mortgage may
now be deemed released or cancelled.
That until this time the said plaintiff[s] failed and or
did not bother to withdraw the said amount
deposited by defendant Luisa Briones despite letter
of advice and the alias writ of execution having
been personally received by them.
Cadlan, Pili, Camarines Sur September 9, 1997.
For the Clerk of Court and
Ex-Officio Sheriff

WHEREAS, on July 10, 1997, Sheriff Eddie M.

Rosero submitted his return:

by:

(signed)

Petitioner now comes to this Court raising the

following issues:

EDDIE M. ROSERO
Sheriff IV13
Unable to effect the execution of the Court of
Appeals decision, petitioner filed with the RTC an
omnibus motion, dated May 25, 1999, praying:
WHEREFORE, it is respectfully prayed that an
order issue:
a) Declaring the equitable mortgage, Exhibit "A",
discharged;
b) Directing the issuance of a Writ of Possession
against the plaintiffs for the delivery of possession
of the land in question to the defendant.14
The RTC denied the omnibus motion in an Order
dated November 16, 1999, which states:
Acting on the omnibus motion of plaintiff dated 25
May 1999 and the opposition thereto of defendant,
and considering that the decision of the Court of
Appeals referring the decision of this Court has
become final and executory, hence, this Court can
no longer alter, modify or add anything thereto, the
prayers set forth in the omnibus motion is, as it is,
hereby denied.
SO ORDERED.15
Petitioner filed a motion for reconsideration 16 of the
above Order, which was denied by the RTC in an
Order dated February 23, 2000.17
Petitioner then filed a motion for clarificatory
judgment, dated April 5, 2000, with the Court of
Appeals.18 The motion was denied in a Resolution,
dated June 9, 2000, which reads as follows:
The only issues that reached Us, through an appeal,
was whether the 1970 Sale with Right of
Repurchase was actually an equitable mortgage. We
ruled, it was, necessarily there is nothing to clarify.
If it is a matter however whether the prevailing
party should be entitled to a right to repossess the
property, then the remedy is not with Us, but with
the Court below.
For lack of merit, the Motion for Clarificatory
Judgment is hereby DENIED.
SO ORDERED.19
Petitioner filed a motion for reconsideration of the
above Resolution. The Court of Appeals denied the
same in a Resolution dated August 3, 2000.20

PETITIONER SUBMITS THAT THE PUBLIC

RESPONDENT ACTED ARBITRARILY, WITH
GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OF JURISDICTION IN ISSUING THE
FOLLOWING RESOLUTIONS:
A) RESOLUTION DATED JUNE 9, 2000,
DENYING PETITIONERS MOTION FOR
CLARIFICATORY JUDGMENT.
B) RESOLUTION DATED AUGUST 3, 2000,
DENYING PETITIONERS MOTION FOR
RECONSIDERATION.21
The sole issue is whether or not the Court of
Appeals acted with grave abuse of discretion
amounting to lack of jurisdiction in refusing to grant
petitioners motion for clarificatory judgment.
It must be noted, as narrated above, that the
Decision of the Court of Appeals had already
become final and executory at the time that the
motion for clarificatory judgment was filed. With
regards to final judgments, this Court has
pronounced that:
nothing is more settled in the law than that when
a final judgment becomes executory, it thereby
becomes immutable and unalterable. The judgment
may no longer be modified in any respect, even if
the modification is meant to correct what is
perceived to be an erroneous conclusion of fact or
law, and regardless of whether the modification is
attempted to be made by the Court rendering it or
by the highest Court of the land. The only
recognized exceptions are the correction of clerical
errors or the making of so-called nunc pro
tunc entries which cause no prejudice to any party,
and, of course, where the judgment is void.22
As a general rule, therefore, final and executory
judgments are immutable and unalterable except
under the three exceptions named above: a) clerical
errors; b) nunc pro tunc entries which cause no
prejudice to any party; and c) void judgments.
In the present case, petitioner claims the second
exception, i.e., that her motion for clarificatory
judgment is for the purpose of obtaining a nunc pro
tunc amendment of the final and executory Decision
of the Court of Appeals.
Nunc pro tunc judgments have been defined and
characterized by this Court in the following manner:
The office of a judgment nunc pro tunc is to record
some act of the court done at a former time which
was not then carried into the record, and the power
of a court to make such entries is restricted to

placing upon the record evidence of judicial action

which has been actually taken. It may be used to
make the record speak the truth, but not to make
it speak what it did not speak but ought to have
spoken. If the court has not rendered a judgment
that it might or should have rendered, or if it has
rendered an imperfect or improper judgment, it
has no power to remedy these errors or
omissions by ordering the entry nunc pro tunc of
a proper judgment. Hence a court in entering a
judgment nunc pro tunc has no power to
construe what the judgment means, but only to
enter of record such judgment as had been
formerly rendered, but which had not been
entered of record as rendered. In all cases the
exercise of the power to enter judgments nunc pro
tunc presupposes the actual rendition of a judgment,
and a mere right to a judgment will not furnish the
basis for such an entry. (15 R. C. L., pp. 622-623.)

The object of a judgment nunc pro tunc is not the

rendering of a new judgment and the
ascertainment and determination of new rights,
but is one placing in proper form on the record,
the judgment that had been previously rendered,
to make it speak the truth, so as to make it show
what the judicial action really was, not to correct
judicial errors, such as to render a judgment
which the court ought to have rendered, in place
of the one it did erroneously render, nor to
supply nonaction by the court, however
erroneous the judgment may have been.
(Wilmerding vs. Corbin Banking Co., 28 South.,
640, 641; 126 Ala., 268.)
A nunc pro tunc entry in practice is an entry made
now of something which was actually previously
done, to have effect as of the former date. Its office
is not to supply omitted action by the court, but
to supply an omission in the record of action
really had, but omitted through inadvertence or
mistake. (Perkins vs. Haywood, 31 N. E., 670,
672.)

It is competent for the court to make an entry nunc

pro tunc after the term at which the transaction
occurred, even though the rights of third persons
may be affected. But entries nunc pro tunc will not
be ordered except where this can be done without
injustice to either party, and as a nunc pro
tunc order is to supply on the record something
which has actually occurred, it cannot supply
omitted action by the court . . . (15 C. J., pp. 972973.)23
From the above characterization of a nunc pro
tunc judgment it is clear that the judgment petitioner
sought through the motion for clarificatory

judgment is outside its scope. Petitioners did not

allege that the Court of Appeals actually took
judicial action and that such action was not included
in the Court of Appeals Decision by inadvertence.
A nunc pro tunc judgment cannot correct judicial
error nor supply nonaction by the court.24
Since the judgment sought through the motion for
clarificatory judgment is not a nunc pro tunc one,
the general rule regarding final and executory
decisions applies. In this case, no motion for
reconsideration having been filed after the Court of
Appeals rendered its decision on June 29, 1995 and
an entry of judgment having been made on July 17,
1996, the same became final and executory and,
hence, is no longer susceptible to amendment. It,
therefore, follows that the Court of Appeals did not
act arbitrarily nor with grave abuse of discretion
amounting to lack of jurisdiction when it issued the
aforementioned Resolution denying petitioners
motion for clarificatory judgment and the
Resolution denying petitioners motion for
reconsideration.
Nevertheless, for purposes of guiding the parties in
the execution of the aforesaid Decision of the CA,
without altering the same, the following should be
noted:
The Court of Appeals pronounced in its Decision
that the contract between the parties is an equitable
mortgage. Since the contract is characterized as a
mortgage, the provisions of the Civil Code
governing mortgages apply. Article 2088 of the
Civil Code states:
The creditor cannot appropriate the things given by
way of pledge or mortgage, or dispose of them. Any
stipulation to the contrary is null and void.
This Court has interpreted this provision in the
following manner:
The essence of pacto commissorio, which is
prohibited by Article 2088 of the Civil Code, is that
ownership of the security will pass to the creditor
by the mere default of the debtor (Guerrero v.
Yigo, et al., 96 Phil. 37, 41-42; Puig v. Sellner, et
al., 45 Phil. 286, 287 88) 25
The only right of a mortgagee in case of nonpayment of a debt secured by mortgage would be to
foreclose the mortgage and have the encumbered
property sold to satisfy the outstanding
indebtedness. The mortgagors default does not
operate to vest in the mortgagee the ownership of
the encumbered property, for any such effect is
against public policy, as enunciated by the Civil
Code 26
Applying
the
principle
of pactum
commissorium specifically to equitable mortgages,

in Montevergin v. CA,27 the Court enunciated that

the consolidation of ownership in the person of the
mortgagee in equity, merely upon failure of the
mortgagor in equity to pay the obligation, would
amount to a pactum commissorium. The Court
further articulated that an action for consolidation of
ownership is an inappropriate remedy on the part of
the mortgagee in equity. The only proper remedy is
to cause the foreclosure of the mortgage in equity.
And if the mortgagee in equity desires to obtain title
to the mortgaged property, the mortgagee in equity
may buy it at the foreclosure sale.
The private respondents do not appear to have
caused the foreclosure of the mortgage much less
have they purchased the property at a foreclosure
sale. Petitioner, therefore, retains ownership of the
subject property. The right of ownership necessarily
includes the right to possess, particularly where, as
in this case, there appears to have been no availment
of the remedy of foreclosure of the mortgage on the
ground of default or non-payment of the obligation
in question.
WHEREFORE, the petition for certiorari is
DISMISSED. The parties are directed to proceed
upon the basis of the final Decision of the Court of
Appeals, dated June 29, 1995, in CA-G.R. CV No.
39025, that the contract in question was an
equitable mortgage and not a sale.
Republic
SUPREME
Manila

of

the

Philippines
COURT

THIRD DIVISION
A.M. No. RTJ-07-2075
October 9, 2007
(Formerly OCA I.P.I. No. 07-2623-RTJ)
ATTY.
UBALDINO
A.
LACUROM, complainant,
vs.
JUDGE JUANITA C. TIENZO, Regional Trial
Court, Branch 27, Cabanatuan City, respondent.
DECISION

of a writ of replevin in Civil Case No. 4971 entitled

"Roy G. Claudio and Michael Allan Parungao v.
Carlos Dy and John Doe," for violation of Sections
2(a),1 6,2 and 7,3 Rule 60 of the Rules of Court.
According to complainant, respondent judge should
have desisted from issuing the writ as plaintiff
Claudio in Civil Case No. 4971 failed to prove that
he is the owner of the subject vehicle, and
consequently entitled to its possession. Complainant
points out that Claudio admits the sale of the subject
vehicle to defendant, and the same had been the
object of several conveyances to third persons.
In addition, complainant avers that respondent
judge delayed the release of the property despite a
third-party claim thereon. Apparently, respondent
judge granted plaintiffs an extension of time within
which to post the required indemnity bond. As such,
the subject vehicle remained with the sheriff in
excess of the five-day period provided in Section 6,
Rule 60 of the Rules of Court.
Thereafter, respondent judge, instead of ordering
the return of the vehicle to the third-party claimant,
issued an order not only granting plaintiffs motion
for delivery of the vehicle, but also setting aside an
earlier order which required plaintiffs to post an
indemnity bond.
On the second charge relating to Civil Case No.
4884, complainant alleges that respondent judge
rendered a Decision4 in violation of the
constitutional mandate to state clearly and distinctly
the facts and the law on which it is based, and
Section 1, Rule 36 of the Rules of Court echoing the
same requisite.5
Complainant further charges that respondent judge
issued an order written in the English language, and
in a fashion that does not befit an RTC Judge which
thereby demonstrates her incompetence and lack of
diligence. However, complainant discloses that the
inclusion of the foregoing matter in his
administrative complaint was merely at the behest
of his former colleague, Feliciano Buenaventura, a
retired presiding judge of RTC, Branch 27,
Cabanatuan City.

NACHURA, J.:
For resolution is an administrative complaint
charging Judge Juanita C. Tienzo of the Regional
Trial Court (RTC), Branch 27, Cabanatuan City,
with Gross Ignorance of the Law or Procedure in
connection with two (2) separate cases: one is for
Replevin or Sum of Money, while the other is an
appealed case of Unlawful Detainer from the
Municipal Trial Court in Cities (MTCC), Branch 3,
Cabanatuan City.
On the first charge, complainant, Atty. Ubaldino A.
Lacurom, assails the issuance by respondent judge

In response, respondent judge vehemently opposed,

and prayed for the outright dismissal of, the
complaint because:
1. (That) the complainant has no legal
personality to commence the instant
administrative complaint;
2. (That) the complainant has no cause of
action against the respondent considering
that the complaint is legally and factually
baseless, perjurious in nature, malicious and
only intends to harass the [respondent];

3. The complainant has no locus standi to

raise the second issue considering he is not a
person directly affected by the Decision of
the Court;
4. (That) the Decision of the Court dated
July 21, 2005 is made in accordance with
Section 24 of the Interim Rules and
Guidelines of BP Blg. 129 and the ruling of
the Honorable Supreme Court in the case of
Francisco v. Permskul, G.R. No. 81006
dated May 12, 1989, thus it is lawful.6
Corollary to the proffered grounds for dismissal of
the complaint, respondent judge argues that
complainant is not the real party in interest in Civil
Case No. 4971. She posits that the proper parties are
the defendants-litigants whose interests were
ostensibly aggrieved and prejudiced by the Order of
Release of the vehicle in favor of the plaintiffsapplicants, and not the complainant who has no
apparent authority7 to institute the administrative
complaint against her.
Respondent judge next contends that the issuance of
the writ of replevin was done in the discharge of her
judicial functions which are presumed to have been
regularly performed. Accordingly, she claims that
the assailed order cannot be used as ground for an
administrative case against her in the absence of
malice, dishonesty and corrupt motive on her part.
Under the circumstances, even if the Order was
erroneously issued, complainants proper remedy is
to file a petition for certiorari or an appeal, as may
be applicable, and not the instant administrative
case.
Respondent judge likewise points out that the
complaint contained false statements considering
complainants categorical admission that he had
strongly opposed the release of the property to
plaintiff Claudio.
As regards the diminutive decision in Civil Case
No. 4884, respondent judge again questions
complainants locus
standi to
institute
the
complaint. She emphasizes that Atty. Buenaventura
did not, in fact, appeal the decision to the appellate
court. At any rate, respondent judge submits that her
decision is in accord with the ruling inFrancisco v.
Permskul8 wherein this Court sustained the validity
of memorandum decisions.
In his reply, complainant refuted respondent judges
arguments, contending that the rule on real party-ininterest is not applicable to administrative cases.
Section 1, Rule 140 of the Rules of Court9 permits a
party who has personal knowledge of the facts
alleged in the complaint to lodge administrative
charges against an erring judge. In all, complainant
reiterated the allegations in his complaint.

Evaluating the parties respective claims, the Office

of the Court Administrator (OCA) considered the
complaint partly meritorious. Anent the first charge,
the OCA found that the error imputed to the
respondent judge in her challenged order is of a
judicial character. Essentially, complainant assails
respondent judges interpretation of the law and
rules of procedure on Replevin. The OCA asserted
that complainants remedy lies with the courts for
the appropriate corrective judicial action, and not in
this administrative complaint.
On the second issue pertaining to the minute
decision in Civil Case No. 4884, the OCA noted
that if the decision had already attained finality,
then the absence of an appeal evinces the parties
satisfaction with the judgment. Otherwise, a
challenge thereto would have been brought before
the higher courts. Accordingly, the OCA believed
that complainant lacks standing to question the said
decision.
Nevertheless, the OCA found respondent judge
guilty of gross ignorance of the law or procedure in
her blatant disregard of the constitutional mandate
that no decision shall be rendered by any court
without expressing therein clearly and distinctly the
facts and the law on which it is based.
We agree with the OCA.
After a careful scrutiny of the records, we sustain
the OCAs finding that the charge respecting the
erroneous issuance of the writ of replevin in Civil
Case No. 4971 is clearly judicial in nature. The
instant administrative complaint is not the proper
remedy to assail the legality of respondent judges
order. In this regard, we have previously held that
where sufficient judicial remedies exist, the filing of
an administrative complaint is not the proper
recourse to correct a judges allegedly erroneous
act.10
Indeed, as a matter of public policy, not every error
or mistake committed by judges in the performance
of their official duties renders them administratively
liable.11 In the absence of fraud, dishonesty or
deliberate intent to do an injustice, acts done in their
official capacity, even though erroneous, do not
always constitute misconduct.12
Only errors that are tainted with fraud, corruption or
malice may be the subject of disciplinary actions.
For administrative liability to attach, respondent
must be shown to have been moved by bad faith,
dishonesty, hatred or some other similar motive.
Verily, judges may not be held administratively
liable for any of their official acts, no matter how
erroneous, as long as they acted in good faith.13

However, with respect to the decision in Civil Case

No.
4884,
we
find
respondent
judge
administratively liable therefor.
In that case, respondent judge ruled in this wise, to
wit:
DECISION
After a cursory study of this appealed case
of Unlawful Detainer, this Court finds that
the procedural due process [has] been
complied with under the Summary
Procedure. The Decision of the Lower Court
cannot be disturbed by this Court.
WHEREFORE, the Decision of the said
Lower Court, MTCC, Branch III,
Cabanatuan City, is hereby AFFIRMED en
toto.
SO ORDERED.
Cabanatuan City, July 21, 2005.
The quoted decision does not measure up to the
clear constitutional command:14
SEC. 14. No decision shall be rendered by
any court without expressing therein clearly
and distinctly the facts and the law on which
it is based.
Section 1, Rule 36 of the Rules of Court likewise
reflects the foregoing mandate, thus:
SECTION 1. Rendition of judgments and
final orders. A judgment or final order
determining the merits of the case shall be in
writing personally and directly prepared by
the judge, stating clearly and distinctly the
facts and the law on which it is based,
signed by him, and filed with the clerk of
court.
Notwithstanding this unequivocal rule, respondent
judge insists that her decision is in accord with our
holding inFrancisco v. Permskul.15
We reject respondent judges insistence. Although
we have sustained the validity of memorandum
decisions on several occasions,16 we laid down
specific requirements for the proper utility thereof:
The memorandum decision, to be valid,
cannot incorporate the findings of fact and
the conclusions of law of the lower court
only by remote reference, which is to say
that the challenged decision is not easily and
immediately available to the person reading
the memorandum decision. For the
incorporation by reference to be allowed, it

must provide for direct access to the facts

and the law being adopted, which must be
contained in a statement attached to the said
decision. In other words, the memorandum
decision authorized under Section 40 of B.P.
Blg. 129 should actually embody the
findings of fact and conclusions of law of
the lower court in an annex attached to and
made an indispensable part of the decision.
It is expected that this requirement will allay
suspicion that no study was made of the
decision of the lower court and that its
decision was merely affirmed without a
proper examination of the facts and law on
which it is based. The proximity at least of
the annexed statement should suggest that
such an examination has been undertaken. It
is, of course, also understood that the
decision being adopted should, to begin
with, comply with Article VIII, Section 14
as no amount of incorporation or adoption
will rectify its violation.
The Court finds it necessary to emphasize
that the memorandum decision should be
sparingly used lest it become an addictive
excuse for judicial sloth. It is an additional
condition for its validity that this kind of
decision may be resorted only in cases
where the facts are in the main accepted by
both parties or easily determinable by the
judge and there are no doctrinal
complications involved that will require an
extended discussion of the laws involved.
The memorandum decision may be
employed in simple litigations only, such as
ordinary collection cases, where the appeal
is obviously groundless and deserves no
more than the time needed to dismiss it.17
It is obvious that the decision rendered by
respondent judge failed to conform to this
requirement. The cryptic decision simply referenced
the appealed decision of the MTCC and forthwith
found the same as compliant with procedural due
process under the Rules of Summary Procedure.
Nowhere in the decision does respondent judge
make a statement of the facts which led to the filing
of the appeal. More importantly, the decision does
not contain respondent judges factual findings,
albeit affirming those of the MTCC, from which she
based her conclusions of law. Ineluctably,
respondent judge transgressed the constitutional
directive.
The transgression is compounded by respondent
judges insistence that her decision conformed to
our ruling on memorandum decisions. It is not
amiss to remind respondent judge of our final words
in the case which she invokes:

Henceforth, all memorandum decisions shall

comply with the requirements herein set
forth as to the form prescribed and the
occasions when they may be rendered. Any
deviation
will
summon
the
strict
enforcement of Article VIII, Section 14 of
the Constitution and strike down the flawed
judgment as a lawless disobedience.18
Although not every judicial error signifies
ignorance of the law which warrants administrative
sanction, this holds true only in instances of
tolerable misjudgment. Where, however, an
elementary constitutional mandate is violated, the
blunder constitutes ignorance of the law.
From the foregoing disquisition, we find that an
imposition of a fine of P20,000.00 upon respondent
judge is in order.
WHEREFORE, respondent Judge Juanita C.
Tienzo is hereby found GUILTY of gross ignorance
of the law, and is ordered to pay
a FINE of TWENTY
THOUSAND
PESOS (P20,000.00) upon notice. She is
sternly WARNED that a repetition of the same
offense will be dealt with more severely. The other
charge is DISMISSED for lack of merit.

of a writ of replevin in Civil Case No. 4971 entitled

"Roy G. Claudio and Michael Allan Parungao v.
Carlos Dy and John Doe," for violation of Sections
2(a),1 6,2 and 7,3 Rule 60 of the Rules of Court.
According to complainant, respondent judge should
have desisted from issuing the writ as plaintiff
Claudio in Civil Case No. 4971 failed to prove that
he is the owner of the subject vehicle, and
consequently entitled to its possession. Complainant
points out that Claudio admits the sale of the subject
vehicle to defendant, and the same had been the
object of several conveyances to third persons.
In addition, complainant avers that respondent
judge delayed the release of the property despite a
third-party claim thereon. Apparently, respondent
judge granted plaintiffs an extension of time within
which to post the required indemnity bond. As such,
the subject vehicle remained with the sheriff in
excess of the five-day period provided in Section 6,
Rule 60 of the Rules of Court.
Thereafter, respondent judge, instead of ordering
the return of the vehicle to the third-party claimant,
issued an order not only granting plaintiffs motion
for delivery of the vehicle, but also setting aside an
earlier order which required plaintiffs to post an
indemnity bond.

SO ORDERED.
Republic
SUPREME
Manila

of

the

Philippines
COURT

THIRD DIVISION
A.M. No. RTJ-07-2075
October 9, 2007
(Formerly OCA I.P.I. No. 07-2623-RTJ)
ATTY.
UBALDINO
A.
LACUROM, complainant,
vs.
JUDGE JUANITA C. TIENZO, Regional Trial
Court, Branch 27, Cabanatuan City, respondent.
DECISION
NACHURA, J.:
For resolution is an administrative complaint
charging Judge Juanita C. Tienzo of the Regional
Trial Court (RTC), Branch 27, Cabanatuan City,
with Gross Ignorance of the Law or Procedure in
connection with two (2) separate cases: one is for
Replevin or Sum of Money, while the other is an
appealed case of Unlawful Detainer from the
Municipal Trial Court in Cities (MTCC), Branch 3,
Cabanatuan City.
On the first charge, complainant, Atty. Ubaldino A.
Lacurom, assails the issuance by respondent judge

On the second charge relating to Civil Case No.

4884, complainant alleges that respondent judge
rendered a Decision4 in violation of the
constitutional mandate to state clearly and distinctly
the facts and the law on which it is based, and
Section 1, Rule 36 of the Rules of Court echoing the
same requisite.5
Complainant further charges that respondent judge
issued an order written in the English language, and
in a fashion that does not befit an RTC Judge which
thereby demonstrates her incompetence and lack of
diligence. However, complainant discloses that the
inclusion of the foregoing matter in his
administrative complaint was merely at the behest
of his former colleague, Feliciano Buenaventura, a
retired presiding judge of RTC, Branch 27,
Cabanatuan City.
In response, respondent judge vehemently opposed,
and prayed for the outright dismissal of, the
complaint because:
1. (That) the complainant has no legal
personality to commence the instant
administrative complaint;
2. (That) the complainant has no cause of
action against the respondent considering
that the complaint is legally and factually
baseless, perjurious in nature, malicious and
only intends to harass the [respondent];

3. The complainant has no locus standi to

raise the second issue considering he is not a
person directly affected by the Decision of
the Court;
4. (That) the Decision of the Court dated
July 21, 2005 is made in accordance with
Section 24 of the Interim Rules and
Guidelines of BP Blg. 129 and the ruling of
the Honorable Supreme Court in the case of
Francisco v. Permskul, G.R. No. 81006
dated May 12, 1989, thus it is lawful.6
Corollary to the proffered grounds for dismissal of
the complaint, respondent judge argues that
complainant is not the real party in interest in Civil
Case No. 4971. She posits that the proper parties are
the defendants-litigants whose interests were
ostensibly aggrieved and prejudiced by the Order of
Release of the vehicle in favor of the plaintiffsapplicants, and not the complainant who has no
apparent authority7 to institute the administrative
complaint against her.
Respondent judge next contends that the issuance of
the writ of replevin was done in the discharge of her
judicial functions which are presumed to have been
regularly performed. Accordingly, she claims that
the assailed order cannot be used as ground for an
administrative case against her in the absence of
malice, dishonesty and corrupt motive on her part.
Under the circumstances, even if the Order was
erroneously issued, complainants proper remedy is
to file a petition for certiorari or an appeal, as may
be applicable, and not the instant administrative
case.
Respondent judge likewise points out that the
complaint contained false statements considering
complainants categorical admission that he had
strongly opposed the release of the property to
plaintiff Claudio.
As regards the diminutive decision in Civil Case
No. 4884, respondent judge again questions
complainants locus
standi to
institute
the
complaint. She emphasizes that Atty. Buenaventura
did not, in fact, appeal the decision to the appellate
court. At any rate, respondent judge submits that her
decision is in accord with the ruling inFrancisco v.
Permskul8 wherein this Court sustained the validity
of memorandum decisions.
In his reply, complainant refuted respondent judges
arguments, contending that the rule on real party-ininterest is not applicable to administrative cases.
Section 1, Rule 140 of the Rules of Court9 permits a
party who has personal knowledge of the facts
alleged in the complaint to lodge administrative
charges against an erring judge. In all, complainant
reiterated the allegations in his complaint.

Evaluating the parties respective claims, the Office

of the Court Administrator (OCA) considered the
complaint partly meritorious. Anent the first charge,
the OCA found that the error imputed to the
respondent judge in her challenged order is of a
judicial character. Essentially, complainant assails
respondent judges interpretation of the law and
rules of procedure on Replevin. The OCA asserted
that complainants remedy lies with the courts for
the appropriate corrective judicial action, and not in
this administrative complaint.
On the second issue pertaining to the minute
decision in Civil Case No. 4884, the OCA noted
that if the decision had already attained finality,
then the absence of an appeal evinces the parties
satisfaction with the judgment. Otherwise, a
challenge thereto would have been brought before
the higher courts. Accordingly, the OCA believed
that complainant lacks standing to question the said
decision.
Nevertheless, the OCA found respondent judge
guilty of gross ignorance of the law or procedure in
her blatant disregard of the constitutional mandate
that no decision shall be rendered by any court
without expressing therein clearly and distinctly the
facts and the law on which it is based.
We agree with the OCA.
After a careful scrutiny of the records, we sustain
the OCAs finding that the charge respecting the
erroneous issuance of the writ of replevin in Civil
Case No. 4971 is clearly judicial in nature. The
instant administrative complaint is not the proper
remedy to assail the legality of respondent judges
order. In this regard, we have previously held that
where sufficient judicial remedies exist, the filing of
an administrative complaint is not the proper
recourse to correct a judges allegedly erroneous
act.10
Indeed, as a matter of public policy, not every error
or mistake committed by judges in the performance
of their official duties renders them administratively
liable.11 In the absence of fraud, dishonesty or
deliberate intent to do an injustice, acts done in their
official capacity, even though erroneous, do not
always constitute misconduct.12
Only errors that are tainted with fraud, corruption or
malice may be the subject of disciplinary actions.
For administrative liability to attach, respondent
must be shown to have been moved by bad faith,
dishonesty, hatred or some other similar motive.
Verily, judges may not be held administratively
liable for any of their official acts, no matter how
erroneous, as long as they acted in good faith.13

However, with respect to the decision in Civil Case

No.
4884,
we
find
respondent
judge
administratively liable therefor.
In that case, respondent judge ruled in this wise, to
wit:
DECISION
After a cursory study of this appealed case
of Unlawful Detainer, this Court finds that
the procedural due process [has] been
complied with under the Summary
Procedure. The Decision of the Lower Court
cannot be disturbed by this Court.
WHEREFORE, the Decision of the said
Lower Court, MTCC, Branch III,
Cabanatuan City, is hereby AFFIRMED en
toto.
SO ORDERED.
Cabanatuan City, July 21, 2005.
The quoted decision does not measure up to the
clear constitutional command:14
SEC. 14. No decision shall be rendered by
any court without expressing therein clearly
and distinctly the facts and the law on which
it is based.
Section 1, Rule 36 of the Rules of Court likewise
reflects the foregoing mandate, thus:
SECTION 1. Rendition of judgments and
final orders. A judgment or final order
determining the merits of the case shall be in
writing personally and directly prepared by
the judge, stating clearly and distinctly the
facts and the law on which it is based,
signed by him, and filed with the clerk of
court.
Notwithstanding this unequivocal rule, respondent
judge insists that her decision is in accord with our
holding inFrancisco v. Permskul.15
We reject respondent judges insistence. Although
we have sustained the validity of memorandum
decisions on several occasions,16 we laid down
specific requirements for the proper utility thereof:
The memorandum decision, to be valid,
cannot incorporate the findings of fact and
the conclusions of law of the lower court
only by remote reference, which is to say
that the challenged decision is not easily and
immediately available to the person reading
the memorandum decision. For the
incorporation by reference to be allowed, it

must provide for direct access to the facts

and the law being adopted, which must be
contained in a statement attached to the said
decision. In other words, the memorandum
decision authorized under Section 40 of B.P.
Blg. 129 should actually embody the
findings of fact and conclusions of law of
the lower court in an annex attached to and
made an indispensable part of the decision.
It is expected that this requirement will allay
suspicion that no study was made of the
decision of the lower court and that its
decision was merely affirmed without a
proper examination of the facts and law on
which it is based. The proximity at least of
the annexed statement should suggest that
such an examination has been undertaken. It
is, of course, also understood that the
decision being adopted should, to begin
with, comply with Article VIII, Section 14
as no amount of incorporation or adoption
will rectify its violation.
The Court finds it necessary to emphasize
that the memorandum decision should be
sparingly used lest it become an addictive
excuse for judicial sloth. It is an additional
condition for its validity that this kind of
decision may be resorted only in cases
where the facts are in the main accepted by
both parties or easily determinable by the
judge and there are no doctrinal
complications involved that will require an
extended discussion of the laws involved.
The memorandum decision may be
employed in simple litigations only, such as
ordinary collection cases, where the appeal
is obviously groundless and deserves no
more than the time needed to dismiss it.17
It is obvious that the decision rendered by
respondent judge failed to conform to this
requirement. The cryptic decision simply referenced
the appealed decision of the MTCC and forthwith
found the same as compliant with procedural due
process under the Rules of Summary Procedure.
Nowhere in the decision does respondent judge
make a statement of the facts which led to the filing
of the appeal. More importantly, the decision does
not contain respondent judges factual findings,
albeit affirming those of the MTCC, from which she
based her conclusions of law. Ineluctably,
respondent judge transgressed the constitutional
directive.
The transgression is compounded by respondent
judges insistence that her decision conformed to
our ruling on memorandum decisions. It is not
amiss to remind respondent judge of our final words
in the case which she invokes:

Henceforth, all memorandum decisions shall

comply with the requirements herein set
forth as to the form prescribed and the
occasions when they may be rendered. Any
deviation
will
summon
the
strict
enforcement of Article VIII, Section 14 of
the Constitution and strike down the flawed
judgment as a lawless disobedience.18
Although not every judicial error signifies
ignorance of the law which warrants administrative
sanction, this holds true only in instances of
tolerable misjudgment. Where, however, an
elementary constitutional mandate is violated, the
blunder constitutes ignorance of the law.
From the foregoing disquisition, we find that an
imposition of a fine of P20,000.00 upon respondent
judge is in order.
WHEREFORE, respondent Judge Juanita C.
Tienzo is hereby found GUILTY of gross ignorance
of the law, and is ordered to pay
a FINE of TWENTY
THOUSAND
PESOS (P20,000.00) upon notice. She is
sternly WARNED that a repetition of the same
offense will be dealt with more severely. The other
charge is DISMISSED for lack of merit.
SO ORDERED.
Republic
SUPREME
Manila

of

the

Philippines
COURT

SECOND DIVISION
G.R. No. 82040 August 27, 1991
Republic
SUPREME
Manila

of

the

Philippines
COURT

FIRST DIVISION
G.R. No. L-61628 December 29, 1982
BA FINANCE CORPORATION, petitioner,
vs.
HON. GREGORIO G. PINEDA, AS JUDGE OF
THE COURT OF FIRST INSTANCE OF
RIZAL, BRANCH XXII, AND ANTONIO SY,
respondents.
Valera, Urmeneta and Associates for petitioner.
Eulogio P. Flores for respondents.

VASQUEZ, J.:

Private respondent Antonio Sy was adjudged liable

in favor of the plaintiffs in Civil Case No. 7379 of
the Court of First Instance of Nueva Ecija for
damages resulting from a vehicular accident
involving a cargo truck supposedly owned by him.
Claiming that the adverse decision in said case was
due to the mishandling of the same by the counsel
who represented him therein, he filed on December
1, 1981 Civil Case No. 43869 before the Court of
First Instance of Rizal, which was assigned to the
sala presided over by the respondent Judge. Named
as defendants in said Civil Case No. 43869 are
herein petitioner BA Finance Corporation whom
private respondent claims to be the real owner of
the cargo truck involved in the accident; the MetroTaisho Insurance Corporation, which issued the
insurance policy covering the same; Atty. Ireneo
Calderon, the counsel who represented him in the
case filed in the Court of First Instance of Nueva
Ecija; and Robert Chua, the driver of the other
vehicle that figured in the accident.
Petitioner BA Finance Corporation was served
summons on December 18, 1981. Eleven days later,
or on December 29, 1981 petitioner, through
counsel, filed a motion for extension of time to file
answer and/or motion to dismiss. In an order dated
January 4, 1982, served on petitioner's counsel on
January 12, 1982, the respondent Judge gave the
petitioner a period of 15 days, counted from January
2, 1982 and to expire on January 18, 1982 (sic),
within which to file its answer or motion to dismiss
the complaint,
On January 13, 1982, petitioner filed a motion to
dismiss on the ground that the complaint states no
cause of action. In his order dated March 1, 1982, a
copy of which was served on the petitioner on
March 8, 1982, the respondent Judge denied the
motion to dismiss, for being "devoid of merit."
On March 17, 1982, petitioner filed a motion for
reconsideration of the order dated March 1, 1982.
On March 24, 1982, petitioner received a copy of
private respondent's motion to strike out the
petitioner's motion for reconsideration on the
alleged ground that the motion for reconsideration
was filed out of time. It was argued by counsel for
the private respondent that when the petitioner filed
its motion to dismiss on January 13, 1982, it had
already used 11 days out of the 15 days' extension
granted to it by the Court in the order of January 4,
1982; that having received the order denying its
motion to dismiss on March 8, 1982, the petitioner
had only the remainder of 4 days or up to March 12,
1982 within which to file its answer to the
complaint; consequently, the filing of the motion for
reconsideration on March 17, 1982 was already
beyond the reglementary period for filing the
answer.

In the order of the respondent Judge dated April 5,

1982, the motion to strike out was granted, and the
petitioner was declared in default for having failed
to answer the complaint within the reglementary
period, and private respondent was allowed to
present his evidence ex-parte.

On June 16, 1982, petitioner received a copy of an

order dated June 10, 1982 setting aside the
declaration of default of the herein petitioner and
ordering it to file its answer to the complaint within
15 days from notice thereof. The petitioner had by
then, or on May 11, 1982, already filed its answer.

denial of its motion to dismiss on

May 17, 1982, it had fifteen (15)
days from March 17, 1982 or up to
April 1, 1982 to file its answer. But
on March 17, 1982 defendant filed
its Motion for Reconsideration of the
order denying the motion to dismiss.
The motion for reconsideration is
without proof of service; the registry
receipt attached to the motion is not
the proof of service required by the
Rules. Without proof of service, a
motion is nothing but a scrap of
paper. It did not merit the attention of
the court; it was stricken out of the
record. Defendant allowed the
reglementary 15-day period to
answer to elapse without filing its
answer. It failed to file its answer on
or before April 1, 1982. Since this
fact had supervened, this Court,
when it issued the order dated April
6, 1982, properly declared defendant
BA Finance Corporation in default.

The proceedings taken subsequent thereto are not

clear from the record. According to the petitioner,
on August 12, 1982, it received an order dated July
14, 1982, which reads as follows:

On April 19, 1982, said defendant

filed its Motion to Lift Order of
Default which on May 4, 1982 was
denied.

On April 19, 1982, the petitioner filed a motion to

lift order of default. The order of the respondent
Judge dated May 4, 1982, served on the petitioner
on May 18, 1982, denied the petitioner's motion to
lift order of default and directed the issuance of a
pre-trial order for the other defendants who were
not declared in default.
On May 28, 1982, the petitioner filed a motion for
reconsideration of the order dated May 4, 1982.

ORDER
For failure to file answer within the
reglementary period despite due
summons, as prayed for by plaintiff,
defendant Roberto Chua is hereby
declared in default and plaintiff is
allowed to present evidence ex-parte
against said defendant.
Anent plaintiff's Motion to Remove
From the Records Answer of
Defendant BA Finance Corporation,
the record shows on March 1, 1982
this Court issued an order denying
defendant BA Finance Corporation's
Motion to Dismiss. On March 17,
1982 counsel for BA Finance
received the order denying the
motion to dismiss. Under the new
Rules, if the motion to dismiss is
denied or if determination thereof, is
deferred, the movant shall file his
answer within the reglementary
period under Rule 11, computed
from the time he received notice of
the denial or deferment, unless
commences to run all over again
from the time the defendant receives
notice of the denial of his motion to
dismiss. In the case at bar, since
defendant received notice of the

On May 28, 1982, said defendant

filed its Motion for Reconsideration
which on June 10, 1982 was granted
and the order of April 5, 1982 was
lifted. On June 11, 1982, said
defendant filed its answer. Hence,
plaintiff's Motion To Remove From
the Records the Answer of
Defendant BA Finance Corporation.
Plaintiff observes BA Finance
Corporation's
Motion
for
Reconsideration filed May 28, 1982
is Identical with that of its
Opposition (To Plaintiff's Motion to
Declare Defendant BA Finance
Corporation in Default and Motion
to
Strike
Out
Motion
for
Reconsideration of BA Finance) filed
on March 29, 1982, and thus
concludes that the former (Motion
for Reconsideration) is a pro-forma
motion resorted to solely to gain time
and delay proceedings whereby in
this case said defendant was able to
file its answer on June 11, 1982. lt is
a settled rule that pro-forma motion
for reconsideration is disallowed and
is not worth the attention of the court
for it is mere scrap of paper. And the
order of the Court based on such
motion pro-forma is null and void.

In view of the foregoing, the order of

this Court dated June 10, 1982 is
hereby set aside and declared null
and void. And the answer filed on
June 11, 1982 is hereby stricken out
of the record.
Let the pre-trial be set anew on
August 6, 1982, at 2.00 P.M.
SO ORDERED.

Rule 16 of the Rules of Court, cannot be any

clearer:
SEC. 4. Time to plead. If the
motion to dismiss is denied or if
determination thereof is deferred, the
movant shall file his answer within
the period prescribed by Rule 11,
computed from the time he received
notice of the denial or deferment,
unless the court provides a different
period.

Pasig, Metro Manila, July 14, 1982.

[s] Gregorio G. Pineda
[t] GREGORIO G. PINEDA J u d g
e (Rollo, pp. 77-78.)
Petitioner further alleged that on August 31, 1982, it
received a copy of the decision rendered in Civil
Case No. 43869 dated August 17, 1982 which
orders the defendants therein, including herein
petitioner, but excluding Atty. Ireneo Calderon, to
pay unto the private respondent the total sum of P
228,255.64 as moral and exemplary damages, and
attorney's fees.

Admittedly, the above provision is a departure from

the doctrine previously upheld as to the period when
to file an answer in case a motion to dismiss the
complaint is denied. While the above- quoted
provision is new, there being no similar provision in
the Rules of Court of 1940, the language thereof is
clear and leaves no doubt as to the intendment
thereof. It has received a categorical interpretation
from the Supreme Court since January 31, 1969 in
Matute vs. Court of Appeals, 26 SCRA 768,
wherein this pronouncement was made:

After the respondents have filed their comment to

the petition, We issued a temporary restraining
order in the Resolution of October 11, 1982
enjoining the respondent Judge from further acting
on Civil Case No. 43869 until further orders from
this Court.

Rule 11, section I of the Revised

Rules of Court gives the defendant a
period of fifteen (15) days after
service of summons within which is
file his answer and serve a copy
thereof upon the plaintiff, unless a
different period is fixed by the court.
However, within the period of time
for pleading, the defendant is entitled
to move for dismissal of the action
on any of the ground enumerated in
Rule 16. If the motion to dismiss is
denied or if determination thereof is
deferred, the movant shall file his
answer within the period prescribed
by Rule 11, computed from the time
he receives notice of the denial or
deferment, unless the court provides
a different period (Rule 16, section
4). In other words the period for
filing
a
responsive
pleading
commences to run e all over to again
from the time the defendant receives
notice of the denial of his motion to
dismiss. (See also, Acosta-Ofalia v.
Sundiam 85 SCRA 412.)

It is distressing to note that a provision of the

Revised Rules of Court which had been in force
since January 1, 1964, or for the last 19 years, on a
subject as significant or as commonplace as the
period to file an answer to the complaint could be
misapplied and misconstrued by a court of first
instance in a major metropolitan area. It can only be
hoped that a similar unfamiliarity with the Rules is
not true with other courts in more remote areas of
the country. The provision in question, Section 4 of

Had the respondent Court, exhibited a modicum of

awareness of the law and jurisprudence directly
applicable to the question presented for its
determination, this proceeding would not have been
filed at all. It is undisputed that the petitioner was
given an extension of time within which to file its
answer which was to expire on January 18, 1982.
On January 13, 1982, it filed a motion to dismiss
which was denied, and notice of which was served
on the petitioner on March 8, 1982. When the

In their "Opposition" to the petition which they

intended as their Comment thereon, the respondents
claimed that after private respondent Antonio Sy
filed an opposition to the petitioner's motion for
reconsideration, the petitioner succeeded by false
representations in securing the order lifting the
order of default and allowing it to file an answer to
the complaint; that upon discovering such
irregularity, private respondent filed a "Motion to
Remove From the Records Answer of Defendant
BA Finance Corporation"; and that it was on the
basis of said motion that the respondent Court
issued its order of July 14, 1982 which declared its
previous order of June 10, 1982 as null and void
and ordered the answer to be stricken out from the
record.

petitioner filed a motion for reconsideration on

March 17, 1982, it was well within the 15-day
period within which to file the answer counted from
the date it received notice of the denial of its motion
to dismiss which was on March 8, 1982. Yet, on the
erroneous belief that the petitioner had only to its
credit the balance of the period to answer that it did
not consume by the time it filed its motion to
dismiss, the respondent Judge ruled that the filing of
the motion for reconsideration on March 17, 1982
was already beyond the reglementary period and
forthwith declared tile defendant in default.
We could have stopped further discussion of the
instant petition at this point. However, We cannot
allow to pass unnoticed the subsequent
developments in the case which had been
characterized not only by obscurity, but also by
actuations which are less than commendable. After
declaring the petitioner in default in the order of
April 5, 1982 and after denying the motion to lift
order of default in the order of May 4, 1982, the
respondent Judge made a complete turnabout in his
order of June 10, 1982 by setting aside the default
declaration of the petitioner, giving no reason
therefor except the catch phrase "in the interest of
justice." Then, another change of mind on the part
of the respondent Judge was manifested in his order
of July 14, 1982 which reiterated the order of April
5, 1982 declaring the petitioner in default. This
time, the respondent Judge woke up to his mistake
and ruled that the petitioner had 15 days from the
date it received notice of tile denial of its motion to
dismiss on March 11, 1982 within which to file its
answer.
Nonetheless, respondent Judge stubbornly persisted
in maintaining his view that the answer of the
respondent to the complaint was filed out of time by
alleging two new grounds, namely: (1) the motion
for reconsideration filed by the petitioner against
the denial of its motion to dismiss is a mere scrap of
paper for lack of proof of service; and (2) the
motion for reconsideration filed by the petitioner
against the order of May 4, 1982 which denied the
petitioner's motion to lift order of default is proforma for being Identical to petitioner's opposition
to the plaintiff's motion to declare the petitioner in
default. The lack of palpable merit of said grounds
leads to a natural impression that the respondent
Judge was determined to prevent the petitioner from
being given a chance to defend itself in the case
filed against it by the private respondent, contrary to
repeated exhortations and pronouncements from the
Supreme Court frowning upon judgments by default
on purely technical grounds. The new arguments
resorted to by the respondent Judge were not even
mentioned in the motion of the private respondent
to strike out the answer, nor were they mentioned
by the respondent Judge in his first order declaring
the petitioner in default. The motion to strike out
filed by the private respondent and the order of

respondent Judge dated April 5, 1982 declaring the

petitioner in default made reference only to the
alleged fact that the motion for reconsideration of
the denial of the motion to dismiss was filed beyond
the reglementary period. Such ground, as
aforementioned, had been acknowledged by the
respondent Judge himself in his order of July 14,
1982 to be erroneous.
The allegation that the motion for reconsideration of
the denial of the motion to dismiss filed by the
petitioner lacks the requisite notice of hearing and
proof of service is a factual distortion. On page 4 of
said motion for reconsideration which has been
attached as Annex "F" of the petition (Rollo, pp. 5154), it clearly appears that the petitioner's counsel
set the said motion for hearing on April 16, 1982
and that a copy of the same was sent by registered
mail to the counsel for the private respondent on
March 17, 1982. The private respondent filed a
motion to strike out the said motion for
reconsideration (Rollo, pp. 55-58 dated March 24,
1982), thereby showing that private A. respondent
had notice of the motion for reconsideration long
before the scheduled hearing thereof on April 16,
1982.
The imputation that the motion to reconsider the
order of May 4, 1982 which denied the petitioner's
motion to lift order of default is pro-forma reveals a
misconception of the concept of pro-forma motions
for reconsideration. It is not every motion for
reconsideration that reiterates grounds or arguments
aired in a previous motion that may be declared
pro-forma. It will be noted that the motion for
reconsideration herein involved is of an
interlocutory order, and not of a final judgment or
final order. There should be a distinction in
determining whether a motion for reconsideration
may be declared pro-forma depending on whether it
is directed against a final judgment or order, or only
against an interlocutory order. In the case of the
former, a repetition of arguments or grounds already
sufficiently discussed in prior incidents may
properly be categorized as being merely for
purposes of delay. In the case of interlocutory
orders, a reiteration of the ground or argument
previously advanced is not necessarily indicative
that the movant filed the motion merely for gaining
delay. It must be remembered that, normally, when
an interlocutory order is sought to be reviewed or
annulled by means of any of the extra legal
remedies of prohibition or certiorari, it is required
that a motion for reconsideration of the question
order must first be filed, such being considered a
speedy and adequate remedy at law which must first
be resorted to as a condition precedent for filing of
any of such proceedings (Secs. 1 and 2, Rule 65,
Rules of Court). There is no similar requirement in
taking an appeal from a final judgment or order
should the questioned interlocutory order be subject
to attack only on one ground, as in the case of the

default declaration herein involved, a motion for

reconsideration against the order complained of
would necessarily and inevitably contain a
repetition of the ground previously alleged. In so
doing, the movant is praying the court to give his
motion a second look, in the hope that the court
would realize its supposed error, correct the same,
and thereby preclude the necessity of seeking relief
in a higher tribunal.
In the case presently considered, the reiteration of
the argument that the respondent Judge committed
error in his computation of the period to file an
answer after a motion to dismiss shall have been
denied becomes a necessity in view of the fact that,
although the first motion for reconsideration of the
order of default was granted, the respondent Judge
subsequently revoked his favorable action thereon.
The motion to reconsider the order of revocation
must necessarily invoke the same ground showing
why the ground upon which the default order is
based is erroneous. That said argument is no Idle
reiteration of the reason previously alleged, or that
the motion for reconsideration was not filed for
purposes of delay is indubitably shown by the fact
that the respondent Judge sustained the same and
corrected his error with respect to the period of time
within which to file an answer on the basis thereof.
By and large, it adequately appears that the
questioned actuations of the respondent Judge in
this case have been characterized not only by
palpable error but also by grave abuse of discretion
which should be corrected and warned against.
WHEREFORE, the petition is hereby granted. All
the proceedings conducted by the respondent Judge
in Civil Case No. 43869, including the judgment
rendered therein dated August 17, 1982, insofar as
the herein petitioner is concerned, are hereby
ANNULLED and SET ASIDE. The answer with
counterclaim filed by the petitioner dated June 10,
1982 shall be deemed ADMITTED. Costs against
private respondent.
SO ORDERED.

Republic
SUPREME
Manila

of

the

Philippines
COURT

EN BANC
G.R. No. 70895 May 30, 1986
HABALUYAS ENTERPRISES, INC. and
PEDRO
HABALUYAS, petitioners,
vs.
JUDGE MAXIMO M. JAPSON, Manila
Regional Trial Court, Branch 36; SHUGO

NODA
&
CO.,
NODA, respondents.

LTD.,

and

SHUYA

Norberto J. Quisumbing for respondents.

RESOLUTION

FERIA, J.:
Respondents have filed a motion for reconsideration
of the Decision of the Second Division of the Court
promulgated on August 5, 1985 which granted the
petition for certiorari and prohibition and set aside
the order of respondent Judge granting private
respondents' motion for new trial.
The issue in this case is whether the fifteen-day
period within which a party may file a motion for
reconsideration of a final order or ruling of the
Regional Trial Court may be extended.
Section 39 of The Judiciary Reorganization Act,
Batas Pambansa Blg. 129, reduced the period for
appeal from final orders or judgments of the
Regional Trial Courts (formerly Courts of First
Instance) from thirty (30) to fifteen (15) days and
provides a uniform period of fifteen days for appeal
from final orders, resolutions, awards, judgments, or
decisions of any court counted from notice thereof,
except in habeas corpus cases where the period for
appeal remains at forty- eight (48) hours. To
expedite appeals, only a notice of appeal is required
and a record on appeal is no longer required except
in appeals in special proceedings under Rule 109 of
the Rules of Court and in other cases wherein
multiple appeals are allowed. Section 19 of the
Interim Rules provides that in these exceptional
cases, the period for appeal is thirty (30) days since
a record on appeal is required. Moreover Section 18
of the Interim Rules provides that no appeal bond
shall be required for an appeal, and Section 4
thereof disallows a second motion for
reconsideration of a final order or judgment.
All these amendments are designed, as the decision
sought to be reconsidered rightly states, to avoid the
procedural delays which plagued the administration
of justice under the Rules of Court which are
intended to assist the parties in obtaining a just,
speedy and inexpensive administration of justice.
However, the law and the Rules of Court do not
expressly prohibit the filing of a motion for
extension of time to file a motion for
reconsideration of a final order or judgment.
In the case of Gibbs vs. Court, of First Instance (80
Phil. 160), the Court dismissed the petition for
certiorari and ruled that the failure of defendant's
attorney to file the petition to set aside the judgment

within the reglementary period was due to

excusable neglect, and, consequently, the record on
appeal was allowed. The Court did not rule that the
motion for extension of time to file a motion for
new trial or reconsideration could not be granted.
In the case of Roque vs. Gunigundo (Administrative
Case No. 1684, March 30, 1979, 89 SCRA 178), a
division of the Court cited the Gibbs decision to
support a statement that a motion to extend the
reglementary period for filing the motion for
reconsideration is not authorized or is not in order.
The Intermediate Appellate Court is sharply divided
on this issue. Appeals have been dismissed on the
basis of the original decision in this case.
After considering the able arguments of counsels
for petitioners and respondents, the Court resolved
that the interest of justice would be better served if
the ruling in the original decision were applied
prospectively from the time herein stated. The
reason is that it would be unfair to deprive parties of
their right to appeal simply because they availed
themselves of a procedure which was not expressly
prohibited or allowed by the law or the Rules. On
the other hand, a motion for new trial or
reconsideration is not a pre-requisite to an appeal, a
petition for review or a petition for review on
certiorari, and since the purpose of the amendments
above referred to is to expedite the final disposition
of cases, a strict but prospective application of the
said ruling is in order. Hence, for the guidance of
Bench and Bar, the Court restates and clarifies the
rules on this point, as follows:
1.) Beginning one month after the promulgation of
this Resolution, the rule shall be strictly enforced
that no motion for extension of time to file a motion
for new trial or reconsideration may be filed with
the Metropolitan or Municipal Trial Courts, the
Regional Trial Courts, and the Intermediate
Appellate Court. Such a motion may be filed only in
cases pending with the Supreme Court as the court
of last resort, which may in its sound discretion
either grant or deny the extension requested.
2.) In appeals in special proceedings under Rule 109
of the Rules of Court and in other cases wherein
multiple appeals are allowed, a motion for
extension of time to file the record on appeal may
be filed within the reglementary period of thirty
(30) days. (Moya vs. Barton, 76 Phil. 831; Heirs of
Nantes vs. Court of Appeals, July 25, 1983, 123
SCRA 753.) If the court denies the motion for
extension, the appeal must be taken within the
original period (Bello vs. Fernando, January 30,
1962, 4 SCRA 135), inasmuch as such a motion
does not suspend the period for appeal (Reyes vs.
Sta. Maria, November 20, 1972, 48 SCRA 1). The
trial court may grant said motion after the expiration
of the period for appeal provided it was filed within

the original period. (Valero vs. Court of Appeals,

June 28, 1973, 51 SCRA 467; Berkenkotter vs.
Court of Appeals, September 28, 1973, 53 SCRA
228).
All appeals heretofore timely taken, after extensions
of time were granted for the filing of a motion for
new trial or reconsideration, shall be allowed and
determined on the merits.
WHEREFORE, the motion for reconsideration of,
and to set aside, the decision of August 5, 1985 is
granted and the petition is dismissed. No costs.
SO ORDERED.
Republic
SUPREME
Manila

of

the

Philippines
COURT

SECOND DIVISION
G.R. No. 74586 October 17, 1986
SERVICE
SPECIALISTS,
INCORPORATED, petitioner,
vs.
THE SHERIFF OF MANILA, DEPUTY
SHERIFF ENRIQUITO A. VIOLETA and ROY
DIAZ, respondents.

FERIA, J.:
This is a petition for mandamus to compel
respondents Sheriff and Deputy Sheriff of Manila to
proceed with the sale at public auction of the
properties of private respondent. which had been
levied upon on execution of a final and executory
judgment , pending appeal from an order dismissing
a petition. for relief from said judgment.
On February 25, 1985, petitioner filed with the
Regional Trial Court of Manila. Branch L. an action
for replevin and damages against private respondent
which was docketed as Civil Case No. 85-29444.
After private respondent had filed his answer, a pretrial conference was set by the lower court of which
the counsels were duly notified and they were,
furthermore. commissioned to secure the presence
of the parties they represented. Both private
respondent and his counsel failed to appear at the
pre-trial and, as prayed for by counsel for petitioner,
private respondent was declared as in default.
On August 9, 1985, after petitioner had presented its
evidence ex-parte. the lower court rendered a
decision the dispositive part of which read as
follows:

WHEREFORE, premises considered,

judgment is hereby rendered in favor
of the plaintiff and against the
defendant Roy Diaz, ordering the
latter:
1. To pay the plaintiff the amount of
P83,412.76. as his total obligation.
including attorney's fees, interests,
liquidated damages, bonding fee, and
repossession expenses: and
2. To pay the costs of suit.
On December 10, 1985, after said decision had
become final, the lower court granted the motion for
execution filed by petitioner.
On December 24, 1985, private respondent filed a
petition for relief from judgment which was
docketed as Civil Case No. 85-34098 and
subsequently assigned to Branch XII of the
Regional Trial Court of Manila.
Petitioner filed a motion to dismiss the petition for
relief on the grounds that the petition was filed out
of time; that it failed to indicate a good and
substantial defense; that it failed to show the fraud,
accident, mistake or excusable negligence relied
upon as basis for the petition; and that it was not
filed in the same court and in the same cause as
required by Section 3 of Rule 38. Private
respondent filed an opposition to said motion to
dismiss.
On March 21, 1986, the lower court (Branch XII)
issued an order dismissing the petition for relief for
lack of jurisdiction to hear and determine the same.
On April 2, 1986, private respondent filed a notice
of appeal from the order of dismissal to the
Intermediate Appellate Court.
On April 9, 1986, a writ of execution was issued
pursuant to the order of execution issued by the
lower court (Branch L) on December 10, 1985.
On April 28, 1986, respondent deputy sheriff issued
a notice of levy and sale of the properties of private
respondent levied on, but on the date of the auction
sale, said respondent sheriff refused to proceed with
the auction because of the protest of private
respondent based on his appeal from the order
dismissing his petition for relief.
Hence, petitioner filed the present petition for
mandamus. The petition should be granted.
Although private respondent correctly states that
"after the decision in Civil Case No. 85-29444 had
already become final and executory, and appeal was
no longer available and feasible under the ordinary

course of law, petition for relief from judgment is

the most available remedy," he did not comply with
the provision of Section 2 of Rule 38 which reads:
Petition to Court of First Instance for
relief from judgment or other
proceeding
thereof.-When
a
judgment or order is entered, or any
other proceeding is taken, against a
party in a Court of First In- stance
through fraud, accident, mistake, or
excusable negligence, he may file a
petition in such court and in the same
cause praying that the judgment,
order or proceeding be set aside.
In the case of Braca vs. Tan, this Court held:
It is clear from the foregoing
provisions of Rule 38 that the
petition for relief from a judgment of
the Court of First Instance must be
filed in the same court that rendered
the judgment and in the same cause
wherein the judgment was rendered;
and that if the court finds the
allegations of the petition to be true,
it shall set aside the judgment and try
the principal case upon its merits as
if a timely motion for new trial had
been granted therein.
It results therefore, that the Court of
First Instance of Rizal has no
jurisdiction to hear and decide the
petition for relief from the judgment
of the Court of First Instance of
Negros Occidental not only because
section 2 of Rule 38 expressly
requires that such petition be filed in
the latter court and in the same case
but also because, although the
principal case could have been
originally brought either in the Court
of First Instance of Rizal where the
defendant has its domicile, or in the
Court of First Instance of Negros
Occidental where the plaintiffs
reside, once the latter court had taken
cognizance of said case, it acquired
jurisdiction to the exclusion of the
former. To permit the Court of First
Instance of Rizal to set aside the
judgment rendered by the Court of
First Instance of Negros Occidental
in civil case No. 1007 and to try said
case upon its merits, would produce
the anomalous effect of depriving the
latter court of the jurisdiction which
it had already acquired over the case
and of transferring that case to
another court of the same category at

the instance of the losing party. (84

Phil. 582, 584-585)
In the case at bar, private respondent filed his
petition for relief also with the Regional Trial Court
of Manila, but he did not file it in the same case; he
filed it in another case, No. 85- 34098. Branch XII
of the lower court to which Civil Case No. 8534098 was assigned could not take cognizance of
the petition for relief, because it was not the same
branch of the court which rendered the judgment
from which relief was sought. It was Branch L of
the lower court which could properly take
cognizance of said petition and which, if it found
the allegations thereof to be true, could order the
judgment complained of to be set aside and proceed
to hear and determine the case as if a timely motion
for new trial had been granted (Sections 6 and 7 of
Rule 38).
Private respondent, however, contends that in his
petition for relief from judgment, one of the
respondents therein named was the judge himself
who presided over Civil Case No. 85-29444, for
which reason the petition could not be filed in his
sala. This is erroneous.
The judge who rendered the judgment is not a party
in a petition for relief from said judgment. A
petition for relief from judgment is not like a
petition for certiorari wherein the judge is made a
party respondent because he is alleged to have acted
without or in excess of his jurisdiction or with grave
abuse of discretion (Sections 1 and 5 of Rule 65). In
a petition for relief from judgment, the petitioner
claims that due to extrinsic fraud, accident, mistake,
or excusable negligence, he has been unjustly
deprived of a hearing or has been prevented from
taking an appeal.
Private respondent further contends that in view of
his appeal from the order dismissing his petition for
relief, the final and executory judgment rendered
against him in Civil Case No. 85-29444 could no
longer be executed. This is untenable. In order to
stay execution, it was necessary for private
respondent to obtain a writ of preliminary
injunction in accordance with Section 5 of Rule 38,
which provides:
Preliminary
injunction
pending
proceedings. The court in which
the petition is filed, or a judge
thereof, may grant such preliminary
injunction as may be necessary for
the preservation of the rights of the
parties pending the proceeding, upon
the filing by the petitioner of a bond
to the adverse party, conditioned that
if the petition is dismissed or the
petitioner fails on the trial of the case
upon its merits. he will pay the

adverse party all damages and costs

that may be awarded to him by
reason of the issuance of such
injunction or the other proceedings
following the petition; but such
injunction shall not operate to
discharge or extinguish any lien
which the adverse party may have
acquired upon the property of the
petitioner.
As this Court held in the case of Asian Surety &
Insurance Co., Inc. vs. Relucio:
The necessity of securing a writ of
preliminary injunction to suspend or
stay the execution of the judgment
sought to be set aside under Rule 38,
stems from the fact that such
judgment had already become final
and executory (Veluz v. Justice of the
Peace, 42 Phil 557; Anuran v.
Aquino, 38 Phil. 29) otherwise the
remedy would be a motion for new
trial under Rule 37 of the Rules.
There is no question then, that unless
restrained such judgment could be
executed as it would then be the
ministerial duty of the court to issue
the writ of execution. (Buenaventura
v. Garcia, 78 Phil. 759; Federal
Films, Inc. v. Ocampo, 78 Phil.
479) . . .
While it is true that in ordinary cases,
by the perfection of an appeal, under
section 9 of Rule 41 of the Rules, the
trial court loses jurisdiction over its
judgment, and cannot order its
execution, the judgment adverted to
refers to one which has not attained
finality because of the timely appeal
therefrom. Such is not applicable to
an appeal from an order dismissing
or denying a petition for relief from
judgment, under Rule 38, because
the judgment from which relief is
sought is already final and executory.
And the only way by which the
execution of said judgment could be
suspended, is that prescribed in
section 5 of Rule 38. (Sanchez v.
Serrano and Rodas. 83 Phil. 838) . . .
(47 SCRA 225, 234-235)
If the lower court does not grant preliminary
injunction, the appellate court may grant the same.
(See Resolution in Vda. de Sayman vs. Court of
Appeals, April 28. 1983. 121 SCRA 650.)
Private respondent invokes the second paragraph of
Section 2 of Rule 41 which provides:

A judgment denying relief under

Rule 38 is subject to appeal, and in
the course thereof, a party may also
assail the judgment on the merits,
upon the ground that it is not
supported by the evidence or it is
contrary to law.
and cites the ruling in the case of Vda. de Sayman
vs. Court of Appeals (120 SCRA 676) to the effect
that in an appeal from the denial of a petition for
relief, the appellate court is not limited to the issue
of whether or not the denial was correct.
We deem it necessary to clarify the second part of
the abovequoted provision which has given rise to
some confusion.
There is no question that a judgment or order
denying relief under Rule 38 is final and appealable,
unlike an order granting such relief which is
interlocutory (Samia vs. Medina, 56 Phil. 613).
However, the second part of the above-quoted
provision (that in the course of an appeal from the
denial or dismissal of a petition for relief, a party
may also assail the judgment on the merits) may
give the erroneous impression that in such appeal
the appellate court may reverse of modify the
judgment on the merits. This cannot be done
because the judgment from which relief is sought is
already final and executory. (See Villa Rey Transit,
Inc. vs. Far East Motor Corporation, 81 SCRA 298.)
The purpose of the rule is to enable the appellate
court to 'determine not only the existence of any of
the grounds relied upon whether it be fraud,
accident, mistake or excusable negligence, but also
and primarily the merit of the petitioner's cause of
action or defense, as the case may be. If the
appellate court finds that one of the grounds exists
and, what is of decisive importance, that the
petitioner has a good cause of action or defense, it
will reverse the denial or dismissal, set aside the
judgment in the main case and remand the case to
the lower court for a new trial in accordance with
Section 7 of Rule 38.
On the other hand, if the petition for relief is against
an order disallowing an appeal for having been filed
out of time and the petition is denied or dismissed,
in the appeal from the denial or dismissal the
appellate court must also be apprised of the merit of
the case of the party who assails such denial or
dismissal. If the appellate court finds a justifiable
ground and a meritorious case, it will reverse the
denial or dismissal and allow the appeal from the
decision in the main case. (See Vda. de Sayman vs.
Court of Appeals, February 21, 1983, 120 SCRA
676, 684-685.)
Petitioner in its Reply urges this Court to make a
finding that the petition for relief from judgment

was filed out of time as this would render the

discussion on the merits of the petition moot and
academic. It maintains that a copy of the decision
against private respondent must have been received
by the latter's counsel on August 29, 1985, the date
when its counsel received a copy thereof; that the
60-day period for filing a petition for relief should
be counted from said date; and that when the
petition for relief was filed on December 24, 1985,
117 days had elapsed.
On September 1, 1986, the Court required private
respondent to file a Rejoinder to petitioner's Reply,
particularly specifying the date on which his
counsel received a copy of the decision dated
August 9, 1985. Unfortunately, private respondent
did not file a Rejoinder and merely reiterated the
evasive and confusing allegation in his petition for
relief, as follows:
8. The aforesaid Decision/Judgment,
Annexes A, A-I and A- 2, of
respondent Judge, actually came to
the knowledge of herein petitioner
on November 29, 1984, when he
himself instead of his counsel of
record, was requested by the latter to
sign a pleading Omnibus Motion'
with like date, after said counsel of
record informed petitioner of the
existence of plaintiff's motion for
issuance of writ of execution, dated
October 3, 1985, and set for hearing
on November 29, 1985.
The failure of private respondent to comply with the
resolution requiring him to specify particularly the
date on which his counsel received a copy of the
decision supports petitioner's contention that the
petition for relief was filed way beyond the
reglementary period of sixty days after the
petitioner learns of the judgment (Section 3 of Rule
38), inasmuch as said period begins to run from the
date the petitioner's lawyer is notified of the
decision. (See Olivares vs. Leola, 97 Phil. 253;
Mercado vs. Domingo, 19 SCRA 961.)
Moreover, an examination of the record also
supports petitioner's contention that private
respondent has resorted to dilatory tactics in the
case at bar.
The main ground of the petition for relief is that no
notice of the scheduled pre-trial conference was
sent to private respondent himself and such notice
was sent only to the counsels who were furthermore
commissioned to secure the presence of the parties
they represented. Private respondent claims that this
is not the notice of pre-trial contemplated by law.

This claim has no merit. As early as October 30,

1975, this Court en banc ruled in the case
of Taroma vs. Sayo:
For the guidance of the bench and
bar, therefore, the Court in
reaffirming the ruling that notice of
pre-trial must be served separately
upon the party and his counsel of
record, restates that while service of
such notice to party may be made
directly to the party, it is best that the
trial courts uniformly serve such
notice to party through or care of his
counsel at counsel's address with the
express imposition upon counsel of
the obligation of notifying the party
of the date, time and place of the pretrial conference and assuring that the
party either appear thereat or deliver
to counsel a written authority to
represent the party with power to
compromise the case, with the
warning that a party who fails to do
so may be non-suited or declared (as)
in default. (67 SCRA 508, 512)
The attached affidavit of merit does not state facts
showing a good and substantial defense. Private
respondent does not claim payment of his
obligation; he merely questions the assignment of
the credit in favor of petitioner.
Finally, to make matters worse, private respondent
merely filed a notice of appeal to the Intermediate
Appellate Court from the order of the lower court
which dismissed his petition for relief from
judgment "for lack of jurisdiction to hear and
determine the same." The appeal should have been
made to this Court through a petition for review on
certiorari in accordance with the Judiciary Act of
1948 as amended by Republic Act No. 5440 and
Section 25 of the Interim Rules.
The writ of execution in this case was issued on
April 9, 1986 pursuant to the order dated December
10, 1985 granting the motion for execution. The
levy on execution was made within the
reglementary period of sixty days after its receipt by
respondent Deputy Sheriff Section 11 of Rule 39),
as shown by the Notice of Levy and Sale dated
April 28, 1986. Consequently, the sale on execution
may properly proceed. It is the ministerial duty of
the lower court to order the execution of its final
and executory judgment (Far Eastern Surety &
Insurance Company, Inc. vs. Hernandez, October 3.
1975, 67 SCRA 256) and it is the legal duty of
respondent sheriffs to enforce the order of
execution.
WHEREFORE, respondents Sheriff and Deputy
Sheriff of Manila are directed to proceed with the

sale at public auction of the properties of private

respondent which had been levied upon on
execution. Costs against private respondent.
SO ORDERED