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[G.R. No. 132007. August 5, 1998] counsel, Atty.

counsel, Atty. Froilan Cabaltera, is just a stone [sic] throw away from the office of
[petitioners] counsel, with an estimate (sic) distance of about 200 meters more or less.
SOLAR TEAM ENTERTAINMENT, INC., petitioner, vs. HON. HELEN BAUTISTA
RICAFORT,in her capacity as Presiding Judge of the Regional Trial Court of Paraaque, Petitioner further alleged that the post office was about ten (10) times farther from the
Metro Manila (Branch 260), TEAM IMAGE ENTERTAINMENT, INC., FELIX S. CO, JEFFREY office of Atty. Cabaltera.
C. CAL, and KING CUISIA, respondents.
On 15 August 1997, private respondents filed their opposition[6] to the above mentioned
DECISION motion, alleging that petitioners rigid and inflexible reliance on the provisions of Section
11, Rule 13 ... is an adventitious resort to technicality and is contrary to Section 6 of Rule
DAVIDE, JR., J.: 3 ... which admonishes that said Rules shall be liberally construed in order to promote
At issue is whether respondent judge committed grave abuse of discretion amounting to their objective in securing a just, speedy and inexpensive disposition of [e]very action and
lack or excess of jurisdiction in denying petitioners motion to expunge private proceeding; and that Section 11, Rule 13 notwithstanding, private respondents religiously
respondents answer with counterclaims on the ground that said pleading was not served complied with [Section 5 of Rule 13] by personally present[ing] to the clerk of court their
personally; moreover, there was no written explanation as to why personal service was said Answer ... furnishing a copy thereof to the counsel for [petitioner] by way of
not accomplished, as required by Section 11 of Rule 13 of the 1997 Rules of Civil registered mail.
Procedure. On 8 September 1997, public respondent Judge Bautista-Ricafort issued an order[7]stating
The antecedents are not disputed. that under Section 11 of Rule 13 it is within the discretion of the [trial court] whether to
consider the pleading as filed or not, and denying, for lack of merit, petitioners motion to
On 10 July 1997, petitioner, as plaintiff, filed before the Regional Trial Court (RTC) in expunge the Answer (with Counterclaims) and to declare private respondents in default.
Paraaque, Metro Manila, a complaint for recovery of possession and damages with prayer
for a writ of replevin[1] against herein private respondents. The case was docketed as Civil Petitioner immediately moved for reconsideration [8] of the order, but public respondent
Case No. 97-0304 and was assigned to Branch 260 of said court, presided over by public Judge Bautista-Ricafort denied this motion in her order[9] of 17 November 1997. The order
respondent Judge Helen Bautista-Ricafort. justified the denial in this wise:

Summonses and copies of the complaint were forthwith served on private Section 6 [of] Rule 1 of the 1997 Rules of Civil Procedure ordains that the Rules shall be
respondents. On 25 July 1997, their counsel filed a notice of appearance with urgent ex- liberally construed in order to promote their objective of securing a just, speedy and
parte motion for extension of time to plead,[2] which the court granted in its order of 4 inexpensive disposition of every action and proceeding.
August 1997.[3] Liberal construction of the rules and the pleading is the controlling principle to effect
On 8 August 1997, private respondents, as defendants, filed their Answer (with substantial justice.
Counterclaims).[4] A copy thereof was furnished counsel for petitioner by registered mail; As pointed out by the Supreme Court in Alonso vs. Villamor, 16 Phil. 315, "the error in this
however, the pleading did not contain any written explanation as to why service was not case is purely technical. To take advantage of it for other purposes than to cure it, does
made personally upon petitioner-plaintiff, as required by Section 11 of Rule 13 of the 1997 not appeal a fair sense of justice. Its presentation as fatal to plaintiff a [sic] case smacks
Rules of Civil Procedure. of skill rather than right. A litigation is not a game of technicalities in which one, more
On 11 August 1997, petitioner filed a motion to expunge the Answer (with Counterclaims) deeply schooled and skilled in the subtle art of movement and position, entraps and
and to declare herein private respondents in default,[5] alleging therein that the latter did destroys the other. It is rather, a contest in which each contending party fully and fairly
not observe the mandate of the aforementioned Section 11, and that there was: lays before the Court the facts in issue and then, brushing aside as wholly trivial and
indecisive all imperfections or form of technicalities of procedure, asks that justice be
[A]bsolutely no valid reason why defendant[s] should not have personally served done upon the merits. Lawsuits, unlike duels, are not to be won by a rapier's thrust."
plaintiffs ... counsel with [a] copy of their answer [as] (t)he office of defendants (sic)

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While it is desirable that the above Rules be faithfully and even meticulously observed, written explanation why the service or filing was not done personally. A violation of this
courts should not strict about procedural lapses that do not really impair the proper Rule may be cause to consider the paper as not filed.(n)
administration of justice. Furthermore, it is well settled that litigations should, as much
as possible be decided on their merits and not on technicalities. Note that Section 11 refers to both service of pleadings and other papers on the adverse
party or his counsel as provided for in Sections 6, 7 and 8; and to the filing of pleadings
Petitioner thus filed the instant special civil action of certiorari, contending that public and other papers in court.
respondent Judge Bautista-Ricafort committed grave abuse of discretion amounting to
lack or excess of jurisdiction when she admitted private respondents' "Answer (with Personal service and filing are preferred for obvious reasons. Plainly, such should
Counterclaims)" notwithstanding private respondents' clear, admitted and inexcusable expedite action or resolution on a pleading, motion or other paper; and conversely,
violation of Section 11, Rule 13 of the 1997 Rules of Civil Procedure, in that: (a) the minimize, if not eliminate, delays likely to be incurred if service or filing is done by mail,
"Answer (with Counterclaims)" was not served personally upon petitioners counsel considering the inefficiency of the postal service. Likewise, personal service will do away
despite the undisputed fact that the offices of private respondents counsel and that of with the practice of some lawyers who, wanting to appear clever, resort to the following
petitioners counsel are only about 200 meters away from each other; and (b) the Answer less than ethical practices: (1) serving or filing pleadings by mail to catch opposing counsel
did not contain any explanation as to why the answer was not served personally. off-guard, thus leaving the latter with little or no time to prepare, for instance, responsive
pleadings or an opposition; or (2) upon receiving notice from the post office that the
In their Comment, filed in compliance with the resolution of 2 February 1998, and to registered parcel containing the pleading of or other paper from the adverse party may
which petitioner filed a Reply, private respondents aver that public respondent Judge be claimed, unduly procrastinating before claiming the parcel, or, worse, not claiming it
Bautista-Ricafort correctly admitted private respondents Answer (with Counterclaims) in at all, thereby causing undue delay in the disposition of such pleading or other papers.
light of Section 6, Rule 1 of the 1997 Rules of Civil Procedure; that Section 11 of Rule 13
begins with the phrase whenever practicable, thereby suggesting that service by mail may If only to underscore the mandatory nature of this innovation to our set of adjective rules
still be effected depending on the relative priority of the pleading sought to be filed; and requiring personal service whenever practicable, Section 11 of Rule 13 then gives the
when service is not done personally, it is more prudent and judicious for the courts to court the discretion to consider a pleading or paper as not filed if the other modes
require a written explanation rather than to expunge the pleading outright or consider of service or filing were resorted to and no written explanation was made as to why
the same as not being filed. personal service was not done in the first place. The exercise of discretion must,
necessarily, consider the practicability of personal service, for Section 11 itself begins with
In view of the importance of the issue raised, which is, undoubtedly, one of the first the clause whenever practicable.
impression, the Court resolved to give due course to the petition and consider it
submitted for decision on the basis of the pleadings filed by the parties. We thus take this opportunity to clarify that under Section 11, Rule 13 of the 1997 Rules
of Civil Procedure, personal service and filing is the general rule, and resort to other
Section 5, Rule 13 of the 1997 Rules of Civil Procedure prescribes two modes of service of modes of service and filing, the exception. Henceforth, whenever personal service or
pleadings, motions, notices, orders, judgments and other papers, namely: (1) personal filing is practicable, in light of the circumstances of time, place and person, personal
service; and (2) service by mail. The first is governed by Section 6, while the second, by service or filing is mandatory. Only when personal service or filing is not practicable may
Section 7 of said Rule. If service cannot be done either personally or by mail, substituted resort to other modes be had, which must then be accompanied by a written explanation
service may be resorted to under Section 8 thereof. as to why personal service or filing was not practicable to begin with. In adjudging the
plausibility of an explanation, a court shall likewise consider the importance of the subject
Pursuant, however, to Section 11 of Rule 13, service and filing of pleadings and other matter of the case or the issues involved therein, and the prima facie merit of the
papers must, whenever practicable, be done personally; and if made through other pleading sought to be expunged for violation of Section 11. This Court cannot rule
modes, the party concerned must provide a written explanation as to why the service or otherwise, lest we allow circumvention of the innovation introduced by the 1997 Rules in
filing was not done personally. The section reads: order to obviate delay in the administration of justice.
SEC. 11. Priorities in modes of service and filing. -- Whenever practicable, the service and Here, the proximity between the offices of opposing counsel was established; moreover,
filing of pleadings and other papers shall be done personally. Except with respect to that the office of private respondents counsel was ten times farther from the post office
papers emanating from the court, a resort to other modes must be accompanied by a
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than the distance separating the offices of opposing counsel. Of course, proximity would WHEREFORE, the instant petition is DISMISSED considering that while the justification for
seem to make personal service most practicable, but exceptions may nonetheless the denial of the motion to expunge the Answer (with Counterclaims) may not necessarily
apply. For instance, where the adverse party or opposing counsel to be served with a be correct, yet, for the reasons above stated, the violation of Section 11 of Rule 13 may
pleading seldom reports to office and no employee is regularly present to receive be condoned.
pleadings, or where service is done on the last day of the reglementary period and the
office of the adverse party or opposing counsel to be served is closed, for whatever reason. No pronouncement as to costs.

Returning, however, to the merits of this case, in view of the proximity between the SO ORDERED.
offices of opposing counsel and the absence of any attendant explanation as to why Vitug, Panganiban and Quisumbing, JJ., concur.
personal service of the answer was not effected, indubitably, private respondents counsel
violated Section 11 of Rule 13 and the motion to expunge was prima Bellosillo, J., separate opinion.
facie meritorious. However, the grant or denial of said motion nevertheless remained
within the sound exercise of the trial courts discretion. Thus, as guided by Section 6, Rule
1 of the 1997 Rules of Civil Procedure, which ordains that the Rules shall be liberally
construed in order to promote their objective of securing a just, speedy and inexpensive
disposition of every action or proceeding, as well as by the dictum laid down in Alonso v.
Villamor, 16 Phil. 315 [1910], the trial court opted to exercise its discretion in favor of
admitting the Answer (with Counterclaims), instead of expunging it from the record.

To our mind, if motions to expunge or strike out pleadings for violation of Section 11 of
Rule 13 were to be indiscriminately resolved under Section 6 of Rule 1 or Alonzo v.
Villamor and other analogous cases, then Section 11 would become meaningless and its
sound purpose negated. Nevertheless, we sustain the challenged ruling of the trial court,
but for reasons other than those provided for in the challenged order.

The 1997 Rules of Civil Procedure took effect only on 1 July 1997, while the questioned
Answer (with Counterclaims) was filed only on 8 August 1997, or on the 39th day following
the effectivity of the 1997 Rules. Hence, private respondents counsel may not have been
fully aware of the requirements and ramifications of Section 11, Rule 13. In fact, as
pointed out by petitioners counsel, in another case where private respondents counsel
was likewise opposing counsel, the latter similarly failed to comply with Section 11.

It has been several months since the 1997 Rules of Civil Procedure took effect. In the
interim, this Court has generally accommodated parties and counsel who failed to comply
with the requirement of a written explanation whenever personal service or filing was
not practicable, guided, in the exercise of our discretion, by the primary objective of
Section 11, the importance of the subject matter of the case, the issues involved and
the prima facie merit of the challenged pleading. However, as we have in the past, for the
guidance of the Bench and Bar, strictest compliance with Section 11 of Rule 13 is
mandated one month from promulgation of this Decision.

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Benguet v. NLRC Secondly, Cosalan had been deprived of procedural due process by the respondent Board
members. He was never informed of the charges raised against him and was given no
THIRD DIVISION opportunity to meet those charges and present his side of whatever dispute existed; he
[G.R. No. 89070. May 18, 1992.] was kept totally in the dark as to the reason or reasons why he had been suspended and
effectively dismissed from the service of Beneco. Thirdly, respondent Board members
BENGUET ELECTRIC COOPERATIVE, INC., petitioner, vs. NATIONAL LABOR RELATIONS failed to adduce any cause which could reasonably be regarded as lawful cause for the
COMMISSION, PETER COSALAN and BOARD OF DIRECTORS OF BENGUET ELECTRIC suspension and dismissal of respondent Cosalan from his position as General Manager of
COOPERATIVE, INC. * , respondents. Beneco. Cosalan was, in other words, denied due process both procedural and
substantive. Fourthly, respondent Board members failed to obtain the prior approval of
SYLLABUS
the NEA of their suspension and dismissal of Cosalan, which prior approval was required,
1. REMEDIAL LAW; CIVIL PROCEDURE; TRANSMISSION THROUGH PRIVATE inter alia, under the subsisting loan agreement between the NEA and Beneco. The
CARRIER NOT A RECOGNIZED MODE OF FILING PLEADINGS; DATE PLEADING DEEMED requisite NEA approval was subsequently sought by the respondent Board members; no
FILED. Respondent Board members' contention runs counter to the established rule NEA approval was granted. . . . The major difficulty with the conclusion reached by the
that transmission through a private carrier or letter-forwarder -- instead of the Philippine NLRC is that the NLRC clearly overlooked or disregarded the circumstances under which
Post Office -- is not a recognized mode of filing pleadings. The established rule is that the respondent Board members had in fact acted in the instant case. As noted earlier, the
date of delivery of pleadings to a private letter-forwarding agency is not to be considered respondent Board members responded to the efforts of Cosalan to take seriously and
as the date of filing thereof in court, and that in such cases, the date of actual receipt by implement the Audit Memoranda issued by the COA explicitly addressed to the petitioner
the court, and not the date of delivery to the private carrier, is deemed the date of filing Beneco, first by stripping Cosalan of the privileges and perquisites attached to his position
of that pleading. as General Manager, then by suspending indefinitely and finally dismissing Cosalan from
such position. As also noted earlier, respondent Board members offered no suggestion at
2. LABOR LAW; NATIONAL LABOR RELATIONS COMMISSION; APPEALS; TEN-DAY all of any just or lawful cause that could sustain the suspension and dismissal of Cosalan.
PERIOD TO PERFECT APPEAL MANDATORY AND JURISDICTIONAL; CASE AT BAR. There They obviously wanted to get rid of Cosalan and so acted, in the words of the NLRC itself,
was, therefore, no reason grounded upon substantial justice and the prevention of "with indecent haste" in removing him from his position and denying him substantive and
serious miscarriage of justice that might have justified the NLRC in disregarding the ten- procedural due process. Thus, the record showed strong indications that respondent
day reglementary period for perfection of an appeal by the respondent Board members. Board members had illegally suspended and dismissed Cosalan precisely because he was
Accordingly, the applicable rule was that the ten-day reglementary period to perfect an trying to remedy the financial irregularities and violations of NEA regulations which the
appeal is mandatory and jurisdictional in nature, that failure to file an appeal within the COA had brought to the attention of Beneco. The conclusion reached by the NLRC that
reglementary period renders the assailed decision final and executory and no longer "the records do not disclose that the individual Board members were motivated by malice
subject to review. The respondent Board members had thus lost their right to appeal from or bad faith," flew in the face of the evidence of record. At the very least, a strong
the decision of the Labor Arbiter and the NLRC should have forthwith dismissed their presumption had arisen, which it was incumbent upon respondent Board members to
appeal memorandum. disprove, that they had acted in reprisal against respondent Cosalan and in an effort to
suppress knowledge about and remedial measures against the financial irregularities the
3. ID.; ID.; ID.; APPEAL IN CASE AT BAR BEREFT OF MERIT; ILLEGAL SUSPENSION
COA Audits had unearthed. That burden respondent Board members did not discharge.
AND ILLEGAL DISMISSAL ESTABLISHED. There is another and more compelling reason
why the respondent Board members' appeal should have been dismissed forthwith: that 4. COMMERCIAL LAW; PRIVATE CORPORATIONS; PROVISIONS OF CORPORATION
appeal was quite bereft of merit. Both the Labor Arbiter and the NLRC had found that the CODE APPLICABLE IN SUPPLEMENTARY MANNER TO ALL CORPORATIONS; ELECTRIC
indefinite suspension and termination of services imposed by the respondent Board COOPERATIVES ARE CORPORATIONS UNDER PRESIDENTIAL DECREE NO. 269. We agree
members upon petitioner Cosalan was illegal. That illegality flowed, firstly, from the fact with the Solicitor General, firstly, that Section 31 of the Corporation Code is applicable in
that the suspension of Cosalan was continued long after expiration of the period of thirty respect of Beneco and other electric cooperatives similarly situated. Section 4 of the
(30) days, which is the maximum period of preventive suspension that could be lawfully Corporation Code renders the provisions of that Code applicable in a supplementary
imposed under Section 4, Rule XIV of the Omnibus Rules Implementing the Labor Code. manner to all corporations, including those with special or individual charters so long as
4
those provisions are not inconsistent with such charters. We find no provision in P.D. No. for the acts of respondent Board members which were both done in bad faith and ultra
269, as amended, that would exclude expressly or by necessary implication the vires. The liability-generating acts here are the personal and individual acts of respondent
applicability of Section 31 of the Corporation Code in respect of members of the boards Board members, and are not properly attributed to Beneco itself.
of directors of electric cooperatives. Indeed, P.D. No. 269 expressly describes these
cooperatives as "corporations:" "Sec. 15. Organization and Purpose. Cooperative non- DECISION
stock, non-profit membership corporations may be organized, and electric cooperative FELICIANO, J p:
corporations heretofore formed or registered under the Philippine non-Agricultural Co-
operative Act may as hereinafter provided be converted, under this Decree for the Private respondent Peter Cosalan was the General manager of petitioner Benguet Electric
purpose of supplying, and of promoting and encouraging the fullest use of, service on an Cooperative, Inc. ("Beneco"), having been elected as such by the Board of Directors of
area coverage basis at the lowest cost consistent with sound economy and the prudent Beneco, with the approval of the National Electrification Administrator, Mr. Pedro Dumol,
management of the business of such corporations." effective 16 October 1982.

5. ID.; ID.; LIABILITY OF DIRECTORS, TRUSTEES OR OFFICERS; BOARD MEMBERS On 3 November 1982, respondent Cosalan received Audit Memorandum No. 1 issued by
AND OFFICERS ACTING IN GOOD FAITH WITHIN SCOPE OF THEIR AUTHORITY INCUR NO the Commission on Audit ("COA"). This Memorandum noted that cash advances received
PERSONAL LIABILITY. The applicable general rule is clear enough. The Board members by officers and employees of petitioner Beneco in the amount of P129,618.48 had been
and officers of a corporation who purport to act for and in behalf of the corporation, keep virtually written off in the books of Beneco. In the Audit Memorandum, the COA directed
within the lawful scope of their authority in so acting, and act in good faith, do not become petitioner Beneco to secure the approval of the National Electrification Administration
liable, whether civilly or otherwise, for the consequences of their acts. Those acts, when ("NEA") before writing off or condoning those cash advances, and recommended the
they are such a nature and are done under such circumstances, are properly attributed adoption of remedial measures. LLphil
to the corporation alone and no personal liability is incurred by such officers and Board
On 12 November 1982, COA issued another Memorandum Audit Memorandum No. 2
members.
addressed to respondent Peter Cosalan, inviting attention to the fact that the audit of
6. ID.; ID.; ID.; GROSS NEGLIGENCE OR BAD FAITH OF BOARD MEMBERS IN per diems and allowances received by officials and members of the Board of Directors of
DIRECTING CORPORATE AFFAIRS ESTABLISHED IN CASE AT BAR. We agree with the Beneco showed substantial inconsistencies with the directives of the NEA. The Audit
Solicitor General, secondly, that respondent Board members were guilty of "gross Memorandum once again directed the taking of immediate action in conformity with
negligence or bad faith in directing the affairs of the corporation" in enacting the series existing NEA regulations. prcd
of resolutions noted earlier indefinitely suspending and dismissing respondent Cosalan
On 19 May 1983, petitioner Beneco received the COA Audit Report on the financial status
from the position of General Manager of Beneco. Respondent Board members, in so
and operations of Beneco for the eight (8) month period ended 30 September 1982. This
doing, acted beyond the scope of their authority as such Board members. The dismissal
Audit Report noted and enumerated irregularities in the utilization of funds amounting to
of an officer or employee in bad faith, without lawful cause and without the procedural
P37 Million released by NEA to Beneco, and recommended that appropriate remedial
due process, is an act that is contra legem. It cannot be supposed that members of boards
action be taken.
of directors derive any authority to violate the express mandates of law or the clear legal
rights of their officers and employees by simply purporting to act for the corporation they Having been made aware of the serious financial condition of Beneco and what appeared
control. to be mismanagement, respondent Cosalan initiated implementation of the remedial
measures recommended by the COA. The respondent members of the Board of Beneco
7. ID.; ID.; ID.; CORPORATION NOT LIABLE FOR ULTRA VIRES ACTS OF DIRECTORS
reacted by adopting a series of resolutions during the period from 23 June to 24 July 1984.
DONE IN BAD FAITH. We believe and so hold, further, that not only are Beneco and
These Board Resolutions abolished the housing allowance of respondent Cosalan;
respondent Board members properly held solidarily liable for the awards made by the
reduced his salary and his representation and commutable allowances; directed him to
Labor Arbiter, but also that petitioner Beneco which was controlled by and which could
hold in abeyance all pending personnel disciplinary actions; and struck his name out as a
act only through respondent Board members, has a right to be reimbursed for any
principal signatory to transactions of petitioner Beneco.
amounts that Beneco may be compelled to pay to respondent Cosalan. Such right of
reimbursement is essential if the innocent members of Beneco are not to be penalized
5
During the period from 28 July to 25 September 1984, the respondent Beneco Board of In the course of the proceedings before the Labor Arbiter, Cosalan filed a motion for
members adopted another series of resolutions which resulted in the ouster of reinstatement which, although opposed by petitioner Beneco, was granted on 23 October
respondent Cosalan as General Manager of Beneco and his exclusion from performance 1987 by Labor Arbiter Amado T. Adquilen. Petitioner Beneco complied with the Labor
of his regular duties as such, as well as the withholding of his salary and allowances. These Arbiter's order on 28 October 1987 through Resolution No. 10-90.
resolutions were as follows:
On 5 April 1988, the Labor Arbiter rendered a decision (a) confirming Cosalan's
"1. Resolution No. 91-4 dated 28 July 1984: reinstatement; (b) ordering payment to Cosalan of his backwages and allowances by
petitioner Beneco and respondent Board members, jointly and severally, for a period of
'. . . that the services of Peter M. Cosalan as General Manager of BENECO is three (3) years without deduction or qualification, amounting to P344,000.00; and (3)
terminated upon approval of the National Electrification Administration:' ordering the individual Board members to pay, jointly and severally, to Cosalan moral
2. Resolution No. 151-84 dated September 15, 1984; damages of P50,000.00 plus attorney's fees of ten percent (10%) of the wages and
allowances awarded him.
'. . . that Peter M. Cosalan is hereby suspended from his position as General
Manager of the Benguet Electric Cooperative, Inc. (BENECO) effective as of the Respondent Board members appealed to the NLRC, and there filed a Memorandum on
start of the office hours on September 24, 1984, until a final decision has been Appeal. Petitioner Beneco did not appeal, but moved to dismiss the appeal filed by
reached by the NEA on his dismissal;' respondent Board members and for execution of judgment. By this time, petitioner
Beneco had a new set of directors.
'. . . that GM Cosalan's suspension from office shall remain in full force and effect
until such suspension is sooner lifted, revoked or rescinded by the Board of In a decision dated 21 November 1988, public respondent NLRC modified the award
Directors; that all monies due him are withheld until cleared;' rendered by the Labor Arbiter by declaring that petitioner Beneco alone, and not
respondent Board members, was liable for respondent Cosalan's backwages and
3. Resolution No. 176-84 dated September 25, 1984; allowances, and by ruling that there was no legal basis for the award of moral damages
and attorney's fees made by the Labor Arbiter.
'. . . that Resolution No. 151-84, dated September 15, 1984 stands as preventive
suspension for GM Peter M. Cosalan.'" 1 Beneco, through its new set of directors, moved for reconsideration of the NLRC decision,
but without success.
Respondent Cosalan nevertheless continued to work as General Manager of Beneco, in
the belief that he could be suspended or removed only by duly authorized officials of NEA, In the present Petition for Certiorari, Beneco's principal contentions are two-fold: first,
in accordance with provisions of P.D. No. 269, as amended by P.D. No. 1645 (the statute that the NLRC had acted with grave abuse of discretion in accepting and giving due course
creating the NEA, providing for its capitalization, powers and functions and organization), to respondent Board members' appeal although such appeal had been filed out of time;
the loan agreement between NEA and petitioner Beneco2 and the NEA Memorandum of and second, that the NLRC had acted with grave abuse of discretion amounting to lack of
2 July 1980.3 Accordingly, on 5 October and 10 November 1984, respondent Cosalan jurisdiction in holding petitioner alone liable for payment of the backwages and
requested petitioner Beneco to release the compensation due him. Beneco, acting allowances due to Cosalan and releasing respondent Board members from liability
through respondent Board members, denied the written request of respondent Cosalan. therefor.

Respondent Cosalan then filed a complaint with the National Labor Relations We consider that petitioner's first contention is meritorious. There is no dispute about
Commissions ("NLRC") on 5 December 1984 against respondent members of the Beneco the fact that the respondent Beneco Board members received the decision of the Labor
Board, challenging the legality of the Board resolutions which ordered his suspension and Arbiter on 21 April 1988. Accordingly, and because 1 May 1988 was a legal holiday, they
termination from the service and demanding payment of his salaries and allowances. On had only up to 2 May 1988 within which to perfect their appeal by filing their
18 February 1985, Cosalan amended his complaint to implead petitioner Beneco and memorandum on appeal. It is also not disputed that the respondent Board members'
respondent Board members, the latter in their respective dual capacities as Directors and memorandum on appeal was posted by registered mail on 3 May 1988 and received by
as private individuals. LibLex the NLRC the following day. 4 Clearly, the memorandum on appeal was filed out of time.

6
Respondent Board members, however, insist that their Memorandum on Appeal was filed agreement between the NEA and Beneco. The requisite NEA approval was subsequently
on time because it was delivered for mailing on 1 May 1988 to the Garcia Communications sought by the respondent Board members; no NEA approval was granted.
Company, a licensed private letter carrier. The Board members in effect contend that the
date of delivery to Garcia Communications was the date of filing of their appeal In reversing the decision of the Labor Arbiter declaring petitioner Beneco and respondent
memorandum. Board members solidarily liable for the salary, allowances, damages and attorney's fees
awarded to respondent Cosalan, the NLRC said:
Respondent Board members' contention runs counter to the established rule that
transmission through a private carrier or letter-forwarder instead of the Philippine Post ". . . A perusal of the records show that the members of the Board never acted
Office is not a recognized mode of filing pleadings. 5 The established rule is that the in their individual capacities. They were acting as a Board passing resolutions
date of delivery of pleadings to a private letter-forwarding agency is not to be considered affecting their general manager. If these resolutions and resultant acts
as the date of filing thereof in court, and that in such cases, the date of actual receipt by transgressed the law, then BENECO for which the Board was acting in behalf
the court, and not the date of delivery to the private carrier, is deemed the date of filing should bear responsibility. The records do not disclose that the individual Board
of the pleading. 6 members were motivated by malice or bad faith, rather, it reveals an intramural
power play gone awry and misapprehension of its own rules and regulations.
There was, therefore, no reason grounded upon substantial justice and the prevention of For this reason, the decision holding the individual board members jointly and
serious miscarriage of justice that might have justified the NLRC in disregarding the ten- severally liable with BENECO for Cosalan's backwages is untenable. The same
day reglementary period for perfection of an appeal by the respondent Board members. goes for the award of damages which does not have the proverbial leg to stand
Accordingly, the applicable rule was that the ten-day reglementary period to perfect an on.
appeal is mandatory and jurisdictional in nature, that failure to file an appeal within the
reglementary period renders the assailed decision final and executory and no longer The Labor Arbiter below should have heeded his own observation in his decision
subject to review. 7 The respondent Board members had thus lost their right to appeal 'Respondent BENECO as an artificial person could not have, by itself, done
from the decision of the Labor Arbiter and the NLRC should have forthwith dismissed their anything to prevent it. But because the former have acted while in office and in
appeal memorandum. cdrep the course of their official functions as directors of BENECO, . . .'
There is another and more compelling reason why the respondent Board members' Thus, the decision of the Labor Arbiter should be modified conformably with all
appeal should have been dismissed forthwith: that appeal was quite bereft of merit. Both the foregoing holding BENECO solely liable for backwages and releasing the
the Labor Arbiter and the NLRC had found that the indefinite suspension and termination appellant board members from any individual liabilities." 8 (Emphasis supplied).
of services imposed by the respondent Board members upon petitioner Cosalan was
illegal. That illegality flowed, firstly, from the fact that the suspension of Cosalan was The applicable general rule is clear enough. The Board members and officers of a
continued long after expiration of the period of thirty (30) days, which is the maximum corporation who purport to act for and in behalf of the corporation, keep within the lawful
period of preventive suspension that could be lawfully imposed under Section 4, Rule XIV scope of their authority in so acting, and act in good faith, do not become liable, whether
of the Omnibus Rules Implementing the Labor Code. Secondly, Cosalan had been deprived civilly or otherwise, for the consequences of their acts. Those acts, when they are such a
of procedural due process by the respondent Board members. He was never informed of nature and are done under such circumstances, are properly attributed to the corporation
the charges raised against him and was given no opportunity to meet those charges and alone and no personal liability is incurred by such officers and Board members. 9
present his side of whatever dispute existed; he was kept totally in the dark as to the
The major difficulty with the conclusion reached by the NLRC is that the NLRC clearly
reason or reasons why he had been suspended and effectively dismissed from the service
overlooked or disregarded the circumstances under which respondent Board members
of Beneco. Thirdly, respondent Board members failed to adduce any cause which could
had in fact acted in the instant case. As noted earlier, the respondent Board members
reasonably be regarded as lawful cause for the suspension and dismissal of respondent
responded to the efforts of Cosalan to take seriously and implement the Audit
Cosalan from his position as General Manager of Beneco. Cosalan was, in other words,
Memoranda issued by the COA explicitly addressed to the petitioner Beneco, first by
denied due process both procedural and substantive. Fourthly, respondent Board
stripping Cosalan of the privileges and perquisites attached to his position as General
members failed to obtain the prior approval of the NEA of their suspension and dismissal
Manager, then by suspending indefinitely and finally dismissing Cosalan from such
of Cosalan, which prior approval was required, inter alia, under the subsisting loan
7
position. As also noted earlier, respondent Board members offered no suggestion at all of this Decree for the purpose of supplying, and of promoting and encouraging the
any just or lawful cause that could sustain the suspension and dismissal of Cosalan. They fullest use of, service on an area coverage basis at the lowest cost consistent
obviously wanted to get rid of Cosalan and so acted, in the words of the NLRC itself, "with with sound economy and the prudent management of the business of such
indecent haste" in removing him from his position and denying him substantive and corporations." 10 (Emphasis supplied)
procedural due process. Thus, the record showed strong indications that respondent
Board members had illegally suspended and dismissed Cosalan precisely because he was We agree with the Solicitor General, secondly, that respondent Board members were
trying to remedy the financial irregularities and violations of NEA regulations which the guilty of "gross negligence or bad faith in directing the affairs of the corporation" in
COA had brought to the attention of Beneco. The conclusion reached by the NLRC that enacting the series of resolutions noted earlier indefinitely suspending and dismissing
"the records do not disclose that the individual Board members were motivated by malice respondent Cosalan from the position of General Manager of Beneco. Respondent Board
or bad faith," flew in the face of the evidence of record. At the very least, a strong members, in doing so, acted beyond the scope of their authority as such Board members.
presumption had arisen, which it was incumbent upon respondent Board members to The dismissal of an officer or employee in bad faith, without lawful cause and without
disprove, that they had acted in reprisal against respondent Cosalan and in an effort to procedural due process, is an act that is contra legem. It cannot be supposed that
suppress knowledge about and remedial measures against the financial irregularities the members of boards of directors derive any authority to violate the express mandates of
COA Audits had unearthed. That burden respondent Board members did not discharge. law or the clear legal rights of their officers and employees by simply purporting to act for
prcd the corporation they control.

The Solicitor General has urged that respondent Board members may be held liable for We believe and so hold, further, that not only are Beneco and respondent Board members
damages under the foregoing circumstance under Section 31 of the Corporation Code properly held solidarily liable for the awards made by the Labor Arbiter, but also that
which reads as follows: petitioner Beneco which was controlled by and which could act only through respondent
Board members, has a right to be reimbursed for any amounts that Beneco may be
"Sec. 31. Liability of directors, trustees or officers. Directors or trustees who compelled to pay to respondent Cosalan. Such right of reimbursement is essential if the
willfully and knowingly vote for or assent to patently unlawful acts of the innocent members of Beneco are not to be penalized for the acts of respondent Board
corporation or who are guilty of gross negligence or bad faith in directing the members which were both done in bad faith and ultra vires. The liability -generating acts
affairs of the corporation or acquire any personal or pecuniary interest in here are the personal and individual acts of respondent Board members, and are not
conflict with their duty as such directors or trustees shall be jointly liable and properly attributed to Beneco itself.
severally for all damages resulting therefrom suffered by the corporation, its
stockholders or members and other persons . . ." (Emphasis supplied) WHEREFORE, the Petition for Certiorari is GIVEN DUE COURSE, the comment filed by the
respondent Board members is TREATED as their answer, and the decision of the National
We agree with the Solicitor General, firstly, that Section 31 of the Corporation Code is Labor Relations Commission dated 21 November 1988 in NLRC Case No. RAB-1-0313-84
applicable in respect of Beneco and other electric cooperatives similarly situated. Section is hereby SET ASIDE and the decision dated 5 April 1988 of Labor Arbiter Amado T.
4 of the Corporation Code renders the provisions of that Code applicable in a Adquilen hereby REINSTATED in toto. In addition, respondent Board members are hereby
supplementary manner to all corporations, including those with special or individual ORDERED to reimburse petitioner Beneco any amounts that it may be compelled to pay
charters so long as those provisions are not inconsistent with such charters. We find no to respondent Cosalan by virtue of the decision of Labor Arbiter Amado T. Adquilen. No
provision in P.D. No. 269, as amended, that would exclude expressly or by necessary pronouncement as to costs.
implication the applicability of Section 31 of the Corporation Code in respect of members
of the boards of directors of electric cooperatives. Indeed, P.D. No. 269 expressly SO ORDERED.
describes these cooperatives as "corporations:" Gutierrez, Jr. Bidin, Davide, Jr. and Romero, JJ., concur.
"Sec. 15. Organization and Purpose. Cooperative non-stock, non-profit
membership corporations may be organized, and electric cooperative
corporations heretofore formed or registered under the Philippine non-
Agricultural Co-operative Act may as hereinafter provided be converted, under

8
[G.R. No. L-27331. July 30, 1981.] virtue of a criminal proceeding; 4)it could not function as a writ of error; and 5) the Trial
Court should not have enjoined the prosecution of the Accused in the Criminal Case and
ELISEO ALIMPOOS, CIRIACA ALIMPOOS, SGT. MILLARDO M. PATES, PEDRO BACLAY, adjudged "costs" against the defendants.
CATALINO YAMILO, RAFAEL CAPANGPANGAN, DALMACIO YGOT and EUFROCINA
ESTORES, petitioners, vs. THE HONORABLE COURT OF APPEALS, HONORABLE JUDGE The Warrant of Arrest issued against the accused, the dismissal Order of the Trial Court,
MONTANO A. ORTIZ, REYNALDO MOSQUITO and MATILDE ABASTILLAS MOSQUITO, and the Decision of the Court of Appeals affirming the Order of dismissal were set aside
respondents. and the proceedings in the last two cases invalidated.

Januario T. Seno for petitioners. SYLLABUS

Tranquilino O. Calo Jr., Cipriano C. Alvizo Sr. and Cipriano B. Alviz Jr. for private 1. REMEDIAL LAW; CIVIL PROCEDURE; PLEADINGS AND PRACTICE; SERVICE ON
respondents. OFFENDED PARTY NOT DEEMED NOTICE TO HIS COUNSEL; APPEAL IN CASE AT BAR
SEASONABLY FILED. Service on the offended party, Eliseo Alimpoos, on March 31,
SYNOPSIS 1966 cannot be deemed as notice in law to his counsel. Under the circumstances,
Reynaldo Mosquito (the accused) was detained by the Chief of Police by virtue of a reliance may be placed on the assertion of counsel that the offended party, Eliseo
Warrant of Arrest issued by the Municipal Judge in a Criminal Case for Robbery with Less Alimpoos, had given him a copy of the Order only on April 4, 1966, which must be deemed
Serious Physical Injuries wherein petitioner- spouses, Eliseo Alimpoos and Ciriaca as the date of notice to said counsel of the Order. Counsel lost no time in mailing his
Alimpoos were the offended parties. Contending that the Warrant was issued without the Notice of Appeal on the same date, April 4, 1966, from Cebu. Procedurally, the appeal
observance of the legal requirements for the issuance thereof, the accused and his wife was seasonably filed.
instituted a petition for Habeas Corpus before the Trial Court, naming as defendants the 2. ID.; SPECIAL PROCEEDINGS; HABEAS CORPUS; NOT A SUIT BETWEEN PARTIES;
offended parties, the witnesses for the prosecution, the Chief of Police, and the Municipal COMPLAINT MUST BE LIMITED AGAINST PERSON ALLEGEDLY ILLEGALLY DETAINING
Judge. The Petition prayed for the release of the accused, the issuance of a Writ of ANOTHER; CASE AT BAR. A Habeas Corpus proceeding is not a suit between parties. In
Preliminary Injunction to enjoin the offended parties and the witnesses and the Municipal the case at bar, therefore, the Accused should have limited his complaint against the Chief
Judge from proceeding with the Criminal Case, and for damages. After the hearing, the of Police of Bayugan, the person having him in alleged illegal custody. That is the clear
Trial Court issued an Order granting the Writ of Habeas Corpus as well as the Preliminary implication in the provisions of Section 3, Rule 102 of the Rules of Court, which
Injunction prayed for. The Prosecuting Fiscal filed a Motion for Extension of time to appeal enumerates what should be set forth in a petition for Habeas Corpus.
but eventually desisted from doing so. Petitioner Alimpoos, one of the offended parties,
received a copy of the Order on March 31,1966 and furnished their counsel with the said 3. ID.; ID.; ID.; JUDGMENT CANNOT CONTAIN PROVISION FOR DAMAGES. The
copy on April 4, 1966, whereupon, said counsel filed a Notice of Appeal on the same date. accused's allegation as to, and prayer for, damages was out of place. In Habeas Corpus
The Trial Court dismissed the appeal for having been filed beyond the 48-hour cases, the judgment in favor of the applicant cannot contain a provision for damages. It
reglementary period. On Mandamus, the Court of Appeals affirmed the dismissal stating has to be confined to what is provided in Section 15, Rule 102 of the Rules of Court.
that counsel is deemed to have been notified of the Order on the same date Alimpoos
was served with it. 4. ID.; ID.; ID.; APPEAL FROM ORDER GRANTING WRIT; PROVINCIAL FISCAL OR CITY
FISCAL ENTITLED TO CONTROL APPEAL WHERE HABEAS CORPUS AROSE BY VIRTUE OF
On Certiorari, the Supreme Court found the appeal to have been seasonably filed, CRIMINAL PROCEEDING IN A CRIMINAL CASE. Where the Habeas Corpus case arose by
because, under the circumstance, the date when the offended party furnished his counsel virtue of criminal proceedings in the Criminal Case, the Provincial Fiscal or City Fiscal is
with a copy of the Order is deemed as the date of notice to him. However, the Supreme entitled to control the appeal on behalf of the Government pursuant to Section 19 of Rule
Court did not act on this case as a proper Habeas Corpus proceeding finding that 1) the 41 of the Rules of Court. In this case, although the Provincial Fiscal of Agusan, filed a
complaint, having been treated by the Trial Court and the Court of Appeals as one for "Motion for Extension of Time to Perfect Appeal" on April 1, 1966, he had nevertheless
Habeas Corpus should have been limited against the Chief of Police who had the Accused abandoned the same. Neither did he take steps for the reconsideration of respondent
in alleged illegal detention; 2) it should not have included a prayer for damages; 3) its Trial Judge's Order of April 23, 1966 dismissing the appeal. The inaction of the Fiscal may
appeal should have been prosecuted by the Provincial Fiscal since the case had arisen by be deemed to have been an admission on his part of the unmeritoriousness of an appeal,
9
As in criminal proceedings, his sound discretion on the matter should be deemed examining the witnesses personally, and that the examination must be under oath and
controlling, and it has to be held that the offended parties were bereft of personality to reduced to writing in the form of searching questions and answers. It is obvious that the
prosecute the appeal. purpose of this amendment is to prevent the issuance of a warrant of arrest against a
person based simply upon affidavits of witnesses who made, and swore to, their
5. ID.; ID.; ID.; ORDER GRANTING WRIT MAY NOT ENJOIN PROSECUTION OF statements before a person or persons other than the judge before whom the criminal
ALLEGED ILLEGALLY DETAINED ACCUSED IN CRIMINAL CASE. It was error for the ORDER complaint is filed. We wish to emphasize strict compliance by municipal or city judges of
to contain a provision enjoining the prosecution of the Accused in the Criminal Case. If the provision of Section 87(c) of the Judiciary Act of 1948, as amended by Republic Act
the accused was illegally detained because he was arrested without a preliminary 3828, in order to avoid malicious and/or unfounded criminal prosecution of persons" (26
examination, what should have been done was to set aside the warrant of arrest and SCRA 310, 323 [1968).
order the discharge of the accused, but without enjoining the Municipal Judge from
conducting a preliminary examination and afterwards properly issuing a warrant of arrest. DECISION
Habeas Corpus proceedings are not meant to determine criminal responsibility. This
principle was enunciated in Lee Ching vs. Collector of Customs, 33 Phil. 329 (1916). MELENCIO-HERRERA, J p:

6. ID.; ID.; ID.; NOT PROPER REMEDY FOR ACCUSED DETAINED BY VIRTUE OF Petitioner-spouses, Eliseo Alimpoos and Ciriaca Alimpoos, shall hereinafter be called the
WARRANT OF ARREST ISSUED ALLEGEDLY WITHOUT PRELIMINARY EXAMINATION. In a Offended Parties. Petitioners Pedro Baclay, Catalino Yamilo, Rafael Capangpangan,
case where a warrant of arrest was assailed for an alleged improper preliminary Dalmacio Ygot, Eufrocina Estores and Sgt. Millardo M. Pates may hereinafter be referred
examination, the remedy available is not a petition for a writ of habeas corpus but a to as the Witnesses. cdrep
petition to quash the warrant of arrest or a petition for a reinvestigation of the case by Respondent Reynaldo Mosquito will hereinafter be called the Accused. Respondent
the respondent Municipal Judge or by the Provincial Fiscal (Luna vs. Plaza, SCRA, 310, 323 Matilde A. Mosquito is the Accused's wife. Respondent Court of Appeals will be termed
[1968]). It is the general rule that Habeas Corpus should not be resorted to when there is the Appellate Tribunal; respondent Judge Montano A. Ortiz, as respondent Trial Judge,
another remedy available. Time and again, it has been explained that Habeas Corpus and the Municipal Judge, as such.
cannot function as a writ of error.
In this Petition for Certiorari, the Offended Parties and the Witnesses seek the reversal of
7. ID.; ID.; ID.; ORDER GRANTING WRIT MAY NOT ADJUDGE "COSTS" AGAINST the Decision of the Appellate Tribunal, upholding the disallowance of the Offended
DEFENDANTS IN HABEAS CORPUS CASE. Respondent Trial Judge erred in adjudging Parties' appeal by the Court of First Instance of Agusan (the Trial Court, for short) in Civil
"costs" against defendants in the Habeas Corpus case. "When a person confined under Case No. 1088, entitled "Reynaldo Mosquito, et al. vs. Eliseo Alimpoos, et al," wherein
color of proceedings in a criminal case is discharged, the costs shall be taxed against The respondent Trial Judge granted the Accused's petition for Habeas Corpus and declared his
Republic" (Sec. 19, Rule 102, Rules of Court). detention illegal. He also enjoined the prosecution of Criminal Case No. 458 of the
8. ID.; ID.; ID.; JUDGES ADMONISHED AGAINST ISSUING WARRANT OF ARREST Municipal Court of Bayugan, Agusan (hereinafter called Criminal Case) where the Accused
WITHOUT CONDUCTING PRELIMINARY EXAMINATION. The error of the Municipal had been arrested.
Judge in issuing the warrant of arrest without conducting a preliminary examination has The Accused was detained by the Chief of Police of Bayugan, Agusan, by virtue of a
considerably retarded the turning of the wheels of justice. It should be meet to reiterate Warrant of Arrest issued by the Municipal Judge in the Criminal Case, which was a
the following admonition made in the aforecited Luna-Plaza case: "We wish to stress, prosecution for Robbery with Less Serious Physical Injuries. The place allegedly robbed
however, that what has been stated in this opinion is certainly not intended to sanction belonged to the Offended Parties. Contending that the Warrant was issued without the
the return to the former practice of municipal judges of simply relying upon affidavits or observance of the legal requirements for the issuance thereof, the Accused, then
sworn statements that are made to accompany the complaints that are filed before them, detained, and his wife instituted the Habeas Corpus case before the Trial Court. Named
in determining whether there is a probable cause for the issuance of a warrant of arrest. as defendants in the original complaint were the Offended parties and the Witnesses (as
That practice is precisely what is sought to be voided by the amendment of Section 87(c) witnesses for the prosecution) all of whom are residents of Agusan. In an amended
of Republic Act 296 (Judiciary Act of 1948) which requires that before a municipal judge complaint, the two arresting policemen, the Chief of Police, and the Municipal Judge were
issues a warrant of arrest he should first satisfy himself that there is a probable cause by added as co-defendants.
10
The Complaint of the Accused was premised on the alleged violation of Article 32 (4), (8), On April 4, 1966, counsel for the Offended Parties and the Witnesses mailed from Cebu
(15), (16), (17) and (19) of the Civil Code, and Article 269 of the Revised Penal Code, by City a Notice of Appeal to the Court of Appeals stating that:
defendants therein who were said to have been instrumental in causing the detention
and arrest of the Accused. It prayed for the Accused's release from detention, as well as "Undersigned counsel received a copy of the order only today (April 4, 1966)
for the issuance of a Writ of Preliminary Injunction to enjoin the Offended Parties and the which copy was handed to him by defendant (petitioner) Eliseo Alimpoos."
Witnesses, and the Municipal Judge and/or their representatives, from proceeding with The appeal was opposed by the Accused on the ground that it was filed beyond the 48-
the Criminal Case. Actual, moral and exemplary damages, attorney's fees, and costs were hour reglementary period within which to perfect an appeal in Habeas Corpus
also prayed for. LibLex proceedings.
The Offended Parties and the Witnesses, except Sgt. Pates, were represented by the law On April 23, 1966, over the Offended Parties' objections, respondent Trial Judge dismissed
firm of Seno, Mendoza and Associates, with offices located in Cebu City. They contended their appeal thus:
that they had nothing to do with the Accused's detention and arrest. The Municipal Judge,
the Chief of Police, and Patrolmen Libres and Galimba, who were represented by the "The notice of appeal of the Provincial Fiscal or of Atty. Seno for the defendants,
Acting Provincial Fiscal of Butuan City, alleged that the Warrant of Arrest was validly having been filed out of time the Order of March 26, 1966 granting the habeas
issued. Sgt. Pates was represented by Capt. Igualdad Cunanan, and reiterated corpus is now final and executory. The urgent ex-parte motion to grant
substantially the same defense. extension to file notice of appeal does not interrupt the running of the period
fixed by law for filing an appeal which is forty-eight hours from receipt of the
After due hearing in the Habeas Corpus case, respondent Trial Judge issued the appealed order." 2
Order (the ORDER, for short), dated March 26, 1966, declaring the detention of the
Accused illegal and granting the Writ of Habeas Corpus as well as the Preliminary No reconsideration was prayed for by the Provincial Fiscal.
Injunction prayed for upon the filing of the required bond. The dispositive portion of the
The Offended Parties, however, resorted to a Mandamus proceeding before the Court of
ORDER reads:
Appeals seeking to compel respondent Trial Judge to give due course to said appeal.
"WHEREFORE, judgment is hereby rendered declaring illegal the detention of
On January 11, 1967, the Appellate Tribunal, 3 in CA-G.R. No. 37781-R, denied Mandamus
plaintiff Reynaldo Mosquito by virtue of a warrant of arrest issued without the
stating in part:
observance of the fundamental legal requirements prior to the issuance of said
Writ. The petition for habeas corpus is therefore granted and it is hereby "As the records show that copy of the questioned Order was received by counsel
ordered that said detention prisoner be forthwith released from custody, and on March 30, 1966, the notice of appeal was not filed within the 48-hour limit.
set at liberty and that upon the filing of the bond in the amount of P1,000.00 a Petitioners' appeal was therefore filed out of time and the judgment has
writ of preliminary injunction issue restraining the Municipal Judge of Bayugan, become final.
Agusan, defendant Vicente Galicia and the rest of the defendants, their
attorneys, agents or representatives from proceeding with Criminal Case No. "In view of the foregoing, this petition is hereby denied. Costs against
458 entitled 'The People of the Philippines versus Reynaldo Mosquito et als.', for petitioners."
the crime of Robbery with Less Serious Physical Injuries, with costs against the
Hence, this Petition for Certiorari, filed on March 13, 1967, praying that the Decision of
defendants in these habeas corpus and preliminary injunction proceedings.
the Appellate Tribunal be set aside and the appeal interposed by the Offended Parties in
SO ORDERED." 1 the Habeas Corpus case be allowed.

The Acting Provincial Fiscal of Agusan received copy of said ORDER on March 31, 1966, We gave due course to the Petition on March 31, 1967, and after the filing of the
and on April 1, 1966, moved for extension of time within which to appeal, but eventually respective Briefs, the case was considered submitted for decision on April 19, 1968.
desisted from doing so.
The Offended Parties and the Witnesses pose the following Assignments of Error:

11
"I. The Honorable Court of Appeals erred in finding that 'counsel,' however, has not March 30, 1966 and not on April 4, 1966, hence the disallowance of the appeal by
presented a shred of proof to bolster his claim of actual receipt of the order, Annex 'B' on respondent Trial Judge, and its affirmance by the Appellate Court.
April 4, 1966, save of his own self-serving assertions, which cannot prevail over the court
record, (Annex 1 of Answer) certified to by the Clerk of Court, bearing the true actual date The crucial last page is reproduced hereunder exactly as it appears:
when the parties and counsel herein received their corresponding copies. The same "CIVIL CASE NO. 1088
certified true copy of the order shows that the law office of herein counsel received its
copy on March 30, 1966 not on April 4, 1966; ORDER 5 and preliminary injunction proceedings.

II. The Honorable Court of Appeals erred in holding that 'respondent Judge was fully SO ORDERED.
justified in relying on its own record to determine the date on which petitioners' counsel
Done this 26th day of March, 1966 at the City of Butuan.
received copy of the order, without any proof thereof, because courts will take judicial
notice of its records and of the facts which the same records establish and which are (SGD.) MONTANO A. ORTIZ
known to judges by reason of their judicial functions.'
JUDGE
III. The Honorable Court of Appeals erred in finding that 'as the records show that copy of
the questioned order was received by counsel on March 30, 1966, the notice of appeal MAO-bb.
was not filed within the 48-hour limit.'
Recd.
IV. The Honorable Court of Appeals erred in finding that 'petitioners' appeal was,
31/3/66 (initial)
therefore, filed out of time and the judgment has become final.'
Received:
V. The Honorable Court of Appeals erred in denying the Motion for Reconsideration
without requiring the adverse party to answer the said Motion for Reconsideration. (Sgd.) Illegible Mun. Judge (Sgd.) Illegible 3/30/66 7:00 evening 3/31/66
(Sgd.) B. Galimba 3/30/00 7:00
VI. The Honorable Court of Appeals erred in failing to pass upon the issues raised in the
lower court and in the Court of Appeals." (Sgd.) Eliseo Alimpoos

The technical issue of timeliness of the appeal will first be considered. Counsel for the Received copy March 31, 1966 8:00 A.M.
Offended Parties alleges that he received a copy of the ORDER only on April 4, 1966 from
the Offended Party, Eliseo Alimpoos, who handed him the copy in Cebu City. The latter Ciriaco Alimpoos, Pedro Baklay Catalino Yamilo Rafael Capangpangan Dalmacio
had received it on March 31, 1966. Counsel contends that the reglementary period to Ygot Eufrocina Estores
appeal can not be reckoned from the latter date because, under the Rules, when a party
By: (Sgd.) Eliseo Alimpoos
is represented by counsel, notice should be sent, not to the party, but to his counsel of
record. Counsel for the Offended Parties and the Witnesses further maintains that the March 31, 1966
period from which to reckon the period of appeal should actually be April 14, 1966 when
he actually received, through the mails, his copy of the ORDER, as shown by the rubber (Sgd.) Illegible (Sgd.) Illegible
stamp of his office appearing on the upper right hand corner of a duplicate copy of the For the Chief of Police 3-30-66
ORDER. 4
TO ATTYS. SENO, MENDOZA,
Respondent Trial Judge and the Appellate Tribunal alike found the foregoing assertion
self-serving and relied instead on the last page of the ORDER, 5 purportedly showing that RUIZ & ASS. & CAPT. CUNANAN
the law office of counsel for the Offended Parties and the Witnesses received its copy on
BY REG. MAIL #11633 & #11634

12
A certified true copy: Since the registered mail was received in Cebu City only on April 11, 1966, it is not unlikely
that the law office and addressee, as alleged by it, received the mail only three days after,
(s) MACARIO C. CONDE or on April 14, 1966.
(t) MACARIO C. CONDE The notation
Clerk of Court" 6 (emphasis supplied) "(Sgd.) Illegible
Obviously, copies of the ORDER intended for "Attys. Seno, Mendoza, Ruiz & Ass. & Capt. 3-30-66"
Cunanan" were sent by registered mail with Receipts Nos. 11633 and 11634. Receipt No.
11633 is the registry number corresponding to the copy for the law office, and Receipt appearing above the following note:
No. 11634 that for Capt. Cunanan. This is borne out by the envelope 7 from the "Office
of the Clerk of Court Butuan City" addressed to "Seno, Mendoza, Ruiz and Associates, Cor. "To Attys. Seno, Mendoza, Ruiz & Ass. &
Magallanes-D Jakosalem Sts., Aboitiz Bldg., Cebu City" with the following markings: Capt. Cunanan by reg. mail #11633 & #11634"
On the face of the envelope lower left hand corner: can not refer to personal receipt by the said law office for the obvious reason that its
"REGISTERED office being at Cebu City, personal service would not have been possible in Agusan.

CITY OF BUTUAN It is apparent then that both respondent Trial Judge and the Appellate Tribunal
committed error in holding that the Offended Parties' appeal was interposed beyond the
PHILIPPINES reglementary period. Service on the Offended Party, Eliseo Alimpoos, on March 31, 1966
cannot be deemed as notice in law to his counsel. 8 Under the circumstances, therefore,
March 31, 1966 reliance may be placed on the assertion of counsel that the Offended Party, Eliseo
Superimposed on it in ink is "No. 11633" Alimpoos, had given him a copy of the ORDER only on April 4, 1966, which must be
deemed as the date of notice to said counsel of the ORDER. Counsel lost no time in mailing
On the back of the envelope appears a big diagonal stamp "FOR OFFICIAL USE ONLY" and his Notice of Appeal on the same day, April 4, 1966 from Cebu. 9 Procedurally, the appeal
two post office stamp marks: was seasonably filed. prLL

"REGISTERED Although the Appellate Tribunal had committed error in its appreciation of the date when
the lawyers of the Offended Parties were served notice of the ORDER, we believe it would
CITY OF BUTUAN
not be justifiable to reverse and to direct respondent Trial Judge to allow the Offended
PHILIPPINES Parties to appeal. Instead, we are opting to render a practical judgment.

March 31, 1966 1. The original and amended complaints filed by the Offended Parties with the Trial
Court contained three causes of action, principally for Habeas Corpus and for damages.
"CEBU CITY However, the proceedings were conducted purely as a Habeas Corpus case. The original
complaint was filed on February 22, 1966, and resolved on March 26, 1966, in keeping
Received
with the "speedy and effectual" character of Habeas Corpus proceedings. 10
April 11, 1966
The ORDER treated the case as exclusively a Habeas Corpus proceeding, ignoring the
Philippines Accused's prayer for damages. The lawyers of the Offended Parties attempted to appeal
from the ORDER in accordance with Section 19 of Rule 41, captioned "who may appeal in
Habeas Corpus cases." The Appellate Tribunal resolved in the mandamus case as relating
to a Habeas Corpus case.
13
2. Because the proceedings before the trial Court was a Habeas Corpus case, the damages. It has to be confined to what is provided for in Section 15, Rule 102, which
complaint filed was obviously defective. A Habeas Corpus proceeding is not a suit reads:
between parties.
"SEC. 15. When prisoner discharged if no appeal. When the court or Judge
"Not a suit between the parties. While the issuance of the writ is to all intents has examined into the cause of caption and restraint of the prisoner, and is
and purposes the commencement of a civil action, a suit, yet technically the satisfied that he is unlawfully imprisoned or restrained, he shall forthwith order
proceedings by Habeas Corpus is in no sense a suit between private parties. It is his discharge from confinement, but such discharge shall not be effective until a
an inquisition by the government, at the suggestion and instance of an individual, copy of the order has been served on the officer or person detaining the prisoner.
most probably, but still in the name and capacity of the sovereign. It may be If the officer or person detaining the prisoner does not desire to appeal, the
analogized to a proceeding in rem and instituted for the sole purpose of fixing prisoner shall be forthwith released."
the status of a person. The person restrained is the central figure in the
transaction. The proceeding is instituted solely for his benefit. As it is not It will be observed that there is no provision for serving copy of the discharge on any other
designed to obtain redress against anybody, and as no judgment can be entered private party defendant, nor for an award of damages.
against anybody, and as there is no real plaintiff and defendant, there can be no As it has been held:
suit in the technical sense." (Extraordinary Legal Remedies, Forrest G. Ferris &
Forrest G. Ferris, Jr., p. 28) "The sole function of the writ is to relieve from unlawful imprisonment, and
ordinarily it cannot properly be used for any other purpose. Thus it has been
The Accused, therefore, should have limited his complaint against the Chief of Police of held that the writ cannot properly be used: To enforce a right to service; to
Bayugan, the person having him in alleged illegal custody. That is the clear implication in determine whether a person has committed a crime; in determine a disputed
the following provisions of Section 3, Rule 102, which enumerates what should be set interstate boundary line; to punish respondent or to afford the injured person
forth in a petition for Habeas Corpus: redress, for the illegal detention; to recover damages or other money
"SEC. 3. Requisites of application therefor. Application for the writ shall be award; . . ." (emphasis supplied) (Vt In re St. Onge, 108 A203, 93 Vt. 373; NY
by petition signed and verified either by the party for whose relief it is intended, People vs. Prior, 182 NYS 577, 112 Misc. 208 [39 C.J.S. 430]).
or by some person on his behalf, and shall set forth: 3. The Accused has challenged the personality of the Offended Parties to interpose
(a) That the person in whose behalf the application is made is imprisoned the appeal, premised on Section 19 of Rule 41 of the Rules of Court, which provides:
or restrained of his liberty; SEC 19. Who may appeal in habeas corpus cases. The appeal in habeas
(b) The officer or name of the person by whom he is so imprisoned or corpus cases may be taken in the name of the person detained or of the officer
restrained; or, if both are unknown or uncertain, such officer or person may be or person detaining him. But if the detention is by reason of civil proceedings
described by an assumed appellation, and the person who is served with the the party in interest or the person who caused the detention shall be entitled to
writ shall be deemed the person intended; control the appeal; and if, by virtue of criminal proceedings, the provincial fiscal
or the city fiscal as the case may be, is entitled to control the appeal on behalf
(c) The place where he is so imprisoned or restrained, if known; of the government, subject to the right of the Solicitor General to intervene"
(Rule 41).
(d) A copy of the commitment or cause of detention of such person, if it
can be procured without impairing the efficiency of the remedy; or, if the It is indisputable that the Habeas Corpus case arose by virtue of criminal proceedings in
imprisonment or restraint is without any legal authority, such fact shall appear." the Criminal case. Pursuant to the aforequoted provision, therefore, it was the Provincial
Fiscal who was entitled to control the appeal on behalf of the Government. In this case,
The Accused's allegation as to, and prayer for, damages was out of place. In Habeas although the Provincial Fiscal of Agusan, filed a "Motion for Extension of Time to Perfect
Corpus cases, the judgment in favor of the applicant cannot contain a provision for Appeal" on April 1, 1966, he had nevertheless abandoned the same. Neither did he take
steps for the reconsideration of respondent Trial Judge's Order of April 23, 1966

14
dismissing the appeal. The inaction of the Fiscal may be deemed to have been an "At any rate, we believe that, if at all, the remedy available to the petitioner
admission on his part of the unmeritoriousness of an appeal. As in criminal proceedings, herein, under the circumstances stated in this opinion, is not a petition for a writ
his sound discretion on the matter should be deemed controlling, and it has to be held of habeas corpus but a petition to quash the warrant of arrest or a petition for
that the Offended Parties were bereft of personality to prosecute the appeal. reinvestigation of the case by the respondent Municipal Judge or by the
Provincial Fiscal."
Noteworthy is the fact that in the instant case, the Offended Parties had alleged in their
Answer 11 that they were not detaining the Accused and had nothing to do with the It is the general rule that Habeas Corpus should not be resorted to when there
Warrant of Arrest issued against him. With all the more reason then that they had no is another remedy available.
personality to interpose an appeal from a judicial Order granting the Writ of Habeas
Corpus and ordering the release of a person detained. "As a general rule, a writ of habeas corpus will not be granted where relief may
be had or could have been procured by resort to another general remedy, such
4. It has been noted that the ORDER contains a provision enjoining the prosecution as appeal or writ of error. But the existence of another remedy does not
of the Accused in the Criminal Case. That is error. If the Accused was illegally detained necessarily preclude a resort to the writ of habeas corpus to obtain relief from
because he was arrested without a preliminary examination, what should have been done illegal detention, especially where the other remedy is deemed not to be as
was to set aside the warrant of arrest and order the discharge of the Accused, but without effective as that of habeas corpus." 12
enjoining the Municipal Judge from conducting a preliminary examination and afterwards
properly issuing a warrant of arrest. Habeas Corpus proceedings are not meant to Time and again, it has been explained that Habeas Corpus cannot function as a writ of
determine criminal responsibility. This principle was enunciated in Lee Ching v. Collector error. 13
of Customs, 33 Phil. 329 (1916) where it was said: 6. It has further been noted that respondent Trial Judge erred in adjudging "costs"
"Proceedings in habeas corpus are separate and distinct from the main case against defendants in the Habeas Corpus case. "When a person confined under color of
from which the proceedings spring. They rarely, if ever, touch the merits of the proceedings in a criminal case is discharged, the costs shall be taxed against the Republic"
case and require no pronouncement with respect thereto." 14

When a preliminary investigation is not held, or is improperly held, the procedure is not 7. The Accused was charged with Robbery with Less Serious Physical Injuries in
to dismiss the case, or enjoin its prosecution, but to have the preliminary investigation early 1966. Through the error of the Municipal Judge in issuing the warrant of arrest
conducted. As stated in People v. Figueroa, 27 SCRA, 1239, 1247 (1969): without conducting a preliminary examination, the Accused was able to institute the
Habeas Corpus case which has pended to this date, or for fifteen years. The error of the
"Assuming that the trial court felt that the accused should have been given more Municipal Judge has considerably retarded the turning of the wheels of justice. It should
'ample chance and opportunity to be heard in the preliminary investigation,' be meet to reiterate the following admonition made in the aforecited Luna-Plaza case:
then what it could properly have done, since in its own Order it recognized that
Fiscal Abaca had conducted a preliminary investigation although 'hurriedly' in its "We wish to stress, however, that what has been stated in this opinion is
opinion, was not to dismiss the information but to hold the case in abeyance certainly not intended to sanction the return to the former practice of municipal
and conduct its own investigation or require the fiscal to hold a reinvestigation. judges of simply relying upon affidavits or sworn statements that are made to
This Court, speaking through now Mr. Chief Justice Concepcion in People vs. accompany the complaints that are filed before them, in determining whether
Casiano, had stressed this as the proper procedure, pointing out that 'the there is a probable cause for the issuance of a warrant of arrest. That practice is
absence of such investigation did not impair the validity of the information or precisely what is sought to be voided by the amendment of Section 87 (c) of
otherwise render it defective. Much less did it affect the jurisdiction of the Court Republic Act 296 (Judiciary Act of 1948) which requires that before a municipal
of First Instance over the present case.'" judge issues a warrant of arrest he should first satisfy himself that there is a
probable cause by examining the witnesses personally, and that the
5. As a matter of fact, Habeas Corpus was not the proper remedy for the Accused. examination must be under oath and reduced to writing in the form of searching
In a case where a warrant of arrest was assailed for an alleged improper preliminary questions and answers. It is obvious that the purpose of this amendment is to
examination, this Court, in Luna v. Plaza, 26 SCRA, 310, 323 (1968), said: prevent the issuance of a warrant of arrest against a person based simply upon
15
affidavits of witnesses who made, and swore to, their statements before a
person or persons other than the judge before whom the criminal complaint is
filed. We wish to emphasize strict compliance by municipal or city judges of the
provision of Section 87(c) of the Judiciary Act of 1948, as amended by Republic
Act 3828, in order to avoid malicious and/or unfounded criminal prosecution of
persons."

In view of the foregoing considerations, it should be practical to resolve this case in a


manner that will not further protract the matter brought to this instance. It will not do
merely to reverse and set aside the appealed decision of the Appellate Tribunal, for it will
leave the ORDER of respondent Trial Judge outstanding with its injunction against the
further prosecution of the Criminal Case. LexLib

WHEREFORE, in the distinct understanding that this Court has not acted in a proper
Habeas Corpus proceeding, the Warrant of Arrest issued against Reynaldo Mosquito in
Criminal Case No. 458 of the Municipal Court of Bayugan, Agusan, the Order of March 26,
1966 issued in Civil Case No. 1088 of the Court of First Instance of Agusan, as well as the
Decision of the Court of Appeals in its case CA-G.R. No. 37781-R, are hereby set aside; and
the proceedings in the last two cases mentioned are invalidated.

Without pronouncement as to costs.

SO ORDERED.

Teehankee (Chairman), Makasiar, Fernandez and Guerrero, JJ., concur.

16
[G.R. No. 58781. July 31, 1987.] This is a special civil action for Certiorari seeking to declare void ab initio the Resolution
of respondent Court of Appeals dated September 22, 1981 which ordered the issuance of
TEOFILO MAGNO, ISIDRO CABATIC, HERMINIO CABATIC, FELICITAS CABATIC, Assisted an Entry of Judgment in CA-G.R. No. 52655-R. The petition also prays for the issuance of
by her husband, JOSE CARINO, TOMAS MAGNO, ELPIDIO MAGNO, AURORA MAGNO, a preliminary injunction to temporarily maintain the status quo by ordering the provincial
Assisted by her husband, ODELON BUGAYONG, NICANOR MAGNO and LOLITA MAGNO, sheriff of the province of Pangasinan to desist from enforcing the writ of execution issued
petitioners, vs. HONORABLE COURT OF APPEALS, GAVINO MAGNO, NICETAS MAGNO, in Civil Case No. A-413 pursuant to the said Entry of Judgment.
and NAZARIA MAGNO, Assisted by her husband, SIMEON DE GUZMAN, respondents.
Civil Case No. A-413 is an action for Partition of Certain Properties and for Damages, filed
SYLLABUS by private respondents against petitioners in the Court of First Instance of Pangasinan,
1. REMEDIAL LAW; CIVIL PROCEDURE; SERVICE OF PLEADINGS; WHEN A PARTY IS Branch VII thereof. In a Decision * dated October 5, 1972, the lower court ordered the
REPRESENTED BY COUNSEL NOTICE SHOULD BE MADE UPON COUNSEL AT HIS GIVEN partition of the properties subject of the complaint in accordance with the schedule
ADDRESS. It is well-settled that when a party is represented by counsel, notice should therein appearing. It also ordered the petitioners to pay jointly and severally unto the
be made upon the counsel of record at his given address to which notices of all kinds private respondents the amount of P3,000.00 as attorney's fees.
emanating from the court should be sent in the absence of a proper and adequate notice Petitioners appealed to the Court of Appeals which appeal was docketed as CA-G.R. No.
to the court of a change of address. (Cubar vs. Mendoza, 120 SCRA 768). 52655-R. On June 30, 1981, the said court promulgated its Decision ** affirming the
2. ID.; ID.; ID.; ID.; SERVICE BECOMES EFFECTIVE UPON FAILURE OF COUNSEL TO decision of the lower court.
CLAIM HIS MAIL WITHIN FIVE DAYS FROM DATE OF FIRST NOTICE. In the case now Notice of the decision was sent to petitioners' counsel Atty. Atinidoro B. Sison at his given
before Us, the records show that the notice and copy of the decision of respondent Court mailing address which is 33 BMA Ave., Tatalon, Quezon City. The same, however, was
of Appeals were sent to petitioners's counsel of record Atty. Atinidoro E. Sison at his given returned to the court with the certification of the postmaster "Return to sender,
mailing address which is 33 B.M.A. Avenue, Tatalon, Quezon City. The first notice to him Reason moved."
by the Postmaster to claim his mail was on July 9, 1981. The rule is that service of notice
becomes effective at the expiration of the five-day period upon failure of the addressee On September 14, 1981, respondent Court of Appeals issued the following Resolution:
to claim his mail within five (5) days from the date of first notice (Sec. 8, Rule 13, Rules of
Court; Feraren vs. Santos, 113 SCRA 707). Therefore in this case the service became "Considering that the copy of Decision dated June 30, 1981 addressed to Atty.
effective five days after July 9, 1981 which is July 14, 1981. The decision became final on Atinidoro B. Sison of 33 BMA Tatalon, Quezon City, counsel for the appellants
August 13, 1981. A xerox copy of the said envelope properly addressed appears on page was returned unclaimed with the notation on the envelope "MOVED", the Court
52 of the Rollo. This fact is further shown by the certification issued by the then Acting Resolved to resend the said copy of the Decision to the appellants themselves
Clerk of the Court of Appeals, Atty. Cesar M. Marzan. If Atty. Sison moved to another at Alaminos, Pangasinan, and the appellants are hereby informed that the
address without informing the respondent of his change of address the omission or fifteen (15) days period within which to file for reconsideration will be counted
neglect will not stay the finality of the decision. The notice sent to petitioners themselves, from the receipt of the decision herewith attached. (Annex "5-A" p. 54, Rollo)
under the circumstances is not even necessary. (Francisco vs. Puno, 108 SCRA 427). It may A copy of this Resolution was sent to petitioners themselves addressed as follows Mr.
be stated though that while petitioners claim that Teofilo Magno to whom the notice to Teofilo Magno et al., Patricio, Alaminos, Pangasinan. It is not disputed that this address is
the petitioners was addressed is already dead, it is not explained why their present the address on record of petitioners. But again the enveloped addressed to them was
petition before this Court still includes the name Teofilo Magno. There is no indication in returned to the court with the notation deceased. prcd
the record that he has been duly substituted by his legal representative.
On September 22, 1981, the respondent court issued its now assailed Resolution ordering
DECISION the issuance of the entry of judgment.
PARAS, J p: Petitioners' motion for reconsideration was denied hence, they filed the present petition,
which We find to be without merit.

17
It is well-settled that when a party is represented by counsel, notice should be made upon
the counsel of record at his given address to which notices of all kinds emanating from
the court should be sent in the absence of a proper and adequate notice to the court of a
change of address. (Cubar vs. Mendoza, 120 SCRA 768).

In the case now before Us, the records show that the notice and copy of the decision of
respondent Court of Appeals were sent to petitioners's counsel of record Atty. Atinidoro
E. Sison at his given mailing address which is 33 B.M.A. Avenue, Tatalon, Quezon City. The
first notice to him by the Postmaster to claim his mail was on July 9, 1981. The rule is that
service of notice becomes effective at the expiration of the five-day period upon failure
of the addressee to claim his mail within five (5) days from the date of first notice (Sec. 8,
Rule 13, Rules of Court; Feraren vs. Santos, 113 SCRA 707). Therefore in this case the
service became effective five days after July 9, 1981 which is July 14, 1981. The decision
became final on August 13, 1981. A xerox copy of the said envelope properly addressed
appears on page 52 of the Rollo. This fact is further shown by the certification issued by
the then Acting Clerk of the Court of Appeals, Atty. Cesar M. Marzan. (p. 51, Rollo). If Atty.
Sison moved to another address without informing the respondent of his change of
address the omission or neglect will not stay the finality of the decision. The notice sent
to petitioners themselves, under the circumstances is not even necessary. (Francisco vs.
Puno, 108 SCRA 427). It may be stated though that while petitioners claim that Teofilo
Magno to whom the notice to the petitioners was addressed is already dead, it is not
explained why their present petition before this Court still includes the name Teofilo
Magno. There is no indication in the record that he has been duly substituted by his legal
representative.

The decision in this case having become final on July 29, 1981, there being no appeal taken
therefrom, respondent court committed no error in issuing its resolution dated
September 22, 1981 ordering the issuance of the corresponding entry of judgment.

WHEREFORE, for lack of merit, this petition is hereby DISMISSED. The restraining order
earlier issued is lifted.

SO ORDERED.

18
[G.R. No. 86819. November 9, 1989.] public knowledge should be within the judicial notice of the NLRC because of the nature
of their functions.
ADAMSON OZANAM EDUCATIONAL INSTITUTION INC., ALSO KNOWN AS ADAMSON
UNIVERSITY, petitioner, vs. ADAMSON UNIVERSITY FACULTY AND EMPLOYEES 5. ADMINISTRATIVE LAW; MINISTRY OF EDUCATION AND CULTURE; TUITION FEE
ASSOCIATION AND CONRADO MAGLAYA, COMMISSIONER OF THE NATIONAL LABOR INCREASE; DISPOSITION OF 60% INCREMENTAL PROCEEDS INCREASE UNDER P.D. 451
RELATIONS COMMISSION, respondents. REPEALED BY B.P. 232. In the case of Cebu Institute of Technology vs. Hon. Blas Ople,
this Court ruled that P.D. No. 451 was repealed by B.P. 232 effective September 11, 1982.
Ongkiko, Bucoy & Associates for petitioner. From the said date the governing law on the disposition of the 60% incremental proceeds
Cresenciano I. Espino, Teotico Quevedo & A. Organista for private respondent. on the tuition fees are the appropriate provisions of B.P. Blg. 232.

SYLLABUS 6. ID.; ID.; ID.; ID.; EFFECT. Accordingly, as of September 11, 1982, Section 3(a)
of PD 451 which limits the disposition of said 60% incremental proceeds increase in tuition
1. REMEDIAL LAW; CIVIL ACTIONS; SERVICE OF PLEADINGS; SERVICE OF COURT fees to those of salaries and wages is deemed abrogated by way of repeal. Indeed even
ORDER UPON A SECURITY GUARD OF THE BUILDING WHERE COUNSEL IS HOLDING OFFICE, prior thereto this Court ruled in the University of the East vs. UE Faculty Association that
NOT EFFECTIVE. Under the provision of Section 4, Rule 13 of the Rules of Court which increase of salaries even those secured by collective bargaining may be charged to the
is suppletory to the rules of the NLRC, service of papers should be delivered personally to 60% incremental proceeds of MEC authorized tuition fee increases.
the party or attorney or by leaving it at his office with his clerk or with a person having
charge thereof. The service of the court's order upon any person other than the party's 7. ID.; ID.; B.P. 232 (EDUCATIONAL ACT OF 1982); MECS ORDER, WITH
counsel is not legally effective. Where the copy of the decision is served on a person who RETROACTIVE EFFECT BEING CURATIVE IN NATURE. MECS Order No. 25 finds legal
is neither a clerk or one in charge of the attorney's office, such service is invalid and the support in B.P. Blg. 232, otherwise known as the Educational Act of 1982 as said MECS
decision does not therefore become executory. Order is an implementing administrative rule interpretative of a pre-existing statute and
not declarative of certain rights with obligation thereunder. The same should be given
2. ID.; ID.; ID.; ID.; REASON. The security guard of the building where the retroactive effect and its effectivity should be on September 11, 1982, which is the date
attorney is holding office is neither the office clerk nor a person in charge thereof as of effectivity of B.P. Blg. 232, not April 1, 1985. Remedial or curative statutes are by nature
contemplated in the rules. In PLDT vs. NLRC, this Court ruled that the service of the intended to be retroactive.
decision at the ground floor of a party's building when the office is at the 9th floor is not
a valid service. 8. ID.; ID.; ID.; RULES AND REGULATIONS SHOULD BE FOR THE SOLE PURPOSE OF
CARRYING INTO EFFECT A GENERAL PROVISION OF LAW. Rules and regulations are and
3. ID.; ID.; ID.; INVALID SERVICE OF DECISION DOES NOT COMMENCE RUNNING OF should be for the sole purpose of carrying into effect a general provision of the law.
PERIOD WITHIN WHICH TO APPEAL. From the foregoing, it is clear that the service of
the decision dated October 11, 1988 on the security guard of the building where the then RESOLUTION
counsel for petitioner was holding office was an invalid service and the running of the GANCAYCO, J p:
period within which to appeal therefrom or file a motion for reconsideration cannot be
deemed to commence thereby. The Adamson Ozanam Educational Institution, Inc. also known as the Adamson University
(AU) was granted by the then Ministry of Education, Culture & Sports (MECS), the
4. ID.; EVIDENCE; JUDICIAL NOTICE; NLRC CAN TAKE JUDICIAL NOTICE OF FAILURE authority to increase their tuition fees by 10% and 5% for the school year 1983-84. The
OF COUNSEL TO WITHDRAW HIS APPEARANCE UPON HIS ELEVATION TO THE SUPREME Adamson University Faculty and Employees Association (AUFEA) believing that under P.D.
COURT. While it is true that said former counsel of petitioner failed to withdraw his No. 451 60% thereof should be allocated for the increase in salaries and wages of the
appearance, the NLRC can take judicial notice of the fact that Mr. Justice Narvasa was members of the faculty and other members of the school filed a complaint in the Ministry
already elevated to the Supreme Court at the time the decision in this case was of Labor & Employment (MOLE) against the AU for the recovery of the said 60%.
promulgated. Since its decisions are reviewable by the Supreme Court such matter of

19
The contention of the AU is that P.D. No. 451 was repealed by the Educational Act of 1982, In denying the motion for reconsideration the NLRC observed that the former counsel of
which took effect on September 12, 1982, and that assuming that B.P. No. 451 was not petitioner did not withdraw nor file a manifestation that his office had been dissolved so
repealed, complainant is not entitled to any benefit considering that there was no actual he cannot continue to act as counsel thereof.
increment proceeds in the tuition fee increase for the school year 1983-84 upon which to
base the 60% allocation. Thus the question that arises is whether the service of the copy of the decision upon the
security guard of the building where the former office of petitioner's counsel was located
In a decision of the labor arbiter dated March 31, 1986 the complaint was dismissed for was sufficient compliance with the requirements of the law. Section 4, Rule 13 of the
lack of merit. The AUFEA appealed therefrom to the National Labor Relations Commission Rules of Court which is suppletory to the rules of the NLRC, provides as follows: prLL
(NLRC) wherein in due course a decision was rendered on September 30, 1988 setting
aside the appealed decision and ordering the AU to remit to the members of AUFEA the "Section 4. Personal Service. Service of the papers may be made by
amount of P1,298,160.00 representing the 60% share in the increment proceeds of the delivering personally a copy to the party or his attorney, or by leaving it in his
tuition fees collected for the school year 1983-84. A motion for reconsideration of the office with his clerk or with a person having charge thereof. If no person is found
said decision filed by the AU was denied in a resolution dated January 30, 1989 for having in his office, or his office is not known, then by leaving the copy, between the
been filed out of time. LexLib hours of eight in the morning and six in the evening, at the party's or attorney's
residence, if known, with a person of sufficient discretion to receive the same."
Hence, the herein petition for certiorari filed by the AU. On February 22, 1989, the court (Emphasis supplied)
dismissed the petition for failure to sufficiently show that respondent commission had
committed a grave abuse of discretion in rendering its questioned judgment. A motion Under the foregoing rule, service of papers should be delivered personally to the party or
for reconsideration hereof was filed by petitioner to which respondents were required to attorney or by leaving it at his office with his clerk or with a person having charge thereof.
file their comment. The desired comments having been submitted and the reply thereto The service of the court's order upon any person other than the party's counsel is not
filed by petitioner, the court finds a cogent basis to grant the motion for reconsideration. legally effective. 1 Where the copy of the decision is served on a person who is neither a
The petition is based on the following arguments: clerk or one in charge of the attorney's office, such service is invalid and the decision does
not therefore become executory. 2 The security guard of the building where the attorney
"SERVICE OF THE DECISION UPON THE SECURITY GUARD OF THE TOEFEMI is holding office is neither the office clerk nor a person in charge thereof as contemplated
BUILDING, WHERE RESPONDENT'S FORMER COUNSEL USED TO HOLD OFFICE, IS in the rules. In PLDT vs. NLRC, 3 this Court ruled that the service of the decision at the
INEFFECTIVE AND DOES NOT CAUSE THE RUNNING OF THE 10-DAY PERIOD FOR ground floor of a party's building when the office is at the 9th floor is not a valid service.
AN APPEAL.
From the foregoing, it is clear that the service of the decision dated October 11, 1988 on
BASED ON THE MERITS OF THE CASE, THE SUBJECT DECISION PROMULGATED the security guard of the building where the then counsel for petitioner was holding office
ON 30 SEPTEMBER 1988 IS CONTRARY TO THE DOCTRINE LAID DOWN IN CEBU was an invalid service and the running of the period within which to appeal therefrom or
INSTITUTE OF TECHNOLOGY ET AL. VS. HON. BLAS OPLE, ET AL" file a motion for reconsideration cannot be deemed to commence thereby. LexLib

On the first issue, it appears that the decision of the NLRC dated September 30, 1988 was While it is true that said former counsel of petitioner failed to withdraw his appearance,
served to the office of the counsel for petitioner on October 11, 1988 through the security the NLRC can take judicial notice of the fact that Mr. Justice Narvasa was already elevated
guard of the building. The office of then counsel for petitioner, Atty. Andres Narvasa (now to the Supreme Court at the time the decision in this case was promulgated. Since its
member of this Court), was located at the TOEFEMI building. The copy of the decision was decisions are reviewable by the Supreme Court such matter of public knowledge should
addressed to Atty. Roberto I. Santos of said law office. However, at the time of said service be within the judicial notice of the NLRC because of the nature of their functions. 4
the said law office was already dissolved as Atty. Narvasa was appointed as a member of
this Court. Nevertheless, a copy of said decision was transmitted by the former office of On the second issue, the order of respondent NLRC to petitioner to remit to the
now Mr. Justice Narvasa to the present counsel of record for petitioner on November 5, respondent AUFEA the sum of P1,298,160.00 representing its 60% share in the increment
1988 who promptly filed a motion for reconsideration on November 15, 1988. tuition fees collected for the school year 1983-1984 is predicated on the argument that:
1) MECS Order No. 25 took effect on April 1, 1985 and prior thereto this Court has ruled
that the 60% incremental proceeds should be applied to the basic salaries and wages; and
20
2) inasmuch as the CBA was concluded two (2) days after petitioner was granted the proceeds the items under paragraph 7.4 of the MECS Order No. 25 including collective
authority to increase its tuition fees, it does not necessarily follow that the parties bargaining.
intended that the CBA benefits will be taken from the said incremental proceeds.
WHEREFORE, the motion for reconsideration is granted and the resolution of February 22,
We disagree. 1989 is set aside; the petition is GRANTED so that the questioned decision of the NLRC
dated September 30, 1988 and its resolution dated January 20, 1989 are hereby
In the case of Cebu Institute of Technology vs. Hon. Blas Ople, 5 this Court ruled that P.D. REVERSED AND SET ASIDE while the decision of the labor arbiter dated March 31, 1986
No. 451 was repealed by B.P. 232 effective September 11, 1982. From the said date the dismissing the complaint for lack of merit is hereby AFFIRMED without pronouncement
governing law on the disposition of the 60% incremental proceeds on the tuition fees are as to costs.
the appropriate provisions of B.P. Blg. 232, which, in pertinent part provides as follows:
SO ORDERED.
"'Not less than sixty (60) percent of the incremental tuition proceeds shall be
used for salaries or wages, allowances and fringe benefits of faculty and support Cruz, Grio-Aquino and Medialdea, JJ., concur.
staff, including cost of living allowance, imputed costs of contributed services,
thirteenth (13th) month pay, retirement fund contributions, social security, Narvasa, J., took no Part.
medicare, unpaid school personnel claims, and payment as may be prescribed
by mandated wage orders, collective bargaining agreements and voluntary
employer practices . . .' (Sec. 42; Emphasis supplied)"

Accordingly, as of September 11, 1982, Section 3(a) of PD 451 which limits the disposition
of said 60% incremental proceeds increase in tuition fees to those of salaries and wages
is deemed abrogated by way of repeal. 6 Indeed even prior thereto this Court ruled in the
University of the East vs. UE Faculty Association 7 as follows:

" 'We are underscoring such modification because as We see it, it settles the
second main issue. We have stated at the outset as to whether or not increase
of salaries of wages or allowances or benefits secured by collective bargaining
may be charged against the incremental proceeds (60%) under PD 451. We read
the latest Malacaang decision to mean that increase of salaries even those
secured by collective bargaining may be charged to the 60% incremental
proceeds of MEC authorized tuition fee increases . . .' (Emphasis ours.)"

MECS Order No. 25 finds legal support in B.P. Blg. 232, otherwise known as the
Educational Act of 1982 as said MECS Order is an implementing administrative rule
interpretative of a pre-existing statute and not declarative of certain rights with obligation
thereunder. The same should be given retroactive effect and its effectivity should be on
September 11, 1982, which is the date of effectivity of B.P. Blg. 232, not April 1, 1985.
Remedial or curative statutes are by nature intended to be retroactive. 8

And this is as it should be as rules and regulations are and should be for the sole purpose
of carrying into effect a general provision of the law. 9 Thus guided by the Cebu Institute
of Technology which declared the automatic repeal of P.D. 451 respondent NLRC
committed a grave error in ruling that petitioner cannot charge to the 60% incremental

21
G.R. No. L-18457 June 30, 1962 On February 15, 1961, the court received the evidence for respondents ex parte and
thereafter, on the same date, rendered a decision in favor of respondents the dispositive
GUILLERMO VIACRUCIS and LUISA DE VIACRUCIS, petitioners, part of which reads:
vs.
HON. NUMERIANO G. ESTENZO, Judge of the Court of First Instance of Leyte, WHEREFORE, the Court hereby declares the plaintiffs to be the lawful owner of
ANASTACIO ORAIS and CELESTINA MALAZARTE, respondents. all the parcel of land described as follows: . . . The Court hereby orders the
defendants jointly and severally pay the plaintiffs the sum of P400.00
Carlos M. Ortiga and Ranulfo P. Payos for petitioners. representing damages from 1956 up to December, 1960, an another sum at the
Leonardo C. Dejano, Cesar D. Mejia and Bayona Law Office for respondents. rate of P10.00 a month from January, 1961 up to the time the four hectare
BARRERA, J.: northern portion of the aforesaid land shall have been delivered to the plaintiffs,
and to pay the plaintiffs the sum of P150.00 for and as attorney's fees.
On November 15, 1960, respondent Anastacio Orais and Celestina Malazarte filed with
the Court of First Instance of Leyte a complaint (Civil Case No. 444-0) against petitioners The defendants are hereby ordered to vacate the four-hectare northern portion of land
Guillermo Viacrucis and Luisa de Viacrucis, for recovery of possession of a parcel of land aforesaid and restore the plaintiffs to the possession thereof, and that costs is hereby
allegedly acquired by plaintiffs by virtue of a deed of sale in their favor, with damages. On adjudged against the defendants.
December 15, 1960, petitioners were served with summons and a copy of the complaint. On February 16, 1961, herein petitioners received notice of the order of the court of
on December 21, 1960, due to respondents' failure to attach to the complaint a copy of January 31, 1961, declaring them in default and setting the case for reception of
the deed of sale, referred to as Annex "A", petitioners, as defendants below, filed a evidence ex parte on February 13, 1961. Thereupon, petitioners filed a motion for
motion seeking an extension of time for them to answer the complaint until after receipt reconsideration of the said order of default stating partly:
of said document. Acting on said motion, the court, on December 28, 1960, issued an
order giving petitioners 10 days from receipt of said document within to file their answer 1. The record of this case shows that by order of this Honorable Court dated
to the complainant. Said order, together with the copy of said document, was actually December 28, 1960, the defendants were given ten (10) days from the receipt
received by petitioners' former counsel on February 6, 1961, the notices issued by the of the copy of the manifestation of the plaintiffs' counsel together with the copy
postmaster of Davao City to said counsel having been issued as follows: First, notice: of Annex "A", the Deed of Sale alleged in the complaint.
January 24, 1961: Second notice: February 1, 1961; and Third notice: February 6, 1961.
2. The said order of this Honorable Court dated December 28, 1960, together
On January 31, 1961, however, presumably on motion respondents' counsel, the court with the copy of the Manifestation of plaintiffs' counsel and also a copy of the
issued an order declaring petitioners in default, to wit: deed of sale (Annex "A"), was received by the undersigned on February 6, 1961.
Defendants therefore have up to February 16, 1961 within which period of ten
ORDER (10) days said defendants should file their answer under and by virtue of said
For failure on the part of the defendants to file their answer, the said defendants order of this Honorable Court dated December 28, 1960 referred above. The
are hereby declared in default. "On motion of Attorney Leonardo C. Dejano, the mail received was by ordinary registered mail.
hearing of this case for the reception of the evidence for the plaintiffs is hereby 3. That it may also be mentioned herein that an order of this Honorable Court
set on February 13, 1961 at 7:30 o'clock in the morning, with notice to Atty. dated January 24, 1961, was received on the said date of February 6, 1961
Dejano in open court. setting the hearing of this case on January 31, 1961 at 7:30 A.M., with the notice
SO ORDERED. to Atty. Dejano in open court. It is herein alleged that the envelope containing
this order was postmarked at Ormoc City Post Office "January 27, 1961" and as
On February 14, 1961, petitioners filed their answer, with counterclaim, asserting that the already said, received on February 6, 1961. It was sent by ordinary mail.
deed relied upon by the plaintiffs was but a simulated sale to enable plaintiffs to obtain a
loan which was never carried out. 4. That defendants filed their answer by registered airmail on February 14, 1961
as per registry office receipt No. 14189 issued by Davao City Post Office and

22
clearly within the ten-day period granted to the defendants in the said order of Notified of this order of denial an April 26, 1961, petitioner's filed with this Court the
this Honorable Court on December 28, 1960 which was received on February 6, present petition for certiorari (with prayer for preliminary injunction) and mandamus. .
1961.
Petitioners claim that respondent Judge acted with grave abuse of discretion and in
5. That considering these incontrovertible facts appearing in the record of this excess of his jurisdiction in declaring them in default on January 31, 1961. Respondents
case, the undersigned counsel cannot imagine how the defendants could be on their part urge the dismissal of the present petition, on the ground that appeal from
declared in default; and furthermore the undersigned counsel entertain the the order of April 21, 1961 denying petitioners' motion for reconsideration of the default
belief that plaintiffs were permitted to present their evidence on February, 13, order, is the proper remedy.
1961 by and under the virtue of the order herein sought to be reconsidered.
Petitioners admit that the first notice of the registered mail containing the order of the
6. That under the above set of incontrovertible facts, there is absolutely no trial court dated December 28, 1960 (giving them 10 days from receipt thereof within
justification that defendants be declared in default and therefore whatever which to file their answer to the complaint) was sent by the Davao City Postmaster to
proceedings had on February 13, 1961 will have no binding effect upon the petitioners' counsel on January 24, 1961. Having failed to claim said mail from the post
defendants. office within 5 days from said date of first notice, or specifically on January 29, 1961,
service thereof was, pursuant to Section 8, Rule 27, of the Rule of Court, deemed
WHEREFORE, it is respectfully prayed of this Honorable Court that the order completed at the expiration of the latter dated. Nonetheless, petitioners had until
dated January 31, 1961 be reconsidered; lifting same; and that whatever February 8, 1961 (10 days from January 29) within which to file their answer to the
proceedings had on February 13, 1961, having no binding effect upon the complaint. In the circumstances, the trial court could not have legally declared them in
defendants, be set aside. default before such date. Hence, the order of default made on January 31, 1961, i.e., 8
Said motion was denied by respondent Judge on April 21, 1961, in an order of this tenor: days prior to the expiration of the time expressly granted petitioners to answer, was
premature and, therefore, null and void.
ORDER
It is, however, contended that petitioners' remedy properly should have been an appeal
It appears from the certificate issued by the Postmaster of Davao City that as from the order denying their motion to set aside the order of default, citing the case
early as January 24, 1961, the first registry notice was sent to Attorney Bonifacio of Madrigal Shipping Co. v. Ogilvie, at al., (L-8431, Oct. 30, 1958), wherein this Court said:
Tamayo representing the defendants.
Counsel argues that an order of default being interlocutory, the petitioner could
The said registered letter No. 3789 contains the order of this Court giving the not appeal therefrom. True, but from a denial of a motion to set aside an order
defendant ten (10) days within which to present his answer to the complaint. of default, as the petitioner's "urgent motion to set aside order of default"
(Annex F), which may be deemed to fall under Section 2, Rule 38, the petitioner
Under Section 8, Rule 27, of the Rules of Court that service on this letter is
could have appealed. Instead of taking an appeal from such denial, the
deemed complete on January 29, 1961, and that on February 9, 1961, as the
petitioner chose to bring the matter to this Court by a petition for a writ
defendants have not filed any answer, this Court is well grounded in proceeding
of certiorari with a prayer for a writ of preliminary injunction which was
with the hearing of this case as the defendants, since then, have already been
correctly dismissed for the remedy was an appeal from the order denying the
in default.1wph1.t
motion to set aside the order of default entered against the petitioner because
This Court has waited until February 15, 1961, for this Court to receive an answer, of mistake or excusable neglect. . . . . (Emphasis supplied)..
but as no answer was filed, the hearing proceeded and a corresponding decision
Note, however, that in the above-mentioned case, the motion to set aside the default
was rendered.1wph1.t
order, being predicated on the movant's own alleged mistake and excusable neglect, was
WHEREFORE, for lack of sufficient merits, the motion for reconsideration filed treated and properly so, as one for relief under Rule 38. In other words, the order of
by the defendants is hereby denied, with notice to Attorney's Dejano and Payos, default issued therein was not being assailed as inherently defective, but as one resulting
in open court. SO ORDERED.

23
from the mistake or excusable neglect of the party seeking the relief. It is evident that on February 15, that is, the reception of plaintiffs' evidence ex parte, and the decision
upon denial of the motion to set aside such order of default, appeal is in order. rendered thereon, having been predicated on a void order of default, is by itself also a
nullity which is reviewable by certiorari (Luna v. Abaya, etc., et al., supra.)
Upon the other hand, we have the case of Luz v. Court of First Instance of Tacloban, et
al. (44 O.G. 42), wherein this Court, finding that The records before us containing the pleadings of the parties indicate that there are
genuine issues raised by the defendants-petitioners which would seem to entitle them to
when the motion to declare defendant in default was filed on February 24, . . . a due hearing on the merits.
and when the decision was rendered on March 24, 1941, defendant's petition
to dismiss sent from Ilocos Sur since January 31 was in transit and must have WHEREFORE, the writ of certiorari prayed for by petitioners is granted, the order of
been received between the date of the decision an April 1, 1944, when the order January 31, 1961, as well as the decision rendered on February 15, 1961, and the order of
denying it was issued. denial of the motion for reconsideration issued on April 21, 1961, are set aside, and the
case ordered remanded to the court of origin for further proceedings, upon the complaint
held that the lower court acted prematurely in pronouncing defendant and answer filed therein, without costs. So ordered.
(petitioner) in default, and the decision rendered therein, without giving said
defendant her day in court, was declared null and void. Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Paredes, Dizon, Regala and
Makalintal, JJ., concur.
In another case,1 we granted the writ of certiorari prayed for, where it was established Bengzon, C.J. and Padilla, J., took no part.
that the defendant was prematurely declared in default through a misinterpretation by
the lower court of the provisions of Section 5 of Rule 13, of the Rules of Court. Such
premature declaration of default of defendant or the rendering of judgment before the
expiration of the time for the filing of answer, we held therein, deprives the defendant of
his day in court and the judgment so rendered may, consequently, be vacated.

Conformably with the foregoing pronouncements, the declaration of default by the court
in this case, before petitioners' period to file their answer had expired, clearly is in excess
of and/or without jurisdiction and, therefore, properly correctible by a writ of certiorari.

Respondents also argue that since petitioners actually filed their answer only on February
14, 1961, i.e., 6 days after the expiration of the period to file the answer (on February 8),
the trial court correctly proceeded ex parte with the case on February 15. Differently
stated, it is respondents' contention that petitioners' failure to file their answer on time
cured the previous premature declaration of default and validated the otherwise
defective proceedings had on February 15.

Such argument can not be sustained. Firstly, under Section 6, Rule 35, of the Rules of
Court, a defendant who fails to timely file his answer can only be declared in default "upon
motion of the plaintiff" (not motu proprio by the court). There is no question that after
the premature, and hence void, declaration of default on January 31, 1961, no other
motion to the same effect was filed by respondents-plaintiffs and granted by the court.
Petitioners, therefore, were never legally in default. Secondly, petitioners' subsequent
failure to file their answer within the extension period could not produce the retroactive
effect of supplying the deficiency or lack of legal basis of the declaration of default issued
on January 31. A null and void order can not be revived or ratified. Thirdly, the proceeding

24
[G.R. No. L-27673. November 24, 1972.] petitioners presented only one witness, while respondents presented four witnesses, all
of whose testimonies are summarized and discussed in the decision.
JULIO SAPIDA, ANGELINA DEL ROSARIO, EUFROCINA SAPIDA, DOMICIANO ILAWAN,
MAGDALENA SAPIDA, ADOLFO LEFERIZA, ANGELES SAPIDA, GABRIEL VELEZ, MARIETTA Copy of the trial courts decision was received by respondents through counsel on April,
SAPIDA, AGUSTINA SAPIDA (now deceased), substituted her children ROLANDO, 29, 1966. On the 27th day, i.e. on May 26, 1966, they filed a twenty-page motion for new
ROMEO, JUANITO, ERNESTO and BENJAMIN, all surnamed FRANCISCO, Petitioners, v. trial and/or reconsideration, wherein inter alia they assailed the decision for having
MERCEDES ASPILLERA DE VILLANUEVA and VICENTE P. VILLANUEVA, spouses, and HON. rejected or disregarded the approved verification survey made by the Bureau of Lands
COURT OF APPEALS respondents. notwithstanding the parties agreement for the execution of such survey plan and the trial
Beltran, Beltran, Beltran & Palaganas, for Petitioners. courts order to that effect, for making a portion of the existing Tagaytay-Manila highway
a part of the land of petitioners Sapida, and for amending or cancelling in effect a portion
Jose W . Diokno for Respondents. of the torrens title of respondents Villanueva and awarding the same without authority
to petitioners on the sole testimony of petitioners only witness, whose testimonial
DECISION evidence allegedly identified merely their titles and tax receipts and could not justify the
trial courts action. 3 In due course, petitioners filed an extended (10-page) opposition
TEEHANKEE, J.:
thereto, respondents filed in turn a seven-page reply and supplemental motion for new
trial and petitioners had the last word with their four-page rejoinder dated June 9, 1966.
Appeal by certiorari from the decision of respondent Court of Appeals granting herein
respondents petition for certiorari and mandamus and thereby setting aside the lower On July 10, 1966, respondents further filed an urgent motion for preliminary injunction
courts order declaring its adverse decision against respondents final and executory and to restrain petitioners and their agents from entering upon their (respondents) land and
instead commanding that their appeal as defendants from its adverse decision be given harvesting the fruits thereon.
due course.
On July 27, 1966, the trial court issued its order denying respondents motion for
The factual background of the case at bar may be briefly narrated, as follows: preliminary injunction.

Petitioners Sapida as plaintiffs had filed with the court of first instance of Cavite a About two weeks later on August 10, 1966, the trial court issued its order denying
complaint against respondents Villanueva as defendants to quiet title over a parcel of respondents motion for reconsideration and new trial filed much earlier on May 26, 1966.
land situated at Dasmarias, Cavite. 1
It is at this stage, to paraphrase respondent appellate court, that the "misunderstanding"
After trial, the lower court rendered its decision dated March 30, 1966 in Favor of arose on the vital question of when respondents counsel received copy of the trial courts
petitioners (plaintiffs) and against respondents (defendants) declaring "that the plaintiffs order of August 10, 1966 denying reconsideration, i.e. whether it was received on August
are the owners of the land in question known as Lot 3869-N-8, 11, 12 and 13 covered by 30, 1966 as claimed by petitioners with the consequence that the trial courts decision
their respective titles, thereby quieting their said titles to said Lot 3869-N, as shown in became final and executory three days thereafter on September 3, 1966, so that the
plan Rs-632-D; that the defendants herein have not any estate, right, title or interest perfection of their appeal on October 10, 1966 was 37 days late, as sustained by the trial
whatsoever on the property in question and that they are thereby enjoined and debarred court in its order of November 15, 1966 granting petitioners motion for execution of the
from asserting any claim whatever in a over said land adverse to the ownership of the judgment as final and executory or whether respondents counsel received the trial
herein plaintiffs, to pay the sum of Five Hundred (P500.00) pesos as attorneys fees and courts said order of denial of reconsideration and new trial only much later on October
the costs of this suit." 2 7, 1966, so that they duly perfected their appeal within the remaining 3-day period left to
them when they duly filed their notice of appeal, appeal bond and record on appeal all by
It is seen from the trial courts decision that both contending parties have torrens titles
October 10, 1966, as upheld in turn by respondent court of appeals in its appealed
to their respective properties with duly approved plans, with respondents contending
decision of March 7, 1967, which granted respondents petition for certiorari and
that there could not be an overlapping of their properties respective boundaries since
mandamus and ordered the trial court to give due course to respondents said appeal. 4
the actual dividing line between them is the Tagaytay-Manila national highway; and that
25
It is not dispute by both parties that a registered mail matter was sent by the trial courts the envelope and the copy of the Order denying his Motion for a Writ of
docket clerk on or about August 23, 1966 and that the envelope containing the same was Preliminary Injunction dated July 27, 1966 contained therein which was sent to
in fact received by respondents counsel on August 30, 1966. him by ordinary mail on August 1, 1966 he submitted a written manifestation to
the Court to the effect that he did not receive such Order.
What is disputed are the contents of said envelope. The docket clerk, Erlinda C. Daof,
through her affidavit October 18, 1966 supported petitioners contention that she "x x x
personally mailed through said registered mail the "order of denial of defendants motion
for reconsideration and nothing else." 5 "It appearing that the above-mentioned Order dated July 27, 1966 which was
sent to the counsel for the defendants by ordinary mail on August 1, 1966 has
Respondents counsel in turn submitted the affidavit of October 6, 1966 of their secretary, not been returned to this Court undelivered by the Bureau of Posts up to this
Lourdes E. Dimapilis, in support of their contention that the only order contained in the time, the presumption, therefore, is that he had received the said letter
said registered mail envelope received by them on August 30, 1966 was the order dated containing the said Order. Moreover, (a) public official or employee is presumed
July 27, 1966 denying respondents urgent motion for preliminary injunction and that the to have performed his duties in the regular course of official business. This Court,
envelope "contained no other matter." 6 therefore, is inclined to give credence to the testimony of the Docket Clerk of
This dispute between the parties was triggered by the motion for which execution of this Court that she really sent the Order of this Court denying the Motion for a
judgment filed by petitioners on September 12, 1966 which was promptly and vigorously Writ of Preliminary Injunction by ordinary mail on August 1, 1966 and the other
opposed by respondents per their written oppositions of September 22, 1966, October Order denying the Motion for New Trial and/or Reconsideration by registered
18, 1966 and verified manifestation of November 7, 1966 of respondents counsel Atty. mail on August 23, 1966, which registered mail was received by counsel for the
Jose G. Gatchalian, who under oath averred therein that as of said date, November 7, defendants on August 30, 1966." 8
1966," (he) has up to the present never received, personally or by mail, a copy of the Respondents then sought the prerogative writs of certiorari and mandamus from the
order dated August 10, 1966. He saw and came to know of said order dated August 10, Court of Appeals. As noted in respondent appellate courts decision of March 7, 1967
1966, for the first time on October 7, 1966, during the hearing on plaintiffs Motion for subject of the present appeal, "there was no other recourse left to petitioners to preserve
Execution, so on the very same day he filed defendants Notice of Appeal, paid the cash their right of appeal except by the present remedy of certiorari and mandamus."
appeal bond, and filed a motion for extension of time to file the record on appeal. The
record on appeal was actually filed on October 10, 1966. 7" Respondent appellate court, in its decision penned by Justice Magno S. Gatmaitan, in turn
The trial court heard on October 7, 1966 the parties in oral argument on petitioners set aside the trial courts order declaring that its decision against respondents had already
motion for execution and thereafter sustained petitioners and granted execution as per become final and executory and instead ordered the trial court to give due course to
its order of November 15, 1966, wherein it held as follows: respondents appeal.

"Counsel for the defendants, however, claim that the reglementary period to While recognizing that generally in certiorari proceedings the conclusions of fact of the
appeal has not yet expired because he received the copy of the Order of the trial court based on its determination of the respective credibilities and weight of
Court denying his Motion for New Trial and/or Reconsideration dated May 26, evidence to be accorded to each of two contradictory witnesses conformably to the rules
1966 only on October 7, 1966, and that on that same date he had filed with this "cannot be overruled by the appellate court" since the case is not on regular appeal,
Court his Notice of Appeal, which is still within the reglementary period of thirty respondent appellate court found that the trial court in giving credence to the affidavit of
(30) days to appeal. In other words, counsel for the defendants want the Court the court employee as against the contradictory affidavit of respondents counsels
to believe that the registered mail which he had received on August 30, 1966 secretary, without hearing both of them on the witness stand and subjecting them to
did rot contain the Order dated August 10, 1966 of this Court denying his cross-examination, had "no basis to make its findings of fact."
Motion for New Trial and/or Reconsideration but another Order dated July 27, Thus, the appellate court observed correctly that "while the order complained of states
1966 which denied his Motion for a Writ of Preliminary Injunction. However, that the employee, Erlinda C. Daof, had given her testimony, that testimony is not at all
when this Court ordered the counsel for the defendants to submit to this Court reproduced in the records; the conclusion must have to be that the examination made by
26
the Trial Judge of this employee assuming it had been made in open court if it had been and had gravely abused its discretion in arbitrarily giving credence to the court
made in open court, had not been taken under oath and reproduced by the stenographer employees affidavit and ordering execution of its judgment as final, as follows:
and surely she was not subjected to cross-examination; this must mean that against her
version stated in her affidavit to the effect that what she mailed by registered mail or (a) It is "seen in the face of the record that her annotation that she had sent
caused to be mailed by registered mail within that registered letter No. 203 and contained copy of the order denying the preliminary injunction by ordinary mail
in the envelope, Exhibit V, was exactly the copy of the order denying the motion for new contains some superimpositions in ink as to the month, the handwritten
trial . . . is pitted the contrary affidavit of the secretary of Atty. Gatchalian appearing on word Sept. apparently having been first written and over it the correct
page 285 of the expediente that what (that) registered envelope contained was a copy of month of August" ;
the order of 27 July, 1966 denying the motion for preliminary injunction and no other
matter." (b) "The peculiar fact that it was only this order (of denial and injunction) that
apparently she had according to her, sent by ordinary mail, contrary in fact
Under such circumstances, the appellate court held that the trial court practically had no to Rule 13, sec. 5 of the Revised Rules, all the others appearing in the
basis to make its findings of fact, without first taking the prudent course of hearing the expediente, see pages 29, 30, 61, 62, 91, 136, 149, 152, 216, attaching the
two affiants and subjecting them to cross-examination so that he could properly make up return cards, were sent by registered (mail);" and
his mind on whom of them to believe, thus: "in the fact of these contradictory affidavits,
both ex-parte, neither subjected to cross-examination, while it is true that under the Rules, (c) The trial court could not under such facts and circumstances whimsically
Court may hear motions solely upon affidavits and counter-affidavits, Rule 134 Sec. 7, "place reliance on the presumption of regularity which itself had been
Revised, if the affidavits contradict each other on matters of fact, a Court practically can already opposed by the affidavit of (respondents) affiant," which the trial
have no basis to make its findings of fact; but here what trial judge did was to totally court "totally ignored . . . without giving (its) reasons." y
ignore the affidavit of Lourdes E. Dimapilis without giving any reason for so doing; there
is no question that he had the right to disbelieve, but he should have given his reasons." The Court, therefore, finds that no error, much less abuse of discretion, was
committed by respondent appellate court in its conclusions and findings
Respondent appellate court made the telling point "so far as the record is concerned, "that the Rules cannot sustain the order complained of; for the fulfillment
there is no way to find out that she (the court employee) was really lying, for the reason of the burden to demonstrate that judgment was already final had suffered
that neither the envelope, Exh. V, nor the return card on page 272 of the expediente from substantial procedural wrong with the result that the record, standing
contained the annotations on what had truly been the contents of that envelope)." as it does, does not present a case of a lapsed appeal; and as in such a
situation, no other remedy was left to petitioners to preserve their right to
Hence, the appellate court was but upholding respondents right to due process in ruling that except by present petition in certiorari and mandamus."
that "if truly, under the authorities, a trial judge is free to give more weight to that
affidavit which he believes to be more probably true, and grant or deny as the case may It need only be stressed that in mandamus proceedings to give due course to an appeal
be, the point before trial judge being of so vital importance, concerning as it did the which the lower court has ruled to have been filed out of time, the reviewing court, in this
finality of his decision, whether it could still be appealed or not, for him to have been able case, the Court of Appeals, must necessarily review the facts and data in the record; and
to approximate the truth, the more prudent perhaps the only prudent course would have where it finds on review that the lower courts conclusion of late filing of appeal is not
been to hear the two affiants and subject them to cross-examination, cf. 42 C.J. 509; in borne out and justified by the record, such a ruling may as in the case at bar be set aside
connection with Rule 133, Sec. 7 of the Revised Rules." 9 on certiorari and mandamus issue to give due course to the appeal.

The appellate court further cited specific "dubious" and "peculiar facts" of record, in To contend, as petitioners, that the reviewing Court is foreclosed by the trial courts
addition to that above stated of the lack of proper annotation on the envelope nor on the finding that the appeal is filed out of time even though the record shows otherwise and
return card that "what had been inside was the fatal order of denial of the motion for that it may not review the facts and data of record regarding the timeliness of the appeal
new trial," showing that the trial court had grossly disregarded such matters of record would lead to the untenable conclusion that any dictamen of the trial court that the

27
appeal is filed out of time is final and conclusive, and beyond correction by superior courts
through the prerogative writs of certiorari and mandamus. 10

Paraphrasing the analogous case of Cayetano v. Ceguerra, 11 the Court cannot in the case
at bar justly attribute upon respondents actual knowledge of the order of de of their
motion for new trial through the registered mail received by their counsel on August 30,
1966, because there is no showing that the registry notice itself or the envelope or the
return card for that matter contained any indication or annotation that the registered
matter was indeed and in fact a copy of the said order. Under the circumstances, it is
keeping with the best interests of justice to afford the respondents the opportunity to
pursue their appeal on what appear to be substantial issues from the trial courts adverse
decision.

ACCORDINGLY, the decision appealed from is hereby affirmed, with costs against
petitioners.

Concepcion, C.J., Zaldivar, Fernando, Barredo, Makasiar and Antonio, JJ., concur.

Castro and Esguerra, JJ., did not take part.

Makalintal, J., is on leave.

28
SECOND DIVISION court her appeal brief; petitioners-appellee did not file any brief Consequently, on
September 23, 1971, the Court of Appeals, Special Eight Division (composed of Justices
[G.R. No. 50711. November 17, 1980.] Ramon O. Nolasco, Andres Reyes and Manuel P. Barcelona), issued a resolution
SIMEON ARAMBURO and CORAZON ARAMBURO KO, SALVACION TAN DE ARAMBURO, considering the case as submitted for decision without appellee's brief. More than seven
JESUS T. ARAMBURO, JULIO T. ARAMBURO, JOSEPHINE T. ARAMBURO, MARY JANE T. years thereafter, a decision was rendered by the Court of Appeals, Ninth Division
ARAMBURO, AUGUSTO T. ARAMBURO, JR., JAIME T. ARAMBURO, JULIET T. ARAMBURO, (composed of Justices Carlos L. Sundiam, Samuel F. Reyes and Pacifico P. de Castro now
JACKSON T. ARAMBURO, JOCELYN T. ARAMBURO, JOVY T. ARAMBURO, petitioners, vs. Associate Justice of the Supreme Court), the dispositive portion of which reads as follows:
COURT OF APPEALS, CONCEPCION R. PENA, PROVINCIAL SHERIFF OF ALBAY, "PREMISES CONSIDERED, the plaintiff-appellant having established her ownership over
respondents. the three parcels of land in issue and her possession, including those of her predecessors-
DECISION in-interest before the year 1961, the decision appealed from is hereby REVERSED:

ABAD SANTOS, J p:
(1) Declaring plaintiff-appellant the absolute owner of the three lots in question;
In this petition for certiorari, mandamus and prohibition, with prayer for a restraining
order filed on May 25, 1979, the petitioners seek to set aside the decision of the Court of (2) Ordering the defendants to vacate said lots and deliver the possession thereof
Appeals, dated December 28, 1978, in CA-GR No. 41251-R entitled "Concepcion R. Pea to the plaintiff-appellant;
vs. Salvacion Tan de Aramburo, et al." and/or to remand the case to the Court of Appeals (3) Ordering defendants Aramburos to deliver to plaintiff-appellant 30 sacks of
and other said court to further proceed with the same by requiring the herein private palay from Lot 2361 and 50 sacks of palay from Lot 4725, annually, from 1961 until they
respondent, appellant in said Court of Appeals' case, to furnish the herein petitioners, the vacate or pay their value at P12.00 per sack;
appellees in said case, with a copy of the appellant's brief and to allow petitioners-
appellees to file their brief within 90 days from receipt of said copy before rendering a (4) Ordering defendant Jose Atadero to deliver to plaintiff-appellant 12 sacks of
new decision on said appeal. Petitioners further pray that the Provincial Sheriff of Albay palay from Lot 2360, annually, from 1961 until he vacates said lot or pay its value at
be restrained from enforcing the writ of execution issued by the Court of First Instance of P12.00 per sack; and llcd
Albay ordering said Provincial Sheriff to execute the said decision of the Court of Appeals.
prLL (5) Ordering defendants to pay the costs."

The procedural antecedents of this petition are as follow: On January 14, 1963, the herein Petitioners-appellees now assail the decision of the Court of Appeals on the ground of
petitioners filed with the Court of First Instance of Albay an application for registration of lack of procedural due process. They contend that they were deprived of their day in court
lots Nos. 2361 and 4725 of the Cadastral Survey of Malinao. Docketed as Land when the appeal was submitted for decision without their brief Allegedly, they were not
Registration Case No. 311, the application for registration was opposed by the herein able to file their brief because the respondent appellant did not furnish them with a copy
private respondent, Concepcion R. Pena who prayed that she be declared the owner of of the appellant's brief. They further contend that they did not receive both the resolution
said lots. On May 23, 1964, said private respondent filed with the same Court of First of the Court of Appeals dated September 23, 1971, which considered the case as
Instance of Albay an action for reivindicacion with damages seeking to recover from the submitted for decision without appellee's brief, as well as the decision of said court dated
herein petitioners the two lots covered by the application for registration together with December 28, 1978, and that it was only on May 9, 1979, that they learned of the
lot No. 2360 of the same cadastral survey. As the latter lot was found to be in the judgment of said court when the Deputy Provincial Sheriff of Albay served upon them a
possession of a certain Jose Atadero, the complaint was amended to include said new copy of the writ of execution enforcing said judgment.
defendant. Said complaint was docketed as Civil Case No. 2850 and was jointly tried with On June 15, 1979, We required the respondents to comment on the petition and issued
Land Registration Case No. 311. On February 14, 1968, a decision was rendered by the an order temporarily restraining the Provincial Sheriff of Albay from enforcing the writ of
Court of First Instance of Albay dismissing both cases. From said decision, the herein execution issued by the Court of First Instance of Albay.
private respondent appealed to the Court of Appeals. The appeal was docketed in the
Court of Appeals as CA-G.R. No. 41251-R. Respondent-appellant filed with said appellate
29
Respondents filed their comment on the petition on August 3, 19713. Denying petitioners' "3. The decision of this Court, incidentally, was received by counsel for petitioner
claim of lack of procedural due process, respondents allege that the counsel for the on January 10, 1979, as evidenced by the registry return receipt, copy of which is attached
petitioners-appellees were furnished with copies of the appellant's brief per registry hereto and made an integral part hereof as Annex 'B'."
receipts nos. 6724 and 6725 (Quiapo, Manila) dated January 20, 1971, which were filed
with the Court of Appeals along with the appellant's brief and were attached to the rollo On June 11, 1980, We required the Division Clerk of Court of the Court of Appeals to
of the appealed case. Respondents further noted that the counsel for petitioners- submit his report over the signature of Justice Carlos L. Sundiam, the ponente of the
appellees likewise received copies of the Court of Appeals' resolution dated September assailed decision of the Court of Appeals.
23, 1971, and of its decision dated December 28, 1978, per registry return cards attached On June 19, 1980, Atty. Delfin de Vera, counsel for the petitioners, filed a manifestation
to the rollo of the case which show receipt by the authorized representatives of the stating that Atty. Antonio Alfane was the counsel for the petitioners in the Court of
petitioners-appellees' counsel of the said resolution and decision on October 7, 1971, and Appeals and that neither he nor said Atty. Alfane received the registered communications
January 10, 1979, respectively. Respondents finally contend that since the petitioners- (resolution and decision) covered by annexes "A" and "B" of the report of the Division
appellees did not appeal from the decision of the Court of Appeals nor move for Clerk of Court of the Court of Appeals. Noting said manifestation, We ordered Justice
reconsideration thereof, said decision became final and executory and that, consequently, Carlos L. Sundiam on July 16, 1980, to submit a comprehensive and reasoned report as
the execution of said decision is in order and should not be restrained by this Court. required in the resolution of June 11, 1980, in relation to the resolution of April 30, 1980,
Accordingly, respondents pray that the temporary restraining order be lifted and that the taking into consideration the statements contained in the manifestation. In compliance
petition be denied for lack of merit. therewith, Justice Carlos L. Sundiam filed on September 1, 1980, his comment. He
On December 7, 1979, We required the petitioners to file a reply to the comment of the reproduced in said comment the report of the Division Clerk of Court and noted further
respondents. Petitioners, through their counsel, Atty. Delfin de Vera, filed their reply on that since the resolution and decision of the Court of Appeals were sent to the petitioners-
January 17, 1980, wherein they reiterated their claim that their former counsel, Atty. appellees' counsel thru a government agency, the postal services of the country, it may
Antonio C. Alfane, never received a copy of the appellant's brief and of the Court of be presumed, pursuant to Sec. 5 (m), Rule 131 of the Rules of Court that the postmaster
Appeals' resolution and decision dated September 23, 1971 and December 28, 1978, of Legaspi City performed his official duties and delivered the mail matter to the
respectively. authorized representatives of the addressees.

On April 30, 1980, We required the Court of Appeals to ascertain carefully the allegations The only issue to be resolved in this special civil action for certiorari, mandamus and
of the petitioners regarding the non service of the appellant's brief and of the resolution prohibition is whether or not the herein petitioners were deprived of procedural due
and decision of the said Court and to report on the same without unnecessary delay. In process when the Court of Appeals decided CA-G.R. No. 41251-R without their briefs as
compliance therewith, the Division Clerk of Court of the Ninth Division of the Court of the appellees therein.
Appeals, Atty. Arturo A. Marave, submitted a report on May 27, 1980, stating that: We are inclined to believe petitioners' allegation that they were not served with a copy
"1. The brief for the plaintiff-appellant filed with this Court on January 26, 1971 of the appellant's brief. For it must be observed that the duty of proving service of the
does not have a registry return receipt from petitioners' counsel attached to it. Said brief appellant's brief upon the appellee lies with the appellant, the private respondent herein,
bears only the registry return receipt from Atty. Jose Atadero. However, attached to the who, regrettably, failed to comply with the same. Section 10, Rule 14 of the Rules of Court
same brief are two (2) registry receipts bearing numbers 6724 and 6725, both dated provides:
January 26, 1971, ostensibly for the two opposing counsels. (p. 90, Rollo). "SEC. 10. PROOF OF SERVICE. Proof of personal service shall consist of a written
"2. The Resolution of this Court dated September 23, 1971 considering the case admission of the party served, or the affidavit of the party serving, containing a full
submitted for decision without defendants-appellees' brief was received by Attys. statement of the date, place and manner of service, . . . If service is made by registered
Antonio Alfane and Delfin de Vera on October 7, 1971 per registry return receipt attached mail proof shall be made by such affidavit and the registry receipt issued by the mailing
to the back of said resolution (p. 100, Rollo). Copy of said registry return receipt is office. The registry return card shall be filed immediately upon receipt thereof by the
attached hereto as Annex `A' and made an integral part hereof. sender, or in lieu thereof the letter unclaimed together with the certified or sworn copy
of the notice given by the postmaster to the addressee."

30
Conformably with the foregoing provision, sufficient proof of service of the appellant's 5(m) of Rule 131 of the Rules of Court that official duties had been regularly performed
brief upon the appellees, which was allegedly effected thru registered mail, consists of: and that, accordingly, the postmaster of Legaspi City performed his official duties and
(1) the affidavit of the party serving, containing a full statement of the date, place and delivered the subject resolution to the authorized representative of petitioners-
manner of service; (2) the registry receipt issued by the mailing office; and (3) the registry appellees' counsel. llcd
return card or, in lieu thereof, the letter unclaimed together with the certified or sworn
copy of the notice given by the postmaster to the addressee. The records of the case, As the foregoing observation likewise hold true with respect to the decision of the Court
however, reveal that only the registry receipts allegedly issued by the mailing office were of Appeals which appears to have been received by the authorized representative of
presented by the respondent-appellant as proof of service of her brief upon petitioners- petitioners-appellees' counsel on January 10, 1979, per registry return card attached to
appellees. Such registry receipts cannot be considered as sufficient proof of service of the page 101 of the rollo of CA-G.R. No. 41251-R, it follows that said decision became final
appellant's brief. Firstly, to hold otherwise would be to disregard the explicit and executory on January 25, 1979. Consequently, the execution of said decision is in
requirements of the aforequoted provision of the Rules of Court. Secondly, said registry order.
receipts are evidence of the posting of the mail matter with the post office of the sender WHEREFORE, the temporary restraining order issued on June 15, 1979, is hereby lifted
not of the delivery of said mail matter by the post office of the addressee. Thirdly, the and the petition for certiorari, mandamus and prohibition is hereby denied for lack of
date of actual delivery to the addressee cannot be ascertained from such registry receipts. merit. Cost against petitioners.
And, finally, the possibility of presenting registry receipts covering mail matters different
from those involved in the litigation cannot be discounted. (See: resolution of the SO ORDERED.
Supreme Court, Second Division, dated May 21, 1980, in G.R. No. 51378 entitled
Barredo (Chairman), Aquino, Concepcion, Jr. and Guerrero, * concur.
"American President Lines vs. The Honorable Court of Appeals, et al.") LLpr
De Castro, J., did not take part.
Since respondent-appellant had not sufficiently proven service of the appellant's brief
upon the petitioners-appellees, it was, therefore, an error on the part of the Court of
Appeals to consider the appeal as submitted for decision without appellees' brief. But
such procedural defect was not fatal when, as in this case, the party adversely affected Footnotes
thereby had sufficient opportunity to seek correction of such error. For, here, the
* Justice Juvenal K. Guerrero was designated to sit temporarily in the Second
petitioners-appellees' counsel were notified of the resolution of the Court of Appeals
Division in lieu of Justice Pacifico P. de Castro who did not take part in this case.
which considered the case as submitted for decision without appellees' brief more than
seven years before the rendition of the decision. (The registry return card attached to
page 100 of the rollo of CA-G.R. No. 41251-R shows receipt by the authorized agent of
petitioners-appellees' counsel, Attys. Antonio Alfane and Delfin de Vera, of the subject
resolution of the Court of Appeals on October 7, 1971; the decision of the Court of
Appeals was promulgated on December 28, 1978.) Certainly, such length of time was
more than sufficient for petitioners-appellees to seek reconsideration of the resolution of
the Court of Appeals. But, this, they failed to do. And such failure could only be construed
as a waiver by petitioners-appellees of their right to file their brief in said appeal and their
consent to have the case decided on the basis of the records thereof which were elevated
to the appellate court and of whatever pleadings already filed with said court.

Petitioner-appellees counsel had persistently denied having received the subject


resolution of the Court of Appeals and claimed that the signature appearing on the
registry return card, purportedly that of their authorized agent, was unknown to them.
But such naked denials cannot stand in the face of the presumption established in Sec.

31
SECOND DIVISION form of defamation; (8) Malicious prosecution; (9) Acts mentioned in article 309; (10) Acts
and actions referred to in articles 21, 26, 27, 28, 29, 30 32, 34, and 35 . . ."
[G.R. No. 51832. April 26, 1989.]
4. ID.; ID.; WHEN AWARD OF COMPENSATORY DAMAGES PROPER; PROOF OF
RAFAEL PATRICIO, petitioner, vs. THE HONORABLE OSCAR LEVISTE, JUDGE, CFI CAPIZ, ACTUAL OR COMPENSABLE PHYSICAL INJURY NOT NECESSARY. Pursuant to Art. 21 of
BRANCH II and BIENVENIDO BACALOCOS, respondents. the Civil Code in relation to par. (10) of Art. 2219 of the same Code, "any person who
Stephen C. Arceo for petitioner. wilfully causes loss or injury to another in a manner that is contrary to morals, good
customs or public policy shall compensate the latter for the damage." The fact that no
Isagani V. Roblete for private respondent. actual or compensatory damage was proven before the trial court, does not adversely
affect petitioner's right to recover moral damages. Moral damages may be awarded in
SYLLABUS
appropriate cases referred to in the chapter on human relations of the Civil Code (Articles
1. REMEDIAL LAW; MOTIONS; NOTICE THEREOF; PURPOSE. The general rule is 19 to 36), without need of proof that the wrongful act complained of had caused any
that notice of motion is required where a party has a right to resist the relief sought by physical injury upon the complainant. (Malonzo v. Galang, G.R. No. L-13851, 27 July 1960,
the motion and principles of natural justice demand that his rights be not affected without 109 Phil. 16).
an opportunity to be heard.
5. ID.; ID.; ID.; REASON FOR THE RULE. It is clear from the report of the Code
2. ID.; ID.; ID.; ID.; PROCEDURAL RULES LIBERALLY CONSTRUED IN CASE AT BAR. Commission that the reason underlying an award of damages under Art. 21 of the Civil
In the case at bar, a copy of the motion for reconsideration was served upon petitioner, Code is to compensate the injured party for the moral injury caused upon his person, thus
although service was effected through ordinary mail and not by registered mail as ". . . Fully sensible that there are countless gaps in the statutes, which leave so many
required to the rules. But, petitioner was duly given the full opportunity to be heard and victims of moral wrongs helpless, even though they have actually suffered material and
to argue his case when the court a quo required him to file a reply (opposition) to the moral injury, the Commission has deemed it necessary, in the interest of justice, to
motion for reconsideration and subsequently set the motion for oral argument. What the incorporate in the proposed Civil Code the following rule: 'ART. 23. Any person who
law really eschews is not the lack of previous notice of hearing but the lack of opportunity wilfully causes loss or injury to another in a manner that is contrary to morals, good
to be heard. It has been held that parties should not rely on mere technicalities which, in customs or public policy shall compensate the latter for the damage.'
the interest of justice, may be relaxed. The rules of procedure should be viewed as mere
6. ID.; ID.; REASON FOR THE AWARD OF EXEMPLARY OR CORRECTIVE DAMAGES;
tools designed to facilitate the attainment of justice. Their strict and rigid application,
SUCH AWARD IS NOT RECOVERABLE AS A MATTER OF RIGHT. In addition to the award
which would result in technicalities that tend to frustrate rather than promote substantial
of moral damages, exemplary or corrective damages may be imposed upon herein private
justice, must be avoided. Moreover, the case should, as much as possible, be decided on
respondent by way of example or correction for the public good (Art. 22, 29, Civil Code).
the merits and not merely on technicalities.
Exemplary damages are required by public policy to suppress the wanton acts of the
3. CIVIL LAW; DAMAGES; ARTICLE 2219 OF THE CIVIL CODE; WHEN MORAL offender. They are an antidote so that the poison of wickedness may not run through the
DAMAGES MAY BE RECOVERED. We find petitioner's claim for moral damages, body politic. The amount of exemplary damages need not be proved where it is shown
meritorious. There is no question that moral damages may be recovered in cases where that plaintiff is entitled to either moral, temperate or compensatory damages, as the case
a defendant's wrongful act or omission has caused the complainant physical suffering, may be (Art. 2234, Civil Code), although such award cannot be recovered as a matter of
mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral right. (Art. 2233, Civil Code).
shock, social humiliation and similar injury. An award of moral damages is allowed in cases
7. ID.; ID.; ATTORNEY'S FEES; AWARD THEREOF PROPER WHERE EXEMPLARY
specified or analogous to those provided in Article 2219 of the Civil Code, to wit: "ART.
DAMAGES RECOVERABLE. In cases where exemplary damages are awarded to the
2219. Moral damages may be recovered in the following and analogous cases: (1) A
injured party, attorney's fees are also recoverable.
criminal offense resulting in physical injuries; (2) Quasi-delicts causing physical injuries;
(3) Seduction, abduction, rape, or other lascivious acts. (4) Adultery or concubinage; (5) DECISION
Illegal or arbitrary detention or arrest; (6) Illegal search; (7) Libel, slander or any other
PADILLA, J p:
32
Petition for review on certiorari of the Order 1 of the Court of First Instance of Capiz, having been filed. 6 However, said motion was denied by the court a quo on the ground
Branch II, on the motion for reconsideration filed by private respondent Bienvenido that there was a pending motion for reconsideration filed by private respondent. 7
Bacalocos, dismissing the complaint for damages against the latter, docketed as Civil Case Subsequently, private respondent filed a supplemental motion for reconsideration 8 and
No. V-3937. the court ordered petitioner to file a reply (opposition) thereto. 9 In compliance,
petitioner filed a reply (opposition) to the motion for reconsideration, alleging that the
Petitioner Rafael Patricio, an ordained Catholic priest, and actively engaged in social and filing of said motion and supplement thereto was without notice to the adverse party and
civic affairs in Pilar, Capiz, where he is residing, was appointed Director General of the proof of service, hence, the decision sought to be reconsidered had already become final
1976 Religious and Municipal Town Fiesta of Pilar, Capiz. and unappealable. 10
On 16 May 1976 at about 10:00 o'clock in the evening, while a benefit dance was on-going Private respondent filed a rejoinder (reply) and a manifestation stating that petitioner
in connection with the celebration of the town fiesta, petitioner together with two (2) was duly served with a copy of said motion for reconsideration by ordinary mail, attaching
policemen were posted near the gate of the public auditorium to check on the assigned thereto the affidavit of Godofredo Almazol who stated that he mailed the envelope to
watchers of the gate. Private respondent Bienvenido Bacalocos, President of the counsel for herein petitioner. 11 The court a quo then scheduled the motion for oral
Association of Barangay Captains of Pilar, Capiz and a member of the Sangguniang Bayan, argument and the parties were allowed to extensively argue their respective causes.
who was in a state of drunkenness and standing near the same gate together with his
companions, struck a bottle of beer on the table causing an injury on his hand which On 3 August 1979, an order 12 of dismissal of the petitioner's complaint was issued by
started to bleed. Then, he approached petitioner in a hostile manner and asked the latter the trial court, thus
if he had seen his wounded hand, and before petitioner could respond, private
respondent, without provocation, hit petitioner's face with his bloodied hand. As a "ORDER
consequence, a commotion ensued and private respondent was brought by the This is a motion for reconsideration of the decision of this Court dated April 18, 1978, filed
policemen to the municipal building. 2 by counsel for defendant on May 18, 1978.
As a result of the incident, a criminal complaint for "Slander by Deed was filed by In view of the recent trend in the Supreme Court to liberally construe the Rules, and in
petitioner with the Municipal Trial Court of Pilar, Capiz, docketed as Criminal Case No. view of Section 2, Rule 1, the Court resolves to give due course to the motion.
2228, but the same was dismissed. 3 Subsequently, a complaint for damages was filed by
petitioner with the court a quo. In a decision, 4 dated 18 April 1978, the court ruled in Upon review of the facts of the case, it appears and the Court finds merit in the motion
favor of herein petitioner (as complainant), holding private respondent liable to the for reconsideration, particularly noting that there is indeed no showing of compensatory
former for moral damages as a result of the physical suffering, moral shock and social damages being proved.
humiliation caused by private respondent's act of hitting petitioner on the face in public.
WHEREFORE, this Court reconsiders its decision to conform to the facts and the law,
The dispositive part of the decision reads as follows:
namely, that moral and exemplary damages, in order to merit, the plaintiff ought to have
"WHEREFORE, the Court orders defendant to pay plaintiff the damages as follows: Cdpr proven actual or compensatory damages.

a) Moral damages of P10,000.00 WHEREFORE, this case is ordered dismissed. LLpr

b) Exemplary damages, P1,000.00 and SO ORDERED."

c) Attorney's fees, P2,000.00 Not satisfied with said order, petitioner filed the petition at bar contending that no copy
of the Motion for Reconsideration was served upon petitioner and no proof of service as
SO ORDERED." 5 well as notice of hearing were attached to said motion when filed with the court a quo;
On 9 June 1978, petitioner filed a motion for execution of judgment, alleging that the 18 thus, the motion for reconsideration did not interrupt the running of the period to appeal.
April 1978 decision had become final and executory alter the lapse of thirty (30) days from The alleged mailing of a copy of said motion by ordinary mail did not, according to
receipt thereof by private respondent, without any motion for reconsideration or appeal petitioner, cure the defect. Petitioner further argues that respondent's admission that he

33
slapped herein petitioner in public causing him physical suffering and social humiliation, (2) Quasi-delicts causing physical injuries;
entitles the latter to moral damages. Actual and compensatory damages need not be
proven before an award of moral damages can be granted, so petitioner contends. (3) Seduction, abduction, rape, or other lascivious acts.

On the other hand, private respondent claims that the order of the court a quo apprising (4) Adultery or concubinage;
petitioner of the motion for reconsideration filed by private respondent and requiring the (5) Illegal or arbitrary detention or arrest;
former to file a reply (opposition) thereto, had cured the defect of lack of proof of service
and notice of hearing of said motion for reconsideration; and that the award of moral (6) Illegal search;
damages to petitioner is without basis for lack of proof of bad faith on the part of private
(7) Libel, slander or any other form of defamation;
respondent.
(8) Malicious prosecution;
With respect to the alleged lack of service on petitioner of a copy of the motion and notice
of hearing and failure to attach to the motion proof of service thereof, the general rule is (9) Acts mentioned in article 309;
that notice of motion is required where a party has a right to resist the relief sought by
the motion and principles of natural justice demand that his rights be not affected without (10) Acts and actions referred to in articles 21, 26, 27, 28, 29, 30 32, 34, and 35.
an opportunity to be heard. 13
xxx xxx xxx
In the case at bar, a copy of the motion for reconsideration was served upon petitioner,
Private respondent's contention that there was no bad faith on his part in slapping
although service was effected through ordinary mail and not by registered mail as
petitioner on the face and that the incident was merely accidental is not tenable. It was
required to the rules. But, petitioner was duly given the full opportunity to be heard and
established before the court a quo that there was an existing feud between the families
to argue his case when the court a quo required him to file a reply (opposition) to the
of both petitioner and private respondent and that private respondent slapped the
motion for reconsideration and subsequently set the motion for oral argument.
petitioner without provocation in the presence of several persons.
What the law really eschews is not the lack of previous notice of hearing but the lack of
The act of private respondent in hitting petitioner on the face is contrary to morals and
opportunity to be heard. It has been held that parties should not rely on mere
good customs and caused the petitioner mental anguish, moral shock, wounded feelings
technicalities which, in the interest of justice, may be relaxed. 14 The rules of procedure
and social humiliation. Private respondent has to take full responsibility for his act and his
should be viewed as mere tools designed to facilitate the attainment of justice. Their strict
claim that he was unaware of what he had done to petitioner because of drunkenness is
and rigid application, which would result in technicalities that tend to frustrate rather
definitely no excuse and does not relieve him of his liability to the latter.
than promote substantial justice, must be avoided. 15 Moreover, the case should, as
much as possible, be decided on the merits and not merely on technicalities. Pursuant to Art. 21 of the Civil Code in relation to par. (10) of Art. 2219 of the same Code,
"any person who wilfully causes loss or injury to another in a manner that is contrary to
As to the petitioner's claim for moral damages, we find the same to be meritorious. There
morals, good customs or public policy shall compensate the latter for the damage."
is no question that moral damages may be recovered in cases where a defendant's
wrongful act or omission has caused the complainant physical suffering, mental anguish, The fact that no actual or compensatory damage was proven before the trial court, does
fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social not adversely affect petitioner's right to recover moral damages. Moral damages may be
humiliation and similar injury. 16 An award of moral damages is allowed in cases specified awarded in appropriate cases referred to in the chapter on human relations of the Civil
or analogous to those provided in Article 2219 of the Civil Code, to wit: Code (Articles 19 to 36), without need of proof that the wrongful act complained of had
caused any physical injury upon the complainant. 17 It is clear from the report of the Code
"ART. 2219. Moral damages may be recovered in the following and analogous
Commission that the reason underlying an award of damages under Art. 21 of the Civil
cases:
Code is to compensate the injured party for the moral injury caused upon his person, thus
(1) A criminal offense resulting in physical injuries;

34
". . . Fully sensible that there are countless gaps in the statutes, which leave so many 7. Order dated 16 June 1978, Rollo p. 33.
victims of moral wrongs helpless, even though they have actually suffered material and
moral injury, the Commission has deemed it necessary, in the interest of justice, to 8. Rollo, p. 34.
incorporate in the proposed Civil Code the following rule: LLphil 9. Ibid., p. 36.
'ART. 23. Any person who wilfully causes loss or injury to another in a manner that is 10. Rollo, pp. 37-39.
contrary to morals, good customs or public policy shall compensate the latter for the
damage.' 11. Ibid., pp. 40-43.

xxx xxx xxx" 18 12. Ibid., p. 46.

In addition to the award of moral damages, exemplary or corrective damages may be 13. Amante v. Sunga, G.R. No. L-40491, 28 May 1975, 64 SCRA 192.
imposed upon herein private respondent by way of example or correction for the public
14. Un Giok vs. Matusa, 101 Phil., 272, G.R. No. L-10304, 31 May 1957.
good. 19 Exemplary damages are required by public policy to suppress the wanton acts
of the offender. They are an antidote so that the poison of wickedness may not run 15. Aznar III vs. Bernad, G.R. No. 81190, 9 May 1988.
through the body politic. 20
16. Art. 2217, Civil Code.
The amount of exemplary damages need not be proved where it is shown that plaintiff is
entitled to either moral, temperate or compensatory damages, as the case may be, 21 17. Malonzo v. Galang, G.R. No. L-13851, 27 July 1960, 109 Phil. 16.
although such award cannot be recovered as a matter of right. 22
18. Report of the Code Commission, pp. 39-40.
In cases where exemplary damages are awarded to the injured party, attorney's fees are
19. Art. 2229, Civil Code.
also recoverable. 23
20. Report of the Code Commission, pp. 75-76.
WHEREFORE, the petition is GRANTED. The order appealed from, dated 3 August 1979, is
REVERSED and the decision of the court a quo dated 18 April 1978 is hereby REINSTATED. 21. Art. 2234, Civil Code.
With costs against private respondent.
22. Art. 2233, Ibid.
SO ORDERED.
23. Tan Kapoe v. Masa, G.R. No. L-50473, 21 Jan. 1985, 134 SCRA 231.
Melencio-Herrera, Paras, Sarmiento and Regalado, JJ., concur.

Footnotes

1. Penned by Judge Oscar Leviste, dated 3 August 1979, Rollo p. 46.

2. Rollo, p. 22.

3. Memorandum for private respondent, Rollo, p. 80.

4. Penned by Judge Oscar Leviste, CFI of Capiz, Branch II, Rollo, pp. 13-26.

5. Rollo, p. 26.

6. Ibid., p. 31.

35
FIRST DIVISION notice. The postmaster should have included in his certification the manner, date and the
recipient of the delivery. Hernandez need not overemphasize the point. The finding of
[G.R. No. 128061. September 3, 1998.] respondent court that petitioner and his co-appellees were considered to have received
JESUS G. SANTOS, petitioner, vs. COURT OF APPEALS, REGIONAL TRIAL COURT OF a copy of the decision on 20 June 1995 or five (5) days from the date of first notice of the
BULACAN, BRANCH 9 and OMAR H. YAPCHIONGCO, respondents. postmaster, in the absence of conclusive proof as it merely relied on the dates of the
notices and the notation "Unclaimed: Return to Sender" stamped on the envelope
SYLLABUS containing its decision, was clearly arrived at arbitrarily. Consequently, certiorari lies.
EcHAaS
1. REMEDIAL LAW; CIVIL PROCEDURE; COMPLETENESS OF SERVICE; FOR
COMPLETENESS OF CONSTRUCTIVE SERVICE THERE MUST BE CONCLUSIVE PROOF THAT DECISION
PETITIONER'S COUNSEL OR SOMEBODY ACTING ON HIS BEHALF WAS DULY NOTIFIED OR
HAD ACTUALLY RECEIVED THE NOTICE; CASE AT BAR. Section 8, Rule 13, of the Rules BELLOSILLO, J p:
of Court provides Sec. 8. Completeness of service. Personal service is complete upon JESUS G. SANTOS, petitioner, together with four (4) other Santoses, was sued for damages
actual delivery. Service by ordinary mail is complete upon the expiration of five (5) days on 23 May 1979 by Omar H. Yapchiongco before the then Court of First Instance of
after mailing, unless the court otherwise provides. Service by registered mail is complete Malolos, Bulacan, alleging that petitioner unlawfully took possession of five (5) parcels of
upon actual receipt by the addressee; but if he fails to claim his mail from the post office land and a piggery farm which were the subject of an agreement to buy and sell between
within five (5) days from the date of first notice of the postmaster, service shall take effect respondent Yapchiongco on one hand and the Santoses on the other, namely, petitioner
at the expiration of such time. It may be observed that the rule on service by registered Jesus G. Santos, Ciriaco C. Santos, Belen G. Santos, Apolonio G. Santos and Alfredo G.
mail contemplates two (2) situations: first, actual service the completeness of which is Santos. prLL
determined upon receipt by the addressee of the registered mail and, second,
constructive service the completeness of which is determined upon the expiration of five On 20 June 1991 the trial court dismissed the complaint for lack of merit. 1
(5) days from the date of first notice of the postmaster without the addressee having
claimed the registered mail. The second circumstance was appreciated by respondent On 6 June 1995 respondent Court of Appeals reversed the trial court and declared
court to obtain in the present case. Yet for completeness of constructive service there petitioner liable for actual damages of P192,260.00, moral damages of P40,000.00, and
must be conclusive proof that petitioner's former counsel or somebody acting on his attorney's fees and litigation expenses of P25,000.00. 2 On 15 June 1995 the decision of
behalf was duly notified or had actually received the notice, referring to the postmaster's the appellate court was sent by registered mail to petitioner's counsel, Atty. Anacleto S.
certification to that effect. Here, private respondent failed to present such proof before Magno. On the same day, the corresponding notice of registered mail was sent to him.
respondent court but only did so in present proceedings. EaIDAT Two (2) other notices were sent to the same addressee on 19 and 21 June 1995. But these
circumstances notwithstanding, the mail remained unclaimed and consequently returned
2. ID.; ID.; ID.; THE CERTIFICATION ISSUED BY THE POSTMASTER SHOULD INCLUDE to the sender. 3
THE DATA NOT ONLY AS TO WHETHER OR NOT THE NOTICES OF REGISTERED MAIL WERE
ISSUED OR SENT BUT ALSO AS TO HOW, WHEN AND TO WHOM THE DELIVERY THEREOF On 27 July 1995 respondent court again sent its decision to the same addressee by the
WAS MADE; CASE AT BAR. As between the claim of non-receipt of notices of registered same mode but after three (3) notices the decision was returned to the sender for the
mail by a party and the assertion of an official whose duty is to send notices, which same reason. 4
assertion is fortified by the presumption that official duty has been regularly performed, On 27 September 1995 a notice of change of name and address of law firm was sent by
the choice is not difficult to make. But then the contents of the official's certification may petitioner's counsel to respondent court. 5
spell the difference. For, it was not enough for Postmaster Endaya to have certified that
the notices were issued because this is just a prelude to service by registered mail. And On 28 March 1996 the same decision of respondent court was sent anew by registered
definitely, it would not be in consonance with the demands of due process and equity for mail to petitioner's counsel at his present address 6 which he finally received on 3 April
us to automatically conclude that from the word "issued" alone, the notice was in fact 1996. 7 On 17 April 1996 he withdrew his appearance as counsel for petitioner. 8
received by the addressee or somebody acting on his behalf and on the same date of the

36
On 18 April 1996 petitioner's new counsel, Atty. Lemuel M. Santos, entered his Sec. 8. Completeness of service. Personal service is complete upon actual delivery.
appearance 9 and moved for reconsideration of respondent court's decision of 6 June Service by ordinary mail is complete upon the expiration of five (5) days after mailing,
1995. Respondent Yapchiongco opposed the motion on the ground that the period for its unless the court otherwise provides. Service by registered mail is complete upon actual
filing had already expired. He insisted that on the basis of the dates of the notices and the receipt by the addressee: but if he fails to claim his mail from the post office within five
notation "Unclaimed: Return to Sender" stamped on the envelope containing the decision (5) days from the date of first notice of the postmaster, service shall take effect at the
of respondent court, 10 service by registered mail was complete five (5) days from 15 expiration of such time (emphasis supplied).
June 1995, and thus commenced the running of the period for reconsideration, the last
day being 5 July 1995. Respondent court sustained the opposition and denied the motion It may be observed that the rule on service by registered mail contemplates two (2)
on 29 November 1996 11 holding that situations: first, actual service the completeness of which is determined upon receipt by
the addressee of the registered mail and, second, constructive service the completeness
. . . Section 8, Rule 13 of the Rules of Court which provides that service by registered mail of which is determined upon the expiration of five (5) days from the date of first notice of
is deemed complete if the addressee fails to claim his mail from the post office within five the postmaster without the addressee having claimed the registered mail. The second
(5) days from the date of first notice of the postmaster . . . appellees (were) considered circumstance was appreciated by respondent court to obtain in the present case. Yet for
to have received a copy of (its) decision on June 20, 1995 (and) had (only) until July 5, completeness of constructive service there must be conclusive proof that petitioner's
1995 within which to file a motion for reconsideration . . . 12 former counsel or somebody acting on his behalf was duly notified or had actually
received the notice, referring to the postmaster's certification to that effect. 15 Here,
On 21 December 1996 petitioner moved for leave to admit his motion for reconsideration private respondent failed to present such proof before respondent court but only did so
raising the argument that it was filed on the fifteenth (15th) day from actual receipt of in the present proceedings. Let us analyze the postmaster's certification
the decision. On 30 January 1997 respondent court likewise denied reconsideration based
on the finding that the motion was in reality a second motion for reconsideration which This is to certify that according to the record(s) of this Office Registered Letter No. 71154
was prohibited under Sec. 6, Rule 9, of its Revised Internal Rules. 13 (with Delivery No. 30175) sent by (the) Court of Appeals, Manila on June 15, 1995
addressed to Atty. Anacleto S. Magno of 208 Associated Bank Bldg., Ermita, Manila was
Did respondent court commit grave abuse of discretion in denying both motions? LLpr returned to sender as unclaimed mail on July 4, 1995 after the lapse of reglementary
Petitioner asseverates that there is no proof that his former counsel was ever notified of period provided for under postal regulations following the issuance of notices on the
the registered mails. Since a copy of respondent court's decision was actually received by dates hereunder indicated (emphasis supplied)
his former counsel only on 3 April 1996 the filing of the motion for reconsideration on 18 First Notice June 15, 1995 Third Notice June 21, 1995 16
April 1996 was certainly within the fifteen (15)-day reglementary period. What is
applicable, petitioner advances, is the general rule in Sec. 8, Rule 13, that "service by Second Notice June 19, 1995
registered mail is complete upon actual receipt by the addressee." Furthermore, he points
out that his first motion for reconsideration deals with the merits of the appeal while his Obviously, the certification was procured only during the pendency of this petition or
second motion for reconsideration concerns the technical issue of timeliness of seeking specifically on 29 January 1998. This act amounts to piece-meal introduction of evidence
reconsideration and therefore the latter is not strictly a prohibited pleading. which is not allowed. 17 Even if we tolerate the procedural misstep, the certification
accomplishes nothing because as early as 24 November 1972, in Hernandez v. Navarro,
Aside from maintaining his opposition to the motion for reconsideration, respondent 18 we already considered this kind of certification as insufficient. Thus cdrep
disputes petitioner's claim of lack of notice by relying on the certification issued by
Postmaster Renato N. Endaya of the Manila Central Post Office declaring that notices of . . . it is but proper to take judicial notice of the fact that the Postal Manual of the
the registered letter were duly issued to petitioner's former counsel on 15, 19 and 21 June Philippines sets out in unmistakable terms the procedure that the post office is supposed
1995. 14 to observe not only in the delivery of notices of registered mail but also in providing proof
of such delivery . . .
Respondent Court of Appeals, indeed, committed grave abuse of discretion. Section 8,
Rule 13, of the Rules of Court provides Clearly then, proof should always be available to the post office not only of whether or
not the notices of registered mail have been reported delivered by the letter carrier but

37
also of how or to whom and when such delivery has been made. Consequently, it cannot reconsideration, are SET ASIDE. Respondent court is directed to act accordingly on
be too much to expect that when the post office makes a certification regarding delivery petitioner's motion for reconsideration on the merits and to proceed in the disposition
of registered mail, such certification should include the data not only as to whether or not thereof with dispatch. LLjur
the corresponding notices were issued or sent but also as to how, when and to whom the
delivery thereof was made. Accordingly, the certification in the case at bar that the first SO ORDERED.
and second notices addressed to Atty. Narvasa had been "issued" can hardly suffice the Davide, Jr., Vitug, Panganiban and Quisumbing, JJ ., concur.
requirements of equity and justice. It was incumbent upon the post office to further
certify that said notices were reportedly received. When there are several related acts
supposed to be performed by a public officer or employee in regard to a particular matter,
the presumption of regularity in the performance of official functions would not arise and
be considered as comprehending all the required acts, if the certification issued by the
proper office refers only to some of such acts, particularly in instances wherein proof of
whether or not all of them have been performed is available under the law or office
regulations to the officer making the certification. In other words, the omission of some
of the acts in the certification may justify the inference that from the proof available to
the officer there is no showing that they have also been performed . . . 19 (emphasis
supplied).

As between the claim of non-receipt of notices of registered mail by a party and the
assertion of an official whose duty is to send notices, which assertion is fortified by the
presumption that official duty has been regularly performed, 20 the choice is not difficult
to make. But then the contents of the official's certification may spell the difference. For,
it was not enough for Postmaster Endaya to have certified that the notices were issued
because this is just a prelude to service by registered mail. And definitely, it would not be
in consonance with the demands of due process and equity for us to automatically
conclude that from the word "issued" alone, the notice was in fact received by the
addressee or somebody acting on his behalf and on the same date of the notice. The
postmaster should have included in his certification the manner, date and the recipient
of the delivery. Hernandez need not overemphasize the point.

The finding of respondent court that petitioner and his co-appellees were considered to
have received a copy of the decision on 20 June 1995 or five (5) days from the date of first
notice of the postmaster, in the absence of conclusive proof as it merely relied on the
dates of the notices and the notation "Unclaimed: Return to Sender" stamped on the
envelope containing its decision, was clearly arrived at arbitrarily. Consequently,
certiorari lies.

With this conclusion, it is no longer necessary to dwell on the other issue raised.

WHEREFORE, the petition is GRANTED. The resolutions of respondent Court of Appeals


dated 29 November 1996 denying petitioner Jesus G. Santos' motion for reconsideration
and 30 January 1997 also denying his motion for leave to admit motion for

38

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