cases on rule 56 of the rules of court

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SECOND DIVISION

[G.R. No. 159755. June 18, 2009.]

GRACE GOSIENGFIAO GUILLEN, deceased EMMA GOSIENGFIAOGALAOS, represented by her daughter EMELYN GALAOS-MELARION,deceased FRANCISCO GOSIENGFIAO, JR., represented by his widowEDELWISA GOSIENGFIAO, JACINTO GOSIENGFIAO, and absentees ESTERGOSIENGFIAO BITONIO, NORMA GOSIENGFIAO, and PINKY BUENOPEDROSO, represented by their attorney-in-fact JACINTO GOSIENGFIAO,

petitioners, vs. THE COURT OF APPEALS, HON. JIMMY HENRY F. LUCZON,JR., in his capacity as Presiding Judge of the Regional Trial Court, Branch I,Tuguegarao, Cagayan, LEONARDO MARIANO, AVELINA TIGUE, LAZAROMARIANO, MERCEDES SAN PEDRO, DIONISIA M. AQUINO, and JOSE N.T.AQUINO, respondents.

DECISION

BRION, J p:

At issue in this petition is the timeliness of the exercise of the right of legal redemption thatthis Court has recognized in a final and executory decision. caHASI

The petitioners, heirs of Francisco Gosiengfiao (petitioner-heirs), assail in this Rule 45petition for review on certiorari the January 17, 2003 decision and September 9, 2003 resolution ofthe Court of Appeals (CA) in CA-G.R. CV No. 63093. 1(1) The assailed CA decision ruled that thethirty-day period for the exercise of the right of legal redemption should be counted, not from thenotice of sale by the vendor but, from the finality of the judgment of this Court.

BACKGROUND FACTS

I. G.R. No. 101522 — Mariano v. Court of Appeals

The previous case where we recognized the petitioner-heirs' right of legal redemption isMariano v. CA. 2(2) To quote, by way of background, the factual antecedents that Marianorecognized:


It appears on record that the decedent Francisco Gosiengfiao is the registered owner of aresidential lot located at Ugac Sur, Tuguegarao, Cagayan, particularly described as follows, towit:

The eastern portion of Lot 1351, Tuguegarao Cadastre, and after its segregationnow designated as Lot 1351-A, Plan PSD-67391, with an area of 1,346 square meters.

and covered by Transfer Certificate of Title (TCT) No. T-2416 recorded in the Register ofDeeds of Cagayan.

The lot in question was mortgaged by the decedent to the Rural Bank of Tuguegarao(designated as mortgagee bank, for brevity) on several occasions before the last, being onMarch 9, 1956 and January 29, 1958.

On August 15, 1958, Francisco Gosiengfiao died intestate survived by his heirs,namely: Third-Party Defendants: wife Antonia and Children Amparo, Carlos, Severino andherein plaintiffs-appellants Grace, Emma, Ester, Francisco, Jr., Norma, Lina (represented bydaughter Pinky Rose), and Jacinto.

The loan being unpaid, the lot in dispute was foreclosed by the mortgagee bank, and inthe foreclosure sale held on December 27, 1963, the same was awarded to the mortgagee bankas the highest bidder.

On February 7, 1964, third-party defendant Amparo Gosiengfiao-Ibarra redeemed theproperty by paying the amount of P1,347.89 and the balance of P423.35 was paid on December28, 1964 to the mortgagee bank.

On September 10, 1965, Antonia Gosiengfiao on her behalf and that of her minorchildren Emma, Lina, Norma, together with Carlos and Severino, executed a "Deed ofAssignment of the Right of Redemption" in favor of Amparo G. Ibarra appearing in the notarialregister of Pedro (Laggui) as Doc. No. 257, Page No. 6, Book No. 8, Series of 1965.

On August 15, 1966, Amparo Gosiengfiao sold the entire property to defendantLeonardo Mariano who subsequently established residence on the lot subject of thiscontroversy. It appears in the Deed of Sale dated August 15, 1966 that Amparo, Antonia,Carlos and Severino were signatories thereto.

Sometime in 1982, plaintiff-appellant Grace Gosiengfiao learned of the sale of saidproperty by the third-party defendants. She went to the Barangay Captain and asked for aconfrontation with defendants Leonardo and Avelina Mariano to present her claim to the saidproperty.

On November 27, 1982, no settlement having been reached by the parties, the BarangayCaptain issued a certificate to file action.

On December 8, 1982, defendant Leonardo Mariano sold the same property to hischildren Lazaro F. Mariano and Dionicia M. Aquino as evidenced by a Deed of Sale notarizedby Hilarion L. Aquino as Doc. No. 143, Page No. 19, Book No. V, Series of 1982.


On December 21, 1982, plaintiffs Grace Gosiengfiao, et al. [herein petitioner-heirs]filed a complaint for "recovery of possession and legal redemption with damages" againstdefendants Leonardo and Avelina Mariano [herein respondent-buyers]. Plaintiffs alleged intheir complaint that as co-heirs and co-owners of the lot in question, they have the right torecover their respective shares in the said property as they did not sell the same, and the right ofredemption with regard to the shares of other co-owners sold to the defendants.

Defendants in their answer alleged that the plaintiffs has [sic] no cause of action againstthem as the money used to redeem the lot in question was solely from the personal funds ofthird-party defendant Amparo Gosiengfiao-Ibarra, who consequently became the sole owner ofthe said property and thus validly sold the entire property to the defendants, and the fact thatdefendants had already sold the said property to their children, Lazaro Mariano and DioniciaM. Aquino. Defendants further contend that even granting that the plaintiffs are co-owners withthe third-party defendants, their right of redemption had already been barred by the Statute ofLimitations under Article 1144 of the Civil Code, if not by laches.

On September 16, 1986, the trial court dismissed the complaint before it, as "only Amparoredeemed the property from the bank" using her money and solely in her behalf so that thepetitioner-heirs had lost all their rights to the property. 3(3) The trial court explained that whatGosiengfiao's heirs inherited from him was only the right to redeem the property, as it was thenalready owned by the bank. By redeeming the property herself, Amparo became the sole owner ofthe property, and the lot ceased to be a part of Gosiengfiao's estate. IHaCDE

On May 13, 1991, the CA reversed the trial court's decision, declaring the petitioner-heirs"co-owners of the property who may redeem the portions sold" to the respondent-buyers. The CAdenied the respondent-buyers' motion for reconsideration; 4(4) thus, they came to this Court toquestion the CA's rulings.

Our Decision, promulgated on May 28, 1993, affirmed the appellate court decision. 5(5) Itstated in its penultimate paragraph and in its dispositive portion that:

Premises considered, respondents have not lost their right to redeem, for in the absenceof a written notification of the sale by the vendors, the 30-day period has not begun to run.

WHEREFORE, the decision of the Court of Appeals is hereby AFFIRMED. Costsagainst petitioners.

Aside from this express declaration, the Court explained that, as the property was mortgaged by thedecedent, co-ownership existed among his heirs during the period given by law to redeem theforeclosed property. Redemption of the whole property by co-owner Amparo did not vest in her thesole ownership over the property, as the redemption inured to the benefit of all co-owners;redemption will not put an end to co-ownership, as it is not a mode of terminating a co-ownership.The Court also distinguished 6(6) between Articles 1088 7(7) and 1620 8(8) of the Civil Code and ruledas inapplicable the doctrine that "the giving of a copy of the deed of sale to the co-heirs asequivalent to a notice". 9(9) On July 12, 1993, this Court denied the respondent-buyers' motion forreconsideration. The entry of judgment was made on August 2, 1993.


II. Execution of the Mariano Decision(G.R. No. 101522) By the Lower Court

a. The Incidents

On April 26, 1994, the petitioner-heirs, as winning parties, filed a motion for the execution ofour Decision in G.R. No. 101522, which motion the trial court granted on May 11, 1994. 10(10) Thenext day, the clerk of court issued a writ of execution and a notice to vacate. 11(11) Therespondent-buyers moved for a reconsideration of the May 11, 1994 order and prayed for thenullification of the notice to vacate, arguing that the dispositive portion of the decision to beexecuted merely declared and recognized the petitioner-heirs as co-owners of the lot and did notauthorize the sheriff to remove their houses from the land. They argued they can remain inpossession of the property as co-owners because the judgment did not divest them of possession.12(12) The sheriff later informed the trial court that copies of the notice to vacate and the writ ofexecution were served on, but were not signed by, the respondent-buyers. After the expiration of the45-day period to vacate, the sheriff went back to check if the respondent-buyers had complied. Theyhad not.

On March 31, 1995, the petitioner-heirs filed a notice of redemption with the court of origin,duly served on the respondent-buyers, for the shares of Amparo, Antonia, Carlos, and Severino, andtendered the redemption price of P53,760. 13(13) On April 18, 1995, the sheriff issued a certificate ofredemption after the first and second buyers refused to sign the notice and accept the tender, andafter the aggrieved heirs deposited the redemption money with the court. 14(14) On the same date, thesheriff issued a return of service informing the court that on March 31, 1995, the redemption moneywas tendered to, but was not accepted by, Engr. Jose Aquino who received, but did not sign, thenotice of redemption. 15(15)

From 1994 to 1995, the respondent-buyers filed four motions: a motion for reconsiderationof the May 11, 1994 order granting the motion for the issuance of a writ of execution; 16(16) a motionto ascertain the redemptive shares of third-party defendants; 17(17) a motion to declare thepetitioner-heirs to have lost their right of legal redemption; 18(18) and a motion to expunge from therecords the petitioner-heirs' notice of redemption. 19(19)

b. The Judge Beltran Rulings

On December 4, 1995, the trial court, through Judge Orlando Beltran, 20(20) issued an order(1) recalling the writ of execution for "incorrectly" quoting the dispositive portion of the CAdecision and nullifying the notice to vacate; (2) denying the motion to ascertain third-partydefendants' shares, as Amparo's redemption inured to the benefit of her co-heirs, thus, each of the10 heirs has 1/10 equal share of the lot; (3) denying the third motion as no written notice of the salehas been served on the petitioner-heirs by the vendor or by the vendee; and (4) denying the last

motion for lack of legal and factual basis. 21(21) The trial court thereafter denied the

respondent-buyers' motion for reconsideration that followed. 22(22)

On May 30, 1996, the court denied their motion to nullify the certificate of redemption and


cancellation of the certificate at the back of TCT No. T-2416; the respondent-buyers moved toreconsider this denial on July 9, 1996. 23(23)

On June 11, 1996, the respondent-buyers filed an omnibus motion for reconsideration,arguing that the December 4, 1995 order is contrary to law, jurisprudence, and the decisions of theCA and this Court on this case. 24(24)

On July 15, 1996, the respondent-buyers again filed a motion for reconsideration of theMay 30, 1996 order denying their motion to nullify the certificate of redemption and to order itscancellation at the back of TCT No. T-2416, which move the petitioner-heirs opposed. They arguedthat the decision of this Court was not self-executing, and the sheriff had no power to do anythingwithout a court sanction. They also argued that it was untrue that the basis of the April 18, 1995certificate of redemption was the May 31, 1991 decision of the CA, as affirmed by this Court,because the certificate was "inexistent" when those decisions were promulgated.

c. The Judge Luczon Rulings

On September 26, 1997, the trial court, through Judge Jimmy Henry F. Luczon, Jr., 25(25)

issued an order granting the respondent-buyers' omnibus motion for reconsideration of theDecember 4, 1995 order, declaring the petitioner-heirs to have lost their right of redemption, andnullifying the notice and the certificate of redemption. 26(26) Noting the absence of a written noticeof sale or manifestation received by the petitioner-heirs, the trial court deemed as notice of sale thisCourt's decision which became final and executory on August 2, 1993. The trial court consideredSeptember 1, 1993 as the last day of the redemption period, and, consequently, declared that thenotice and the certificate of redemption were filed late.

The trial court denied the petitioner-heirs' motion for reconsideration of the September 26,1997 order, ruling that the introduction of the deed of sale as the parties' evidence in the trial andhigher courts was sufficient to give the petitioner-heirs written notice of the sale; and that the CivilCode does not require any particular form of written notice or distinctive method for writtennotification of redemption.

III. The Assailed Court of Appeals Decision

The petitioner-heirs thereupon went to the CA on a petition for certiorari to question thelower court's orders. (They had earlier filed an Appeal Ad Cautelam which the CA consolidatedwith the petition for certiorari.) 27(27) As grounds, they cited the lower court's lack of jurisdictionsince the motions ruled upon were really initiatory pleadings based on causes of action independentof, although related to, Civil Case No. 3129, and that no certificate of non-forum shopping wasattached, nor any docket fees paid. They also claimed that the respondent-buyers' motion was aprohibited second motion for reconsideration that the lower court could not rule upon, and one thatwas filed beyond the 15-day period of appeal. 28(28) Finally, they faulted the lower court for ignoringthe law of the case, as established in Mariano.

The respondent-buyers questioned the petition on technicalities, but focused on the issue of


whether the final and executory decision of this Court in Mariano was effectively a written notice ofsale to the heirs; they continued to maintain that the redemption period should run from the finalityof our Decision, and, thus, had already lapsed. aIcCTA

The CA followed the respondent-buyers' lead and likewise focused on the effect of ourDecision on the petitioner-heirs' redemption of the disputed co-owned property. To quote theappellate court:

The pivot of inquiry here is: whether or not the final and executory Decision of theSupreme Court constitutes written notice to plaintiffs-appellants [herein petitioner-heirs].

xxx xxx xxx

It is undisputed that the Highest Magistrate's Decision in G.R. 101522 had become finaland executory on 02 August 1993 and that it was only on 26 April 1994 or after the lapse ofmore than eight (8) months from the finality of the said Decision that plaintiffs-appellants fileda Motion for Execution.

The Entry of Judgment of G.R. 101522 states as follows, thus:

This is to certify that on May 26, 1993 a decision rendered in the above-entitledcase was filed in this Office, the dispositive portion of which reads as follows:

Premises considered, respondents have not lost their right to redeem, for in theabsence of a written certification of the sale by the vendors, the 30-day period has noteven begun to run.

WHEREFORE, the decision of the Court of Appeals is hereby AFFIRMED.Costs against the petitioners.

SO ORDERED.

and that the same has, on August 2, 1993 become final and executory and is herebyrecorded in the book of Entries of Judgment.

As it is an established procedure in court that when an entry of judgment was issued, itmeans that the contending parties were already properly notified of the same either through theparties themselves or through their respective counsels.

Thus, the very existence of the Supreme Court's Entry of Judgment negatesplaintiffs-appellants' claim that no notice of what [sic] nature was received by them insofar asG.R. 101522 was concerned.

Concomitantly, the Court concurs with the argument of respondents-appellees [hereinrespondent-buyers] that the thirty (30) days grace period within which to redeem the contestedproperty should be counted from 02 August 1993.

As they failed to redeem the same in accordance with the instruction of the High Court,plaintiffs-appellants lost all the rights and privileges granted to them by the Supreme Court in


G.R. 101522.

From the foregoing facts, it is clear that plaintiffs-appellants had slept from their rightsand their failure to exercise the same within the period allowed by the High Court is deemed awaiver on their part.

All told, the Court holds and so rules that the court a quo erred not in reversing itself.

To summarize, the appellate court ruled that (1) because an entry of judgment had been made, theMariano Decision is deemed to have been served on the petitioner-heirs; (2) based on this premise,the appellate court held that the 30-day redemption period should run from August 2, 1993 (the dateof the entry of judgment); and (3) for the petitioner-heirs' failure to redeem within that period, they"lost all the rights and privileges granted to them by the Supreme Court in G.R. No. 101522". DaEATc

THE PETITION

Faced with the CA's ruling and the denial of their motion for reconsideration, thepetitioner-heirs filed the present petition with this Court. They argue in this petition and in theirmemorandum that the January 17, 2003 decision of the CA is erroneous for the reasons outlinedbelow.

First. They clarify that their theory that the Decision of this Court is not the written noticerequired by law was not anchored on lack of notice of that decision, but on Article 1623 of the CivilCode: the written notice should be given by the vendor, not by this Court by virtue of a finaldecision. The CA erred and abused its discretion in concluding that they lost their right ofredemption under this Court's Decision because the start of the redemption period is not reckonedfrom the date of the finality of that decision; the Decision is not the source of their right to redeem.

Second. They posit a redemption period is not a prescriptive period, and the lower courtserred in considering the 30-day period as an extinctive prescriptive period because legal redemptionunder Article 1623 does not prescribe. The period has not even begun to run. Their use of theservices of the sheriff to exercise their right of redemption through a motion for execution wasapproved by this Court as a method of redemption.

In their Comment, the respondent-buyers stress that the main issue in this petition is whetherthe petitioner-heirs' right of legal redemption, as recognized in G.R. No. 101522, had been lost. The"non-reviewable" findings of facts of the trial and appellate courts that plaintiffs exercised theirright of redemption late, and that the decision in G.R. No. 101522 had already become final, bindthis Court.

In their Reply to Comment, the petitioner-heirs argue that the 30-day redemption periodunder Article 1623 cannot be reckoned from the date of finality of this Court's Decision in G.R. No.101522 because it is not and cannot be a "notice" in writing by the vendor; this Court is not thevendor and a written notice by the vendor is mandatory for the 30-day redemption period to run.The Decision negates the notion that it serves as a "notice", because it clearly states that the periodof redemption had not begun to run. Having previously exercised the right of redemption, the


execution was nothing more than the implementation of what had been the final ruling of this Court.

In their memorandum, the respondent-buyers maintain that the petitioner-heirs' "time-barred"right to redeem the property was not cured by the notice of redemption and by their "late" tender ofthe redemption money; since the petitioner-heirs were exercising their right of legal redemption byvirtue of the Decisions of this Court and the CA, it was incumbent upon them to effectuate the stepsof redemption seasonably. The "belated" notice of redemption and tender of payment of redemptionprice were not bona fide, as they were not made within the required period.

THE COURT'S RULING

The parties' positions all focus, and rightly so, on the main issue: when did the 30-dayperiod to redeem the subject property start? This is a question of law, not of fact, as therespondent-buyers erroneously claim; thus, the lower courts' findings cannot bind this Court.

The appellate court unfortunately failed to appreciate the breadth and significance of thisissue, simply ruling on the case based on the implications of an entry of judgment. Because of thismyopic view, it completely missed the thrust and substance of the Mariano Decision.

We grant the petition and hold — pursuant to the Mariano Decision and based on thesubsequent pleaded developments — that the petitioner-heirs have effectively exercised theirright of redemption and are now the owners of the redeemed property pursuant to theSheriff's Certificate of Redemption.

A significant aspect of Mariano that the CA failed to appreciate is our confirmation of theruling that a written notice must be served by the vendor. 29(29) We ruled as follows:

The requirement of a written notice has long been settled as early as in the case ofCastillo v. Samonte (106 Phil. 1023 [1960]) where this Court quoted the ruling in Hernaez v.Hernaez (32 Phil. 214), thus:

Both the letter and spirit of the New Civil Code argue against any attempt towiden the scope of the notice specified in Article 1088 by including therein any otherkind of notice, such as verbal or by registration. If the intention of the law had been toinclude verbal notice or any other means of information as sufficient to give the effectof this notice, then there would have been no necessity or reasons to specify in Article1088 of the New Civil Code that the said notice be made in writing for, under the oldlaw, a verbal notice or information was sufficient.

xxx xxx xxx

The ruling in Castillo v. Samonte, supra, was reiterated in the case of Garcia v.Calaliman (G.R. No. 26855, April 17, 1989, 172 SCRA 201) where We also discussed thereason for the requirement of the written notice. We said:

Consistent with aforesaid ruling, in the interpretation of a related provision(Article 1623 of the New Civil Code) this Court had stressed that written notice is


indispensable, actual knowledge of the sale acquired in some other manners by theredemptioner, notwithstanding. He or she is still entitled to written notice, as exacted bythe code to remove all uncertainty as to the sale, its terms and its validity, and to quietany doubt that the alienation is not definitive. The law not having provided for anyalternative, the method of notifications remains exclusive, though the Code does notprescribe any particular form of written notice nor any distinctive method for writtennotification of redemption (Conejero et al. v. Court of Appeals et al., 16 SCRA 775[1966]; Etcuban v. Court of Appeals, 148 SCRA 507 [1987]; Cabrera v. Villanueva,G.R. No. 75069, April 15, 1988).

We also made the factual finding that:

The records of the present petition, however, show no written notice of the sale beinggiven whatsoever to private respondents [petitioner-heirs]. Although, petitioners allege thatsometime on October 31, 1982 private respondent, Grace Gosiengfiao was given a copy of thequestioned deed of sale and shown a copy of the document at the Office of the BarangayCaptain sometime November 18, 1982, this was not supported by the evidence presented. . . .

From these premises, we ruled that "[P]etitioner-heirs have not lost their right to redeem, forin the absence of a written notification of the sale by the vendors, the 30-day period has not even

begun to run." These premises and conclusion leave no doubt about the thrust of Mariano: Theright of the petitioner-heirs to exercise their right of legal redemption exists, and the runningof the period for its exercise has not even been triggered because they have not been notifiedin writing of the fact of sale. This is what our Decision held, as the penultimate paragraph and thedispositive portion clearly state. This is the law of the case that should guide all other proceedingson the case, particularly its execution. 30(30) For the Luczon ruling and the CA to miss or misinterpretthe clear ruling in Mariano — the Decision subject of the execution — is a gross and patent legalerror that cannot but lead to the reversal of their decisions.

In light of this conclusion, we see no need to discuss the other presented issues. We hold thatthe computation of the 30-day period to exercise the legal right of redemption did not start to runfrom the finality of the Mariano Decision, and that the petitioner-heirs seasonably filed, via a writof execution, their notice of redemption, although they applied for the issuance of the writ someeight (8) months after the finality of the Decision. In seeking the execution of a final and executorydecision of this Court, what controls is Section 11, Rule 51, 31(31) in relation to Section 2, Rule 56,32(32) of the Rules of Court. Before the trial court executing the decision, Section 6, Rule 39, 33(33) onthe question of timeliness of the execution, governs. Eight (8) months after the finality of thejudgment to be executed is still a seasonable time for execution by motion pursuant to thisprovision. The writ, notice of redemption, and the tender of payment were all duly served, so that itwas legally in order for the Sheriff to issue a Certificate of Redemption when the respondent-buyersfailed to comply with the writ and to accept the notice and the tender of payment.

WHEREFORE, in light of the foregoing, we hereby GRANT the petition and, accordingly,

REVERSE and SET ASIDE the January 17, 2003 decision and September 9, 2003 resolution ofthe Court of Appeals in CA-G.R. CV No. 63093. The petitioner-heirs' exercise of their right of

redemption of co-heirs Amparo G. Ibarra, Antonio C. Gosiengfiao, Carlos Gosiengfiao, and


Severino Gosiengfiao's shares over Lot 1351-A, Plan Psd-67391, covered by Transfer Certificate ofTitle No. T-2416, and located in Ugac Sur, Tuguegarao, Cagayan, in view of their March 31, 1995Notice of Redemption and the April 18, 1995 Certificate of Redemption issued by the Sheriff of the

Regional Trial Court, Branch IV, Tuguegarao, Cagayan, is hereby declared VALID and LEGAL.

Costs against the respondents.

SO ORDERED.

Quisumbing, Ynares-Santiago, *(34) Chico-Nazario **(35) and Leonardo-de Castro, ***(36) JJ.,concur.

Footnotes

1. CA Justice Andres B. Reyes, Jr., ponente; Justices Delilah Vidallon-Magtolis and Regalado E.Maambong, concurring.

2. G.R. No. 101522, May 28, 1993, 222 SCRA 736; Justice Rodolfo A. Nocon, ponente; Chief JusticeAndres R. Narvasa (Chairperson), and Justices Teodoro R. Padilla and Florenz D. Regalado,concurring.

3. The decision was penned by Judge Juan P. Jimenez, RTC, Branch 1, Tuguegarao, Cagayan.4. Supra note 1.5. Supra note 2.6. The Court held: "According to Tolentino, the fine distinction between Article 1088 and Article 1620

is that when the sale consists of an interest in some particular property or properties of theinheritance, the right of redemption that arises in favor of the other co-heirs is that recognized inArticle 1620. On the other hand, if the sale is the hereditary right itself, fully or in part, in theabstract sense, without specifying any particular object, the right recognized in Article 1088 exists."

7. Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before the partition, any orall of the co-heirs may be subrogated to the rights of the purchaser by reimbursing him for the priceof the sale, provided they do so within the period of one month from the time they were notified inwriting of the sale by the vendor.

8. Art. 1620. A co-owner of a thing may exercise the right of redemption in case the shares of all theother co-owners or of any of them are sold to a third person. If the price of the alienation is grosslyexcessive, the redemptioner shall pay only a reasonable one.

9. The Court further held: "Petitioners allege that upon the facts and circumstances of the present case,respondents failed to exercise their right of legal redemption during the period provided by law,citing as authority the case of Conejero, et al., v. Court of Appeals, et al. (16 SCRA 775) wherein theCourt adopted the principle that the giving of a copy of a deed is equivalent to the notice as requiredby law in legal redemption. We do not dispute the principle laid down in the Conejero case.However, the facts in the said case are not four square with the facts of the present case. In Conejero,redemptioner Enrique Conejero was shown and given a copy of the deed of sale of the subjectproperty. The Court in that case stated that the furnishing of a copy of the deed was equivalent to thegiving of a written notice required by law."

10. Records, Vol. II, p. 164.11. Id., pp. 161-163.12. Rollo, p. 429.13. Id., pp. 111-112.


14. Id., p. 113.15. Id., p. 15.16. Id., pp. 427-431.17. Id., pp. 102-106.18. Id., pp. 107-110.19. Id., pp. 116-119.20. RTC, Branch IV, Tuguegarao, Cagayan.21. Rollo, pp. 120-123.22. Id., p. 134.23. Id., pp. 148-151.24. Id., pp. 468-479.25. RTC, Branch 1, Tuguegarao, Cagayan.26. Rollo, pp. 152-155.27. Per Resolution dated February 9, 2000 of the Former Fifteenth Division of the CA (see CA-G.R. SP

No. 51857 rollo, pp. 245-247), CA-G.R. SP No. 51857 was ordered consolidated with CA-G.R. CVNo. 63093, which involved the same issues and parties, provided that the ponencia of the civil caseconformed to the consolidation pursuant to Rule 3, Section 7 (b) (3) of the Revised Internal Rules ofthe Court of Appeals directing that the consolidated cases shall pertain to the justice to whom thecivil case is assigned. On February 23, 2000, Associate Justice Elvi John S. Asuncion of the thenSeventh Division of the CA conformed to the consolidation of cases (see CA-G.R. CV No. 63093rollo, p. 26).

28. Rollo, pp. 71-73, supported by Annexes A to A-20.29. Parenthetically, Mariano is not the latest ruling on the requirement of notice from the vendor. In

Perpetua vda. De Ape v. Court of Appeals, G.R. No. 133638, April 15, 2005, 456 SCRA 193, wesaid:Despite the plain language of the law, this Court has, over the years, been tasked to interpret the"written notice requirement" of the above-quoted provision. In the case Butte v. Manuel Uy & Sons,Inc., we declared that —In considering whether or not the offer to redeem was timely, we think that the notice given by thevendee (buyer) should not be taken into account. The text of Article 1623 clearly and expresslyprescribes that the thirty days for making the redemption are to be counted from notice in writing bythe vendor. Under the old law (Civ. Code of 1889, Art. 1524), it was immaterial who gave thenotice; so long as the redeeming co-owner learned of the alienation in favor of the stranger, theredemption period began to run. It is thus apparent that the Philippine legislature in Article 1623deliberately selected a particular method of giving notice, and that method must be deemedexclusive. (39 Am. Jur., 237; Payne v. State, 12 S.W. 2 (d) 528). As ruled in Wampler v. Lecompte,150 Atl. 458 (affd. in 75 Law Ed. [U.S.] 275) —

why these provisions were inserted in the statute we are not informed, but we may assume untilthe contrary is shown, that a state of facts in respect thereto existed, which warranted the legislaturein so legislating.The reasons for requiring that the notice should be given by the seller, and not by the buyer, areeasily divined. The seller of an undivided interest is in the best position to know who are hisco-owners that under the law must be notified of the sale. Also, the notice by the seller removes alldoubts as to fact of the sale, its perfection; and its validity, the notice being a reaffirmation thereof,so that the party notified need not entertain doubt that the seller may still contest the alienation. Thisassurance would not exist if the notice should be given by the buyer.The interpretation was somehow modified in the case of De Conejero, et al. v. Court of Appeals, et


al., wherein it was pointed out that Article 1623 "does not prescribe a particular form of notice, norany distinctive method for notifying the redemptioner" thus, as long as the redemptioner was notifiedin writing of the sale and the particulars thereof, the redemption period starts to run. This view wasreiterated in Etcuban v. The Honorable Court of Appeals, et al., Cabrera v. Villanueva, Garcia, etal. v. Calaliman, et al., Distrito, et al. v. The Honorable Court of Appeals, et al., and Mariano, et al.v. Hon. Court of Appeals, et al.However, in the case of Salatandol v. Retes, wherein the plaintiffs were not furnished any writtennotice of sale or a copy thereof by the vendor, this Court again referred to the principle enunciated inthe case of Butte. As observed by Justice Vicente Mendoza, such reversion is only sound, thus:

Art. 1623 of the Civil Code is clear in requiring that the written notification should come fromthe vendor or prospective vendor, not from any other person. There is, therefore, no room forconstruction. Indeed, the principal difference between Art. 1524 of the former Civil Code and Art.1623 of the present one is that the former did not specify who must give the notice, whereas thepresent one expressly says the notice must be given by the vendor. Effect must be given to thischange in statutory language.In this case, the records are bereft of any indication that Fortunato was given any written notice ofprospective or consummated sale of the portions of Lot No. 2319 by the vendors or would-bevendors. The thirty (30)-day redemption period under the law, therefore, has not commenced to run.

30. In Vios v. Pantangco, Jr., G.R. 163103, February 6, 2009, we defined the law of the case as:[T]he opinion delivered on a former appeal. It is a term applied to an established rule that when anappellate court passes on a question and remands the case to the lower court for further proceedings,the question there settled becomes the law of the case upon subsequent appeal. It means thatwhatever is once irrevocably established as the controlling legal rule or decision between the sameparties in the same case continues to be the law of the case, whether correct on general principles ornot, so long as the facts on which such decision was predicated continue to be the facts of the casebefore the court.

31. Rule 51, Sec. 11. Execution of judgment. —Except where the judgment or final order or resolution, or a portion thereof, is ordered to beimmediately executory, the motion for its execution may only be filed in the proper court after itsentry.

xxx xxx xxx32. Rule 56, Sec. 2. Rules applicable. —

The procedure in original cases for certiorari, prohibition, mandamus, quo warranto and habeascorpus shall be in accordance with the applicable provisions of the Constitution, laws, and Rules 46,48, 49, 51, 52 and this Rule, subject to the following provisions:a) All references in said Rules to the Court of Appeals shall be understood to also apply to theSupreme Court;

xxx xxx xxx33. Rule 39, Sec. 6. Execution by motion or by independent action. —

A final and executory judgment or order may be executed on motion within five (5) years from thedate of its entry. After the lapse of such time, and before it is barred by the statute of limitations, ajudgment may be enforced by action. The revived judgment may also be enforced by motion withinfive (5) years from the date of its entry and thereafter by action before it is barred by the statute oflimitations.

* Designated additional Member of the Second Division per Special Order No. 645 dated May 15,2009.

** Designated additional Member of the Second Division effective June 3, 2009 per Special Order No.


658 dated June 3, 2009.*** Designated additional Member of the Second Division effective May 11, 2009 per Special Order No.

635 dated May 7, 2009.

SECOND DIVISION

[G.R. No. 157723. April 30, 2009.]

ROMEO SAYOC y AQUINO and RICARDO SANTOS y JACOB, petitioners, vs.PEOPLE OF THE PHILIPPINES, respondent.

DECISION

TINGA, J p:

This petition assails the Decision 1(37) dated 30 January 2002 of the Court of Appeals whichaffirmed the Decision 2(38) dated 25 November 1999 of the Regional Trial Court finding the accusedguilty beyond reasonable doubt for violation of Presidential Decree No. 532, otherwise known asthe Anti-Highway Robbery Law of 1974, and the Resolution 3(39) dated 14 October 2002 denyingthe motion for reconsideration. 4(40)

The facts, culled from the records, are as follows:

In the afternoon of 4 March 1999, Elmer Jaen (Jaen) was aboard a bus when a fellowpassenger announced a hold-up. Three (3) persons then proceeded to divest the passengers of theirbelongings. Under knife-point, purportedly by a man later identified as Ricardo Santos (Santos),Jaen's necklace was taken by Santos' cohort Teodoro Almadin (Almadin). The third robber, RomeoSayoc (Sayoc), meanwhile, reportedly threatened to explode the hand grenade he was carrying ifanybody would move. After taking Jaen's two gold rings, bracelet and watch, the trio alighted fromthe bus.

PO2 Remedios Terte (police officer), who was a passenger in the same bus, ran after theaccused, upon hearing somebody shouting about a hold-up. Sayoc was found by the police officer


hiding in an "owner-type" jeep. The latter instructed Jaen to guard Sayoc while she pursued the tworobbers. Sayoc was then brought to the police station. TaCIDS

A few hours later, barangay officials arrived at the police station with Santos and Almadin.They reported that the two accused were found hiding inside the house of one Alfredo Bautista butwere prevailed upon to surrender.

The victim's bracelet was recovered from Santos while the two rings were retrieved fromAlmadin.

On 8 March 1999, an information was filed against the accused in the Regional Trial Courtof Quezon City, which reads:

Criminal Case No. Q-99-81757

That on or about the 4th day of March 1999 in Quezon City, Philippines, theabove-named accused armed with [a] deadly weapon[,] conspiring, confederating with andmutually helping one another with intent to gain and by means of force and intimidation againstperson [sic] did then and there [willfully], unlawfully and feloniously rob one ELMER JAENY MAGPANTAY in the manner as follows: said accused pursuant to their conspiracy boardeda passenger bus and pretended to be passengers thereof and upon reaching EDSA Balintawak[,]a public highway, Brgy. Apolonio Samson, this city, [sic] announce the hold-up and with theuse of a knife poked[,] it against herein complainant and took, robbed and carried away thefollowing:

One gold bracelet P20,000.00

Two gold rings 8,000.00

One Guess watch 4,000.00

–––––––––

Total P32,000.00

========

Belonging to Elmer Jaen y Magpantay in the total amount of P32,000.00 PhilippineCurrency to the damage and prejudice of said offended party in the aforementioned amount ofP32,000.00 Philippine Currency. EAcHCI

CONTRARY TO LAW. 5(41)

When arraigned, petitioners pleaded not guilty. After arraignment however, Almadin"jumped bail".

Santos denied knowing his co-accused and his complicity in the hold-up. He declared that hewas engaged in a drinking session with his kumpare Alfredo Bautista when he went up to thecomfort room to relieve himself. He was suddenly dragged by the barangay officials, who hit him inthe head rendering him unconscious. He was later brought to a hospital for treatment.

For his part, Sayoc disclaimed knowing the other accused. He claimed to be a passenger on


the said bus when the hold-up was announced. Upon seeing a person holding a gun, he immediatelydescended from the bus. According to Sayoc, he entered a street where vehicles were passing. Asthe persons who were running passed by him, he went to the side and stood up behind a wall. Soonthereafter, he was apprehended by a police officer.

On 25 November 1999, the RTC rendered judgment against the petitioners and sentencedthem to suffer imprisonment from twelve (12) years and one (1) day of reclusion temporal, asminimum to seventeen (17) years, four (4) months and one (1) day of reclusion temporal, asmaximum. They were also ordered to pay jointly and severally the amount of P4,500.00 to thevictim. 6(42)

The trial court gave full credence to the testimonies of the prosecution. It noted that thedefenses raised by petitioners, which were not corroborated, cannot prevail over the clear andpositive identification made by the complainant. The trial court also pointed out that theprosecution's witnesses "did not have any motive to perjure against the petitioners".

Petitioners appealed to the Court of Appeals, ascribing as errors, the conclusions of the trialcourt on the following issues, namely: (1) the positive identification of the perpetrators; (2) theaccordance of evidentiary weight to the conflicting testimonies of the victim and the police officer;(3) the disregard of evidence adduced by Sayoc; and (4) the failure to declare as illegal the arrest ofSantos. 7(43)

On 30 January 2002, the Court of Appeals affirmed the trial court's decision. The appellatecourt viewed the alleged inconsistencies between the testimonies of the victim and the police officeras a minor variation which tends to strengthen the probative value of their testimonies. Anent theissue of illegal arrest, the appellate court concluded from evidence that Almadin and Santos

voluntarily surrendered. 8(44)

In their motion for reconsideration, 9(45) petitioners reiterated that the inconsistencies in thetestimonies of the victim and the police officer refer to substantial matters, as they establish the lackof positive and convincing identification of the petitioners. On 14 October 2002, the Court ofAppeals issued a Resolution denying the motion for reconsideration for lack of merit.

Petitioners filed the instant petition, 10(46) relying on the same arguments presented before thelower courts. Petitioners again raise as issues the credibility of the prosecution witnesses withrespect to the identification of the perpetrators, the legality of their arrest and the failure of thejudgment of conviction in stating the legal basis in support thereof. 11(47)

Settled is the rule that in criminal cases in which the penalty imposed is reclusion temporalor lower, all appeals to this Court may be taken by filing a petition for review on certiorari, raising

only questions of law. 12(48) It is evident from this petition that no question of law is proffered bypetitioners. The principal issue involved is the credibility of the prosecution witnesses. It bearsstressing that in criminal cases, the assessment of the credibility of witnesses is a domain best left tothe trial court judge. And when his findings have been affirmed by the Court of Appeals, these aregenerally binding and conclusive upon this Court. 13(49) The rationale of this rule lies on the fact that


the matter of assigning values to declarations on the witness stand is best and most commonlyperformed by the trial judge who is in the best position to assess the credibility of the witnesses whoappeared before his sala, as he had personally heard them and observed their deportment andmanner of testifying during the trial. 14(50) The findings of fact made by the trial court weresubstantially supported by evidence on record. Therefore, we are constrained not to disturb itsfactual findings. DaECST

Petitioners contend that the identification made by the prosecution witnesses is not positive,clear and convincing. They argue that extreme fear, stress and anxiety may have contributed to thehazy recollection of the victim pertaining to the identification of the perpetrators. With respect tothe police officer, on the other hand, petitioners insist that the former did not personally see thepetitioners actually committing the crime charged.

Petitioners' weak denial, especially when uncorroborated, cannot overcome the positiveidentification of them by the prosecution witnesses. As between the positive declarations of theprosecution witnesses and the negative statements of the accused, the former deserve more credence

and weight. 15(51) As found by the trial court, Jaen and the police officer were able to identify thepetitioners, as among those who staged the robbery inside the bus, thus: HADTEC

Based on the testimonies of the complainant and PO1 Remedios Terte, the accusedwere clearly and positively identified as the three men who staged the robbery/hold-up insidethe California bus. It was Ricardo Santos who announced the hold-up after which he pointed aknife at the neck of the complainant while Teodoro Almadin divested him of his jewelry.Romeo Sayoc held everyone at bay by threatening to explode a hand grenade if anyone moved.16(52)

Petitioners also anchor their defense on the alleged inconsistencies of the testimonies of theprosecution witnesses, such as:

1. During the direct examination, the police officer testified that she was seated onthe first row at the driver's side, while on cross-examination, she stated that shewas actually seated on the seventh row; 17(53)

2. On direct examination, the police officer testified that when somebodyannounced the hold-up, the latter was seated on the right side of the bus near her,on cross-examination however, she stated that her back was turned against theperson who announced the holdup; 18(54)

TAacHE

3. On cross-examination, the police officer stated that after the holdup, one civiliantogether with the victim alighted from the bus. However, the victim did notmention any civilian who got off the bus with him; 19(55)

4. The police officer averred that after the holdup, about three (3) personsproceeded towards the direction of Cubao, only to retract her statement later, tothe effect that these persons turned left towards a street; 20(56)


5. During the cross-examination, the police officer witnessed a civilian calling 117while she was running after the perpetrators. This was not mentioned in herdirect-examination. Jaen, on the other hand, never mentioned such call. 21(57)

TcIHDa

6. The police officer testified during the direct examination that she saw Sayoc"inside" an "owner-type" jeep, only to change it later to "underneath" the vehicle.22(58)

7. The victim testified that it took the petitioners five to ten minutes to rob himwhile the police officer stated that it took them about five minutes. 23(59)

The variance in the testimonies of the prosecution witnesses is too trivial to affect theircredibility. This Court maintains that minor inconsistencies in the narration of a witness do notdetract from its essential credibility as long as it is on the whole coherent and intrinsicallybelievable. Inaccuracies may in fact suggest that the witness is telling the truth and has not beenrehearsed as it is not to be expected that he will be able to remember every single detail of anincident with perfect or total recall. The positive identification of the petitioners as perpetratorsmade by the victim himself and the police officer cannot be overthrown by the weak denial and alibiof petitioners.

Moreover, there is no shred of evidence to show that the police officer was actuated byimproper motives to testify falsely against the petitioners. Her testimony deserves great appreciationin light of the presumption that she is regularly performing her duties. ITScAE

The contention of Santos that he was illegally arrested and searched deserves scantconsideration. As held by the trial court, Santos was not arrested, instead, he voluntarily surrenderedto the barangay officials, and no countervailing evidence to dispute this fact appears from therecord.

Finally, petitioners argue that the appellate court's decision failed to conform to the standards

set forth in Section 14, 24(60) Art. VIII of the 1987 Constitution and Section 2, 25(61) Rule 120 ofthe Rules of Court. We are not convinced.

The appellate court did not merely quote the facts presented by the trial court, it arrived at itsown findings. After citing and evaluating the evidence and arguments presented by both parties, theappellate court favored the prosecution. It dealt with the issues submitted by petitioners, albeit in aconcise manner. This constitutes sufficient compliance with the constitutional and statutory mandatethat a decision must state clearly and distinctly the facts and law on which it is based. ISCaDH

We disagree, however, with the penalty imposed by the lower court. The penalty for simplehighway robbery is reclusion temporal in its minimum period. However, consonant with the rulingin the case of People v. Simon, 26(62) since P.D. No. 532 is a special law which adopted the penaltiesunder the Revised Penal Code in their technical terms, with their technical signification and effects,the indeterminate sentence law is applicable in this case. Accordingly, for the crime of highwayrobbery, the indeterminate prison term is from seven (7) years and four (4) months of prision


mayor, as minimum, to thirteen (13) years, nine (9) months and ten (10) days of reclusion temporal,as maximum. 27(63)

WHEREFORE, this Court AFFIRMS WITH MODIFICATION the findings of fact andconclusions of law in the Decision dated 30 January 2002 of the Court of Appeals in CA-G.R. CRNo. 24140, finding appellants Romeo Sayoc and Ricardo Santos guilty beyond reasonable doubt ofsimple highway robbery. Appellants are hereby sentenced to the indeterminate penalty of seven (7)years and four (4) months of prision mayor, as minimum, to thirteen (13) years, nine (9) monthsand ten (10) days of reclusion temporal, as maximum, and to pay jointly and severally the amountof P4,500.00 to the private complainant, Elmer Jaen as their civil liability, with legal interest fromthe filing of the Information until fully paid. Since appellants are detention prisoners, they shall becredited with the period of their temporary imprisonment.

SO ORDERED.

Chico-Nazario, *(64) Velasco, Jr., Leonardo-de Castro **(65) and Brion, JJ., concur.

Footnotes

1. Rollo, pp. 66-71.2. Id. at 31-33.3. Id. at 83.4. Id. at 72-78.5. Id. at 29.6. Id. at 50-62.7. Id. at 59.8. Supra note 1. CTaIHE

9. Supra note 4.10. Id. at 8-28.11. Id. at 13-14.12. RULES OF COURT, Rule 56, Sec. 3 provides:

Mode of Appeal. — An appeal to the Supreme Court may be taken only by a petition for review oncertiorari, except in criminal cases where the penalty imposed is death, reclusion perpetua or lifeimprisonment. TADaCH

13. Duran v. Court of Appeals, G.R. Nos. 125256 and 126973, 2 May 2006, 488 SCRA 438, 447, citingRoca v. Court of Appeals, G.R. No. 114917, 29 January 2001, 350 SCRA 414.

14. Magno v. People, G.R. No. 133896, 27 January 2006, 480 SCRA 276, 286, citing People v. Escote,431 SCRA 345 (2004).

15. Ferrer v. People, G.R. No. 143487, 22 February 2006, 483 SCRA 31, 52, citing People v. Macalaba,443 Phil. 565, 578 (2003) and People v. Matore, 436 Phil. 430 (2002).

16. Rollo, p. 33.17. Id. at 18.18. Id.19. Id.20. Id.21. Id. at 20.22. Id. at 19.


23. Id.24. No decision shall be rendered by any court without expressing therein clearly and distinctly the facts

and the law on which it is based.25. If the judgment is of conviction, it shall state: (1) the legal qualification of the offense constituted by

the acts committed by the accused and the aggravating or mitigating circumstances which attendedits commission; (2) the participation of the accused in the offense, whether as principal, accompliceor accessory after the fact; (3) the penalty imposed upon the accused; and (4) the civil liability ordamages caused by his wrongful act or omission to be recovered from the accused by the offendedparty, if there is any, unless the enforcement of the civil liability by a separate civil action has beenreserved or waived.

26. G.R. No. 93028, 29 July 1994, 234 SCRA 555.27. People v. Cerbito, 381 Phil. 315, 329 (2000).* In lieu of inhibition of Justice Conchita Carpio Morales, Justice Minita V. Chico-Nazario is hereby

designated as additional member.** Per Special Order No. 619, Justice Teresita J. Leonardo-de Castro is hereby designated as additional

member of the Second Division in lieu of Justice Leonardo A. Quisumbing, who is on official leave.

SECOND DIVISION

[G.R. No. 130841. February 26, 2008.]

SPOUSES VIRGINIA G. GONZAGA and ALFREDO GONZAGA, petitioners, vs.

COURT OF APPEALS, BIENVENIDO AGAN, and ROWENA AGAN,respondents.

D E C I S I O N

VELASCO, JR., J p:

The Case

This Petition for Certiorari under Rule 65 seeks to reverse and set aside the Resolution datedApril 10, 1997 1(66) of the Court of Appeals (CA) in CA-G.R. SP No. 43793, denying the petition for


review of petitioners-spouses Virginia and Alfredo Gonzaga of the Decision dated December 20,1996 of the Davao City Regional Trial Court (RTC), Branch 33; and the Resolution dated August29, 1997 2(67) of the CA, denying petitioners' Motion for Reconsideration.

The Facts

Petitioners are the registered owners of a residential lot covered by Transfer Certificate ofTitle No. T-240379, 3(68) with an area of 247 square meters, more or less, and located in EcolandSubdivision, Phase IV, Matina, Davao City. Petitioners admitted that they do not reside at thisproperty. 4(69)

In May 1995, petitioners decided to construct a house on the said parcel of land and engagedthe services of a civil engineer to prepare the corresponding construction plan. Petitioners claimedthat there was no occupant on the land when construction began in June 1995.

Sometime in June 1995, petitioners went to inspect the above lot and discovered that a shantybelonging to private respondents Bienvenido and Rowena Agan had been built on the land inquestion.

A demand later made on private respondents to vacate the lot in question went unheeded. 5(70)

Thus, on April 26, 1996, petitioners filed a Complaint dated April 18, 1996 6(71) againstprivate respondents for Forcible Entry, Damages, and Attorney's Fees with Prayer for TemporaryRestraining Order and Preliminary Injunction with the Municipal Trial Court in Cities (MTCC) inDavao City. The case entitled Spouses Virginia Gonzaga and Alfredo Gonzaga v. Bienvenido Aganand Rowena Agan was docketed as Civil Case No. 3001-E-96. As alleged by petitioners, privaterespondents put up the structure by stealth and strategy. TaDSCA

In their Answer dated June 10, 1996, 7(72) private respondents alleged that they are theoccupants of a portion of what is known as the "Sabroso Village." They further alleged that theirshanty is within the land covered by a Free Patent Application dated February 9, 1992 in the nameof Ponciano Sabroso, 8(73) who knew of the shanty's existence for a long time and consented to theirstay in the village.

The Ruling of the MTCC

Thereafter, the MTCC rendered a Decision dated August 26, 1996 9(74) in favor of petitioners,the dispositive portion of which states:

WHEREFORE, judgment is hereby rendered in favor of the plaintiffs, the spousesVirginia G. Gonzaga and Alfredo Gonzaga, and against the defendants Bienvenido Agan andRowena Agan, ordering the defendants to vacate plaintiffs' property covered by TCT No.T-240379 and to remove their improvements and structures, or shanty therefrom, and furtherdefendants are ordered to pay plaintiffs the reasonable value of the use of the land occupied bythem, at P1,000.00 a month, from June 1995, until they vacate, and the sum of P10,000.00 forattorney's fees, and pay the costs.


SO ORDERED.

In so ruling, the MTCC held that private respondents failed to rebut allegations that theyentered petitioners' property by stealth. The MTCC found as untenable private respondents'counter-allegation that they gained entry to the land in 1983 that is allegedly covered by the FreePatent Application of Ponciano Sabroso.

The Decision of the RTC

Unconvinced, private respondents appealed the above MTCC ruling to the Davao City RTCdocketed as Civil Case No. 24,772-96. Eventually, the RTC rendered a Decision dated December20, 1996, the dispositive portion of which reads:

WHEREFORE, in view of all the foregoing, the appealed decision is REVERSED andjudgment is entered dismissing the complaint for lack of cause of action for forcible entry.

The counterclaim is likewise dismissed. HAIDcE

No costs.

SO ORDERED. 10(75)

The RTC predicated its ruling on the premise that petitioners, although claiming to beowners of the subject property, failed to prove prior actual physical possession, a necessary elementin an action for ejectment. To the RTC, petitioners should have not commenced an action forforcible entry but an accion publiciana suit.

Thus, petitioners filed with the CA on March 4, 1997 a petition for review docketed asCA-G.R. SP No. 43793.

The Ruling of the CA

On April 10, 1997, the CA issued the first assailed Resolution, denying due course topetitioners' petition for review mainly on the strength of the following observations:

A perusal of the complaint would show that apart from claiming ownership of the lot inquestion, petitioners have not asserted prior possession thereof, much less the manner of theirdispossession, which is essential in an action for forcible entry.

As correctly pointed out by respondent Court, plaintiffs' action should be one forrecovery of possession or an accion publiciana, not for forcible entry. 11(76)

From this Resolution, petitioners sought reconsideration. However, the CA, in its secondassailed Resolution dated August 29, 1997, denied petitioners' Motion for Reconsideration.

Hence, we have this Petition for Certiorari.


The Issues

The issues raised in the petition are set forth in the following assignment of errors:

I.

The court a quo committed grave abuse of discretion in failing to give due course to thepetition for review filed therewith as it committed a gross mistake in appreciating the facts ofthe case. TaIHEA

II.

The court a quo erred in holding that petitioners' action should not be for forcible entrybut for accion publiciana. 12(77)

The Ruling of this Court

The petition must be dismissed.

At the outset, it must be pointed out that petitioners invoked the certiorari jurisdiction of theCourt under Rule 65 when an appeal under Rule 45 is the proper remedy and should have beenfiled.

Under the first paragraph of Section 1 of Rule 65, the remedy of certiorari may only beavailed of in the absence of any other remedy in the ordinary course of law open to the petitioner.The provision states:

Section 1. Petition for certiorari. — When any tribunal, board or officer exercisingjudicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, orwith grave abuse of discretion amounting to lack or excess of jurisdiction, and there is noappeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, aperson aggrieved thereby may file a verified petition in the proper court, alleging the facts withcertainty and praying that judgment be rendered annulling or modifying the proceedings ofsuch tribunal, board or officer, and granting such incidental reliefs as law and justice mayrequire. (Emphasis supplied.)

In the instant case, the CA had already finally disposed of the case with the issuance of theResolution dated April 10, 1997 denying due course to petitioners' petition for review of the RTC'sdecision, and the Resolution dated August 29, 1997 denying petitioners' Motion forReconsideration. Thus, the remedy of an appeal under Rule 45 was then already available topetitioners.

Sec. 1 of Rule 45 states:

Section 1. Filing of petition with Supreme Court. –– A party desiring to appeal bycertiorari from a judgment or final order or resolution of the Court of Appeals, theSandiganbayan, the Regional Trial Court or other courts whenever authorized by law, may filewith the Supreme Court a verified petition for review on certiorari. The petition shall raise


only questions of law which must be distinctly set forth.

Petitioners, therefore, then had 15 days from their receipt on September 10, 1997 of theResolution dated August 29, 1997, or until September 25, 1997 within which to file a petition forreview under Rule 45. Instead, they filed on September 25, 1997 the instant Petition for Certioraridated September 18, 1997. IcCATD

Clearly, the proper remedy in the instant case should have been the filing of a petition forreview under Rule 45. This Court has repeatedly ruled that reviews under Rules 45 and 65 of theRules of Court are mutually exclusive and the remedy of certiorari under Rule 65 cannot be made asubstitute for a petitioner's failure to timely appeal under Rule 45. 13(78) Thus, under Sec. 5 (f) ofRule 56, 14(79) a petition for certiorari interposed when an appeal is proper and available may bedismissed.

The foregoing notwithstanding, even if we overlook the procedural infirmity of the instantpetition and treat it as an appeal under Rule 45, the recourse must still be dismissed.

As it were, the issues raised by petitioners revolve around the matter of possession beforeprivate respondents allegedly entered forcibly the property. Petitioners argue that, contrary to thefindings of the CA and RTC, they had prior possession of the subject property. Pursuing the point,petitioners state that absolute ownership necessarily connotes possession.

Petitioners' posture is specious. HEDSIc

Sec. 1 of Rule 70 prescribes the rules when an action for forcible entry and unlawful detaineris proper, thus:

Section 1. Who may institute proceedings, and when. — Subject to the provisions ofthe next succeeding section, a person deprived of the possession of any land or building byforce, intimidation, threat, strategy, or stealth, or a lessor, vendor or vendee or other person,against whom the possession of any land or building is unlawfully withheld after the expirationor termination of the right to hold possession, by virtue of any contract, express or implied, orthe legal representatives or assigns of any such lessor, vendor, vendee, or other person, may, atany time within one (1) year after such unlawful deprivation or withholding of possession,bring an action in the proper Municipal Trial Court against the person or person unlawfullywithholding or depriving of possession, or any person or persons claiming under them, for therestitution of such possession, together with damages and costs. (Emphasis supplied.)

It is quite clear from the foregoing provision that for a forcible entry suit to prosper, theperson lawfully entitled to the possession of the property must allege and prove that he wasdeprived of such possession by means of force, intimidation, threat, strategy, or stealth. And whenthe law speaks of possession, the reference is to prior physical possession or possession de facto, ascontra-distinguished from possession de jure.

To borrow from Justice Edgardo Paras, for a complaint for forcible entry to prosper, the

plaintiff must allege in his complaint that he had prior physical possession of the land and that the


defendant unlawfully deprived him of such possession through any of the grounds provided in Rule70, Sec. 1. 15(80)

The requirement of prior physical possession in ejectment cases was explained by this Courtin Mediran v. Villanueva, to wit:

Juridically speaking, possession is distinct from ownership, and from this distinctionare derived legal consequences of much importance. In giving recognition to the action offorcible entry and detainer the purpose of the law is to protect the person who in fact hasactual possession; and in case of controverted right, it requires the parties to preserve thestatus quo until one or the other of them sees fit to invoke the decision of a court of competentjurisdiction upon the question of ownership. It is obviously just that the person who has firstacquired possession should remain in possession pending this decision; and the parties cannotbe permitted meanwhile to engage in a petty warfare over the possession of the property whichis the subject of dispute. To permit this would be highly dangerous to individual security anddisturbing to social order. Therefore, where a person supposes himself to be the owner of apiece of property and desires to vindicate his ownership against the party actually inpossession, it is incumbent upon him to institute an action to this end in a court of competentjurisdiction; and he can not be permitted, by invading the property and excluding the actualpossessor, to place upon the latter the burden of instituting an action to try the property right.16(81) (Emphasis supplied.) aSIHcT

In Heirs of Pedro Laurora v. Sterling Technopark III, the Court stressed the basic inquiry inforcible entry cases:

The only issue in forcible entry cases is the physical or material possession of realproperty — possession de facto, not possession de jure. Only prior physical possession, nottitle, is the issue. If ownership is raised in the pleadings, the court may pass upon suchquestion, but only to determine the question of possession. 17(82)

Of the same tenor, but formulated a bit differently, is what the Court wrote in Bejar v.Caluag:

To make out a suit for illegal detainer or forcible entry, the complaint must contain twomandatory allegations: (1) prior physical possession of the property by the plaintiff; and (2)deprivation of said possession by another by means of force, intimidation, threat, strategy orstealth. This latter requirement implies that the possession of the disputed property by theintruder has been unlawful from the very start. Then, the action must be brought within oneyear from the date of actual entry to the property or, in cases where stealth was employed, fromthe date the plaintiff learned about it. 18(83) (Emphasis supplied.)

Clearly then, complainants in forcible entry cases must allege and eventually prove priorphysical possession. Else, their cases fail, as here.

Petitioners' claim that they have prior physical possession by virtue of their absoluteownership of the subject land is untenable. Obviously, they equate possession as an attribute ofownership to the fact of actual possession. They are of course wrong, possession de facto and


possession flowing from ownership are different legal concepts.

We agree with the CA and RTC that the proper remedy in the instant case is to file an accionpubliciana case, a plenary action for recovery of possession in ordinary civil proceedings in order to

determine the better and legal right to possess, independently of title. 19(84) It differs from aforcible entry action in that it does not require prior physical possession in order to prosper.Additionally, considering that more than one (1) year has already elapsed from the time thatpossession of the subject land was allegedly taken from petitioners, and that an action for forcibleentry may only be filed within one (1) year from the plaintiff's deprivation of possession of the land,an accion publiciana is the only remedy available to petitioners now to determine who has the betterright to possession of the land. ESHAIC

WHEREFORE, we DISMISS the petition, and AFFIRM the CA's Resolutions dated April10, 1997 and August 29, 1997 in CA-G.R. SP No. 43793.

Costs against petitioners.

SO ORDERED.

Quisumbing, Carpio, Carpio-Morales and Tinga, JJ., concur.

Footnotes

1. Rollo, pp. 189-192. Penned by Associate Justice Artemio G. Tuquero and concurred in by AssociateJustices Artemon D. Luna (Chairperson) and Hector L. Hofilena.

2. Id. at 220-221.3. Id. at 112.4. Id.5. Id.6. Id. at 64-77.7. Id. at 78-88. cDCIHT

8. Id. at 58 & 78.9. Id. at 145-147.

10. Id. at 60.11. Supra note 1, at 192.12. Rollo, p. 15.13. Chua v. Santos, G.R. No. 132467, October 18, 2004, 440 SCRA 365, 372-373.14. Rule 56, Sec. 5 (f) states:

Section 5. Grounds for dismissal of appeal. — The appeal may be dismissed motu proprio or onmotion of the respondent on the following grounds:

xxx xxx xxx(f) Error in the choice or mode of appeal.

15. 2 RULES OF COURT ANNOTATED 163 (1st ed., 1990).16. 37 Phil. 752, 761 (1918).17. G.R. No. 146815, April 9, 2003, 401 SCRA 181, 184-185.18. G.R. No. 171277, February 15, 2007, 516 SCRA 84, 91.19. Id. at 90. ECTIcS


Endnotes

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1. CA Justice Andres B. Reyes, Jr., ponente; Justices Delilah Vidallon-Magtolis and Regalado E.Maambong, concurring.

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2. G.R. No. 101522, May 28, 1993, 222 SCRA 736; Justice Rodolfo A. Nocon, ponente; Chief JusticeAndres R. Narvasa (Chairperson), and Justices Teodoro R. Padilla and Florenz D. Regalado,concurring.

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3. The decision was penned by Judge Juan P. Jimenez, RTC, Branch 1, Tuguegarao, Cagayan.

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4. Supra note 1.

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5. Supra note 2.

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6. The Court held: "According to Tolentino, the fine distinction between Article 1088 and Article 1620

is that when the sale consists of an interest in some particular property or properties of the

inheritance, the right of redemption that arises in favor of the other co-heirs is that recognized inArticle 1620. On the other hand, if the sale is the hereditary right itself, fully or in part, in theabstract sense, without specifying any particular object, the right recognized in Article 1088 exists."

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7. Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before the partition, any orall of the co-heirs may be subrogated to the rights of the purchaser by reimbursing him for the priceof the sale, provided they do so within the period of one month from the time they were notified inwriting of the sale by the vendor.

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8. Art. 1620. A co-owner of a thing may exercise the right of redemption in case the shares of all the


other co-owners or of any of them are sold to a third person. If the price of the alienation is grossly

excessive, the redemptioner shall pay only a reasonable one.

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9. The Court further held: "Petitioners allege that upon the facts and circumstances of the present case,respondents failed to exercise their right of legal redemption during the period provided by law,citing as authority the case of Conejero, et al., v. Court of Appeals, et al. (16 SCRA 775) wherein theCourt adopted the principle that the giving of a copy of a deed is equivalent to the notice as requiredby law in legal redemption. We do not dispute the principle laid down in the Conejero case.However, the facts in the said case are not four square with the facts of the present case. In Conejero,redemptioner Enrique Conejero was shown and given a copy of the deed of sale of the subjectproperty. The Court in that case stated that the furnishing of a copy of the deed was equivalent to thegiving of a written notice required by law."

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10. Records, Vol. II, p. 164.

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11. Id., pp. 161-163.

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12. Rollo, p. 429.

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13. Id., pp. 111-112.

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14. Id., p. 113.

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15. Id., p. 15.

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16. Id., pp. 427-431.


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17. Id., pp. 102-106.

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18. Id., pp. 107-110.

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19. Id., pp. 116-119.

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20. RTC, Branch IV, Tuguegarao, Cagayan.

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21. Rollo, pp. 120-123.

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22. Id., p. 134.

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23. Id., pp. 148-151.

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24. Id., pp. 468-479.

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25. RTC, Branch 1, Tuguegarao, Cagayan.

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26. Rollo, pp. 152-155.


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27. Per Resolution dated February 9, 2000 of the Former Fifteenth Division of the CA (see CA-G.R. SP

No. 51857 rollo, pp. 245-247), CA-G.R. SP No. 51857 was ordered consolidated with CA-G.R. CV

No. 63093, which involved the same issues and parties, provided that the ponencia of the civil caseconformed to the consolidation pursuant to Rule 3, Section 7 (b) (3) of the Revised Internal Rules ofthe Court of Appeals directing that the consolidated cases shall pertain to the justice to whom thecivil case is assigned. On February 23, 2000, Associate Justice Elvi John S. Asuncion of the thenSeventh Division of the CA conformed to the consolidation of cases (see CA-G.R. CV No. 63093rollo, p. 26).

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28. Rollo, pp. 71-73, supported by Annexes A to A-20.

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29. Parenthetically, Mariano is not the latest ruling on the requirement of notice from the vendor. InPerpetua vda. De Ape v. Court of Appeals, G.R. No. 133638, April 15, 2005, 456 SCRA 193, wesaid:Despite the plain language of the law, this Court has, over the years, been tasked to interpret the"written notice requirement" of the above-quoted provision. In the case Butte v. Manuel Uy & Sons,Inc., we declared that —In considering whether or not the offer to redeem was timely, we think that the notice given by thevendee (buyer) should not be taken into account. The text of Article 1623 clearly and expresslyprescribes that the thirty days for making the redemption are to be counted from notice in writing bythe vendor. Under the old law (Civ. Code of 1889, Art. 1524), it was immaterial who gave thenotice; so long as the redeeming co-owner learned of the alienation in favor of the stranger, theredemption period began to run. It is thus apparent that the Philippine legislature in Article 1623deliberately selected a particular method of giving notice, and that method must be deemedexclusive. (39 Am. Jur., 237; Payne v. State, 12 S.W. 2 (d) 528). As ruled in Wampler v. Lecompte,150 Atl. 458 (affd. in 75 Law Ed. [U.S.] 275) —

why these provisions were inserted in the statute we are not informed, but we may assume untilthe contrary is shown, that a state of facts in respect thereto existed, which warranted the legislaturein so legislating.The reasons for requiring that the notice should be given by the seller, and not by the buyer, areeasily divined. The seller of an undivided interest is in the best position to know who are hisco-owners that under the law must be notified of the sale. Also, the notice by the seller removes alldoubts as to fact of the sale, its perfection; and its validity, the notice being a reaffirmation thereof,so that the party notified need not entertain doubt that the seller may still contest the alienation. Thisassurance would not exist if the notice should be given by the buyer.The interpretation was somehow modified in the case of De Conejero, et al. v. Court of Appeals, etal., wherein it was pointed out that Article 1623 "does not prescribe a particular form of notice, norany distinctive method for notifying the redemptioner" thus, as long as the redemptioner was notified


in writing of the sale and the particulars thereof, the redemption period starts to run. This view wasreiterated in Etcuban v. The Honorable Court of Appeals, et al., Cabrera v. Villanueva, Garcia, et al.v. Calaliman, et al., Distrito, et al. v. The Honorable Court of Appeals, et al., and Mariano, et al. v.Hon. Court of Appeals, et al.However, in the case of Salatandol v. Retes, wherein the plaintiffs were not furnished any writtennotice of sale or a copy thereof by the vendor, this Court again referred to the principle enunciated inthe case of Butte. As observed by Justice Vicente Mendoza, such reversion is only sound, thus:

Art. 1623 of the Civil Code is clear in requiring that the written notification should come fromthe vendor or prospective vendor, not from any other person. There is, therefore, no room forconstruction. Indeed, the principal difference between Art. 1524 of the former Civil Code and Art.1623 of the present one is that the former did not specify who must give the notice, whereas thepresent one expressly says the notice must be given by the vendor. Effect must be given to thischange in statutory language.In this case, the records are bereft of any indication that Fortunato was given any written notice ofprospective or consummated sale of the portions of Lot No. 2319 by the vendors or would-bevendors. The thirty (30)-day redemption period under the law, therefore, has not commenced to run.

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30. In Vios v. Pantangco, Jr., G.R. 163103, February 6, 2009, we defined the law of the case as:[T]he opinion delivered on a former appeal. It is a term applied to an established rule that when an

appellate court passes on a question and remands the case to the lower court for further proceedings,

the question there settled becomes the law of the case upon subsequent appeal. It means thatwhatever is once irrevocably established as the controlling legal rule or decision between the sameparties in the same case continues to be the law of the case, whether correct on general principles ornot, so long as the facts on which such decision was predicated continue to be the facts of the casebefore the court.

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31. Rule 51, Sec. 11. Execution of judgment. —

Except where the judgment or final order or resolution, or a portion thereof, is ordered to beimmediately executory, the motion for its execution may only be filed in the proper court after itsentry.

xxx xxx xxx

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32. Rule 56, Sec. 2. Rules applicable. —The procedure in original cases for certiorari, prohibition, mandamus, quo warranto and habeas

corpus shall be in accordance with the applicable provisions of the Constitution, laws, and Rules 46,

48, 49, 51, 52 and this Rule, subject to the following provisions:a) All references in said Rules to the Court of Appeals shall be understood to also apply to theSupreme Court;

xxx xxx xxx


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33. Rule 39, Sec. 6. Execution by motion or by independent action. —A final and executory judgment or order may be executed on motion within five (5) years from the

date of its entry. After the lapse of such time, and before it is barred by the statute of limitations, a

judgment may be enforced by action. The revived judgment may also be enforced by motion withinfive (5) years from the date of its entry and thereafter by action before it is barred by the statute oflimitations.

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* Designated additional Member of the Second Division per Special Order No. 645 dated May 15,2009.

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** Designated additional Member of the Second Division effective June 3, 2009 per Special Order No.658 dated June 3, 2009.

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*** Designated additional Member of the Second Division effective May 11, 2009 per Special Order No.

635 dated May 7, 2009.

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1. Rollo, pp. 66-71.

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2. Id. at 31-33.

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3. Id. at 83.

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4. Id. at 72-78.


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5. Id. at 29.

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6. Id. at 50-62.

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7. Id. at 59.

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8. Supra note 1. CTaIHE

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9. Supra note 4.

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10. Id. at 8-28.

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11. Id. at 13-14.

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12. RULES OF COURT, Rule 56, Sec. 3 provides:Mode of Appeal. — An appeal to the Supreme Court may be taken only by a petition for review oncertiorari, except in criminal cases where the penalty imposed is death, reclusion perpetua or lifeimprisonment. TADaCH

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13. Duran v. Court of Appeals, G.R. Nos. 125256 and 126973, 2 May 2006, 488 SCRA 438, 447, citingRoca v. Court of Appeals, G.R. No. 114917, 29 January 2001, 350 SCRA 414.


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14. Magno v. People, G.R. No. 133896, 27 January 2006, 480 SCRA 276, 286, citing People v. Escote,431 SCRA 345 (2004).

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15. Ferrer v. People, G.R. No. 143487, 22 February 2006, 483 SCRA 31, 52, citing People v. Macalaba,443 Phil. 565, 578 (2003) and People v. Matore, 436 Phil. 430 (2002). STIHaE

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16. Rollo, p. 33.

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17. Id. at 18.

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18. Id.

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19. Id.

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20. Id.

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21. Id. at 20.

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22. Id. at 19.


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23. Id.

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24. No decision shall be rendered by any court without expressing therein clearly and distinctly the factsand the law on which it is based. aAHSEC

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25. If the judgment is of conviction, it shall state: (1) the legal qualification of the offense constituted bythe acts committed by the accused and the aggravating or mitigating circumstances which attendedits commission; (2) the participation of the accused in the offense, whether as principal, accompliceor accessory after the fact; (3) the penalty imposed upon the accused; and (4) the civil liability ordamages caused by his wrongful act or omission to be recovered from the accused by the offendedparty, if there is any, unless the enforcement of the civil liability by a separate civil action has beenreserved or waived. HTCSDE

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26. G.R. No. 93028, 29 July 1994, 234 SCRA 555.

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27. People v. Cerbito, 381 Phil. 315, 329 (2000).

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* In lieu of inhibition of Justice Conchita Carpio-Morales, Justice Minita V. Chico-Nazario is herebydesignated as additional member. SaICcT

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** Per Special Order No. 619, Justice Teresita J. Leonardo-de Castro is hereby designated as additionalmember of the Second Division in lieu of Justice Leonardo A. Quisumbing, who is on official leave.

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1. Rollo, pp. 189-192. Penned by Associate Justice Artemio G. Tuquero and concurred in by AssociateJustices Artemon D. Luna (Chairperson) and Hector L. Hofilena.


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2. Id. at 220-221.

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3. Id. at 112.

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4. Id.

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5. Id.

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6. Id. at 64-77.

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7. Id. at 78-88.

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8. Id. at 58 & 78.

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9. Id. at 145-147.

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10. Id. at 60.

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11. Supra note 1, at 192.


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12. Rollo, p. 15.

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13. Chua v. Santos, G.R. No. 132467, October 18, 2004, 440 SCRA 365, 372-373.

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14. Rule 56, Sec. 5 (f) states:Section 5. Grounds for dismissal of appeal. — The appeal may be dismissed motu proprio or onmotion of the respondent on the following grounds:

xxx xxx xxx(f) Error in the choice or mode of appeal.

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15. 2 RULES OF COURT ANNOTATED 163 (1st ed., 1990).

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16. 37 Phil. 752, 761 (1918).

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17. G.R. No. 146815, April 9, 2003, 401 SCRA 181, 184-185.

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18. G.R. No. 171277, February 15, 2007, 516 SCRA 84, 91.

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19. Id. at 90.

cases on rule 56 of the rules of court

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