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THIRD DIVISION

[G.R. No. 111401. October 17, 1996.]

ERIBERTO G. VALENCIA, substituted by his heirs: REBECCA S. VDA. DEVALENCIA, MA. CAROLINA S. VALENCIA, MA. ANTONETTE S.VALENCIA, PETER GELVIC S. VALENCIA, JOSE THERONE S. VALENCIAand MA. SOPHEA S. VALENCIA, petitioners, vs. COURT OF APPEALS,RICARDO BAGTAS and MIGUEL BUNYE, respondents.

Gamaliel P. Magsaysay for petitioners.

Roberto C. Bermejo for private respondents.

SYLLABUS

1. REMEDIAL LAW; ACTIONS; SPLITTING A SINGLE CAUSE OFACTION; EFFECT. If a party-litigant splits his single cause of action, theother action or actions filed may be dismissed by invoking litis pendentia,pursuant to Section 1(e), Rule 16 of the Revised Rules of Court. A party whosplits his single cause of action cannot be accused of also "violating the rule

against litis pendentia" as the former, a malpractice, gives rise to the latter, aground for a motion to dismiss. This is made clear by Section 4, Rule 2 of theRules, which speaks of cause and effect: "Sec. 4. Effect of splitting a singlecause of action. If two or more complaints are brought for different parts ofa single cause of action, the filing of the first may be pleaded in abatement ofthe other or others, in accordance with Section 1(e) of Rule 16, and a

judgment upon the merits in any one is available as a bar in the others.TCHcAE

2. ID.; ID.; MOTION TO DISMISS; LITIS PENDENTIA; REQUISITES.The requisites for the existence of litis pendentia as a ground for dismissalof an action are as follows: 1) identity of parties, or at least such parties asrepresent the same interests in both actions; 2) identity of rights asserted andrelief prayed for, the relief being founded on the same facts; and 3) theidentity with respect to the two preceding particulars in the two cases is suchthat any judgment that may be rendered in the pending case, regardless ofwhich party is successful, would amount to res adjudicata in the other case.

3. ID.; ID.; ID.; ID.; NOT AVAILABLE WHERE ONE WAS FOUNDEDON VIOLATIONS OF LEASE CONTRACT WHILE THE OTHER WAS FORDAMAGES CAUSED BY PETITIONERS' VIOLATION OF IAC'sRESTRAINING ORDER. There may have been identity of parties in thetwo actions, but the other two requisites are not similarly satisfied. The casein Bulacan was of course founded upon alleged violations by the private

respondents as lessees of certain stipulations in their lease contract withpetitioner, and therefore, it cannot be gainsaid that the rights asserted (bypetitioner as lessor and relief sought therein i.e., rescission of the leasecontract) were entirely different from those asserted in Manila. The lattercase stemmed from the prejudice suffered by private respondents due topetitioner's violation of the IAC's restraining orders for the observance ofstatus quo between the parties, the relief demanded therein consisting offactual, moral and exemplary damages. Thus, the respondent Court

committed no reversible error in holding that "the causes of action in twocases are not the same; they are founded on different acts; the rightsviolated are different; and the reliefs sought are also different." The res

judicata test when applied to the two cases in question indicate in nouncertain terms that regardless of whoever will ultimately prevail in theBulacan case, the final judgment therein whether granting or denyingrescission of the lease contract will not be conclusive between the partiesin the Manila case, and vice versa. In other words, to our mind, the outcomeof the Bulacan case has nothing to do with whether petitioner should be heldliable for the damage inflicted upon private respondents as a result of hisviolating the IAC restraining orders, the two cases having arisen fromdifferent acts and environmental circumstances.

4. ID.; ID.; ID.; FORUM-SHOPPING; TEST. Petitioner's allegationsto the contrary notwithstanding, forum-shopping is not present in the case atbar. The established rule is that for forum-shopping to exist, both actionsmust involve the same transactions, same essential facts and circumstancesand must raise identical causes of actions, subject matter, and issues. Asheld by this Court in a recent case: "The test for determining whether a partyviolated the rule against forum-shopping has been laid down in the 1986case of Buan vs. Lopez (145 SCRA 34, October 13, 1986), also by ChiefJustice Narvasa, and that is, forum shopping exists where the elements oflitis pendentia are present or where a final judgment in one case will amountto res judicata in the other . . ."

5. ID.; ID.; ID.; ID.; WILL NOT APPLY WHERE FINAL JUDGMENT INEITHER CASE WOULD NOT BE RES JUDICATA TO THE OTHER. Wehave already established that litis pendentia could not have been properlypleaded to abate the second action brought in Manila, and that a final

judgment in either case would not be res judicata with respect to the other.Thus, the allegation of forum-shopping must fail. CDaTAI

6. ID.; ID.; ID.; ID.; RATIONALE ON PROHIBITION THEREON. InJose Cuenco Borromeo, et al., vs. Hon. Intermediate Appellate Court, et al.,this Court capsulized the essence of what is abhorrent in the malpractice offorum-shopping, and the following excerpt shows why there can be no forum-

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property. There, appellant Valencia sought the rescission of the leasecontract he had entered into with plaintiffs on March 1, 1982. He based hisclaim upon the alleged failure of plaintiffs to abide by the stipulations of theiragreement. In this case under consideration, plaintiffs Bagtas and Bunye areasking for compensation for the damages that they had sustained by reasonof Valencia's violation of certain resolutions issued by this Court in (CA)-G.R.SP No. 04283 (Exhs. 'J' & 'N'). Clearly, the causes of action in the two casesare not the same; they are founded on different acts; the rights violated are

different; and the reliefs sought are also different. Consequently, defendant-appellant's submission that lis pendens is a ground for dismissal of plaintiffs'suit is not valid."

The dispositive portion of the now-assailed Decision reads: 9

"WHEREFORE, judgment is hereby rendered affirming the appealeddecision with the modification that plaintiffs-appellants [private respondentsherein] are hereby additionally awarded the sum of P50,000.00 as and foractual damages. Costs against defendant-appellant [herein petitioner].

Petitioner's motion for reconsideration dated March 9, 1993 was denied byrespondent Court. Thus he comes to us seeking relief.

The Issue

Petitioner raises the following lone "legal issue:" 10

"THE DENIAL ORDERS AND THE DECISION OF THE MANILA COURT INCIVIL CASE NO. 85-29514 AND THE DECISION OF RESPONDENTCOURT IN CA-G.R. CV NO. 27590 ARE NOT IN ACCORD WITH THE LAW

AND THE DECISIONS ON LITIS PENDENTIA."

Petitioner contends that the error in the Decision lies in its failure to properlyappreciate the complaint filed with the Manila court, which, when takentogether with private respondents' documentary and testimonial evidence,discloses that the alleged wrongful acts for which they claimed damagesarose out of, were connected with, and/or were incidents of the proceedingsin the action for rescission before the Bulacan court. Petitioner claims thatthe action for damages commenced by private respondents constitutessplitting of a single cause of action which is prohibited by the Revised Rulesof Court. 11

Petitioner argues that, for the aforesaid reasons, if indeed privaterespondents suffered any damage, they should have filed a compulsorycounterclaim or supplemental pleading for the alleged acts of violation ofrestraining orders which are "transactions, occurrence or event which have

happened since the date of the pleading sought to be supplemented." 12 Heinsists that the filing of a compulsory counterclaim is the proper recourseconsidering that petitioner had posted a bond in the rescission case toanswer for damages that private respondents might suffer by reason of theissuance of the preliminary mandatory injunction. 13 He also ventures to saythat the case filed with the Manila court can even be considered as a form of"forum shopping." 14

In fine, petitioner asserts that under the rule on litis pendentia the action forrescission filed with the Bulacan court bars the action for damages filed inManila. It is interesting to note that petitioner does not contest thecorrectness of the award of damages made by respondent Court; he merelyinsists on the dismissal (?) of the case for damages on the ground of litispendentia, there being a pending case for rescission in which privaterespondents could have asserted their claim for damages. This being hislone assigned issue, the clear and unavoidable implication is that if hiscontention is struck down, he is deemed to have waived any objectionagainst the award of damages by respondent Court.

The Court's Ruling

Petitioner's arguments are legally tenuous and patently unmeritorious.

Litis Pendencia and Splitting of a Single Cause of Action

Before discussing the petition on the merits, it is well to clarify certainconcepts at the outset. If a party-litigant splits his single cause of action, theother action or actions filed may be dismissed by invoking litis pendentia,pursuant to Section 1(e), Rule 16 of the Revised Rules of Court. 15 A partywho splits his single cause of action cannot be accused of also "violating therule against litis pendentia" as the former, a malpractice, gives rise to thelatter, a ground for a motion to dismiss. This is made clear by Section 4, Rule2 of the Rules, which speaks of cause and effect:

"Sec. 4. Effect of splitting a single cause of action. If two or morecomplaints are brought for different parts of a single cause of action, the filingof the first may be pleaded in abatement of the other or others, in accordancewith Section 1 (e) of Rule 16, and a judgment upon the merits in any one isavailable as a bar in the others.

Now, to the main issues.

No Litis Pendentia

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This Court has consistently held, in a long line of cases, that the requisitesfor the existence of litis pendentia as a ground for dismissal of an action areas follows:

1) identity of parties, or at least such parties as represent the sameinterests in both actions;

2) identity of rights asserted and relief prayed for, the relief beingfounded on the same facts; and

3) the identity with respect to the two preceding particulars in the twocases is such that any judgment that may be rendered in the pending case,regardless of which party is successful, would amount to res adjudicata in theother case. 16

There may have been identity of parties in the two actions, but the other tworequisites are not similarly satisfied. The case in Bulacan was of coursefounded upon alleged violations by the private respondents as lessees ofcertain stipulations in their lease contract with petitioner, and therefore, itcannot be gainsaid that the rights asserted (by petitioner as lessor) and reliefsought therein (i.e., rescission of the lease contract) were entirely different

from those asserted in Manila. The latter case stemmed from the prejudicesuffered by private respondents due to petitioner's violation of the IAC'srestraining orders for the observance of status quo between the parties, therelief demanded therein consisting of actual, moral and exemplary damages.Thus, the respondent Court committed no reversible error in holding that "thecauses of action in the two cases are not the same; they are founded ondifferent acts; the rights violated are different; and the reliefs sought are alsodifferent."

The third requisite constitutes the test of identity in the aforestatedparticulars, and in connection therewith, this Court quoted 1 Cyc., 28 17 thus:

"A plea of the pendency of a prior action is not available unless the prioraction is of such a character that, had a judgment been rendered therein onthe merits, such a judgment would be conclusive between the parties andcould be pleaded in bar of the second action." (emphasis supplied)

The res judicata test when applied to the two cases in question indicate in nocertain terms that regardless of whoever will ultimately prevail in the Bulacancase, the final judgment therein whether granting or denying rescission ofthe lease contract will not be conclusive between the parties in the Manilacase, and vice versa. In other words, to our mind, the outcome of theBulacan case has nothing to do with whether petitioner should be held liablefor the damage inflicted upon private respondents as a result of his violating

the IAC restraining orders, the two cases having arisen from different actsand environmental circumstances.

No Forum Shopping

Petitioner's allegations to the contrary notwithstanding, forum-shopping is notpresent in the case at bar. The established rule is that for forum-shopping toexist, both actions must involve the same transactions, same essential factsand circumstances and must raise identical causes of actions, subject

matter, and issues. 18 As held by this Court in a recent case. 19

"The test for determining whether a party violated the rule against forum-shopping has been laid down in the 1986 case of Buan vs. Lopez (145 SCRA34, October 13, 1986), also by Chief Justice Narvasa, and that is, forum-shopping exists where the elements of litis pendentia are present or where afinal judgment in one case will amount to res judicata in the other . . ."(emphasis supplied)

We have already established that litis pendentia could not have beenproperly pleaded to abate the second action brought in Manila, and that afinal judgment in either case would not be res judicata with respect to the

other. Thus, the allegation of forum-shopping must fail.

In Jose Cuenco Borromeo, et al., vs. Hon. Intermediate Appellate Court, etal., 20 this Court capsulized the essence of what is abhorrent in themalpractice of forum-shopping, and the following excerpt shows why therecan be no forum-shopping in this case:

"Ultimately, what is truly important to consider in determining whether forum-shopping exists or not is the vexation caused the courts and parties-litigantby a party who asks different courts to rule on the same or related causesand/or to grant the same or substantially the same reliefs, in the processcreating the possibility of conflicting decisions being rendered by the different

fora upon the same issue."

Claim for Damages Not A Compulsory Counterclaim

Petitioner erroneously insists that private respondents' claim for damagesshould have been made through a compulsory counterclaim in the sameaction for rescission. This could not have been done as the same cannot beconsidered or treated as a compulsory counterclaim in the Bulacan case.This Court, in an early case, 21 stated certain criteria or tests by which thecompulsory or permissive nature of specific counterclaims can bedetermined, summarized as follows:

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"1. Are the issues of fact and law raised by the claim and counterclaimlargely the same?

2. Would res judicata bar a subsequent suit on defendant's claimabsent the compulsory counterclaim rule?

3. Will substantially the same evidence support or refute plaintiff's claimas well as defendant's counterclaim?

4. Is there any logical relation between the claim and thecounterclaim?"

In his instance, the answers to all four queries are in the negative.

Was Injunction Bond Sufficient Protection?

Petitioner's argument that the bond he posted for the issuance by theBulacan trial court of the writ of preliminary mandatory injunction could haveanswered for the damages claimed by private respondents is untenable.Such bond was required for a specific purpose, to wit: 22

"(b) The plaintiff files with the clerk or judge of the court in which theaction is pending a bond executed to the party enjoined, in an amount to befixed by the court, to the effect that the plaintiff will pay to such party alldamages which he may sustain by reason of the injunction if the court shouldfinally decide that the plaintiff was not entitled thereto."

No further scrutiny is necessary. The said bond was supposed to answeronly for damages which may be sustained by private respondents, againstwhom the mandatory injunction was issued, by reason of the issuancethereof, and not to answer for damages caused by the actuations ofpetitioner, which may or may not related at all to the implementation of themandatory injunction. The purpose of the injunction bond is to protect thedefendant against loss or damage by reason of the injunction in case the

court finally decides that the plaintiff was not entitled to it, and the bond isusually conditioned accordingly. Thus, the bondsmen are obligated toaccount to the defendant in the injunction suit for all damages, or costs andreasonable counsel's fees, incurred or sustained by the latter in case it isdetermined that the injunction was wrongfully issued. 23

In the case at bar, the damages and expenses sustained by privaterespondents were a result of the willful contravention by petitioner of the IACrestraining orders, and thus, outside the coverage of the injunction bond.

WHEREFORE, in view of the foregoing, the instant petition is herebyDENIED and the appealed Decision and Resolution are AFFIRMED. Costsagainst petitioner.

SO ORDERED.

Narvasa, C .J ., Davide, Jr., Melo and Francisco, JJ ., concur.

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SECOND DIVISION

[G.R. No. 79903. July 23, 1992.]

CONTECH CONSTRUCTION TECHNOLOGY & DEVELOPMENTCORPORATION, JERRY A. KHO, WEIJEN A. KHO and WILLEN A. KHO,petitioners, vs. COURT OF APPEALS and GREENBELT SQUARE, INC.,respondents.

Luna, Sison & Manas for petitioner.

SYLLABUS

1. REMEDIAL LAW; CIVIL PROCEDURE; AMENDMENT OFPLEADINGS; RULE; SATISFIED IN CASE AT BAR. Under Section 2,Rule 10 of the Revised Rules of Court, a party is given a right to file anamended pleading within the time and upon the conditions specified in therule and without the necessity of obtaining leave of court since a party mayamend his pleading once as a matter of course at any time before aresponsive pleading is served. This rule expressly authorizes the amendment

of pleadings in order that all matters in the action in dispute between theparties may be completely determined in a single proceeding. The amendedcomplaint, in the instant case, was filed not to delay nor alter the cause ofaction of the first complaint but rather to obviate the splitting of the cause ofaction and to obtain a speedy determination of the controversy in oneproceeding without regard to technicality. The amended complaint merelyimpleaded Metropolitan as a party defendant in the first complaint andincluded in said complaint the cause of action alleged in the secondcomplaint which was already dismissed. Furthermore, petitioners had not yetfiled any responsive pleading to the first complaint when respondentcorporation filed the motion to amend its complaint.

2. ID.; ID.; CONCLUSIVENESS OF JUDGMENT; NOT APPLICABLEIN CASE AT BAR; REASON THEREFOR. Petitioners contend that theappellate court acted without jurisdiction or with grave abuse of discretionamounting to lack of jurisdiction in admitting the amended complaint of therespondent Corporation, considering that the previous dismissal of thesecond complaint for violating the rule against splitting a cause of actionbarred its reinstitution by the amendment of the first complaint. In said

judgment, it was held that there was a splitting of a cause of action in the firstand second complaint, therefore the rule against splitting of a cause of action

barred the second complaint as enunciated in the cases of Jimenez vs.Camara [107 Phil. 590] and City of Bacolod vs. San Miguel Brewery, [29SCRA 819] resulting in an outright denial of the amended complaint.

D E C I S I O N

NOCON, J p:

This is a petition for certiorari and prohibition with preliminary injunction toannul and set aside the decision dated July 24, 1987 of the Court of Appeals1 directing the Regional Trial Court of Pasig, Branch CLXIV in Civil Case No.45321 to admit the amended complaint of respondent Greenbelt Square, Inc.

and to proceed with the trial of said case.

It appears on record that on August 8, 1980, petitioner Contech ConstructionTechnology & Development Corporation, as contractor, and privaterespondent Greenbelt Square, Inc., as owner, entered into an Agreementwhereby the former undertook the construction, equipping, furnishing andsupplying of materials for a theater and restaurant building for considerationof P20,069,694.00. 2

Pursuant to said Agreement, petitioners secured from the Philippine BritishAssurance Co., Inc. (Phil-British for brevity), a bond of P2,000,000.00 underBond No. 0746 to guarantee the payment of the labor and materials used in

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connection with the construction project, 3 from the Metropolitan InsuranceCo. (Metropolitan for brevity); P4,000,000.00 under Surety No.80/G(13)00853 to secure the full and faithful performance of the petitioners 4and Surety No. 80/G(10)00457 for P2,000,000.00 to guarantee the supply ofcement and steel bars needed for said project. 5

On October 21, 1981, respondent Corporation terminated the Agreementupon petitioners' failure to comply with the terms and conditions of said

Agreement. 6 Respondent Corporation, likewise, sent Phil-British andMetropolitan notices of claim for petitioners' failure to perform their part of the

Agreement. cdll

Petitioners, thereafter, withdrew their men and equipments from theconstruction site and respondent Corporation contracted the services of R.N.Construction Co., Inc. to finish the building project. However, uponpetitioners' refusal to pay their obligation to respondent Corporation, thelatter, on March 24, 1982, simultaneously filed with the Court of FirstInstance of Rizal two separate complaints against petitioners and theirsureties for breach of contract.

In the first complaint which was docketed as Civil Case No. 45321,

respondent Corporation had petitioners and Phil-British as party defendantsfor the collection of a sum of money, while the second complaint which wasdocketed as Civil Case No. 45322, petitioners and Metropolitan were alsoparty defendants for the collection of a sum of money.

On June 3, 1982, petitioners filed a motion to dismiss the second complainton the ground of the pendency of the first complaint likewise between thesame parties for the same cause, which motion was denied by the trial court.However, upon appeal to the Intermediate Appellate Court, 7 the appellatecourt on May 4, 1984 held that there was a splitting of a cause of actionwhen the two complaints were filed simultaneously, hence, the orders of thetrial court dated May 17, 1983 and July 25, 1983 denying the motion to

dismiss and the motion for reconsideration were nullified. Said decision of theappellate court became final on August 2, 1984.

On August 8, 1984, respondent Corporation filed before the lower courtwhere the first complaint was pending, a motion for leave to amend itscomplaint and to consolidate the two cases, which motion was denied onOctober 3, 1984. Accordingly, respondent Corporation filed a motion forreconsideration on October 29, 1984, which was also denied on January 13,1987.

Thereafter, respondent Corporation filed a petition for certiorari andmandamus with the appellate court alleging grave abuse of discretion on thepart of the trial court in denying its motion to amend the complaint.

The appellate court, on July 24, 1987, rendered a decision giving due courseto respondent Corporation's petition and directed the trial court to admit theamended complaint of the respondent corporation. Consequently, petitionerfiled a motion for reconsideration on August 11, 1987 which was denied on

August 27, 1987.

Hence, this petition.

Petitioners contend that the appellate court acted without jurisdiction or withgrave abuse of discretion amounting to lack of jurisdiction in admitting theamended complaint of the respondent Corporation, considering that theprevious dismissal of the second complaint for violating the rule againstsplitting a cause of action barred its reinstitution by the amendment of thefirst complaint.

Section 2, Rule 10 of the Revised Rules of Court provides that:

"A party may amend his pleading once as a matter of course at any timebefore a responsive pleading is served or, if the pleading is one to which noresponsive pleading is permitted and the action has not been placed uponthe trial calendar, he may so amend it at any time within ten (10) days after itis served." Cdpr

Under this rule, a party is given a right to file an amended pleading within thetime and upon the conditions specified in the rule and without the necessityof obtaining leave of court since a party may amend his pleading once as amatter of course at any time before a responsive pleading is served. This ruleexpressly authorizes the amendment of pleadings in order that all matters inthe action in dispute between the parties may be completely determined in asingle proceeding. The amended complaint, in the instant case, was f iled notto delay nor alter the cause of action of the first complaint but rather toobviate the splitting of the cause of action and to obtain a speedydetermination of the controversy in one proceeding without regard totechnicality. The amended complaint merely impleaded Metropolitan as aparty defendant in the first complaint and included in said complaint thecause of action alleged in the second complaint which was alreadydismissed. Furthermore, petitioners had not yet filed any responsive pleadingto the first complaint when respondent corporation filed the motion to amendits complaint. As correctly held by the appellate court:

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"It is a recognized rule of procedure that pleadings shall be construedliberally so as to render substantial justice to the parties and in order thatactual merits of the controversy may speedily be determined without regardto technicalities and in the most expeditious and inexpensive manner. The

judicial attitude has always been favorable and liberal in allowingamendments to a pleading. The rationale behind the rule is to avoidmultiplicity of suits and in order that the real controversies between theparties are presented, their rights are determined and the case decided onthe merits without unnecessary delay. When the situation is such that if theproposed amendment is not allowed, another action would be instituted, thusmaking two actions, two trials, and two appeals possible and probable, thesaid amendment should be admitted. Hence, should the trial court find theallegations in the pleadings to be inadequate, it should allow the partyconcerned to file proper amendments to pleadings in accordance with themandate of the Rules of Court that amendments to pleadings are favoredand should be liberally allowed.

Applying the foregoing principles to the instant case, there is no doubt thatthe respondent Court committed a grave and serious abuse of discretion innot admitting the amended complaint. The records of the case indicate thatthe motion for leave to admit the amended complaint was filed before a

responsive pleading was filed. In fact, no responsive pleading has yet beenfiled by the private respondents. Their opposition filed on August 15, 1984 isnot a responsive pleading within the contemplation of the rule. Consequently,the filing by the petitioner of an amended complaint was erroneously deniedby the respondent Court, the same being a matter of right. Indeed, in such asituation, an error of the trial court in refusing such amendment is controllableby mandamus.

Moreover, the Court, after assiduously examining and comparing the originaland amended complaint, is of the opinion that the amendment sought to beincluded did not in any manner change the cause of action nor was itintended for delay, which considerations appear to be the only ground for

denying a motion for leave to amend under section 3 of Rule 10 of the Rulesof Court." 8

Petitioners also contend that the rule of conclusiveness of judgment isapplicable in this case in view of the finality of the judgment of the appellatecourt dismissing the second complaint which was being reintroduced by amere amendment of the first complaint. In said judgment, it was held thatthere was a splitting of a cause of action in the first and second complaint,therefore the rule against splitting of a cause of action barred the secondcomplaint as enunciated in the cases of Jimenez vs. Camara 9 and City of

Bacolod vs. San Miguel Brewery, 10 resulting in an outright denial of theamended complaint.

We do not agree.

The rulings in the aforementioned cases are not applicable in the case at barsince both cases refer to a situation wherein the second complaint, whichcause of action should be included in the first complaint, was filed after a finaldecision was rendered on the merits. In this case, the first and second

complaint were not yet set for pre-trial or trial because petitioners had not yetfiled any responsive pleading to both complaints, therefore the amendmentshould be allowed since said amendment will not delay the proceeding andthere was no change in respondent Corporation's cause of action.

WHEREFORE, the petition for certiorari and prohibition with preliminaryinjunction is hereby DENIED for lack of merit.

SO ORDERED.

Narvasa, C .J ., and Regalado, JJ ., concur.

Padilla, J., No part, in view of prior relationship with private respondent.

Footnotes

1. In CA-G.R. SP No. 11226, penned by Justice Justo P. Torres, Jr.with the concurrence of Justice Josue N. Bellosillo and Justice Oscar M.Herrera.

2. Id., at p. 87.

3. Id., at pp. 91-92.

4. Id., at pp. 62-63.

5. Id., at pp. 64-65.

6. Id., at p. 66.

7. AC-G.R. SP No. 01578, penned by Justice Lino M. Patajo andconcurred in by Justice Simeon M. Gopengco and Justice Jose F. Racela, Jr.

8. CA's Decision, pp. 6-7; Rollo, pp. 30-31.

9. 107 Phil. 590.

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10. 29 SCRA 819.

C o p y r i g h t 1 9 9 4 - 1 9 9 9 C D T e c h n o l o g i e s A s i a, I n c.

G.R. No. 73679 July 23, 1992

HONESTO B. VILLAROSA vs. CRESENCIANO B. TRAJANO

SECOND DIVISION

[G.R. No. 73679. July 23, 1992.]

HONESTO B. VILLAROSA, RODOLFO VALLEJO, MARIO NOCUM,ALFREDO DE LA CRUZ, CRISOSTOMO SALVADOR, LUCY HERMOSA,RICARDO SAHAGUN, OSCAR BINSOL, REY YABUT, LUIS TUBERA,NINIO ARRIOLA, RODOLFO MACEDA, EVELIO REGASPE, REYEUGENIO, BENJAMIN AMIDO, MANUEL NAZARIO, JOSE BUENO,SALVADOR HERNANDEZ, NORBERTO SORIANO, HERMINIO YABUT,

ALADINO YABUT and ILAW AT BUKLOD NG MANGGAGAWA (IBM),petitioners, vs. HON. CRESENCIANO B. TRAJANO, IN HIS CAPACITY ASDIRECTOR, BUREAU OF LABOR RELATIONS, EDILBERTO GALVEZ,SEVERINO MERON, RENATO REGALA, VENANCIO TEODORO, JOSEPADILLA, MOISES DAYAO, NONATO FLORES, MANUEL GALINGANA,NEHEMIAS MARQUEZ, ALFREDO COLOMEDA, DIONISIO OLEDAN,

ALBERTO SAMONTE, EDUARDO DIONISIO, BENIGNO LEONERO,ALMARIO BULALAYAO, ANDRES SALVADOR, RENATO BERNARDO,EDUARDO BATISATIC, WILLIAM MERENE AND SAN MIGUELCORPORATION, respondents.

Juanito M. Caling and Renato L. Ramos for petitioners.

Angara, Abello, Concepcion, Regala & Cruz for San Miguel Corp.

Leopoldo M. Redublo for private respondents.

SYLLABUS

1. LABOR AND SOCIAL LEGISLATION; LABOR ORGANIZATION;ELECTION OF OFFICERS THEREOF; RULE. The Labor Code thenenforced in 1985 mandates that members of a labor organization shall electtheir officers by secret ballot at intervals of not more than three (3) years.

2. ID.; ID.; ID.; DISQUALIFICATION OF ELECTED OFFICER; WOULDNOT VEST A RIGHT TO PERSON OBTAINING THE SECOND HIGHESTNUMBER OF VOTES TO THE OFFICE. it would be appropriate to remindpetitioners that even if the disqualification of private respondents could be

justified, the petitioners certainly cannot be declared winners in the disputedelection. The mere fact that petitioner Villarosa obtained the second highestnumber of votes does not mean that he will thereby be considered as theelected IBM Labor Union President if private respondent is disqualified.

3. REMEDIAL LAW; CIVIL PROCEDURE; DISMISSAL OF CASES;WARRANTED WHEN CERTAIN EVENTS OR CIRCUMSTANCES HAVETAKEN PLACE DURING THE PENDENCY THEREOF WHICH WOULDRENDER THE CASE MOOT AND ACADEMIC. After a carefulconsideration of the facts of this case, We are of the considered view that theexpiration of the tenure of the private respondents by operation of law 3years after the disputed election on or around December 6, 1988 haverendered the issues raised by petitioners moot and academic. And even if, bychance, these same private respondents had been elected to the sameoffices on or around December 6, 1991. This Court ruled recently that: ". . . Itis pointless and unrealistic to insist on annulling an election of officers whoseterms had already expired. We would have thereby a judgment on a matter

which cannot have any practical legal effect upon a controversy, even ifexisting, and which, in the nature of things, cannot be enforced. We mustconsequently abide by our consistent ruling that where certain events orcircumstances have taken place during the pendency of the case whichwould render the case moot and academic, the petition should bedismissed."

D E C I S I O N

NOCON, J p:

This is a petition for certiorari with a prayer for a writ of preliminary injunction

filed by petitioners, Honesto Villarosa, et al., seeking the annulment of (1) theOrder of December 5, 1985 and the Resolution of January 3, 1986 whichdecreed the holding of the election for officers of the Ilaw at Buklod ngManggagawa (IBM) Labor Union on December 6, 1985 and (2) the results ofsaid election wherein private respondents, Edilberto Galvez, et al., wereproclaimed winners and praying that another election be held if theproclamation of petitioners as duly elected officers would not be feasible.

The facts of this case as succinctly summarized by the Solicitor General are:

"On October 29, 1985, BLR Case No. A-7-160-85, an appealed caseinvolving three (3) consolidated intra-union conflict cases, for violation of

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respondent union's constitution and by-laws, was decided by publicrespondent Director of the Bureau of Labor Relations, the dispositive portionof his Resolution, among others, states: prcd

'WHEREFORE, and in the interest of fair play, the appealed Order is herebyset aside and a new one entered in the following tenor

xxx xxx xxx

6) Ordering a general election of officers of IBM within ten (10) workingdays from receipt of this Decision, the necessary expenses for which shall beapplied to the union funds in deposit.

The Labor Organization Division, this Bureau, shall conduct the holding ofthe election and shall hold pre-election conference as may be necessary tothresh out the mechanics of the election.

SO ORDERED.'

"In compliance with the aforementioned order, the Bureau of Labor Relationsheaded by Mrs. Margarita Enriquez conducted a pre-election conference on

November 11, 1985, where the parties agreed to set the date of election onNovember 29, 1985, the last day of the filing of certificates of candidacy on orbefore November 22, 1985, and for the management of San MiguelCorporation (SMC for short) to submit a list of union member based on theOctober 31, 1985 payroll on November 19, 1985.

"On November 19, 1985, the list of qualified voters as agreed upon wassubmitted by the SMC, copy furnished the contending parties. The partieslikewise approved the Rules or Regulations prepared by BLR COMELEC togovern the conduct of the local election. Another pre-election conference wasset on November 22, 1985 for the inclusion and exclusion of voters as wellas the submission of the names of the union members inadvertently omittedfrom the list submitted by the management.

"On November 22, 1985, the date agreed upon by the contending parties asthe last day for the filing of certificates of candidacy as well as the inclusionand inclusion of employees participating in the local election, the partiesagain agreed to re-set the election date to November 29, 1985.

"On November 25, 1985, petitioner Villarosa filed a motion and/or petition todisqualify the ticket headed by private respondent Edilberto Galvez fromparticipating as candidates in the election of officers of the Ilaw at Buklod NgManggagawa (IBM) because being officers/members of a rival union, their

participation constituted an act of disloyalty, disqualifying them fromcompeting under the union's constitution and by-laws.

"On November 26, 1985, petitioner filed a motion for deferment of thescheduled election on November 29, 1985, until the charge of disloyaltyagainst Edilberto Galvez and others was resolved.

"In their opposition, private respondent Galvez and his group sought thedismissal of the aforementioned twin motions to disqualify and to defer the

scheduled election for having been filed out of time as the last day for filing ofthe certificates of candidacy and inclusion and exclusion of employeesparticipating in the election was on November 22, 1985. As to the charge ofdisloyalty, they maintained that public respondent Bureau of Labor Relationshad no jurisdiction to rule on the issue as it was the National Council of theunion which had the power to hear and decide intra-union problems of thisnature. At any rate, it was stressed that no act of disloyalty was committedwhen Galvez organized BLM, a rival union, considering that the Labor Codeallows workers to form or join any organization of their choice during thefreedom period.

"In the pre-election conference on November 26, 1985, the parties,

nevertheless, agreed to re-schedule the holding of the election to December6, 1985.

"On December 5, 1985, respondent Bureau of Labor Relations issued anorder resolving the twin motions, the dispositive portion of which states:LLphil

'A perusal of the present motion, as well as the argument presented insupport thereof, shows that the ground relied upon by movant to disqualifyGalvez, et al., is not among those enumerated in the union constitution andby-laws, and therefore said motions have no basis to stand on.

'At any rate, if indeed Edilberto Galvez, et al., committed acts of disloyaltywhich had undermined the principles and objectives of IBM, such questioncan be passed upon by the general membership in the election withoutprejudice to ventilation and resolution of the issue in accordance with theunion constitution and by-laws.

'IN VIEW THEREOF, and as above qualified, the present motion are herebydenied for lack of merit. Let the election of officers of Ilaw at Buklod NgManggagawa (IBM) set on December 6, 1985 proceed as scheduled.'

"On December 6, 1985, the election proceeded and was supervised by therespondent Bureau of Labor Relations. The results were:

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For National President:

Galvez, Edilberto B. 1,422

Villarosa, Honesto B. 568

Villarante, Carlos 331

"For membership in the Executive Board, private respondents Severino O.

Meron, Renato L. Regala, Venancio c. Teodoro, Jose B. Padilla, MoisesDayao, Morato Flores, Manuel Salingana, Nehemias Marques Oledanlikewise won in the election.

"On December 10, 1985, petitioners filed a motion for reconsideration of theorder dated December 5, 1985, denying the twin motions to disqualify and todefer the scheduled election. On the same date, petitioners also filed an 'IBMElection Protest and Motion for Reconsideration' (dated December 10, 1985)on the results of the December 6, 1985 IBM election of officers. Theyreiterate their stand that the elected candidates belonging to the Buklod atLakas Ng Manggagawa (BLM) are not members of good standing of the IBMsince they had committed acts of disloyalty by organizing the BLM and

competing against IBM on the certification election held in 1980 and 1983.

"On December 16, 1985, private respondents Edilberto Galvez and othersfiled an 'Opposition/Motion to Dismiss' to petitioners' election protest andmotion for reconsideration.

"On January 3, 1986, public respondent dismissed the petitioners' electionprotest and motion for reconsideration of the Order of December 5, 1985, thedispositive portion of the order of dismissal is as follows:

'WHEREFORE, the election protests and motion for reconsideration of theOrder of December 5, 1985, are hereby dismissed for lack of merit. Let thenecessary amount be released to the outgoing set of officers by the National

Capital Region from the union dues and agency fees deposited therein todefray the operational expenses of the union including the salaries orallowances of union officers entitled thereto from the period the depositcommenced and until 31 December 1985. All expenditures anddisbursements by virtue of such a release shall be accounted for to thisOffice.'

"On January 10, 1986, petitioners filed an unsigned motion forreconsideration of the aforementioned decision of public respondent.

"In a Resolution dated January 31, 1986, respondent Director of the Bureauof Labor Relations denied the petitioners' motion for reconsideration andproclaimed private respondents headed by Edilberto Galvez as the dulyelected officers of IBM union. The dispositive portion of the Resolution readsas follows:

'WHEREFORE, the Order dated January 3, 1986 is hereby affirmed.Accordingly, Edilberto Galvez and all who won in the election conducted on 6December 1985 are hereby proclaimed duly elected officers of the Ilaw at

Buklod ng Manggagawa (IBM).' cdll

"Hence, this petition." 1

We gave due course to this petition on April 12, 19882 but petitioners' prayerfor a writ of preliminary injunction was not granted. 3

The Labor Code then enforced in 1985 mandates that members of a labororganization shall elect their officers by secret ballot at intervals of not morethan three (3) years. 4

The election being contested was held December 6, 1985. Three (3) years

hence, another election should have been held on December 6, 1988 as thisCourt did not restrain the public respondent and respondent corporation fromrecognizing the assumption of the private respondents as duly electedofficers of the IBM labor union. Another three (3) years thereafter, anotherelection should have been held on December 6, 1991 in accordance withlaw. 5

After a careful consideration of the facts of this case, We are of theconsidered view that the expiration of the tenure of the private respondentsby operation of law 3 years after the disputed election on or aroundDecember 6, 1988 have rendered the issues raised by petitioners mootand academic.

And even if, by chance, these same private respondents had been elected tothe same offices on or around December 6, 1991.

This Court ruled recently that:

". . . It is pointless and unrealistic to insist on annulling an election of officerswhose terms had already expired. We would have thereby a judgment on amatter which cannot have any practical legal effect upon a controversy, evenif existing, and which, in the nature of things, cannot be enforced. We mustconsequently abide by our consistent ruling that where certain events orcircumstances have taken place during the pendency of the case which

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would render the case moot and academic, the petition should bedismissed." 6

At this junction, it would be appropriate to remind petitioners that even if thedisqualification of private respondents could be justified, the petitionerscertainly cannot be declared winners in the disputed election. The mere factthat petitioner Villarosa obtained the second highest number of votes doesnot mean that he will thereby be considered as the elected IBM Labor UnionPresident if private respondent is disqualified. 7

Accordingly, this case is DISMISSED for being moot and academic.

SO ORDERED.

Narvasa, C.J. and Regalado, J., concur.

Padilla, J., took no part, part in view of equity interest in private co-respondent SMC.

Footnotes

1. Rollo, pp. 137-142.

2. Rollo. p. 173.

3. Ibid. pp. 110, 173.

4. Article 242. Rights and conditions of membership in a labororganization. . . .

(c) The members shall elect their officers by secret ballot at intervalsof not more than three (3) years. . . ." [Labor Code PD 442, as amended(1986)].

5. R.A. 6715, approved March 2, 1989 and effective March 21, 1989deleted above quoted Article 242 (c). On the representation aspect, thefollowing was incorporated:

"SEC. 21. There shall be incorporated after Article 253 of thesame Code a new article which shall read as follows:

'ART. 253-A. Terms of a Collective Bargaining Agreement.Any Collective Bargaining Agreement that the parties may enter into shall,insofar as the representation aspect is concerned, be for a term of five (5)years. No petition questioning the majority status of the incumbent bargainingagent shall the entertained and no certification election shall be conducted by

the Department of Labor and Employment outside of the sixty-day periodimmediately before the date of expiry of such five year term of the CollectiveBargaining Agreement. All other provisions of the Collective Bargaining

Agreement shall be renegotiated not later than three (3) years after itsexecution . . .'"

Thus, in the petition at bar, after the certification election onor around December 6, 1991, the next certification election would be held onor around December 6, 1996.

6. Manalad vs. Trajano, 174 SCRA 328.

7. Ibid, p. 329.

C o p y r i g h t 1 9 9 4 - 1 9 9 9 C D T e c h n o l o g i e s A s i a, I n c.

G.R. No. 96091 July 22, 1992

PEOPLE OF THE PHIL. vs. ALFREDO L. HOBLE

FIRST DIVISION

[G.R. No. 96091. July 22, 1992.]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALFREDOHOBLE y LEONARDO, accused-appellant.

The Solicitor General for plaintiff-appellee.

Trinidad, Reverente, Makalintal, Cabrera and Monsod Law Office foraccused-appellant.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; NOTAFFECTED BY MINOR INCONSISTENCIES; CASE AT BAR. In the casebefore Us, the testimonies of the prosecution witnesses clearly point to anegotiation or agreement between appellant and Sgt. Lopez to consummatethe sale of "shabu". This is evident from the testimony of Sgt. Lopez who saidthat upon his "thumb's up" signal, which was pre-arranged through theconfidential informer, he (Sgt. Lopez) was allowed inside the car of appellantwhere he stayed for some 3 to 5 minutes. The signal of Sgt. Lopez indicated

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that he was the companion of appellant's contact in that place, who alsohappened to be the NARCOM confidential informer. Patrolman Cariocorroborated the testimony of Sgt. Lopez that he spent some 3 to 5 minutesinside the car before he lighted his cigarette, also as pre-arranged, indicatingthat the "transaction" was already on and that his back-up team should now,as they did, pounce on the pushers. The relatively short period of time spentby Sgt. Lopez in the car of appellant further indicates that a brief negotiationpreceded the delivery by the appellant of the "shabu". The minordiscrepancies in the testimonies of the prosecution witnesses do not impairthe credibility and substance of the evidence for the government, more so, asin the instant case, where there is direct proof that the NARCOM agentsthrough Sgt. Lopez actually and directly received the "shabu" from appellant.

2. ID.; CRIMINAL PROCEDURE; WARRANTLESS SEARCH;DEEMED LAWFUL WHEN CONDUCTED AS AN INCIDENT TO LAWFUL

ARREST. As regards his contention that the evidence consisting of"shabu" crystals is inadmissible in evidence because unlawfully procuredthrough warrantless search, it must be stressed anew that he was caughttransporting and delivering a regulated drug in flagrante delicto.Consequently, a peace officer or any private person for that matter may,without warrant, arrest a person when, in his presence, the person to be

arrested has committed, is actually committing, or is attempting to commit, anoffense; and, that a person lawfully arrested may be searched for dangerousweapons or anything which may be used as proof of the commission of anoffense, without a search warrant. Consequently, the warrantless searchbeing an incident to a lawful arrest, is in itself lawful.

3. CRIMINAL LAW; DANGEROUS DRUG ACT; SALE OFPROHIBITED DRUGS; NON-PRESENTATION OF MARKED MONEY, NOTFATAL TO THE PROSECUTION THEREOF. As regards the markedmoney, it is likewise settled that its absence does not create a hiatus in theevidence for the prosecution so long as the prohibited or regulated druggiven or delivered by the appellant was presented before the court and that

the appellant was clearly identified as the offender. In fact, in the instantcase, the evidence clearly shows that appellant himself handed to Sgt. Lopezthe "shabu" inside the former's car.

4. ID.; ID.; POSSESSION OF PROHIBITED DRUGS BY NON-USER;PRESUMPTION. It has been held that possession of prohibited drugscoupled with the fact that the possessor is not a user thereof cannot indicateanything else but the intention to sell, distribute or deliver the prohibited stuff.Moreover, the provision under which appellant is charged provides that it isnot only the sale which is penalized by law but also the administration,dispensation, delivery, transportation and distribution of regulated drugs.

Sec. 15, Art. III, of the Dangerous Drugs Act of 1972, as amended. Thus,assuming for the sake of argument that no transaction of sale occurred,appellant was nevertheless caught transporting and delivering 4 grams of"shabu" to Sgt. Lopez without license or lawful authority. There was thereforeno error on the part of the trial court in finding accused Alfredo Hoble guilty ofviolating Sec. 15, Art. III, of the Dangerous Drugs Act of 1972, as amended.

D E C I S I O N

BELLOSILLO, J p:

ALFONSO HOBLE Y LEONARDO is before Us on appeal from a judgment ofthe court a quo finding him guilty of violation of Sec. 15, Art. III, of theDangerous Drugs Act of 1972, 1 as amended, and imposing upon him a lifeimprisonment and a fine of P20,000.00, and to pay the costs of suit.

Appellant Hoble was charged in the court below and accordingly sentencedfor having possessed, sold and delivered (to another) on May 21, 1989, four(4) grams of methamphetamine ("shabu") in San Fernando, Pampanga, inconcert with one Victor Javier y Tobias, without having been licensed,authorized and/or permitted to do so. After trial however the court a quo

acquitted Javier on reasonable doubt. Hence, Sec. 21, Art. IV, which refers toattempt or conspiracy to commit the crime, is no longer relevant in thisappeal of Hoble.

On May 21, 1989, a confidential informer reported to the CommandingOfficer of the 3rd Narcotics Regional Command at Camp Olivas, SanFernando, Pampanga, that a certain "Sixto" of Las Pias, Metro Manila, wasto deliver five (5) 2 grams of "shabu" to Barangay Dolores on board a whiteToyota Corolla with Plate No. NFT-917.

Acting on the report, the Commanding Officer, Capt. Fernando L.Bustamante, alerted his agents and organized a team to entrap the "pusher".Tapped for the operation was Sgt. Buenaventura Lopez, who was designatedas poseur-buyer and "friend" of the confidential informer, together with Sgt.Bienvenido Andulan and Pat. Edwin Cario, who composed the back-upteam.

The informer also told the NARCOM agents that he had a prior arrangementwith the accused that a buyer would stand by at the "target place" inBarangay Dolores near the small bridge and would make a "thumb's up"signal once the Toyota car would arrive. cdrep

Conformably with the planned operation, Sgt. Lopez, Sgt. Andulan and Pat.Cario, together with the unnamed informer, boarded a passenger jeepney to

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Barangay Dolores. Some twenty (2) meters before reaching the designatedplace, Sgt. Andulan and Pat. Cario alighted from the jeepney and stayedbehind at the waiting shed along the road, while Sgt. Lopez and the informerproceeded to the "target place". Then the informer "disengaged" from Sgt.Lopez and disappeared. 3

At about 12:30 o'clock that noon, the awaited car appeared. As planned, Sgt.Lopez made the "thumb's up" sign and flagged the car down. The carstopped and Sgt. Lopez hopped in per their prior arrangement with the

informer who, incidentally, was also the contact man of the "pushers". Assoon as Sgt. Lopez entered the car, "Sixto", who turned out to be theaccused Alfredo Hoble, showed him the stuff that was taken from the glovecompartment of his car and handed it to him. Sgt. Lopez immediatelyrecognized the merchandise as "shabu" because of his prior training ondangerous drugs at Camp Crame. He then lighted a cigarette to signal to hisback-up team to pounce on the accused, thus confirming the delivery of theforbidden stuff. Sgt. Andulan and Pat. Cario then arrested the accused whowas at the time in the company of Victor Javier. The NARCOM agentsbrought the accused Alfredo Hoble and Victor Javier to their office for properdisposition. 4 Accordingly, both Hoble and Javier were charged although thelatter was acquitted on reasonable doubt.

At the trial, Sgt. Lopez and Pat. Cario testified on their respectiveparticipations in the buy-bust operation, while Maj. Marlyn Salangad,Forensic Chemist Officer of the PC Crime Laboratory, told the trial court thatthe physical, chemical and confirmatory tests of the specimens 5 taken fromthe accused were positive of methamphetamine hydrochloride or "shabu".

On the other hand, both accused Hoble and Javier denied having sold"shabu" in Barangay Dolores on May 21, 1989. According to them, they wereon their way to the house of a certain Armie Guiao to request her to buy duty-free imported goods for them. However, near the crossing of BarangayDolores armed men also riding in a car suddenly blocked them and there

was another car with armed men bearing long arms parked not far from thecrossing. The armed men alighted from their car and searched them, afterwhich they were shown something by the armed men who said the stuff was"shabu". 6

After trial, the court a quo sustained the version of the prosecution as regardsaccused-appellant Alfredo Hoble and adjudged him guilty beyond reasonabledoubt of the crime charged and sentenced him to life imprisonment and topay a fine of P20,000.00 without subsidiary imprisonment in case ofinsolvency, plus the costs of suit. 7 As earlier intimated, accused VictorJavier was acquitted on reasonable doubt. LexLib

Accused Hoble now appeals his conviction imputing to the trial court ERRORin (a) admitting in evidence the decision of the Regional Trial Court of PasayCity (Exhs. "L", "L-1" and "L-2") which influenced and affected the judgmentof the court a quo: (b) admitting in evidence the "Certificate Re GoodConduct of Search" (Exhs. "F" and "F-1") despite having been obtained inviolation of his constitutional right to counsel during custodial investigation;(c) giving full credence to the testimonies of the prosecution witnessesdespite glaring inconsistencies; and, (d) admitting the aluminum foil (Exhs."J" and "J-1") despite the same having been obtained through warrantlesssearch of his vehicle.

Turning to the first error assigned, appellant claims that the objectivity of thetrial court was unduly undermined when it admitted in evidence the decisionof the Regional Trial Court of Pasay City in Crime. Case No. 88-0785-P 8wherein he was also found guilty of selling and delivering "shabu" for whichhe was sentenced to reclusion perpetua. 9 He argues that the decisionshould not have been admitted because it was still under reconsideration,and that the information against him did not allege recidivism nor habituality.

This is no error. Obviously, appellant read out of context the portion of thedecision of the court a quo which makes reference to that of the Regional

Trial Court of Pasay City in said Crim. Case No. 88-0785-P, to wit:

"It is not therefore true that the accused Hoble did not receive any notice ofhearing of the aforestated case that was the reason why he did not go to thesaid court anymore after his arraignment, the truth is that he jumped bail inthe aforesaid case . . ."

From the foregoing, it is clear that the court a quo merely cited Exh. "L" inorder to refute the claim of appellant that he did not know if there werehearings held in the aforesaid case. The appealed decision itself shows thatit treats lengthily of the entrapment operation leading to his arrest in flagrantedelicto while delivering or transporting "shabu" and based his conviction on

the evidence leading to his entrapment and consequent arrest.

As regards the second assigned error, appellant contends that the"Certification Re Good Conduct of Search" (Exh. "F") which he signedshould not have been admitted in evidence as it was procured duringcustodial investigation in violation of his constitutional right to counsel. It ishis position that this exhibit amounts to a confession that the search madewas in order and that he indeed committed the offense charged.

It must be stressed that the records do not disclose that appellant was eversubjected to custodial investigation, thus no extrajudicial confession wasobtained from him. All that the records show is that appellant and his co-

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accused were booked in Camp Olivas as shown by the Booking Sheet (Exh."D"), and the Arrest Report (Exh. "E"). With respect to Exh. "F", it appearsthat it was merely executed for the purpose of showing that the NARCOMofficers arrested appellant and his co-accused in an orderly manner and inno way signified admission of the commission of the offense. As correctlyobserved by the trial court:

"One thing very significant to note is that the accused did not give anyconfession or extrajudicial statement of admission. The evidence for the

prosecution consists mainly of the testimonies of the witnesses presentedand documents and not a confession of the accused made during theinvestigation." 10

For his third assigned error, appellant argues that the trial court ignoredmaterial inconsistencies in the testimonies of prosecution witnesses which, ifconsidered, would have established their lack of credibility. He avers that oneprosecution witness testified that there was no marked money used, 11 whileanother testified that there was marked money but it was not given to thesuspects. 12 He insists that the absence of marked money indicatesindubitably the incredibility of the prosecution witnesses, but moreimportantly the error in charging the proper offense, for, if at all, it could just

have been possession under Sec. 8, Art. II, and not pushing under Sec. 21,Art. IV, 13 of the Dangerous Drugs Act of 1972, as amended. Appellant alsopoints out that prosecution witnesses differed as to the exact time when theapprehension of the witnesses was effected. llcd

The argument is without merit. It is well settled that minor inconsistencies instatements given during the testimony will not affect the credibility of theprosecution witnesses. 14

In People v. Claudio, 15 We ruled:

"Credence is accorded to the prosecution's evidence, more so as it consistedmainly of testimonies of policemen. Law enforcers are presumed to haveregularly performed their duty in the absence of proof to the contrary (Peoplev. de Jesus, 145 SCRA 521). We also find no reason from the records whythe prosecution witnesses should fabricate their testimonies and implicateappellant of such a serious crime (see People v. Bautista, 147 SCRA 500)."

In the case before Us, the testimonies of the prosecution witnesses clearlypoint to a negotiation or agreement between appellant and Sgt. Lopez toconsummate the sale of "shabu". This is evident from the testimony of Sgt.Lopez who said that upon his "thumb's up" signal, which was pre-arrangedthrough the confidential informer, he (Sgt. Lopez) was allowed inside the carof appellant where he stayed for some 3 to 5 minutes. 16 The signal of Sgt.

Lopez indicated that he was the companion of appellant's contact in thatplace, who also happened to be the NARCOM confidential informer. 17

Patrolman Cario corroborated the testimony of Sgt. Lopez that he spentsome 3 to 5 minutes inside the car before he lighted his cigarette, also aspre-arranged, indicating that the "transaction" was already on and that hisback-up team should now, as they did, pounce on the pushers. The relativelyshort period of time spent by Sgt. Lopez in the car of appellant furtherindicates that a brief negotiation preceded the delivery by the appellant of the

"shabu".

The minor discrepancies in the testimonies of the prosecution witnesses donot impair the credibility and substance of the evidence for the government,more so, as in the instant case, where there is direct proof that the NARCOMagents through Sgt. Lopez actually and directly received the "shabu" fromappellant. 18

As regards the marked money, it is likewise settled that its absence does notcreate a hiatus in the evidence for the prosecution so long as the prohibitedor regulated drug given or delivered by the appellant was presented beforethe court and that the appellant was clearly identified as the offender. 19 In

fact, in the instant case, the evidence clearly shows that appellant himselfhanded to Sgt. Lopez the "shabu" inside the former's car. 20

It has been held that possession of prohibited drugs coupled with the factthat the possessor is not a user thereof cannot indicate anything else but theintention to sell, distribute or deliver the prohibited stuff. 21 Moreover, theprovision under which appellant is charged provides that it is not only thesale which is penalized by law but also the administration, dispensation,delivery, transportation and distribution of regulated drugs. Sec. 15, Art. III, ofthe Dangerous Drugs Act of 1972, as amended, provides:

"Sec. 15. Sale, Administration, Dispensation, Delivery, Transportationand Distribution of Regulated Drugs. The penalty of life imprisonment todeath and a fine ranging from twenty thousand to thirty thousand pesos shallbe imposed upon any person who, unless authorized by law, shall sell,dispense, deliver and transport or distribute any regulated drug . . . "

In People v. de la Cruz, 22 We held:

"Suffice it to say that even if the money given to De la Cruz was notpresented in court, the same would not militate against the People's case. Infact, there was even no need to prove that the marked money was handed tothe appellants in payment of the goods. The crime could have beenconsummated by the mere delivery of the prohibited drugs. What the law

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proscribes is not only the act of selling but also, albeit not limited to, the actof delivering. In the latter case, the act of knowingly passing a dangerousdrug to another personally or otherwise, and by any means, with or withoutconsideration, consummates the offense."

Thus, assuming for the sake of argument that no transaction or saleoccurred, appellant was nevertheless caught transporting and delivering 4grams of "shabu" to Sgt. Lopez without license or lawful authority. There wastherefore no error on the part of the trial court in finding accused Alfredo

Hoble guilty of violating Sec. 15, Art. III, of the Dangerous Drugs Act of 1972,as amended.

As regards his contention that the evidence consisting of "shabu" crystals(Exhs. "J" and "J-1") is inadmissible in evidence because unlawfully procuredthrough warrantless search, it must be stressed anew that he was caughttransporting and delivering a regulated drug in flagrante delicto.Consequently, a peace officer or any private person for that matter may,without warrant, arrest a person when, in his presence, the person to bearrested has committed, is actually committing, or is attempting to commit, anoffense; 23 and, that a person lawfully arrested may be searched fordangerous weapons or anything which may be used as proof of the

commission of an offense, without a search warrant. 24 Consequently, thewarrantless search being an incident to a lawful arrest, is in itself lawful. 25

In fine, on the basis of the facts as reported by the trial court, which We findsufficiently supported by the evidence, We hold that the guilt of the accused-appellant has been established beyond reasonable doubt.

WHEREFORE, the judgment of the court a quo convicting the accusedAlfredo Hoble y Leonardo of violation of Sec. 15, Art. III, of the DangerousDrugs Act of 1972, as amended, is hereby AFFIRMED. Costs againstaccused-appellant.

SO ORDERED.

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FIRST DIVISION

[G.R. No. 49475. September 28, 1993.]

JORGE C. PADERANGA, petitioner, vs. Hon. DIMALANES B. BUISSAN,Presiding Judge, Court of First Instance of Zamboanga del Norte, Branch IIIand ELUMBA INDUSTRIES COMPANY, represented by its GeneralManager, JOSE J. ELUMBA, respondents.

SYLLABUS

1. REMEDIAL LAW; CIVIL PROCEDURE; ACTIONS; PERSONAL

ACTION IN PERSONAM; DISTINGUISHED FROM ACTION IN REM. Inthe case before us, it is indubitable that the action instituted by privaterespondent against petitioner affects the parties alone, not the whole world.Hence, it is an action in personam, i.e., any judgment therein is binding onlyupon the parties properly impleaded. However, this does not automaticallymean that the action for damages and to fix the period of the lease contractis also a personal action. For, a personal action may not necessarily be anaction in personam and a real action may not at the same time be an actionin rem. In Hernandez v. Rural Bank of Lucena, Inc., we held thus In apersonal action, the plaintiff seeks the recovery of personal property, theenforcement of a contract or the recovery of damages. In a real action, theplaintiff seeks the recovery of real property, or, as indicated in Section 2(a) of

Rule 4, a real action is an action affecting title to real property or for therecovery of possession, or for partition or condemnation of, or foreclosure ofa mortgage on, real property. An action in personam is an action against aperson on the basis of his personal liability, while an action in rem is anaction against the thing itself, instead of against the person. Hence, a realaction may at the same time be an action in personam and not necessarilyan action in rem.

2. ID.; ID.; ID.; ID.; ID.; EFFECT ON VENUE. Consequently, thedistinction between an action in personam and an action in rem for purposesof determining venue is irrelevant. Instead, it is imperative to find out if the

action filed is a personal action or a real action. After all, personal actionsmay be instituted in the Regional Trial Court (then Court of First Instance)where the defendant or any of the defendants resides or may be found, orwhere the plaintiff or any of the plaintiff's resides, at the election of theplaintiff. On the other hand, real actions should be brought before theRegional Trial Court having jurisdiction over the territory in which the subjectproperty or part thereof lies.

3. ID.; ID.; ID.; ID.; ID.; APPLICATION IN ACTION FOR DAMAGES

ARISING BREACH OF LEASE CONTRACT; CASE AT BAR. While theinstant action is for damages arising from an alleged breach of the leasecontract, it likewise prays for the fixing of the period of lease at five (5) years.If found meritorious, private respondent will be entitled to remain not only aslessee for another five (5) years but also to the recovery of the portion earliertaken from him as well. This is because the leased premises under theoriginal contract was the whole commercial space itself and not just thesubdivided portion thereof. While it may be that the instant complaint doesnot explicitly pray for recovery of possession, such is the necessaryconsequence thereof. The instant action therefore does not operate to effacethe fundamental and prime objective of the nature of the case which is torecover the one-half portion repossessed by the lessor, herein petitioner.

Indeed, where the ultimate purpose of an action involves title to or seeksrecovery of possession, partition or condemnation of, or foreclosure ofmortgage on, real property, such an action must be deemed a real action andmust perforce be commenced and tried in the province where the property orany part thereof lies.

D E C I S I O N

BELLOSILLO, J p:

We are called upon in this case to determine the proper venue of an action tofix the period of a contract of lease which, in the main, also prays for

damages. Cdpr

Sometime in 1973, petitioner JORGE C. PADERANGA and privaterespondent ELUMBA INDUSTRIES COMPANY, a partnership representedby its General Manager JOSE J. ELUMBA, entered into an oral contract oflease for the use of a commercial space within a building owned by petitionerin Ozamiz City. 1 The lease was for an indefinite period although the rent ofP150.00 per month was paid on a month-to-month basis. ELUMBAINDUSTRIES COMPANY utilized the area under lease as the Sales Office of

Allied Air Freight in Ozamiz City.

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On 4 April 1977, PADERANGA subdivided the leased premises into two (2)by constructing a partition wall in between. He then took possession of theother half, which repossession was said to have been undertaken with theacquiescence of the local manager of ELUMBA, 2 although privaterespondent maintains that this is not the case. 3 At any rate, the validity ofthe repossession is not here in issue.

On 18 July 1977, private respondent instituted an action for damages 4which, at the same time, prayed for the fixing of the period of lease at five (5)

years, before the then Court of First Instance of Zamboanga del Norte basedin Dipolog City. 5 Petitioner, a resident of Ozamiz City, moved for itsdismissal contending that the action was a real action which should havebeen filed with the Court of First Instance of Misamis Occidental stationed inOzamiz City where the property in question was situated. LLphil

On 6 November 1978, respondent Judge Dimalanes B. Buissan denied theMotion to Dismiss and held that Civil Case No. 2901 merely involved theenforcement of the contract of lease, and while affecting a portion of realproperty, there was no question of ownership raised. 6 Hence, venue wasproperly laid.

Petitioner pleaded for reconsideration of the order denying his Motion toDismiss. He contended that while the action did not involve a question ofownership, it was nevertheless seeking recovery of possession; thus, it wasa real action which, consequently, must be filed in Ozamiz City. 7

On 4 December 1978, respondent judge denied reconsideration. 8 Whileadmitting that Civil Case No. 2901 did pray for recovery of possession, henonetheless ruled that this matter was not the main issue at hand; neitherwas the question of ownership raised. Not satisfied, petitioner instituted thepresent recourse.

PADERANGA argues that inasmuch as ELUMBA seeks to recoverpossession of the portion surrendered to him by the local manager of privaterespondent, as well as to fix the period of lease at five (5) years, Dipolog Citycould not be the proper venue of the action. It being a real action, venue islaid in the court having jurisdiction over the territory in which the property lies.

ELUMBA counters that the present action is chiefly for damages arising froman alleged breach in the lease contract; hence, the issue of recovery ofpossession is merely incidental. ELUMBA further argues that the action isone in personam and not in rem. Therefore venue may be laid in the placewhere plaintiff or defendant resides at the option of plaintiff.

Private respondent appears to be confused over the difference betweenpersonal and real actions vis-a-vis actions in personam and in rem. Theformer determines venue; the latter, the binding effect of a decision the courtmay render over a party, whether impleaded or not. cdphil

In the case before us, it is indubitable that the action instituted by privaterespondent against petitioner affects the parties alone, not the whole world.Hence, it is an action in personam, i.e., any judgment therein is binding onlyupon the parties properly impleaded. 9 However, this does not automatically

mean that the action for damages and to fix the period of the lease contractis also a personal action. For, a personal action may not necessarily be anaction in personam and a real action may not at the same time be an actionin rem. In Hernandez v. Rural Bank of Lucena, Inc., 10 we held thus

In a personal action, the plaintiff seeks the recovery of personal property, theenforcement of a contract or the recovery of damages. In a real action, theplaintiff seeks the recovery of real property, or, as indicated in section 2(a) ofRule 4, a real action is an action affecting title to real property or for therecovery of possession, or for partition or condemnation of, or foreclosure ofa mortgage on, real property.

An action in personam is an action against a person on the basis of hispersonal liability, while an action in rem is an action against the thing itself,instead of against the person. Hence, a real action may at the same time bean action in personam and not necessarily an action in rem.

Consequently, the distinction between an action in personam and an actionin rem for purposes of determining venue is irrelevant. Instead, it isimperative to find out if the action filed is a personal action or a real action.

After all, personal actions may be instituted in the Regional Trial Court (thenCourt of First Instance) where the defendant or any of the defendants residesor may be found, or where the plaintiff or any of the plaintiffs resides, at theelection of the plaintiff. 11 On the other hand, real actions should be brought

before the Regional Trial Court having jurisdiction over the territory in whichthe subject property or part thereof lies. 12

While the instant action is for damages arising from an alleged breach of thelease contract, it likewise prays for the fixing of the period of lease at five (5)years. If found meritorious, private respondent will be entitled to remain notonly as lessee for another five (5) years but also to the recovery of theportion earlier taken from him as well. This is because the leased premisesunder the original contract was the whole commercial space itself and not

just the subdivided portion thereof.

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While it may be that the instant complaint does not explicitly pray for recoveryof possession, such is the necessary consequence thereof. 13 The instantaction therefore does not operate to efface the fundamental and primeobjective of the nature of the case which is to recover the one-half portionrepossessed by the lessor, herein petitioner. 14 Indeed, where the ultimatepurpose of an action involves title to or seeks recovery of possession,partition or condemnation of, or foreclosure of mortgage on, real property, 15such an action must be deemed a real action and must perforce becommenced and tried in the province where the property or any part thereof

lies.

Respondent judge, therefore, in denying petitioner's Motion to Dismissgravely abused his discretion amounting to lack or excess of jurisdiction.

WHEREFORE, the Petition for Prohibition is GRANTED. The Orders of 6November 1978 and 4 December 1978 of respondent Judge Dimalanes B.Buissan are SET ASIDE. The branch of the Regional Trial Court of DipologCity where Civil Case No. 2901 may be presently assigned is DIRECTED toDISMISS the case for improper venue. This decision is immediatelyexecutory.

Costs against private respondent ELUMBA INDUSTRIES COMPANY.

SO ORDERED.

Cruz, Davide, Jr. and Quiason, JJ ., concur.

Footnotes

1. Amended Petition, p. 4; Rollo, p. 78.

2. Motion to Dismiss, p. 4; Annex "D", Amended Petition.

3. Complaint, p. 3; Annex "C", Amended Petition.

4. Docketed as Civil Case No. 2901. Private respondent seeks thefollowing amounts as damages: (a) P100,000.00 as moral damages; (b)P50,000 as exemplary damages; (c) P5,000.00 as attorney's fees; and, (d)P1,000.00 as costs of suit.

5. Raffled to Branch III.

6. CFI Order, 6 November 1978; Rollo, p. 67.

7. Motion for Reconsideration, p. 1; Rollo, p. 68.

8. CFI Order, 4 December 1978; Rollo, p. 72.

9. Ching v. Court of Appeals, G.R. No. 59731, 11 January 1990, 181SCRA 9.

10. No. L-29791, 10 January 1978, 81 SCRA 75, 84-85.

11. Fortune Motors (Phils.), Inc. v. Court of Appeals, G.R. No. 76431, 16October 1989, 178 SCRA 565, citing Sec. 1, Rule 4, Revised Rules of Court.

12. Carandang v. Court of Appeals, No. L-44932, 15 April 1988, 160SCRA 266.

13. Tenorio v. Pao, No. L-48117, 27 November 1986, 146 SCRA 74.

14. Punsalan, Jr. v. Vda. de Lacsamana, G.R. No. 55729, 28 March1983, 121 SCRA 331.

15. Sec. 2, par. (a), Rule 4, Revised Rules of Court.

C o p y r i g h t 1 9 9 4 - 1 9 9 9 C D T e c h n o l o g i e s A s i a, I n c.

A.M. No. RTJ-91-672 September 28, 1993

SPS. JOSE AND ILUMINADA SY BANG vs. ANTONIO MENDEZ, SR.

EN BANC

[A.M. No. RTJ-91-672. September 28, 1993.]

SPOUSES JOSE SY BANG AND ILUMINADA TAN, complainants, vs.

JUDGE ANTONIO MENDEZ, SR., respondent.

Eduardo R. Santos for complainants.

Edmundo T. Zepeda for respondent.

SYLLABUS

1. REMEDIAL LAW; CIVIL PROCEDURE; VENUE; CONSTRUED. In his report and recommendation which was received by this Court on April16, 1993, Justice Herrera made the following findings and recommendations

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which this Court adopts, viz.: "Under BP Blg. 129, the Supreme Court shalldefine the territory over which a branch of the Regional Trial Court shallexercise its authority. The territory thus defined shall be deemed to be theterritorial area of the branch concerned for purposes of determining thevenue of all suits, proceedings or action, whether civil or criminal, as well asdetermining the Metropolitan Trial Courts, Municipal Trial Courts, andMunicipal Circuit Trial Courts over which the said branch may exerciseappellate jurisdiction. The power therein granted shall be exercised with aview to making the courts readily accessible to the people of the different

parts of the region and making the attendance of litigants and witnesses asinexpensive as possible (Section 18, B.P. Blg. 129). Pursuant thereto,

Administrative Circular No. 7, Series of 1983, delimited the territorial areabetween the branch sitting in Calauag and the branch sitting in Gumacaseparately from the other. "Respondent judge committed no infraction inacting on the complaint which was directly filed before the GUMACA courtdespite the fact that the subject matter of the complaint is located in Calauagwhich does not fall within his territorial area for purposes of venue albeitwithin the same region, there being no question that he has jurisdiction or thepower to decide the case on the merits as distinguished from venue whichdeals merely on the locality, the place where the suit may be had (Dacoycoyv. Intermediate Appellate Court, 195 SCRA 644).

2. ID.; ID.; ID.; COMPLAINT MAY NOT BE MOTU PROPRIODISMISSED FOR IMPROPER VENUE; RULE. What would have beenimproper was for respondent Judge to motu proprio dismiss the complaint forimproper venue. "As pointed out in Dacoycoy: "Dismissing the complaint onthe ground of improper venue is certainly not the appropriate course of actionat this stage of the proceeding, particularly as venue in inferior courts as wellas in the courts of first instance (now RTC), may be waived expressly orimpliedly. Where defendant fails to challenge timely the venue in a motion todismiss as provided by Section 4, Rule 4 of the Rules of Court, and allowsthe trial to be held and a decision to be rendered, he cannot on appeal or in aspecial action be permitted to challenge belatedly the wrong venue, which is

deemed waived. (Ocampo vs. Domingo, 38 SCRA 134 (1971). "Thus, unlessand until the defendant objects to the venue in a motion to dismiss, thevenue cannot be truly said to have been improperly laid, as for all practicalintents and purposes, the venue, though technically wrong, may beacceptable to the parties for whose convenience the rules on venue hadbeen devised. The trial court cannot pre-empt the defendant's prerogative toobject to the improper laying of the venue by motu propio dismissing thecase (Dacoycoy vs. IAC, 195 SCRA 644) "In this case petitioner did nottimely raise the propriety of the venue but instead filed his answer withcounterclaim. In so doing, petitioner as defendant waived improper venue

(Section 4, Rule 4, [Rules of Court]; International Trading Corporation vs.M.V. Zillena, G.R. No. 102904, October 30, 1992, [215 SCRA 309]).

3. ID.; ID.; FORUM SHOPPING; NOT APPLICABLE IN CASE AT BAR. "Forum shopping may not be attributed to Respondent Judge who hasnothing to do with the filing of the case with the Gumaca Court. This was nothis choice but that of the plaintiff brought about by unforeseencircumstances. When Civil Case No. 2137 was filed, there was no PresidingJudge at Calauag. Plaintiff's complaint in Makati was ordered dismissed by

the Court of Appeals, but even before the decision could become final andexecutory, the complaint alleged that defendants were already starting toperform the acts complained of. Plaintiff believes that it is entitled to aninjunction and hence resorted to the next available remedy which was thefiling of another case not in Calauag because there was no Judge butin the Gumaca Court whose writ is enforceable in the same region where theproperty is located. The fact that the complaint was originally intended to befiled in Calauag is shown by the caption of the Complaint. If the originalintention was to file it in Gumaca, then that is the Court which would havebeen placed in the Caption of the Complaint. "The complaint as formulatedby the plaintiff made it appear that the issue before the Court of Appealssimply is venue while the issue before respondent Judge is the need for the

issuance of a preliminary injunction. Altho(ugh) the denial of venue by theCourt of Appeals in the Makati Court would result, as it did, in the lifting of thepreliminary injunction issued by the latter, it is undeniable that the sameremedy may thereafter be sought for (sic) in the proper venue withoutviolating the rule on forum shopping. Basically, the remedy of injunction wasnot obtained in Makati not because it is unmeritorious, but only because theCourt of Appeals ruled that the Makati Court is without authority to grant theinjunction it being an improper venue. This means that injunction may besought for (sic) before the Court with proper authority to grant the writ. "Uponthe other hand, there was no Presiding Judge in Branch 61 of the GumacaCourt. Only respondent Judge of Branch 62 was available, and since anurgent matter was presented before him for action, hence, he has no choice

but to act one way or the other on the premises. "There was no need tosecure a prior authorization from the Supreme Court for respondent Judge toact on the application for the issuance of a preliminary mandatory injunctionfor as a court, it has jurisdiction to act on the case and to issue writsenforceable within its region. The only limitation thereto is the rule on venuewhich respondent Judge may not apply motu proprio. "What may probablytaint the action with forum shopping is that at the time the complaint was filedin Gumaca, there was still a pending motion for reconsideration before theCourt of Appeals of its decision ordering the dismissal of the Makati case.Given, however, the circumstances of the case, We are not prepared to

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conclude that in acting on the complaint before him, respondent Judgeconsented to forum shopping.

4. LEGAL ETHICS; JUDGES; MUST SHOW IMPARTIALITY IN THEIRDECISIONS; CASE AT BAR. What has not been satisfactorily explainedby respondent Judge, is why he immediately denied petitioner'sManifestation and Motion seeking the dismissal of Civil Case No. 2137-G onthe ground of pendency of another case on the same cause of actionbetween the litigant before the Makati Regional Trial Court Civil Case No.

90-3511 even before the scheduled date of hearing on the ground that it ismoot and academic. The motion was set for hearing on May 23, 1991 at 2:00o'clock in the afternoon, only for complainant to find out that respondentJudge denied the motion without a hearing on May 21, 1991 for being mootand academic (Annex E Ad. Complaint). There was still pending at the time aMotion For Reconsideration of the decision dismissing the Makati case,before the Court of Appeals. When respondent Judge denied the Motion ToDismiss based on the pendency of another action, the Makati case was stillpending. The motion for reconsideration of the decision dismissing theMakati case was only denied per resolution of the Court of Appeals on May22, 1991, and in any event then, respondent Judge could not haveimmediately learned of such denial to justify his declaration on May 21, 1992

that the motion before him has become moot and academic. "The action ofrespondent Judge in peremptorily and prematurely denying the Motion ToDismiss before the scheduled date of hearing without granting complainant achance to be heard on their motion, is highly improper justifiably giving rise toa perceived partiality. By this singular act respondent rendered the totality ofhis past conduct on the case suspect. To the complainants' perception, thisis a confirmation of their suspicion that respondent Judge was partial to theplaintiff. Such conduct is not in consonance with the dictum that his conductat all times must not only be characterized with propriety and decorum butabove all else must be above suspicion. The Judge must not only beimpartial (Fernandez v. Presbiterio, 79 SCRA 61). A litigant is entitled to noless than the cold neutrality of an impartial judge. Respondent's action has

placed his integrity, independence and impartiality under a cloud which is inviolation of the code of judicial conduct which requires every judge to be anembodiment of competence, integrity and independence."

D E C I S I O N

PUNO, J p:

This is an administrative case filed by complainant-spouses Jose Sy Bangand Iluminada Tan against respondent judge for gross impropriety, blatantpartiality, serious irregularities and knowingly issuing unjust orders in CivilCase No. 2137-G entitled, "Suarez Agro-Industrial Development Corporation

v. Development Bank of the Philippines and Spouses Jose Sy Bang andIluminada Tan."

On February 11, 1992, the Court referred the complaint to Associate JusticeOscar M. Herrera of the Court of Appeals for investigation, report andrecommendation.

On April 16, 1993, Justice Herrera submitted a report which established thefollowing facts:

Two (2) lots, with an ice plant and improvements thereon situated atCalauag, Quezon, were originally owned by DBP and were leased to Suarez

Agro-Industrial Corporation (corporation, for brevity) for a period of one yearstarting on July 1, 1983. After the one year period, DBP allowed thecorporation to continue leasing said properties on a monthly basis. Thecorporation, however, became delinquent in its rental pay