SPOUSES VALENTINO ORTIZ AND CAMILLA MILAN ORTIZ, petitioners, vs. COURT OF APPEALS and SPOUSES FRANCISCO AND BERNARDINA RODRIGUEZ, respondents.

D E C I S I O N

QUISUMBING, J.:

Petitioners seeks a review of the decision[1] of the Court of Appeals in CA- G.R. CV 42238 dated October 18, 1996, and it’s resolution[2] dated December 03, 1996, on the motion for reconsideration, dismissing the case for failure of the petitioners to comply strictly with the Rules of Court. The appellate court decreed, thus:

“WHEREFORE, for not being sufficient in form and substance, the instant Petition for Review is hereby DENIED due course and accordingly DISMISSED outright.”[3]

The factual background of this petition is as follows:

The spouses Francisco and Bernardina Rodriguez, herein private respondents (hereafter the “Rodriguezes”), filed an action for ejectment in the Metropolitan Trial Court (MeTC) of Parañaque, Branch 77, against Valentin and Camilla Ortiz, herein petitioners (hereafter the “Ortizes”), who are lessees of Cristopher and Angelica Barramedas, on the ground that they are the real owners of the house and lot or the subject property. MeTC, Branch 77,  awarded the possession of the property in favor of the  Rodriguezes.

The Ortizes appealed the Parañaque MeTC decision to the RTC of Parañaque, Branch 257. On August 30, 1996, the latter court found no reversible error in the assailed judgment, and thus affirmed it in toto. On September 27, 1996, the Rodriguezes filed the Motion for Issuance of Writ of Execution of judgment, which was opposed by the herein petitioners on October 24, 1996.

Upon the Parañaque RTC’s denial of the Opposition to Motion for Issuance of Writ of Execution, the petitioner Ortizes appealed to the Court of Appeals (“CA”). The petition was dismissed on the following grounds: (1) the certification of non-forum shopping was signed by the counsel and not by the petitioners themselves, and (2) the copy of the RTC decision is not duly certified as a true copy as required by Sec. 3 (b), Rule 6 of the Revised Internal Rules of CA. Further, the supposed duplicate original copy of said decision does not bear the dry seal of the trial court, but merely stamped “Original Signed,” which appears above the name of the judge.

Hence, the petitioners now come before us, and raise the following grounds in support of the petition:

“I The Court of Appeals is clear contravention of the rules of Court, and the ruling in Gabionza v. Court of Appeals, 234 SCRA 192, Loyola v. Court of Appeals, 245 SCRA 477 and Kavinta v. Castillo, 249 SCRA 604 gravely erred in dismissing the Ortizes' petition review, and/or in failing to reconsider such dismissal.

II. The Court of Appeals gravely erred in failing to rule on the issue of lack of jurisdiction of the MTC which had decided the issue of ownership.

III. The Court of Appeals gravely erred in ignoring the issue of forum shopping raised against the Rodriguezes, and thus sanctioned a violation of Circular Nos. 28-91 and 04-94.”[4]

From the foregoing factual and procedural antecedents, the main issue for our resolution is:

DID THE RESPONDENT COURT OF APPEALS ERR IN DISMISSING THE PETITION FOR REVIEW UNDER RULE 41 OF THE REVISED RULES OF COURT AS AMENDED, FOR FAILURE OF PETITIONERS TO FAITHFULLY COMPLY WITH THE PROCEDURAL REQUIREMENTS SET FORTH IN SC CIRCULAR NO. 28-91 AND SC ADMINISTRATIVE CIRCULARS NO. 3-96?

To resolve the issue, it should be recalled that Revised Circular No. 28-91[5] provides that the party must certify under oath that he has not commenced any other action or proceeding involving the same issues in the Supreme Court, the Court of Appeals, or different Divisions thereof, or any other tribunal or agency, and that to the best of his knowledge, no such action or proceeding is pending in the Supreme Court, the Court of Appeals, or different Division thereof, or any other tribunal or agency[6] (Emphasis supplied)

Petitioners admit that their lawyer, Atty. Ma. Filomena Singh-Paulite, signed the Certification on Non-Forum Shopping. Allegedly, Atty. Paulite has personal knowledge that the Ortizes had not commenced any other action or proceeding involving the same parties and causes of action. Petitioners now assert that their lawyer’s signature must be accepted as substantial compliance with the requirements of the Circular.

Regrettably, we find that substantial compliance will not suffice in a matter involving strict observance as provided for in Circular No. 28-91. The attestation contained in the certification on non-forum shopping requires personal knowledge by the party who executed  the same. To merit the Court’s consideration, petitioners here must show reasonable cause for failure to personally sign the certification. The petitioners must convince the court that the outright dismissal of the petition would defeat the administration of justice. However, the petitioners did not give any explanation to warrant  their exemption from the strict application of rule. Utter disregard of the rules cannot justly be rationalized by harking on the policy of liberal construction.

Concerning the second ground for the appellate court’s dismissal of the petition, it is required that:

“2 The duplicate original copy must be duly signed or initialled by the authorities or the corresponding officers or representative of the issuing entity, or shall at least bear the dry seal thereof or any other official indication of the authenticity and completeness of such copy.”[7] (Emphasis ours.)

Petitioners contend that they attached the very same duplicate original copy of the decision which they revised from the RTC. Said duplicate original copy of the decision, having come from the trial court itself., petitioners believed in good faith that, by attaching it to the petition, they would be considered to have substantially complied with the filing requirements under the law. However, strict compliance with procedural requirements in taking an appeal cannot be substituted by “good faith compliance.” To rule otherwise would defeat the very purpose of the rules of procedure, i. e., to “facilitate the orderly administration of justice.”[8]

Although the petitioners subsequently submitted to the CA the corrected annexes of the Petition for review, the respondent court ruled that  it did not stop the questioned decision from becoming final and executory.

The petitioners failed to fully satisfy the CA or this Court that (1) the non-compliance with the requirements was not in any way attributable to them; (2) they exerted due diligence; (3) there are highly justifiable and  compelling reasons for the court to make a disposition in the interest of justice.[9]

The Petition for review filed by the Ortizes’ with the CA was an appeal from the RTC in the exercise of its appellate jurisdiction. Consequently, the Ortizes should bear in mind that the right to appeal is not a natural right to a part of due process; it is merely a statutory privilege, and may be exercised only in manner and in accordance with the provisions of the law. [10] The party who seeks to avail of the same must comply with the requirements of the rules, Failing to do so, the right to appeal is lost.[11] Rules  of Procedure are required to be followed, except only when for the most persuasive of reasons, they must be relaxed to relieve a litigant of an injustice not commensurate with the degree of his thoughtlessness in not complying with the procedure prescribed.[12]

WHEREFORE, finding no reversible error nor grave abuse of discretion committed by public respondent, the Court resolved to DENY the Petition for Review on Certiorari and AFFIRM the decision in CA-G.R. CV 42238. COST against the petitioners.

SO ORDERED.

G.R. No. 155094             January 30, 2007

MANUEL O. ORIENTE, Petitioner, vs.PEOPLE OF THE PHILIPPINES, Respondent.

D E C I S I O N

AUSTRIA-MARTINEZ, J.:

For review before the Court are the Decision1 dated February 14, 2002 of the Court of Appeals (CA) which affirmed the Decision of the Regional Trial Court of Quezon City, Branch 103 (RTC), dated November 15, 1999, in Criminal Case No. 96-65313, finding Manuel Oriente (petitioner) guilty of the crime of Homicide; and the CA Resolution2 dated September 9, 2002 which denied petitioner’s Motion for Reconsideration.

An Information dated March 18, 1996 was filed with the RTC charging the petitioner with the crime of Murder, committed as follows:

That on or about the 16th day of March 1996, in Quezon City, Philippines, the said accused conspiring, confederating with three other persons whose true names and whereabouts have not as yet been ascertained and mutually helping one another, with intent to kill, qualified by evident premeditation and treachery, taking advantage of superior strength, did then and there willfully, unlawfully and feloniously attack, assault and employ personal violence upon the person of one ROMULO CARIÑO Y VALLO by then and there hitting him with a lead pipe on the different parts of his body thereby inflicting upon him serious and mortal wounds which were the direct and immediate cause of his death, to the damage and prejudice of the heirs of the victim.

CONTRARY TO LAW.3

Upon arraignment, petitioner pleaded not guilty to the crime charged. Thereafter, trial on the merits ensued.

The evidence presented by the parties, as summarized by the CA, are as follows:

The prosecution’s version of the case is as follows:

On 16 March 1996, at around 10:00 o’clock in the evening, Arnel Tanael was on his way to the house of Romulo Cariño y Vallo at No. 40 Lukban Street, Area 9, Luzon Avenue, Brgy. Pasong Tamo, Tandang Sora, Quezon City. He passed in front of the house of [petitioner] Manuel Oriente and saw the latter and his companions having a drinking spree at the terrace of the [petitioner’s] house. He arrived at Romulo’s house where the latter was drinking beer alone. Thereafter, Romulo went out of the house to buy cigarette. While watching television in the house of Romulo, Arnel Tanael heard two gunshots. Hence, he rushed outside the house to check on what the gunshots were all about.

Peeping through potted plants (about 3 feet high) perched on top of a neighbor’s fence (about 2 feet high), and at a distance of more or less eight (8) meters, he saw Romulo Cariño, [petitioner] Manuel Oriente, the latter’s daughter Marilou Lopez and the latter’s husband, Paul Lopez and one Rogelio Gascon arguing along the alley beside the concrete fence in front of Manuel Oriente’s house where there was a lighted fluorescent light. He heard Paul Lopez telling Romulo Cariño, "Ikaw Cariño, and

liit-liit mo, and yabang mo!" Then Arnel Tanael saw Marilou coming out from their house with a lead pipe and handed it over to Paul. Paul then hit Romulo with a lead pipe at his right arm. Accused-appellant got the lead pipe from Paul and hit Romulo on his left eyebrow. Romulo reeled and fell down. Upon seeing Romulo fall down, Arnel got confused, hence, he went back inside the house and switched off the light and turned the television off. He went outside again and saw Romulo moaning. At this point, Paul Lopez was already poking a gun at Romulo, then pulled the trigger twice but the gun did not fire. Arnel then shouted, "Putang ina ninyo, bakit niyo ginagawa iyan sa bayaw ko, bakit ninyo ginaganito siya, ano ba ang kasalanan niya sa inyo." Oriente and his company did not say anything. Arnel carried Romulo and brought the latter inside the house. He called up Mario at the Panabuilt Transport office to get a cab. When the cab arrived, Romulo Cariño was brought by Arnel to the East Avenue Medical Center where Romulo, two hours after, passed away.

Dr. Roberto Garcia, the NBI Medico-Legal Officer who conducted the post-mortem examination on the victim’s cadaver declared that the cause of death of Romulo Cariño was traumatic head injury. He opined that even with immediate and adequate medical attendance, the victim would not have survived due to the extensive nature of hemorrhage suffered by Romulo.

In an attempt to exculpate [the petitioner], the defense gave the following version:

On the night of the commission of the crime, [petitioner] Manuel Oriente was fetched by Tanod members in their area to attend a wake. It was already the Tanods’ off-duty. While he was on his way out of the house, he saw spouses Paul and Malou and his granddaughter inside the car going out of the garage. The three went to visit Malou’s in-laws.

At the gate of his house, while having a conversation with the Tanod members who fetched him, they heard two gunshots coming from downhill. They noticed that the person who fired the shots was walking towards them. They waited for him to pass by. This person was Romulo Cariño. When the latter reached a store, which is a fence away from Oriente’s house, the latter asked Romulo what was his problem. Suddenly, Cariño extended his arms and poked [his] gun to Oriente and his companions. Romulo told them not to get near him or he will shoot and kill all of them. Surprised by the victim’s response and for fear of being shot, [petitioner] Oriente stepped back towards his yard and was able to take hold of a piece of wood and hit Romulo. [Petitioner] Oriente mentioned that he does not know if he hit Cariño’s hands, eyebrow and other parts of his body with that single blow but he saw Romulo Cariño lose his balance, fall and hit his head on the ground. The victim was still holding the gun. After five seconds, Romulo Cariño stood up and ran (pasuray-suray) towards the direction of his house. Fearing that Cariño will shoot them if they would go after him, [petitioner] Oriente told the Tanods that they will just attend to him the following day. [Petitioner] Oriente further testified that he had no intention of killing Cariño and that his purpose was only to disarm him.4

The RTC rendered a Decision dated November 4, 1999 convicting the petitioner of the crime of Homicide. The dispositive portion of the Decision states:

ACCORDINGLY, the court renders judgment finding the accused MANUEL ORIENTE Y ORILLO GUILTY beyond reasonable doubt as Principal of the crime of HOMICIDE as defined and penalized by the Revised Penal Code with two (2) mitigating circumstances of lack of intent to commit so grave a wrong and sufficient provocation and so he is hereby sentenced to suffer a jail term of Six (6) Months of Arresto Mayor as minimum and Four Years and One (1) Day of Prision Correctional as maximum.

On the civil aspect, the accused Manuel Oriente y Orillo is ordered to pay the lawful heirs of the victim Romulo Carino y Orillo the sum of P41,500.00 as actual damages and P50,000.00 as indemnification damages.

Costs against the accused.

SO ORDERED.5

However, on November 12, 1999, before the foregoing judgment became final and executory, the RTC issued an Order motu proprio setting aside the said judgment because of a mistake in the "judgment proper" and requiring both petitioner and his counsel to appear before the court on November 17, 1999.6

On the latter date, the RTC promulgated its second Decision dated November 15, 1999, the dispositive portion of which states:

ACCORDINGLY, the court renders judgment finding the accused MANUEL ORIENTE y Orillo GUILTY beyond reasonable doubt as Principal of the crime of HOMICIDE as defined and penalized by the Revised Penal Code with two (2) mitigating circumstances of lack of intent to commit so grave a wrong and sufficient provocation and so, applying Article 64, paragraph 5, of the Revised Penal Code and also the Indeterminate Sentence Law, [the] accused is hereby sentenced to suffer an indeterminate jail term of Four (4) Years, Two (2) Months and One (1) Day of Prision Correccional as minimum and Eight (8) Years and One (1) Day of Prision Mayor as maximum.

On the civil aspect, the accused Manuel Oriente y Orillo is ordered to pay the lawful heirs of the victim Romulo Cariño y Vallo the sum of P41,500.00 as actual damages and P50,000.00 as indemnification damages.

Costs against the accused.

SO ORDERED.7 (Emphasis supplied)

The RTC found that the testimonies of the defense witnesses, including the petitioner, are incredible; that the victim suffered extensive head injuries; that the defense failed to show any imminent threat or danger to the life of the accused; that the accused has in his favor the mitigating circumstance of lack of intent to commit so grave a wrong under Article 4 of the Revised Penal Code; that there was sufficient provocation on the part of the victim since the incident was preceded by an intense argument, and, therefore, the provocation qualifies as another mitigating circumstance in favor of the petitioner; that treachery is not present since there was an altercation immediately preceding the incident; that the prosecution failed to prove the elements of evident premeditation; that there is no clear showing that the accused took advantage of superior strength; and, finally, that the prosecution duly proved actual damages amounting to P38,500.00 for the funeral services and P3,000.00 for the cemetery lot and religious services, while the other expenses were not supported by evidence.

The petitioner appealed to the CA. On February 14, 2002, the CA rendered its Decision, the dispositive portion of which states:

WHEREFORE, in view of the foregoing, the decision dated 4 November 1999 rendered by the trial court is hereby AFFIRMED with MODIFICATION that the penalty imposed is an indeterminate prison term of six (6) years and one (1) day of prision mayor as minimum to twelve (12) years and one (1) day of reclusion temporal as maximum, and to indemnify the heirs of the deceased Romulo Cariño y Vallo in the amount of Fifty Thousand (P50,000.00) Pesos.

SO ORDERED.8 (Emphasis supplied)

The CA held that there is no cogent reason to depart from the findings of the RTC convicting the petitioner; that, at most, the inconsistencies of prosecution witness Arnel Tanael refer to minor details only, which tend to strengthen, rather than weaken, his credibility, and, moreover, prove that his testimony was unrehearsed; that, all in all, the testimonies of the prosecution witnesses are highly credible; that the evaluation of the testimonies of the eyewitnesses by the RTC should be accorded great weight and respect; that the testimony of Tanael on the injuries inflicted on the victim is supported by the findings of the NBI medico-legal officer as stated in the post mortem report; that the detailed testimony of a witness in homicide cases acquires greater weight and credibility if it corresponds with the autopsy report; that the mere fact that the judge who penned the decision was not the same judge who heard the testimonies of the witnesses does not ipso facto render the decision erroneous, more so when the judgment appears to be fully supported by the evidence on record; that the alleged act of the victim poking the gun at the petitioner and his companions does not constitute unlawful aggression, an essential requirement for self-defense, since the mere aiming of the gun and threat to kill merely constitute a threat or intimidating attitude which does not amount to an actual and unexpected attack or imminent danger thereof; and that the accused did not resist but went peacefully with the police authorities when the latter invited the petitioner to the station does not amount to voluntary surrender.

Finding that the RTC erred in finding that two mitigating circumstances were present, namely, lack of intent to commit so grave a wrong and sufficient provocation or threat on the part of the offended party immediately preceding the act, the CA modified the penalty imposed by the RTC. According to the CA, the extensive nature of the injuries as stated in the post-mortem findings negates the contention of the petitioner that he had no intention of killing the victim because his purpose was only to disarm him; and the provocation, if any, done by the victim was not immediate to the act of petitioner’s beating the victim, since a certain Paul Lopez had already previously assaulted the victim, and, moreover, there was a sufficient interval of time between the provocation of the offended party and the commission of the crime by the petitioner.

Hence, herein petition for review raising the following assignment of errors:

A.

THE HON. COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THE DECISION OF THE LOWER COURT THAT THE ACCUSED IS GUILTY OF HOMICIDE ALTHOUGH IT WAS OBVIOUS THAT THE LOWER COURT FOUND OUT THAT THERE WAS NO INTENT ON THE PART OF THE PETITIONER TO COMMIT SAID CRIME AND THERE WAS NO PROVOCATION AT ALL ON HIS PART;

B.

THE HON. COURT OF APPEALS AND THE REGIONAL TRIAL COURT BELOW ERRED IN NOT APPRECIATING THAT THERE WAS AN UNLAWFUL AGGRESSION ON THE PART OF THE VICTIM, AND THE MEANS EMPLOYED BY PETITIONER TO PREVENT THE SAME WAS REASONABLE AND FALLS UNDER THE JUSTIFYING CIRCUMSTANCES OR SELF-DEFENSE;

C.

THE HON. COURT OF APPEALS AND THE LOWER COURT GRAVELY ERRED IN GIVING CREDENCE TO THE TESTIMONY OF THE LONE ALLEGED EYE WITNESS, WHEN SAID TESTIMONY HAS FULL OF INCONSISTENCIES; AND

D.

THE HON. COURT OF APPEALS HAS COMMITTED GRAVE ABUSE OF DISCRETION TANTAMOUNT TO LACK OF JURISDICTION WHEN IT MODIFIED THE DECISION OF THE REGIONAL TRIAL COURT, INCREASING THE PENALTY THEREOF WITHOUT ANY DISCUSSION OR EXPLANATION IN THE DECISION ITSELF WHY SAID MODIFICATION OF PENALTY IS NECESSARY AND IN ACCORDANCE WITH LAW.

The Court affirms the conviction of the petitioner except as to damages and the penalty imposed.

The petitioner emphasizes that the victim, allegedly a troublemaker in the vicinity, was drunk, fired his gun twice, and then proceeded towards the petitioner and his companions. Petitioner argues that the victim’s act of poking the gun at him constitutes unlawful aggression sufficient to warrant his claim of self-defense.

The Court is not convinced.

When self-defense is invoked, the burden of evidence shifts to the accused to show that the killing was legally justified. Having owned the killing of the victim, the accused should be able to prove to the satisfaction of the Court the elements of self-defense in order to avail of this extenuating circumstance. He must discharge this burden by clear and convincing evidence. When successful, an otherwise felonious deed would be excused, mainly predicated on the lack of criminal intent of the accused.

Self-defense requires that there be (1) an unlawful aggression by the person injured or killed by the offender, (2) reasonable necessity of the means employed to prevent or repel that unlawful aggression, and (3) lack of sufficient provocation on the part of the person defending himself. All these conditions must concur.9 There can be no self-defense, whether complete or incomplete, unless the victim had committed unlawful aggression against the person who resorted to self-defense.10

Unlawful aggression, a primordial element of self-defense, would presuppose an actual, sudden and unexpected attack or imminent danger on the life and limb of a person – not a mere threatening or intimidating attitude – but most importantly, at the time the defensive action was taken against the aggressor.11 To invoke self-defense successfully, there must have been an unlawful and unprovoked attack that endangered the life of the accused, who was then forced to inflict severe wounds upon the assailant by employing reasonable means to resist the attack.12

The petitioner’s plea of self-defense contradicts common knowledge and experience. No better test has yet been found to measure the value of a witness’ testimony than its conformity to the knowledge of mankind.13

The Court agrees with the findings of the RTC which are supported by the evidence on record:

The testimonies of the defense witnesses, including the accused, that Cariño threatened the persons gathered in front of Oriente’s house with a gun is quite difficult to believe in view of the admissions of the same defense witnesses, including the accused, that Cariño was able to get up from the ground after being hit and ran away with gun in hand. A person who was already threatening to kill with a gun and who was then hit with a piece of wood in a serious manner, can be reasonably expected to make use thereof. Here, the defense makes a rather unusual claim that Cariño simply ran away and did not use the gun he was holding while running.

The testimony of Arnel Tanael that Cariño did not run away but he got him at the place where he fell in the alley beside Oriente’s house appears more credible and reasonable than that of the defense.

Moreover, considering the extensive injuries suffered by Cariño – several contusions on the face and head fractures – it is doubtful that a person in that condition, aggravated by what the defense claimed to be Cariño’s state of stupor (drunk and "pasuray-suray"), could still run, much less hold a handgun while running.

In his testimony, the accused stated that Cariño walked towards him and his companions saying: "Don’t come near me. I will shoot all of you. I will kill all of you." In the first place, why will Cariño utter such statements when there was no evidence by the defense that the accused and/or any of his companions at that time – 10:00 in the evening of March 16, 1996 – and place – in front of the house of the accused at Brgy. Pasong Tamo, Q.C. – were in the act of arresting Cariño. In the second place, the alleged statement of Cariño: "Don’t come near me," shows that there were then persons in the act of going near him. In the third place, if indeed as claimed, Cariño was poking his gun with both arms extended at Oriente and his Tanod-companions, it is quite difficult to appreciate how he could not have seen the person in the act of hitting him right across his face and, as he allegedly threatened, how he could not have shot that person too[,] instinctive self-defense[,] instead of running away with gun in hand.14

Not that the RTC is alone. The CA, too, aptly observed:

x x x We find the testimony of [defense] witnesses highly incredible. Their version is that Cariño, after he was hit with the lead pipe, fell on the ground still holding a gun. Thereafter, he just stood up and ran away. It is surprising, however, why these Tanod members including accused-appellant did not wrestle for the gun when they had all the opportunities to do so when Cariño fell down, if there was indeed a threat to their life and limb. And letting an armed man go would not be the normal reaction of persons in charge of peace and order in the community, especially if the armed man had previously threatened to shoot them. The only logical conclusion is that Cariño was not a threat to them and to their community, for as accused-appellant testified, "they will just deal with him the following day."15

Noteworthy is the testimony of NBI Medico-Legal Officer, Dr. Roberto Garcia, on his findings from his post-mortem examination of the cadaver of the victim that the cause of death was traumatic head injury, viz:

1. abrasion, right forearm;

2. contused-abrasion, left temple;

3. lacerated wounds above the left eyebrow; over the left eyebrow;

4. hematomas orbital, left. Scalp frontal region, left side;

5. fractures, skull

6. hemorrhages: extensive

7. visceral organs, congested.16

On cross-examination, Dr. Garcia opined that even with immediate and adequate medical attendance, the victim would not have survived considering the extensive nature of the hemorrhages found.17 As the RTC held:

[C]onsidering the extensive injuries suffered by the victim – several contusions on the face and head fractures – it is doubtful that a person in that condition, aggravated by what the defense claimed to be Cariño’s state of stupor (drunk and "pasuray-suray"), could still run, much less hold a handgun while running.18

Thus, the defense failed to establish the existence of the gun being pointed at petitioner to constitute unlawful aggression on the part of the victim.

While petitioner avers that the testimony of Arnel Tanael is burdened with improbabilities and inconsistencies, after having owned the crime, however, the burden of proof is reversed and, therefore, he cannot simply protest that the evidence of the prosecution is weak. It then becomes incumbent upon petitioner to rely on the strength of his own evidence and not on the weakness of the evidence of the prosecution, for even if the latter were weak, it could not be disbelieved after he had admitted the killing. Hence, if the accused fails to discharge the burden of proof, his conviction must ensue as a matter of consequence.19

The petitioner insists that the CA erred in modifying the RTC’s decision by increasing the penalty imposed upon him. It is settled that in a criminal case, an appeal throws the whole case

open for review, and it becomes the duty of the appellate court to correct such errors as may be found in the judgment appealed from, whether they are made the subject of assignment of errors or not,20 including the propriety of the imposable penalty.21

There is also no point in considering petitioner’s argument that the RTC promulgated two decisions and, by doing so, he was placed in double jeopardy.

Courts have the inherent power to amend their decisions to make them conformable to law and justice. This prerogative, however, is not absolute. The rules do not contemplate amendments that are substantial in nature.22They merely cover formal changes or such that will not affect the crux of the decision, like the correction of typographical or clerical errors. Courts will violate due process if they make substantial amendments in their decisions without affording the other party the right to contest the new evidence presented in a motion for reconsideration.23 The Court finds that the change in the penalty by the RTC in the instant case did not involve the consideration of any new evidence but a mere "correction" of the penalty imposed to conform with the Revised Penal Code and The Indeterminate Sentence Law.

And as the Solicitor General correctly noted, the trial court modified the penalty in its Decision dated November 15, 1999 before the petitioner could perfect his appeal from the first Decision dated November 4, 1999 which was promulgated on November 10, 1999. Noteworthy is that it was the RTC’s second Decision dated November 15, 1999 which the petitioner elevated on appeal to the CA. It is well settled that when an accused appeals from the sentence of the trial court, he waives the constitutional safeguard against double jeopardy, and, as discussed above, throws the whole case open to the review of the appellate court, which is then called to render judgment as the law and justice dictate, whether favorable or unfavorable, and whether they are made the subject of assigned errors or not. This precept should be borne in mind by every lawyer of an accused who unwittingly takes the risk involved when he decides to appeal his sentence.24

As to the mitigating circumstances, the CA is correct in finding that the RTC erred in appreciating in favor of the petitioner the mitigating circumstances of lack of intent to commit so grave a wrong and sufficient provocation on the part of the victim, Romulo Cariño.

On the first circumstance, the RTC held:

According to the accused, he did not intend to kill Cariño. In turn, Cariño did not die immediately from his wounds as he still lived for around two (2) hours after his body was taken to the hospital. This fact and the fact that Cariño was hit by a hard, blunt object, convince [sic] this court that the intent of the accused to kill Cariño appears to be reasonably doubtful. . . .25

However, the CA correctly took into consideration the post-mortem findings of the NBI medico-legal expert and his testimony that even with immediate and adequate medical attendance, the victim would not have survived due to the extensive nature of the hemorrhage suffered by the victim. The brute force employed by the petitioner contradicts the claim that he had no intention to kill the victim. The mitigating circumstance of lack of intent to commit so grave a wrong as that actually perpetrated cannot be appreciated where the acts employed by the accused were reasonably sufficient to produce and did actually produce the death of the victim.26

On the second circumstance, the RTC pointed to the fact that the incident was preceded by an intense argument between the victim and the accused so as to qualify the situation as a mitigating circumstance of sufficient provocation or threat on the part of the offended party which immediately preceded the act.27

Provocation is defined to be any unjust or improper conduct or act of the offended party, capable of exciting, inciting, or irritating anyone. In order to be mitigating, provocation must be sufficient and should immediately precede the act. Provocation is sufficient if it is adequate to excite a person to commit the wrong, which must accordingly be proportionate in gravity. That the provocation must immediately precede the act means that there should not be any interval of time between the provocation by the offended party and the commission of the crime by the person provoked.28

The fact that a heated or intense argument preceded the incident is not by itself the sufficient provocation on the part of the offended party as contemplated by law. Moreover, petitioner failed to establish by competent evidence that the victim had a gun and used it to threaten petitioner.

With respect to the other aggravating circumstances of treachery, evident premeditation, and grave abuse of superior strength, the Court likewise agrees with the findings of the RTC, as affirmed by the CA, that none of these circumstances are present for lack of evidence.

Thus, the CA is partly correct in modifying the penalty imposed by the RTC. The RTC imposed an indeterminate prison term of four (4) years, two (2) months and one (1) day of prision correccional as minimum to eight (8) years and one (1) day of prision mayor as maximum, while the CA adjusted the sentence upwards since no mitigating circumstances attended the crime, and imposed an indeterminate prison term of six (6) years and one (1) day ofprision mayor as minimum to twelve (12) years and one (1) day of reclusion temporal as maximum. Article 249 of the Revised Penal Code provides that any person found guilty of homicide shall be punished by reclusion temporal, i.e., twelve (12) years and one (1) day to twenty (20) years. Applying Section 1 of the Indeterminate Sentence Law, the minimum term of the sentence shall be within the range of the penalty next lower, which isprision mayor, i.e., anywhere between six (6) years and one (1) day to eight (8) years. The CA appropriately exercised its discretion when it imposed six (6) years and one (1) day of prision mayor as the minimum term.

However, the CA erred in imposing twelve (12) years and one (1) day of reclusion temporal as the maximum term of the indeterminate sentence. In the computation of the maximum term, the law prescribes that the attending circumstances should be considered. There being no aggravating or mitigating circumstance in this case, the penalty that should be imposed is the medium period of the penalty prescribed by law,29 that is, reclusion temporalin its medium period, or, anywhere between fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4) months.

And last, the CA, without reason, omitted a portion of the award of damages by the RTC in the civil aspect of the case, namely, the amount of actual damages which comprised the expenses for the cemetery lot and religious services. In particular, the RTC held that the prosecution was able to prove actual damages amounting toP41,500.00 based on supporting evidence,30 in addition to the death indemnity of P50,000.00 as required by current jurisprudence.31 On the other hand, the dispositive portion of the CA judgment merely ordered petitioner to indemnify the heirs of the deceased victim in the amount of P50,000.00.

The Court restores the full amount of actual damages originally awarded by the RTC.

Moral damages are not awarded for lack of basis in fact and law.32 No witnesses testified to prove the existence of the factual basis therefor.

Pursuant to Article 2230 of the Civil Code, in criminal offenses, exemplary damages may be imposed when the crime is committed with one or more aggravating circumstances. Considering that no aggravating circumstance is present in this case, the lower courts are correct in not awarding exemplary damages.

WHEREFORE, the petition is DENIED. The assailed Decision and Resolution of the Court of Appeals areAFFIRMED with MODIFICATION. The petitioner is found GUILTY beyond reasonable doubt of Homicide and is sentenced to suffer the penalty of an indeterminate sentence of six (6) years and one (1) day of prision mayor as minimum to fourteen (14) years, eight (8) months, and one (1) day, as maximum. The petitioner is further ordered to pay the heirs of the victim the amounts of P50,000.00 as death indemnity and P41,500.00 as actual damages.

SO ORDERED.

G.R. No. 85273. March 9, 1993.

GOVERNMENT SERVICE INSURANCE SYSTEM (GSIS), petitioner, vs. HON. GENARO C. GINES, Judge, RTC, La Union, Br. XXVI, BENGSON COMMERCIAL BUILDING, INC. and THE COURT OF APPEALS, respondents.

The Legal Consultant for petitioner.

Pacifico C. Yadao for private respondent.

SYLLABUS

1. REMEDIAL LAW; CIVIL PROCEDURE; PERFECTION OF APPEAL WITHIN THE REGLEMENTARY PERIOD, NOT ONLY MANDATORY BUT ALSO JURISDICTION. — As this Court held in Estoesta, Sr. v. Court of Appeals (179 SCRA 203, 211-212 [1989]), reiterating the ruling in Agricultural and Industrial Marketing, Inc. vs. Court of Appeals (118 SCRA 49 [1982]), ". . . that perfection of an appeal in the manner and within the reglementary period allowed by law is not only mandatory but also jurisdictional. . . . Thus, if no appeal is perfected on time, the decision becomes final and executory by operation of law after the lapse of the reglementary period of appeal . . . Being final and executory the decision in question can no longer be altered, modified or reversed by the trial court or by the appellate court . . . Accordingly, the prevailing party is entitled as a matter of right, to a writ of execution the issuance of which is a ministerial duty compellable by mandamus. . . ."

2. ID.; CIVIL ACTIONS; CASES WHEN EXECUTION HAS BEEN ISSUED, CONSIDERED STILL PENDING; COURT WHICH RENDERED JUDGMENT HAS GENERAL SUPERVISORY CONTROL OVER ITS PROCESS OF EXECUTION. — As regards the allegation of the GSIS that the court a quo "has embarked on a selective and piece-meal execution/enforcement of the decision of the Court of Appeals, enforcing only those portions of the decision favorable to private respondent, Bengson Commercial Building, Inc., and ignoring or disregarding those portions of the decision of the Court of Appeals favorable to the petitioner, GSIS", this Court has held that a case in which execution has been issued is regarded as still pending so that all proceedings in the execution are proceedings in the suit. Unquestionably, the court which rendered the judgment has a general supervisory control over its process of execution. This power carries with it the right to determine every question of fact and law which may be involved in the execution.

D E C I S I O N

CAMPOS, JR., J p:

This is a petition for certiorari and prohibition seeking to annul the January 19, 1988 decision * of the Court of Appeals in CA-G.R. CV-09361 entitled "Bengson Commercial Bldg., Inc., represented by its President Romualdo F. Bengson, Plaintiff-Appellee versus Government Service Insurance System, Defendant-Appellant" which affirmed the decision ** of the Regional Trial Court, Branch XXVI, San

Fernando, La Union in Civil Case No. 2794 for having been issued in excess of jurisdiction and/or with grave abuse of discretion amounting to lack of jurisdiction and to prohibit the trial court from: a) enforcing the writ of garnishment it issued for the sum of P2,760,000.00 and; b) engaging in the selective piece-meal execution of the Court of Appeals decision.

The antecedent facts are as follows:

Private respondent Bengson Commercial Building, Inc. (BENGSON, for brevity) obtained a loan from the petitioner Government Service Insurance System (GSIS, for brevity) on August 20, 1965 for P1,250,000.00 payable in 15 years at 9% annual interest secured by a mortgage on a parcel of land with buildings thereon covered by Transfer Certificate of Title (TCT) No. T2767 and two other parcels of land covered by TCT No. T5778, all located in San Fernando, La Union, as well as machineries and equipment already existing and those yet to be acquired.

The loan proceeds were made available to BENGSON through checks issued for partial sums on various dates, from November 8, 1965 to September 19, 1968, for a total sum of P1,123,673.09.

On November 23, 1971, BENGSON executed another mortgage contract for a loan of P3,000,000.00, payable in 15 years at 12% annual interest and secured by a mortgage on the same parcels of land located at San Fernando, La Union and two other parcels of land also situated in San Fernando, La Union originally covered by Original Certificate of Title (OCT) No. 323 plus two parcels of land situated in Quezon City covered by TCT Nos. 172452 and 172453.

The proceeds of the second loan were made available to BENGSON through checks issued for partial sums on various dates from December 17, 1971 to July 20, 1973, for a total sum of P1,441,394.43.

On May 26, 1972, BENGSON sold to GSIS nine (9) units of debenture bonds in the total amount of P900,000.00 at 14% annual interest, redeemable in twenty (20) equal quarterly installments.

For having defaulted in the payment of its amortizations, BENGSON received a letter from the GSIS dated November 13, 1974 stating that unless BENGSON settled its arrearages, the GSIS would foreclose the mortgaged properties. On March 20, 1975, the GSIS instituted extrajudicial foreclosure proceedings through the Provincial Sheriff of La Union. The notice of foreclosure was published in the April 25, May 2 and May 9, 1975 issues of the Ilocos Times and the subject of the auction sale were the parcels of land covered by TCT No. T2767, TCT No. T5778, OCT No. 323 as well as the machineries and equipment under mortgage.

On May 9, 1975, BENGSON paid the GSIS P100,000.00 to apply to its loan accounts. For reasons known only to the parties, the scheduled foreclosure on May 12, 1975 was postponed; and, thereafter, the foreclosure was postponed several more times.

On June 20, 1975, BENGSON made another payment in the amount of P10,000.00.

On August 18 and August 22, 1975, BENGSON addressed two separate letters to the GSIS through its General Manager; the first was a request to restructure its scheduled amortization payments and the second, an application for restructuring and additional loan.

On January 13, 1976, BENGSON received a telegram from a "Garrucho GSIS BILD" (GSIS Manager, Commercial and Industrial Loans Department) which reads: "Please see Mr. Edgardo Ramirez and Mr. Juan Dangla re restructing Regent". "Regent" was the Regent Theatre Hotel

Building [8-storey, 70% complete] located on the two parcels of land covered by TCT No. T5778; the other-improvement also located on these two lots was the Bengson Theatre Hotel Building [6-storey, 30% complete].

Between May 9, 1975 to October 11, 1976, BENGSON paid the GSIS a total amount of P286,000.00 to apply to its loan accounts. During the interim, BENGSON and the GSIS were preparing grounds for the grant of an additional loan with or after restructuring the previous two consolidated loan accounts.

On February 10, 1977, the Provincial Sheriff of La Union enforced the foreclosure and conducted a public auction sale wherein the GSIS emerged as the highest bidder, acquiring BENGSON's mortgaged properties at P4,740,000.00. A certificate of sale covering the foreclosed properties was issued four (4) days later. Subsequently, the Register of Deeds of La Union issued to the GSIS these new transfer certificates of title over the foreclosed properties: TCT No. T-10811 cancelling TCT No. 2767, TCT No. T-10812 cancelling TCT No. T5778, and TCT No. 10813 cancelling OCT No. 323.

On March 15, 1977, the GSIS filed with the then Court of First Instance (now Regional Trial Court) an ex-parte petition for the issuance of a writ of possession over the foreclosed properties which the court granted on June 23, 1977 and gave BENGSON ten (10) days within which to file a motion for reconsideration. The court denied the latter's motion for reconsideration on July 29, 1977.

On June 23, 1977, BENGSON filed against the GSIS a petition for annulment of the GSIS's foreclosure of its mortgage loan, restructuring of the loan, cancellation by the La Union Register of Deeds of all sale entries affecting BENGSON's titles over the properties it had mortgaged to the GSIS as security for the loan, and recovery of damages, attorney's fees and costs of suit, docketed as Civil Case No. 2794, with the Court of First Instance (now Regional Trial Court) San Fernando, La Union, Branch XXVI. 1

Under a deed of conditional sale, on April 22, 1981, the GSIS sold to Family Savings Bank BENGSON's foreclosed parcels of land situated in San Fernando, La Union. 2

Civil Case No. 2794 was decided by the court a quo, the dispositive portion of which reads:

"1. Declaring the extrajudicial foreclosure of the plaintiff's properties by defendant null and void ab initio and directing defendant to restore plaintiff in possession of said properties; and the Register of Deeds of La Union to cancel the titles issued to defendant and in lieu thereof to issue new ones in the name of plaintiff;

2. Ordering defendant to restructure the loans of plaintiff amounting to P4,250,000.00 at the legal rate of interest from finality of this judgment;

3. Ordering plaintiff to pay P900,000.00 at the legal rate of interest for the debenture bonds from finality of this judgment; cdll

4. Ordering defendant to reimburse to plaintiff the amount of P1,900,000.00 representing the accrued monthly rentals belonging to plaintiff from February, 1977 and, thereafter, the monthly rental of P20,000.00 until the properties are restore (sic) to the possession of plaintiff; and

5. Ordering defendant to pay costs of suit." 3

On appeal, docketed as CA-G.R. Civil Case No. 09361, the judgment appealed from was affirmed by the Court of Appeals with modification, the dispositive portion of which reads:

"WHEREFORE, we affirm the appealed decision with MODIFICATION, as follows:

1. The foreclosure and auction sale on February 10, 1977 of BENGSON's properties covered by real estate and chattel mortgages mentioned in the notice of sale issued by the La Union provincial sheriff are set aside.

2. The writ of possession issued to GSIS as the highest bidder by the defunct Court of First Instance, sitting as a cadastral court, as a consequence of said foreclosure sale, is annulled.

3. The Register of Deeds of La Union is ordered to cancel the present certificates of title covering those properties and issue new ones in lieu thereof in the same names and with the same annotations, terms and conditions, including the mortgage in question, as appeared (sic) in the previous certificates of title as of the date BENGSON constituted the mortgage on those properties in favor of GSIS, it being understood that all expenses to be incurred incidental to such title cancellation and issuance shall be borne by GSIS.

4. GSIS is ordered to restore to BENGSON full possession of those mortgaged properties situated in San Fernando, La Union.

5. All properties under the mortgage in question, including those parcels of land situated in San Fernando, La Union and in Quezon City, shall remain under mortgage in favor of GSIS.

6. GSIS is ordered to restructure BENGSON's loan as promised, the restructuring to proceed from the premise that as of the foreclosure date, i.e. February 10, 1977, BENGSON had paid GSIS an aggregate amount of P286,000.00 on the subject loan.

7. The interest rates per annum stated in the first and second mortgage loan contracts entered into between BENGSON and GSIS, as well as all other terms and conditions provided for therein — except as qualified by the subsequent agreement of the parties regarding the promised loan restructuring and deferment of foreclosure by reason of the arrearages incurred — shall remain as originally stipulated upon by the parties.

8. BENGSON is ordered to pay GSIS the debenture bond with an aggregate face value of P900,000.00 at the stipulated interest rate of 14% per annum, quarterly; and to pay 14% interest per annum, compounded monthly, on the interest on said debenture bond, that had become due quarterly, in accordance with the stipulations provided for therein.

9. GSIS shall reimburse BENGSON the monthly rent of P20,000.00 representing income produced by one of the latter's mortgaged properties, i.e. the Regent Theatre building, from February 15, 1977 until GSIS shall have restored the full possession of said building, together with the land on which it stands, to BENGSON.

10. The entire record of this case is ordered remanded to the trial court and the latter is directed to ascertain whether such mortgaged properties as machineries, equipment, and other movie paraphernalia, etc., are in fact no longer in existence per report of the provincial sheriff, as well as to determine their replacement value if GSIS fails to return them; and, as prayed for by BENGSON, to receive evidence from the parties on the costs of suit awarded to it.

No pronouncement as to cost of this appeal.

SO ORDERED." 4

The aforequoted decision of the Court of Appeals became final and executory on February 10, 1988 5 and the entire records remanded to the court a quo on March 14, 1988. 6

BENGSON filed an Omnibus Motion 7 on March 31, 1988 for the implementation of Items Nos. 3, 4, 9 and 10 of the Court of Appeals decision. On April 5, 1988, the GSIS filed its "Comment and Manifestation with Counter Motion" 8 praying that the Motion for Execution of BENGSON be denied in the meantime, without prejudice to the court ordering computation of the respective claims of the parties for the purpose of determining which party is still entitled to receive any amount, if still due and owing, or that the execution be simultaneous.

To determine the replacement value of BENGSON's mortgaged properties, an ocular inspection was conducted on May 23-25, 1988 pursuant to the May 5, 1988 order of the court a quo. 9 In the said meeting, the GSIS was represented by Atty. Octavio del Callar, Director, Litigation Group and Atty. Arturo F. Martinez, Office of the Government Corporate Counsel. A report on the ocular inspection conducted was submitted by the Clerk of Court and the Deputy Sheriff on July 11, 1988 10 and noted by the court on July 19, 1988. 11

Documentary evidence for the determination of the replacement value of the mortgaged properties in the amount of P37,951,878.00 was submitted by BENGSON on June 6, 1988. 12

On July 6, 1988, the court a quo issued a resolution/order 13 for the execution of Items 3, 4 and 9 of the Court of Appeals decision and the approval of the documentary evidence presented by BENGSON for the replacement value of the chattels, items, machineries, etc., which were no longer in existence as of May 23, 1988 in the ocular inspection.

BENGSON filed a "Motion for Hearing on Costs of Suit" on July 15, 1988 together with a list of persons from whom moneys were obtained and utilized as "costs of suit". 14 GSIS filed an opposition thereto 15 on July 19, 1988 on the ground that the listing of these persons are hearsay, without probative value and cannot be considered as part of costs of suit.

On the same date, GSIS filed its Motion for Execution 16 of Item No. 8 of the CA Decision which required BENGSON to pay the GSIS debenture bond in the sum of P900,000.00 but which was opposed by BENGSON on July 24, 1988. 17

A writ of execution was issued on August 22, 1988 for Items Nos. 1 and 2 only of the July 6, 1988 Resolution/Order 18 in view of the motion for reconsideration against Item No. 3 of the said Resolution/Order. 19 Consequently, the certificates of title of the properties of BENGSON were cancelled and new ones were issued in the name of Bengson Commercial Building, Inc. on August 30, 1988 20 and BENGSON was placed in full possession of the properties on August 23, 1988, as per certification of the Clerk of Court of the then CFI of San Fernando, La Union dated August 30, 1988. 21

GSIS filed its "Motion to Annul Decision" on August 29, 1988 before the Court of Appeals notwithstanding the final and executory character of said decision. 22

On September 12, 1988, an order was issued by the court a quo denying the GSIS' Motion for Suspension of the Proceedings on the ground that the decision of the Court of Appeals has become

final and executory, and that "the defendant did not lift a finger to question the legality and soundness of the decision" and has even actively participated in the proceeding by presenting evidence in court for the computation of the debenture bond executed by BENGSON in favor of the GSIS. 23

The trial court issued an order 24 on September 14, 1988 directing the Provincial Sheriff of La Union to effect immediately the notice of garnishment to the Philippine National Bank, Escolta, Manila and garnish the amount of P2.76 Million, as prayed for in the "Ex-Parte Application for Notice of Levy" 25 filed by BENGSON on September 12, 1988. Said notice was served on PNB the following day.

An "Urgent Motion for the Issuance of Restraining Order or Injunction" 26 was filed by the GSIS before the Court of Appeals on September 22, 1988. Said motion, as well as the aforementioned Motion to Annul Decision, was noted without further action. 27

Pursuant to the notice of garnishment, the account of GSIS with the Philippine National Bank was placed on a "hold code" 28 and the amount of P2.76 Million was released to the custody of Mr. Romualdo Bengson and/or Atty. Pacifico Yadao on October 27, 1988 in compliance with the October 4, 1988 order of the lower court. 29

On October 14, 1988, GSIS filed this petition for certiorari and prohibition with prayer for a temporary restraining order before this Court after having failed to obtain an order from the trial court to hold in abeyance the execution of the writ of garnishment pending resolution in the Regional Trial Court of San Fernando, La Union of the GSIS's Motion for Reconsideration and Motion to Quash Writ of Garnishment.

A temporary restraining order was issued by this Court on November 16, 1988 enjoining BENGSON from enforcing the decision of the Court of Appeals, 30 which unfortunately came late for the P2.76 Million has already been released to BENGSON on October 27, 1988. This Court gave due course to the petition on October 12, 1989 and further required the parties to submit their respective memoranda. 31 BENGSON complied with said requirement on December 5, 1989 32 while the GSIS submitted its memorandum on January 26, 1990. 33

The principal issue in the case at bar is whether the January 19, 1988 decision of the Court of Appeals, which has been partially executed, can still be challenged.

GSIS contends that the directives embodied in the decision are too vague and incapable of implementation, thereby voiding the entire decision. 34 The directive of the Court of Appeals for the GSIS to "restructure" the loans of BENGSON is incapable of accomplishment because there is nothing in the decision itself, nor in any of the papers submitted by the parties, which gives the parameters as to how said loans will be restructured. 35 Being a void judgment, it may be assailed or impugned at anytime. 36 Furthermore, the directive to restructure, without any given frame of reference, actually infringes on the constitutional right of GSIS to the non-impairment of obligations and contracts and to due process. 37

BENGSON, on the other hand, contends that GSIS cannot invoke the remedy of certiorari after its failure to appeal the January 19, 1988 decision. 38

The petition must fail.

As this Court held in Estoesta, Sr. v. Court of Appeals, 39 reiterating the ruling in Agricultural and Industrial Marketing, Inc. v. Court of Appeals, 40 —

" . . . that perfection of an appeal in the manner and within the reglementary period allowed by law is not only mandatory but also jurisdictional. . . Thus, if no appeal is perfected on time, the decision becomes final and executory by operation of law after the lapse of the reglementary period of appeal . . . Being final and executory the decision in question can no longer be altered, modified or reversed by the trial court or by the appellate court . . . Accordingly, the prevailing party is entitled as a matter of right, to a writ of execution the issuance of which is a ministerial duty compellable by mandamus. . . . "

As aforementioned, the decision of the Court of Appeals became final and executory on February 10, 1988 as shown in the Entry of Judgment on March 10, 1988 and remanded to the court a quo on March 14, 1988. From there, neither a Motion for Reconsideration nor an appeal was taken by GSIS. As correctly observed by the trial court, the GSIS "did not lift a finger to question the legality and soundness of that decision". At the time the GSIS filed its Motion to Annul Decision before the Court of Appeals, the judgment sought to be annulled has been partially executed for BENGSON has been placed in full possession of the properties. Furthermore, at the time this petition was filed, Items Nos. 6, 8 and 10 of the Court of Appeals decision remain to be satisfied. On top of all these, the GSIS has actively participated in the execution by filing its Motion for Execution of Item No. 8 of the decision and presenting evidence in court for the computation of the debenture bonds in the hearing conducted on August 12, 1988. These acts of participation by the GSIS negate its claim that the directives embodied in the decision are "too vague and incapable of implementation"

To permit a party to appeal from said partially executed final judgment would make a mockery of the doctrine of finality of judgments long enshrined in this jurisdiction. 41

As regards the allegation of the GSIS that the court a quo "has embarked on a selective and piece-meal execution/enforcement of the decision of the Court of Appeals, enforcing only those portions of the decision favorable to private respondent, Bengson Commercial Building, Inc., and ignoring or disregarding those portions of the decision of the Court of Appeals favorable to the petitioner, GSIS", this Court has held that a case in which execution has been issued is regarded as still pending so that all proceedings in the execution are proceedings in the suit. Unquestionably, the court which rendered the judgment has a general supervisory control over its process of execution. This power carries with it the right to determine every question of fact and law which may be involved in the execution. 42

PREMISES CONSIDERED, the petition is hereby DENIED. The temporary restraining order issued on November 16, 1988 is lifted.

SO ORDERED.

G.R. No. L-49223 May 29, 1987

PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, petitioner, vs.HON. RODOLFO ORTIZ, ROGELIO MARAVILES, and QUEZON CITY SHERIFF, respondents.

Paterno Pajares for respondents.

 

NARVASA, J.:

The case at bar, described by petitioner as simple both as to the facts involved and as to the issue, 1 principally relates to the well known rule that service of notices, pleadings, motions and other papers, to be valid and efficacious, shall be made on the party's attorney of record and not on the party himself, unless the court shall otherwise direct. 2

The party directly affected by the rule is the petitioner, Philippine Commercial and Industrial Bank, hereafter simply referred to as PCIB, defendant in Civil Case No. Q-23275 of the Court of First Instance of Quezon City. The action was instituted by one of its depositors, Rogelio Maraviles, for the recovery of damages resulting from the dishonor of two (2) of his checks on account of the negligence of employees of PCIB. 3

The law firm of Ledesma, Saludo & Associates appeared for PCIB in the suit, and gave its address as 3rd Floor, LTR Building, 5548 South Superhighway, Makati, Metro Manila. 4 Holding office in the same LTR Building, at the ground floor, was a corporation known as Commercial Exponent Philippines, Inc., COMMEX, for short. 5

After Maraviles had presented his evidence, the trial was reset for the reception of PCIB's proofs, but the latter's lawyers failed to appear at the appointed time. Consequently, the Trial Court dictated an Order dated June 23, 1978 considering the case submitted for decision, and on June 28, 1978, rendered judgment for the plaintiff, ordering the payment to him by PCIB of P20,000.00 as moral damages; P5,000.00 as exemplary damages; and P2,500.00 as attorney's fees. 6

PCIB's lawyers filed on August 15, 1978 a Motion for Reconsideration (RE: Order dated June 23, 1978 and/or Decision). 7 They argued that the award of damages was exorbitant, 8 and proferred the following explanation for their nonappearance at the continuation of trial on June 23, 1978, viz:

The failure of Atty. Segundo Mangohig associate lawyer of the Firm who was personally handling the ** case to appear at the June 23, 1978 hearing is explained by the fact that in the middle of June 1978, Atty. Mangohig suddenly resigned from the law firm. As is the usual procedure, Atty. Mangohig was required to submit a list of his pending cases accounts with their respective status. Atty. Mangohig did submit a report. Unfortunately, the present case was not listed in his report. Thus the present case was not reassigned in time for another lawyer to attend the June 23, 1978 hearing. 9

An opposition was presented by Maraviles, 10 in which he asserted (1) that judgment had already become final, notice thereof having been served on PCIB, thru COMMEX, on July 15, 1978, and the fifteen-day period to appeal therefrom had already lapsed when PCIB's motion for reconsideration was filed on August 15, 1978; and (2) Mangohig's failure to include the case in his report did not constitute excusable negligence warranting relief, and clients are bound by their counsel's mistakes. PCIB replied, 11 arguing that (1) service of the judgment on COMMEX on July 15, 1978 was inefficacious, and the period for appeal should be reckoned only from July 17, 1978 when COMMEX delivered the notice to PCIB's lawyers; and (2) there was no need to append an affidavit of merits to its motion for reconsideration, this being required only when the motion for new trial was based on grounds other than excessive award of damages. Maraviles submitted a rejoinder, 12 pointing out that (1) the notice of the judgment was received on July 15, 1978 by precisely the same person who had received the notice of the Order of June 23, 1978; (2) an affidavit of merits was in fact indispensable because PCIB's lawyers were invoking excusable negligence as ground to set aside the Order of June 23, 1978 considering the case submitted for decision.

Thereafter, the Trial Court denied PCIB's motion for reconsideration by Order dated September 18, 1978. 13Respecting the issue of whether the motion for reconsideration was filed seasonably, the Court first drew attention to the fact that Atty, Mangohig had received (1) copy of the Order re-setting

the hearing on June 23, 1978 "thru COMMEX" on May 9, 1978; (2) copy of the Order of June 23, 1978 (declaring the case submitted for decision) "thru COMMEX on July 13, 1978;" and (3) copy of the judgment of June 28, 1978, also thru COMMEX on July 15,1978." It then said:

From these antecedents, this Court is not persuaded by the soundness of the submission of defendant's counsel that they received a copy of the decision only on July 17, 1978, as shown by the stamped "RECEIVED" of the Ledesma, Saludo & Associates appearing on ** (PCIB copy) of the decision. ** For, as the records will show, Atty. ** Mangohig ** had been receiving notices of hearing and orders, from 'his Court, thru COMMEX. In fact, the notices of hearing (of) January 3, ", 978, and April 25, 1978, sent to Atty. ** Mangohig were also received by him thru COMMEX. Defendant having filed its motion for reconsideration only on August 15, 1978, or one (1) day after the judgment had become final and executory on August 14, 1978, clearly, said motion was filed out of time.

Moreover ** the failure of ** Atty. Mangohig to appear at the trial on June 23, 1978 ** is not constitutive of excusable negligence. And ** well-settled is the rule that clients are not excused from and are bound by the mistakes and negligence of their attorneys.

More importantly, it appears in the answer of the defendant that it has no good and valid defenses which might change or alter the judgment of this Court ** even as the defendant failed to state this in an affidavit of merit which is required ** to be attached to the defendant's motion for reconsideration which is also undoubtedly based upon the alleged excusable negligence of defendant's lawyer.

By Order dated September 20, 1978, the Court decreed the issuance of a writ of execution at Maraviles instance, "judgment ** being already final and executory." 14 But when PCIB attempted to perfect an appeal, and filed at the same time a second motion for reconsideration, as shall shortly be narrated, the Court ordered the sheriff "to desist, in the meantime, from the enforcement of the Writ of Execution, until after the resolution of the pending incidents. "15

Now, the records do not show when and how notice of the Order of September 18, 1978 (denying PCIB's motion for reconsideration) was served on PCIB's lawyers. These lawyers do not state this material fact anywhere in their pleadings. Be this as it may, as aforestated they filed with the Trial Court on September 25, 1978 a notice of appeal, an appeal bond, a record on appeal.16 And on the same day they also filed a second Motion for Reconsideration, insisting that service of notice of the judgment should be reckoned not as of July 15, 1978 (when COMMEX received it), but July 17, 1978 when COMMEX gave the notice to PCIB's lawyers). 17

Without awaiting service of notice of the resolution of its second motion for reconsideration, but expressing the fear that execution of the judgment might render the issues moot, 18 PCIB instituted in this Court on November 7, 1978 the instant special civil action for certiorari praying for the annulment of the Trial Court's Orders dated September 18, 1978 — denying its first motion for reconsideration and declaring the judgment final and executory - and September 20, 1978 — granting execution — as well as the anticipated order denying its second motion for reconsideration.

To complete the narration of the relevant facts, it should be mentioned that the Trial Court did indeed subsequently deny PCIB's second motion for reconsideration. This it did by Order dated November 6,1978 in which it ruled —

* * (1) that defendant's counsel had been receiving orders and notices of hearing from this court, in this case, through COMMEX, whose authority to do so the defendant is now estopped from denying, and (2) that even granting arguendo that defendant's first "Motion for Reconsideration" dated August 15, 1978 was filed on time, the same did not interrupt the period of appeal since it was not accompanied by an affidavit of merit, as required by the rules, neither does the motion itself although verified state the good and valid defenses, if any of the defendant which as ruled by this Court in its order dated August 15, 1978, do not exist even in defendant's answer itself **.19

The chief issue is indeed simple, as petitioner intimates, and is quickly resolved. While it is true that the address of record of PCIB's counsel is entered as the "3rd Floor, LRT Building," which is different from that of COMMEX, which is on the "Ground Floor, LRT Building," it is equally true that notices served on the latter had been reaching the former and that, in any event, the PCIB lawyers had never protested such service on them "thru COMMEX." The only single instance of protest was as regards the particular instance of service of notice of the judgment on COMMEX on July 15, 1978. Thus, as shown by the record, and not at all disputed by PCIB, service was accepted by its lawyers "thru COMMEX" without demur of the court notices for (1) the hearing of January 3, 1978, (2) the hearing of April 25, 1978, and (3) the hearing of June 23, 1978.

It is of course the rule that notices, pleadings, motions and papers should be served on a party's counsel of record, at the latter's given address. But it is certain that the counsel is entirely at liberty to change his address, for purposes of service, or expressly or impliedly adopt one different from that initially entered in the record. When he does this, he cannot afterwards complain that the person who received the notice, pleading, motion or paper at such new address did not promptly deliver the same to him or bring it to his attention. This is what happened in this case. PCIB's attorney's had acquiesced to and impliedly adopted a different address for service of notices to them. They had accepted service at this place, three floors down from the address originally given by them, without objection of any sort. They cannot now disown this adopted address to relieve them from the effects of their negligence, complacency or inattention. Service, therefore, on July 15, 1978 of the notice of judgment at the Ground Floor, LRT Building, should be deemed as effective service on PCIB's attorneys. The failure of the receiving clerk to deliver the notice to them on the same day, and what is worse, the lawyers omission to inquire of said receiving clerk exactly when the notice was received, and their blithe assumption that service was effected on July 17, 1978 since this was the day that the notice was handed over to them, is warrant imprudence and cannot in any sense be deemed to constitute that excusable negligence as would warrant reconsideration under Section 1 [a], Rule 37 of the Rules of Court.

Moreover, the Trial Court's ruling that as "appears in the answer," PCIB "has no good and valid defenses which might change or alter the judgment of this Court if it were to set (it) aside and ** (reopen the case) to allow the defendant to cross examine the plaintiff and to present its evidence," 20 appears to be correct. A perusal of PCIB's unverified answer in the Court a quo discloses that is made up mostly of denials for lack of knowledge" 21 and an averment of "special and affirmative defenses" consisting in the insinuation that the dishonor of Maraviles checks was due to mechanical and human errors which are expected and inevitable and for which reasonable allowance" should be made; and that Maraviles should verify the amount of his deposit before issuing any check against it. 22In the fight of its express admission that Maraviles did indeed have a sufficient deposit at the time of the issuance of the checks in question, these defenses are patently unsubstantial and unmeritorious. It furthermore appears that no other defense has been asserted by PCIB, whether in an affidavit of merit attached to its two (2) motions for reconsideration or otherwise. It would thus really make no sense, as the Court a quo opines, to set aside the judgment reopen the case and allow PCIB to present evidence of defenses which are inconsequential, and would not at all negate or mitigate its liability.

Two more points need be dealt with before this opinion is ended.

It is true that when fraud, accident, mistake or excusable negligence is invoked as ground of a motion for new trial,23 it should "be proved in the manner provided for proof of motions," 24 i.e., by "affidavits or depositions" unless the court should direct that "the matter be heard wholly or partly on oral testimony or depositions." 25 It is also required that "affidavits of merits" be attached to the motion. 26 A motion for new trial grounded on fraud, accident, mistake or excusable negligence should thus ordinarily be accompanied by two (2) affidavits: one, setting forth the facts and circumstances alleged to constitute such fraud, accident, mistake, or excusable negligence; and the other, an affidavit of merits, setting forth the particular facts claimed to constitute the movant's meritorious cause of action or defense. 27 The reason for the first is quite obvious: it is to enable the court to determine if the movant's claim of fraud, etc., is not a mere conclusion but is indeed borne out by the relevant facts. The reason for the second is equally evident: it would be useless, a waste of time, to set aside the judgment and reopen the case to allow the movant to adduce evidence when he has no valid cause of action or meritorious defense. 28

Where, therefore, a motion for new trial on the ground of fraud, etc., is unaccompanied by either or both affidavits, the motion is pro forma a scrap of paper, as it were, and will not interrupt the running of the period of appeal. 29But where, as here, the motion for new trial is founded not only on fraud, accident, mistake or excusable negligence, but also on the ground of "award of excessive damages," 30 as to which no affidavit of fraud, etc., or of merits is required, what being required of the movant being to "point out specifically the findings or conclusions of the judgment" demonstrating the invoked ground, the motion cannot be denied as pro forma simply because no affidavit of merits is appended thereto, provided there be a specification of the findings or conclusions of the judgment alleged to be erroneous because awarding excessive damages. The tenability of the grounds is dependent upon different premises. The untenability of one does not of itself, render the other unmeritorious.

Finally, it bears stressing that the filing of a proper motion for new trial interrupts the running of the period of appeal which begins to run again from receipt of notice by the movant of the order denying his motion. In this situation, the party adversely affected has only the balance of the period of appeal within which to perfect his appeal, the balance being the number of days remaining of the reglementary period after deducting the time during which the motion was pending; i.e., from the date when the motion was filed to the date when notice of the order of denial was served on the movant. 31 If the motion for new trial was filed on the last day of the reglementary appeal period, the movant may appeal within the day following service on him of the notice of the order denying his motion. 32 It is well to also emphasize, in this connection, that the requirement for the perfection of an appeal within the time prescribed is mandatory and jurisdictional, that the lapse of said period without an appeal being taken operates to divest the court of all jurisdiction over the case and leaves it with no alternative but to order, on motion, the execution of the judgement. 33

In fine, it not being possible under the facts to ascribe the commission of an act with grave abuse of discretion to the Trial Court, none having been shown by the petitioner, the verdict must go against the latter.

WHEREFORE, the petition is dismissed, with costs against petitioner.

Yap (Chairman), Melencio-Herrera, Cruz, Gancayco and Sarmiento, JJ., concur.

Feliciano J., is on leave.