iv. spirit and purpose of the law1. Salenillas vs CA [G.R. No. 78687. January 31, 1989.]

D E C I S I O N

This petition for review on certiorari which seeks the reversal and setting aside of the decision 1 of the Court of Appeals 2 dismissing the petition for certiorari against Judge Raymundo Seva of the Regional Trial Court of Camarines Norte and the private respondent, William Guerra, involves a pure question of law, i.e., the coverage and application of Section 119 of Commonwealth Act No. 141, as amended, known otherwise as the Public Land Act.

The facts are undisputed.

The property subject matter of the case was formerly covered by Original Certificate of Title No. P-1248, issued by virtue of Free Patent Application No. 192765, in favor of the spouses, Florencia H. de Enciso and Miguel Enciso. The said original certificate of title was inscribed in the Registration Book for the Province of Camarines Norte on December 10, 1961. On February 28, 1970, the patentees, the Enciso spouses, by an Absolute Deed of Sale, sold the property in favor of the petitioners, the spouses Elena Salenillas and Bernardino Salenillas for a consideration of P900.00. Petitioner Elena Salenillas is a daughter of the Encisos. As a result of the aforementioned sale, Transfer Certificate of Title No. T-8104 of the Register of Deeds of Camarines Norte was issued in the name of the Salenillas, cancelling Original Certificate of Title No. P-1248. On June 30, 1971, the petitioners mortgaged the property now covered by T.C.T. No. T-8104 with the Rural Bank of Daet, Inc. The mortgage was subsequently released on November 22, 1973 after the petitioners paid the amount of P1,000.00. Later, or on December 4, 1975, the petitioners again mortgaged the property, this time in favor of the Philippine National Bank Branch, Daet, Camarines Norte as security for a loan of P2,500.00.

For failure of the petitioners to pay their loan, extrajudicial foreclosure proceeding, pursuant to Act No. 3135, was instituted by the Philippine National Bank against the mortgage and the property was sold at a public auction held on February 27, 1981. The private respondent, William Guerra, emerged as the highest bidder in the said public auction and as a result thereof a "Certificate of Sale" was issued to him by the Ex-Officio Provincial Sheriff of Camarines Norte. Ultimately, on July 12, 1983, a "Sheriffs Final Deed" was executed in favor of the private respondent. prLL

On August 17, 1983, the Philippine National Bank filed with the Regional Trial Court of Camarines Norte at Daet, a motion for a writ of possession. The public respondent, Judge Raymundo Seva of the trial court, acting on the motion, issued on September 22, 1983 an order for the issuance of a writ of possession in favor of the private respondent. When the deputy sheriff of Camarines Norte however, attempted on November 17, 1983, to place the property in the possession of the private respondent, the petitioners refused to vacate and surrender the possession of the same and instead offered to repurchase it under Section 119 of the Public Land Act. On August 15, 1984, another motion, this time for the issuance of an alias writ of possession was filed by the private respondent with the trial court. The petitioners, on August 31, 1984, opposed the private respondents' motion and instead made a formal offer to repurchase the property. Notwithstanding the petitioners' opposition and formal offer, the trial court judge on October 12, 1984 issued the alias writ of possession prayed for the private respondent. The petitioners moved for a reconsideration of the order but their motion was denied.

Undeterred by their initial setback, the petitioners elevated the case to the respondent Court of Appeals by way of a petition for certiorari claiming that the respondent trial court judge acted with grave abuse of discretion in issuing the order dated October 12, 1984 granting the writ of possession, and the order dated October 22, 1984, denying their motion for reconsideration.

In a resolution dated January 23, 1985, the respondent appellate court gave due course to the petition; required the parties to submit simultaneous memoranda in support to their respective positions; and restrained the trial court and the private respondent from executing, implementing or otherwise giving effect to the assailed writ of possession until further orders

from the court. 3 However, in a decision promulgated on September 17, 1986, the respondent Court of Appeals dismissed the case for lack of merit. According to the appellate court:

It must be noted that when the original owner, Florencia H. Enciso whose title, OCT No. P-1248, was issued on August 9, 1961, executed a deed of absolute sale on February 28, 1970 of the property covered by said title to spouses Elena Salenillas and Bernardino Salenillas, the five year period to repurchase the property provided for in Section 119 of Commonwealth Act No. 141 as amended could have already started. From this fact alone, the petition should have been dismissed. However, granting that the transfer from parent to child for a nominal sum may not be the "conveyance" contemplated by the law. We will rule on the issue raised by the petitioners. 4

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Applying the case of Monge, et al. vs. Angeles, et al., 5 purchase under Section 119 of the Public Land Act had already prescribed. The point of reckoning, ruled the respondent court in consonance with Monge, is from the date the petitioners mortgaged the property on December 4, 1973. Thus, when the petitioners made their formal offer to repurchase on August 31, 1984, the period had clearly expired.

In an effort to still overturn the decision, the petitioners moved for reconsideration. Their motion apparently went for naught because on May 7, 1987, the respondent appellate court resolved to deny the same. Hence, this petition.

Before us, the petitioners maintain that contrary to the rulings of the courts below, their right to repurchase within five years under Section 119 of the Public Land Act has not yet prescribed. To support their contention, the petitioners cite the cases of Paras vs. Court of Appeals 6 and Manuel vs. Philippine National Bank, et al. 7

On the other side, the private respondent, in support of the appellate court's decision, states that the sale of the contested property by the patentees to the petitioners disqualified the latter from being legal heirs vis-a-vis the said property. As such, they (the petitioners) no longer enjoy the right granted to heirs under the provisions of Section 119 of the Public Land Act. 8

In fine, what need be determined and resolved here are: whether or not the petitioners have the right to repurchase the contested property under Section 119 of the Public Land Act; and assuming the answer to the question is in the affirmative, whether or not their right to repurchase had already prescribed.llcd

We rule for the petitioners. They are granted by the law the right to repurchase their property and their right to do so subsists.

Section 119 of the Public Land Act, as amended, provides in full:

Sec. 119.Every conveyance of land acquired under the free patent or homestead provisions, when proper, shall be subject to repurchase by the applicant, his widow, or legal heirs within a period of five years from the date of the conveyance.

From the foregoing legal provision, it is explicit that only three classes of persons are bestowed the right to repurchase - the applicant-patentee, his widow, or other legal heirs. Consequently, the contention of the private respondent sustained by the respondent appellate court that the petitioners do not belong to any of those

classes of repurchasers because they acquired the property not through inheritance but by sale, has no legal basis. The petitioners-spouses are the daughter and son-in-law of the Encisos, patentees of the contested property. At the very least, petitioner Elena Salenillas, being a child of the Encisos, is a "legal heir" of the latter. As such, and even on this score alone, she may therefore validly repurchase. This must be so because Section 119 of the Public Land Act, in speaking of "legal heirs," makes no distinction. Ubi lex non distinguit nec nos distinguere debemos.

Moreover, to indorse the distinction made by the private respondent and the appellate court would be to contravene the very purpose of Section 119 of the Public Land Act which is to give the homesteader or patentee every chance to preserve for himself and his family the land that the State had gratuitously given him as a reward for his labor in clearing and cultivating it. 9 Considering that petitioner Salenillas is a daughter of the spouses Florencia H. Enciso and Miguel Enciso, there is no gainsaying that allowing her (Elena) and her husband to repurchase the property would be more in keeping with the spirit of the law. We have time and again said that between two statutory interpretations, that which better serves the purpose of the law should prevail.

Guided by the same purpose of the law, and proceeding to the other issue here raised, we rule that the five-year period for the petitioners to repurchase their property had not yet prescribed.

The case of Monge, et al. vs. Angeles, et al., 10 cited as authority by the respondent Court of Appeals is inapplicable to the present controversy. The facts obtaining there are substantially different from those in this case. In Monge, the conveyance involved was a pacto de retro sale and not a foreclosure sale. More importantly, the question raised there was whether the five-year period provided for in Section 119 "should be counted from the date of the sale even if the same is with an option to repurchase or from the date the ownership of the land has become consolidated in favor of the purchaser because of the homesteader's failure to redeem it. 11 It is therefore understandable why the Court ruled there as it did. A sale on pacto de retro immediately vests title, ownership, and, generally possession over the property on the vendee a retro, subject only to the right of the vendor a retro to repurchase within the stipulated period. It is an absolute sale with a resolutory condition.

The cases 12 pointed to by the petitioner in support of their position, on the other hand, present facts that are quite identical to those in the case at bar. Both cases involved properties the titles over which were obtained either through homestead or free patent. These properties were mortgaged to a bank as collateral for loans, and, upon failure of the owners to pay their indebtedness, the mortgages were foreclosed. In both instances, the Court ruled that the five-year period to repurchase a homestead sold at public auction or foreclosure sale under Act 3135 begins on the day after the expiration of the period of redemption when the deed of absolute sale is executed thereby formally transferring the property to the purchaser, and not otherwise. Taking into account that the mortgage was foreclosed and the mortgaged property sold at a public auction to the private respondent on February 27, 1981, with the "Sheriff's Final Deed" issued on July 12, 1983, the two offers of the petitioners to repurchase — the first on November 17, 1983, and the second, formally, on August 31, 1984 — were both made within the prescribed five-year period.

Now, as regards the redemption price, applying Sec. 30 of Rule 39 of the Revised Rules of Court, the petitioners should reimburse the private respondent the amount of the purchase price at the public auction plus interest at the rate of one per centum per month up to November 17, 1983, together with the amounts of assessments and taxes on the property that the private respondent might have paid after purchase and interest on the last named amount at the same rate as that on the purchase price. 13

WHEREFORE, the petition is GRANTED. The Decision dated September 17, 1986, and the Resolution dated May 7, 1987 of the Court of Appeals, and the Orders dated September 22, 1983, October 12, 1984, and October 22, 1984 of the Regional Trial Court of Daet, Camarines Norte, are hereby REVERSED and SET ASIDE, and another one ENTERED directing the private respondent to reconvey the subject property and to execute the corresponding deed of reconveyance therefor in favor of the petitioners upon the return to him by the latter of the purchase price and the amounts, if any, of assessments or taxes he paid plus interest of one (1%) per centum per month on both amounts up to November 17, 1983. No costs.

2. comendador vs canera G.R. No. 96948. August 2, 1991.]

D E C I S I O N

CRUZ, J p:

These four cases have been consolidated because they involve practically the same parties and related issues arising from the same incident.

The petitioners in G.R. Nos. 93177 and 96948 and the private respondents in G.R. Nos. 95020 and 97454 are officers of the Armed Forces of the Philippines facing prosecution for their alleged participation in the failed coup d'etat that took place on December 1 to 9, 1989.

The charges against them are violation of Articles of War (AW) 67 (Mutiny), AW 96 (Conduct Unbecoming an Officer and a Gentleman) and AW 94 (Various Crimes) in relation to Article 248 of the Revised Penal Code (Murder).

In G.R. No. 93177, which is a petition for certiorari, prohibition and mandamus, they are questioning the conduct of the Pre-Trial Investigation (PTI) Panel constituted to investigate the charges against them and the creation of the General Court Martial (GCM) convened to try them.

In G.R. No. 96948, the petitioners, besides challenging the legality of GCM No. 14, seek certiorari against its ruling denying them the right to peremptory challenge as granted by Article 18 of Com. Act No. 408.

In G.R. No. 95020, the orders of the respondent judge of the Regional Trial Court of Quezon City are assailed on certiorari on the ground that he has no jurisdiction over GCM No. 14 and no authority either to set aside its ruling denying bail to the private respondents.

In G.R. No. 97454, certiorari is also sought against the decision of the Regional Trial Court of Quezon City in a petition for habeas corpus directing the release of the private respondents. Jurisdictional objections are likewise raised as in G.R. No. 95020.

I

Before the charges were referred to GCM No. 14, a Pre-Trial Investigation (PTI) Panel had been constituted pursuant to Office Order No. 16 dated January 14, 1990, to investigate the petitioners in G.R. Nos. 93177 and 96948.

The PTI Panel issued a uniform subpoena dated January 30, 1990, individually addressed to the petitioners, to wit:

You are hereby directed to appear in person before the undersigned Pre-Trial Investigating Officers on 12 Feb 90 9:00 a.m. at Kiangan Hall, Camp Crame Quezon City, then and there to submit your counter-affidavit and the affidavits of your witnesses, if any, in the pre-trial investigation of the charge/charges against you for viol of AWs ________. DO NOT SUBMIT A MOTION TO DISMISS.

Failure to submit the aforementioned counter-affidavits on the date above specified shall be deemed a waiver of your right to submit controverting evidence.

On the same date, the petitioners acknowledged receipt of a copy of the charge sheet, sworn statements of witnesses, and death and medical certificates of victims of the rebellion.

At the first scheduled hearing, the petitioners challenged the proceedings on various grounds, prompting the PTI Panel to grant them 10 days within which to file their objections in writing. This was done through a Motion for Summary Dismissal dated February 21, 1990.

In a resolution dated February 27, 1990, the PTI Panel denied the motion and gave the petitioners 5 days from notice to submit their respective counter-affidavits and the affidavits of their witnesses.

On March 7, 1990, the petitioners verbally moved for reconsideration of the foregoing denial and the PTI Panel gave them 7 days within which to reduce their motion to writing. This was done on March 14, 1990.

The petitioners now claim that there was no pre-trial investigation of the charges as mandated by Article of War 71, which provides:

ARTICLE 71.Charges; Action upon. — Charges and specifications must be signed by a person subject to military law, and under the oath either that he has personal knowledge of, or has investigated, the matters set forth therein and that the same are true in fact, to the best of his knowledge and belief.

No charge will be referred to a general court-martial for trial until after a thorough and impartial investigation thereof shall have been made. This investigation will include inquiries as to the truth of the matter set forth in said charges, form of charges, and what disposition of the case should be made in the interest of justice and discipline. At such investigation full opportunity shall be given to the accused to cross-examine witnesses against him if they are available and to present anything he may desire in his own behalf either in defense or mitigation, and the investigating officer shall examine available witnesses requested by the accused. If the charges are forwarded after such investigation, they shall be accompanied by a statement of the substance of the testimony taken on both sides. (Emphasis supplied.)

They also allege that the initial hearing of the charges consisted merely of a roll call and that no prosecution witnesses were presented to reaffirm their affidavits. While the motion for summary dismissal was denied, the motion for reconsideration remains unresolved to date and they have not been able to submit their counter-affidavits.

At the hearing of May 15, 1990, the petitioners in G.R. No. 96948 manifested that they were exercising their right to raise peremptory challenges against the president and members of GCM No. 14. They invoked Article 18 of Com. Act No. 408 for this purpose. GCM No. 14 ruled, however, that peremptory challenges had been discontinued under P.D. No. 39.

In G.R. No. 95020, Ltc. Jacinto Ligot applied for bail on June 5, 1990, but the application was denied by GCM No. 14. He thereupon filed with the Regional Trial Court of Quezon City a petition for certiorari and mandamus with prayer for provisional liberty and a writ of preliminary injunction. After considering the petition and the answer thereto filed by the president and members of GCM No. 14, Judge Maximiano C. Asuncion issued an order granting provisional liberty to Ligot.

On July 28, 1990, Ligot filed an urgent omnibus motion to enforce the order for his release and to declare in contempt the commanding officer of the PC/INP Jail for disobeying the said order. He later also complained that Generals De Villa and Aguirre had refused to release him "pending final resolution of the appeal to be taken" to this Court.

After hearing, the trial court reiterated its order for the provisional liberty of Ligot, as well as of intervenors Ltc. Franklin Brawner, Lt/Col. Arsenio Tecson and Maj. Alfredo Oliveros, and later of additional intervenors Ltc. Romelino Gojo and Capt. Manuel Ison.

On August 22, 1990, the trial court rendered judgment inter alia.

(a)Declaring, that Section 13, Article III of the Constitution granting the right to bail to all persons with the defined exception is applicable and covers all military men facing court-martial proceedings. Accordingly, the assailed orders of General Court-Martial No. 14 denying bail to petitioner and intervenors on the mistaken assumption that bail does not apply to military men facing court-martial proceedings on the ground that there is no precedent, are hereby set aside and declared null and void. Respondent General Court-Martial No. 14 is hereby directed to conduct proceedings on the applications of bail of the petitioner, intervenors and which may as well include other persons facing charges before General Court-Martial No. 14

Pending the proceedings on the applications for bail before General Court-Martial No. 14, this Court reiterates its orders of release on the provisional liberty of petitioner Jacinto Ligot as well as intervenors Franklin Brawner and Arsenio Tecson.

On February 18, 1991, the private respondents in G.R. No. 97454 filed with this Court a petition for habeas corpus on the ground that they were being detained in Camp Crame without charges. The petition was referred to the Regional Trial Court of Quezon City, where it was raffled to respondent Judge Antonio P. Solano. Finding after hearing that no formal charges had been filed against the petitioners after more than a year after their arrest, the trial court ordered their release.

II

The Court has examined the records of this case and rules as follows.

It appears that the petitioners in G.R. Nos. 93177 and 96948 were given several opportunities to present their side at the pre-trial investigation, first at the scheduled hearing of February 12, 1990, and then again after the denial of their motion of February 21, 1990, when they were given until March 7, 1990, to submit their counter-affidavits. On that date, they filed instead a verbal motion for reconsideration which they were again asked to submit in writing. This they did on March 13, 1990. The motion was in effect denied when the PTI Panel resolved to recommend that the charges be referred to the General Court Martial for trial.

The said petitioners cannot now claim they have been denied due process because the investigation was resolved against them owing to their own failure to submit their counter-affidavits. They had been expressly warned in the subpoena sent them that "failure to submit the aforementioned counter-affidavits on the date above specified shall be deemed a waiver of (their) right to submit controverting evidence." They chose not to heed the warning. As their motions appeared to be dilatory, the PTI Panel was justified in referring the charges to GCM No. 14 without waiting for the petitioners to submit their defense.

Due process is satisfied as long as the party is accorded an opportunity to be heard. If it is not availed of, it is deemed waived or forfeited without violation of the Bill of Rights.

There was in our view substantial compliance with Article of War 71 by the PTI Panel. Moreover, it is now settled that "even a failure to conduct a pre-trial investigation does not deprive a general court-martial of jurisdiction." We so held in Arula v. Espino, 1 thus:

xxx xxx xxx

But even a failure to conduct a pre-trial investigation does not deprive a general court-martial of jurisdiction.

The better accepted concept of pre-trial investigation is that it is directory, not mandatory, and in no way affects the jurisdiction of a court-martial. In Humphrey v. Smith, 336 U.S. 695, 93 L ed 986 (1949), the Court said:

"We do not think that the pre-trial investigation procedure by Article 70 (The Philippine counterpart is article of war 71, Commonwealth Act 408) can properly be construed as an indispensable pre-requisite to the exercise of Army general court martial jurisdiction. The Article does serve important functions in the administration of court-martial procedures and does provide safeguards to an accused. Its language is clearly such that a defendant could object to trial in the absence of the required investigation. In that event the court-martial could itself postpone trial pending the investigation. And the military reviewing authorities could consider the same contention, reversing a court-martial conviction where failure to comply with Article 70 has substantially injured an accused. But we are not persuaded that Congress intended to make otherwise valid court-martial judgments wholly void because pre-trial investigations fall short of the standards prescribed by Article 70. That Congress has not required analogous pre-trial procedure for Navy court-martial is an indication that the investigatory plan was not intended to be exalted to the jurisdictional level.

xxx xxx xxx

Shortly after enactment of Article 70 in 1920 the Judge Advocate General of the Army did hold that where there had been no pre-trial investigation, court-martial proceedings were void ab initio. But this holding has been expressly repudiated in later holdings of the Judge Advocate General. This later interpretation has been that the pre-trial requirements of Article 70 are directory, not mandatory, and in no way effect the jurisdiction of a court-martial. The War Department's interpretation was pointedly called to the attention of Congress in 1947 after which Congress amended Article 70 but left unchanged the language here under consideration."

A trial before a general court-martial convened without any pretrial investigation under article of war 71 would of course be altogether irregular; but the court-martial might nevertheless have jurisdiction. Significantly, this rule is similar to the one obtaining in criminal procedure in the civil courts to the effect that absence of preliminary investigation does not go into the jurisdiction of the court but merely to the regularity of the proceedings.

As to what law should govern the conduct of the preliminary investigation, that issue was resolved more than two years ago in Kapunan v. De Villa, 2where we declared:

The Court finds that, contrary to the contention of petitioners, there was substantial compliance with the requirements of law as provided in the Articles of War and P.D. No. 77, as amended by P.D. No. 911. The amended charge sheets, charging petitioners and their co-respondents with mutiny and conduct unbecoming an officer, were signed by Maj. Antonio Ruiz, a person subject to military law, after he had investigated the matter through an evaluation of the pertinent records, including the reports of respondent AFP Board of Officers, and was convinced of the truth of the testimonies on record. The charge sheets were sworn to by Maj. Ruiz, the "accuser," in accordance with and in the manner provided under Art. 71 of the Articles of War. Considering that P.D. No. 77, as amended by P.D. No. 911, is only of suppletory application, the fact that the charge sheets were not certified in the manner provided under said decrees, i.e., that the officer administering the oath has personally examined the affiant and that he is satisfied that they voluntarily executed and understood his affidavit, does not invalidate said charge sheets. Thereafter, a "pretrial investigation" was conducted by respondent Maj. Baldonado, wherein, pursuant to P.D. No. 77, as amended by P.D. No. 911, petitioners were subpoenaed and required to file their counter-affidavit. However, instead of doing so, they filed an untitled pleading seeking the dismissal of the charges against them. That petitioners were not able to confront the witnesses against them was their own doing, for they never even asked Maj. Baldonado to subpoena said witnesses so that they may be made to answer clarificatory questions in accordance with P.D. No. 77, as amended by P.D. No. 911.

The petitioners also allege that GCM No. 14 has not been constituted in accordance with Article 8 of the Articles of War because General Order No. M-6, which supposedly convened the body, was not signed by Gen. Renato de Villa as Chief of Staff.

Article of War No. 8 reads:

ARTICLE 8.General Courts-Martial. — The President of the Philippines, the Chief of Staff of the Armed Forces of the Philippines, the Chief of Constabulary and, when empowered by the President, the commanding officer of a major command or task force, the commanding officer of a division, the commanding officer of a military area, the superintendent of the Military Academy, the commanding officer of a separate brigade or body of troops may appoint general courts-martial; but when any such commander is the accuser or the prosecutor of the person or persons to be tried, the court shall be appointed by superior competent authority . . .

While it is true that General Order No. M-6 was not signed by Gen. De Villa, there is no doubt that he authorized it because the order itself said it was issued "By Command of General De Villa" and it has not been shown to be spurious. As observed by the Solicitor General, the Summary Disposition Form showed that Gen. De Villa, as Chief of Staff, AFP, actually constituted GCM No. 14 and appointed its president and members. It is significant that General De Villa has not disauthorized or revoked or in any way disowned the said order, as he would certainly have done if his authority had been improperly invoked. On the contrary, as the principal respondent in G.R. No. 93177, he sustained General Order No. M-6 in the Comment filed for him and the other respondents by the Solicitor General.

Coming now to the right to peremptory challenge, we note that this was originally provided for under Article 18 of Com. Act No. 408 (Articles of War), as amended by Rep. Act No. 242, on June 12, 1948, to wit:

ARTICLE 18.Challenges. — Members of general or special courts-martial may be challenged by the accused or the trial judge advocate for cause stated to the court. The court shall determine the relevancy and validity thereof, and shall not receive a challenge to more than one member at a time. Challenges by the trial judge advocate shall ordinarily be presented and decided before those by the accused are offered. Each side shall be entitled to the peremptory challenge, but the law member of the court shall not be challenged except for cause.

The history of peremptory challenge was traced in Martelino v. Alejandro, 3 thus:

In the early formative years of the infant Philippine Army, after the passage in 1935 of Commonwealth Act No. 1 (otherwise known as the National Defense Act), except for a handful of Philippine Scout officers and graduates of the United States military and naval academies who were on duty with the Philippine Army, there was a complete dearth of officers learned in military law, this aside from the fact that the officer corps of the developing army was numerically inadequate for the demands of the strictly military aspects of the national defense program. Because of these considerations it was then felt that peremptory challenges should not in the meanwhile be permitted and that only challenges for cause, in any number, would be allowed. Thus Article 18 of the Articles of War (Commonwealth Act No. 408), as worded on September 14, 1938, the date of the approval of the Act, made no mention or reference to any peremptory challenge by either the trial judge advocate of a court-martial or by the accused. After December 17, 1958, when the Manual for Courts-Martial of the Philippine Army became effective, the Judge Advocate General's Service of the Philippine Army conducted a continuing and intensive program of training and education in military law, encompassing the length and breadth of the Philippines. This program was pursued until the outbreak of World War II in the Pacific on December 7, 1941. After the formal surrender of Japan to the allies in 1945, the officer corps of the Armed Forces of the Philippines had expanded to a very large number, and a great many of the officers had been indoctrinated in military law. It was in these environmental circumstances that Article of War 18 was amended on June 12, 1948 to entitle "each side" to one peremptory challenge, with the sole proviso that "the law member of court shall not be challenged except for cause."

On September 27, 1972, President Marcos issued General Order No. 8, empowering the Chief of Staff of the Armed Forces to create military tribunals "to try and decide cases of military personnel and such other cases as may be referred to them."

On November 7, 1972, he promulgated P.D. No. 39 (Governing the Creation, Composition, Jurisdiction, Procedure, and other matters relevant to Military Tribunals). This decree disallowed the peremptory challenge, thus:

No peremptory challenge shall be allowed. Challenges for cause may be entertained to insure impartiality and good faith. Challenges shall immediately be heard and determined by a majority of the members excluding the challenged member. A tie vote does not disqualify the challenged member. A successfully challenged member shall be immediately replaced.

On June 11, 1978, President Marcos promulgated P.D. No. 1498, or the National Security Code, which was a compilation and codification of decrees, general orders, LOI and policies intended "to meet the continuing threats to the existence, security and stability of the State." The modified rule on challenges under P.D. No. 39 was embodied in this decree.

On January 17, 1981, President Marcos issued Proc. No. 2045 proclaiming the termination of the state of martial law throughout the Philippines. The proclamation revoked General Order No. 8 and declared the dissolution of the military tribunals created pursuant thereto upon final determination of the cases pending therein.

P.D. No. 39 was issued to implement General Order No. 8 and the other general orders mentioned therein. With the termination of martial law and the dissolution of the military tribunals created thereunder, the reason for the existence of P.D. No. 39 ceased automatically.

It is a basic canon of statutory construction that when the reason of the law ceases, the law itself ceases. Cessante ratione legis, cessat ipsa lex. This principle is also expressed in the maxim ratio legis est anima: the reason of law is its soul.

Applying these rules, we hold that the withdrawal of the right to peremptory challenge in P.D. No. 39 became ineffective when the apparatus of martial law was dismantled with the issuance of Proclamation No. 2045. As a result, the old rule embodied in Article 18 of Com. Act No. 408 was automatically revived and now again allows the right to peremptory challenge.

We do not agree with the respondents in G.R. No. 96948 that the right to peremptory challenge remains withdrawn under P.D. No. 39. To repeat for emphasis, this decree was itself withdrawn when martial law was lifted on January 17, 1981. Indeed, even if not so withdrawn, it could still be considered no longer operative, having been cast out under the new dispensation as, in the words of the Freedom Constitution, one of the "iniquitous vestiges of the previous regime."

The military tribunal was one of the most oppressive instruments of martial law. It is curious that the present government should invoke the rules of that discredited body to justify its action against the accused officers.

The Court realizes that the recognition of the right to peremptory challenge may be exploited by a respondent in a court-martial trial to delay the proceedings and defer his deserved punishment. It is hoped that the accused officers in the cases at bar will not be so motivated. At any rate, the wisdom of Com. Act No. 408, in the light of present circumstances, is a matter addressed to the law-makers and not to this Court. The judiciary can only interpret and apply the laws without regard to its own misgivings on their adverse effects. This is a problem only the political departments can resolve.

The petitioners in G.R. Nos. 95020 and 97454 question the propriety of the petition for certiorari and mandamus and the petition for habeas corpus filed by the private respondents with the Regional Trial Courts of Quezon City. It is argued that since the private respondents are officers of the Armed Forces accused of violations of the Articles of War, the respondent courts have no authority to order their release and otherwise interfere with the court-martial proceedings.

The petitioners further contend that under Sec. 9(3) of BP 129, the Court of Appeals is vested with "exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders, or awards of Regional Trial Courts and quasi-judicial agencies, instrumentalities, boards or commissions." Rather irrelevantly, the petitioners also cite the case of Yang v. Court of Appeals, 4 where this Court held that "appeals from the Professional Regulation Commission are now exclusively cognizable by the Court of Appeals."

It should be noted that the aforecited provision and the case cited refer to ordinary appeals and not to the remedies employed by the accused officers before the respondent courts.

In Martelino, we observed as follows:

It is true that civil courts as a rule exercise no supervision or correcting power over the proceedings of courts-martial, and that mere errors in their proceedings are not open to consideration. The single inquiry, the test, is jurisdiction. But it is equally true that in the exercise of their undoubted discretion, courts-martial may commit such an abuse of discretion — what in the language of Rule 65 is referred to as "grave abuse of discretion" — as to give rise to a defect

in their jurisdiction. This is precisely the point at issue in this action suggested by its nature as one for certiorari and prohibition . . .

The Regional Trial Court has concurrent jurisdiction with the Court of Appeals and the Supreme Court over petitions for certiorari, prohibition ormandamus against inferior courts and other bodies and on petitions for habeas corpus and quo warranto. 5 In the absence of a law providing that the decisions, orders and ruling of a court-martial or the Office of the Chief of Staff can be questioned only before the Court of Appeals and the Supreme Court, we hold that the Regional Trial Court can exercise similar jurisdiction.

We find that the right to bail invoked by the private respondents in G.R. Nos. 95020 has traditionally not been recognized and is not available in the military, as an exception to the general rule embodied in the Bill of Rights. This much was suggested in Arula, where we observed that "the right to a speedy trial is given more emphasis in the military where the right to bail does not exist."

The justification for this exception was well explained by the Solicitor General as follows:

The unique structure of the military should be enough reason to exempt military men from the constitutional coverage on the right to bail.

Aside from structural peculiarity, it is vital to note that mutinous soldiers operate within the framework of democratic system, are allowed the fiduciary use of firearms by the government for the discharge of their duties and responsibilities and are paid out of revenues collected from the people. All other insurgent elements carry out their activities outside of and against the existing political system.

xxx xxx xxx

National security considerations should also impress upon this Honorable Court that release on bail of respondents constitutes a damaging precedent. Imagine a scenario of say 1,000 putschists roaming the streets of the Metropolis on bail, or if the assailed July 25, 1990 Order were sustained, on 'provisional' bail. The sheer number alone is already discomforting. But, the truly disquieting thought is that they could freely resume their heinous activity which could very well result in the overthrow of duly constituted authorities, including this Honorable Court, and replace the same with a system consonant with their own concept of government and justice.

The argument that denial from the military of the right to bail would violate the equal protection clause is not acceptable. This guaranty requires equal treatment only of persons or things similarly situated and does not apply where the subject of the treatment is substantially different from others. The accused officers can complain if they are denied bail and other members of the military are not. But they cannot say they have been discriminated against because they are not allowed the same right that is extended to civilians.

On the contention of the private respondents in G.R. No. 97454 that they had not been charged after more than one year from their arrest, our finding is that there was substantial compliance with the requirements of due process and the right to a speedy trial.

The petition for habeas corpus was directly filed with this Court on February 18, 1991, and was referred to the Regional Trial Court of Quezon City for raffle, hearing and decision. It was heard on February 26, 1991, by the respondent court, where the

petitioners submitted the charge memorandum and specifications against the private respondents dated January 30, 1991. On February 12, 1991, pursuant to Office Order No. 31-91, the PTI panel was created and initial investigation was scheduled on March 12, 1991 at 2:00 p.m. On March 20, 1991, the private respondents received the copies of the charges, charge sheets and specifications and were required to submit their counter-affidavits on or before April 11, 1991. There was indeed a delay of more than one year in the investigation and preparation of the charges against the private respondents. However, this was explained by the Solicitor General thus:

. . . The AFP Special Investigating Committee was able to complete its pre-charge investigation only after one (1) year because hundreds of officers and thousands of enlisted men were involved in the failed coup. All of them, as well as other witnesses, had to be interviewed or investigated, and these inevitably took months to finish. The pre-charge investigation was rendered doubly difficult by the fact that those involved were dispersed and scattered throughout the Philippines. In some cases, command units, such as the Scout Rangers, have already been disbanded. After the charges were completed, the same still had to pass review and approval by the AFP Chief of Staff.

While accepting this explanation, the Court nevertheless must reiterate the following admonition:

This Court as protector of the rights of the people, must stress the point that if the participation of petitioner in several coup attempts for which he is confined on orders of Adjutant General Jorge Agcaoili cannot be established and no charges can be filed against him or the existence of a prima facie case warranting trial before a military commission is wanting, it behooves respondent then Major General Rodolfo Biazon (now General) to release petitioner. Respondents must also be reminded that even if a military officer is arrested pursuant to Article 70 of then Articles of War, indefinite confinement is not sanctioned, as Article 71 thereof mandates that immediate steps must be taken to try the person accused or to dismiss the charge and release him. Any officer who is responsible for unnecessary delay in investigating or carrying the case to a final conclusion may even be punished as a court martial may direct. 6

It should be noted, finally, that after the decision was rendered by Judge Solano on February 26, 1991, the government filed a notice of appeal ad cautelam and a motion for reconsideration, the latter was ultimately denied, after hearing, on March 4, 1991. The 48-hour period for appeal under Rule 41, Section 18, of the Rules of Court did not run until after notice of such denial was received by the petitioners on March 12, 1991. Contrary to the private respondents' contention, therefore, the decision had not yet become final and executory when the special civil action in G.R. No. 97454 was filed with this Court on March 12, 1991.

III

Regarding the propriety of the petitions at bar, it is well to reiterate the following observations of the Court in Arula:

The referral of charges to a court-martial involves the exercise of judgment and discretion (AW 71). A petition for certiorari, in order to prosper, must be based on jurisdictional grounds because, as long as the respondent acted with jurisdiction, any error committed by him or it in the exercise thereof will amount to nothing more than an error of judgment which may be reviewed or corrected only by appeal. Even an abuse of discretion is not sufficient by itself to justify the issuance of a writ of certiorari.

As in that case, we find that the respondents in G.R. No. 93177 have not acted with grave abuse of discretion or without or in excess of jurisdiction to justify the intervention of the Court and the reversal of the acts complained of by the petitioners. Such action is indicated, however, in G.R. No. 96948, where we find that the right to peremptory challenge should not have been denied, and in G.R. Nos. 95020 and 97454, where the private respondents should not have been ordered released.

ACCORDINGLY, in G.R. No. 93177, the petition is DISMISSED for lack of merit. In G.R. No. 96948, the petition is GRANTED, and the respondents are DIRECTED to allow the petitioners to exercise the right of peremptory challenge under Article 18 of the Articles of War. In G.R. Nos. 95020 and 97454, the petitions are also GRANTED, and the orders of the respondent courts for the release of the private respondents are hereby REVERSED and SET ASIDE. No costs.

SO ORDERED.

v. statute of late date prevails1. paris vs averia G.R. No. L-22526. November 29, 1966

SYLLABUS

1.CERTIORARI; COURT CONFINED TO QUESTIONS OF JURISDICTION IN CERTIORARI PROCEEDINGS; FUNCTION OF WRIT. — In a certiorari proceeding, the court is confined to questions of jurisdiction. (Tuason vs. Concepcion, 54 Phil., 408.) The reason is that the function of the writ of certiorari is to keep an inferior court within its jurisdiction. (Brillo vs. Buklatan, 87 Phil., 519.) It is available for such purpose and not to correct errors of procedure or mistakes in the judge's findings or conclusion. (Regala vs. Court of First Instance of Bulacan, 77 Phil., 684; Ong Sit vs. Piccio, 78 Phil., 785; Icutamin vs. Hernandez, 81 Phil. 161; Verhomal vs. Tan, 88 Phil., 389; Association of Beverages Employees vs. Figueras, 91 Phil., 450; Matute vs. Macadaeg, 99 Phil., 340.)

D E C I S I O N

The success of the law enforcement agencies in curbing smuggling depends to some extent upon the cooperation of the other branches of the Government. Remove such cooperation and the campaign against smuggling is doomed, as concretely demonstrated in this case.

On December 26, 1963 Coast Guard Cutter 115 of the Philippine Navy pursued a fishing boat bearing the name of M/B "Bukang Liwayway" off Ternate, Cavite. During the chase the fishing boat fired upon the navy cutter thus wounding two Philippine Navy sailors. Said fishing boat was boarded and found loaded with untaxed foreign made cigarettes, to wit:

495casesUnion cigarettes1,385cartonsUnion cigarettes3,197packsUnion cigarettes88casesChesterfield cigarettes498cartonChesterfield cigarettes87casesSalem cigarettes799cartonsSalem cigarettes50cartonsWinston cigarettes

The cigarettes and the fishing boat were confiscated and turned over to the Flag officer in command of the Philippine naval base at Cavite City. On December 27, 1963 the cigarettes were delivered to the custody of the Bureau of Customs.

On January 13, 1964 Pedro Pacis, acting Collector of Customs of Manila, commenced seizure and forfeiture proceedings pursuant to Title VI of the Tariff and Customs Code (Republic Act No. 1937) by issuing a warrant of seizure and detention against the cigarettes and M/B "Bukang Liwayway", docketed as Manila Seizure Identification Nos. 8009 and 8009-A. On the same day, Eusebio Marges, the alleged owner of M/B "Bukang Liwayway", filed Civil Case No. TM-114 in the Court of First Instance at Trece Martires City for replevin against the Flag officer of the Philippine Navy and others, alleging that said fishing boat was stolen on December 15, 1963 while moored at Cañacao Bay, Cavite City; and that notice of loss was reported on December 16, 1963 to the Philippine Constabulary, Cavite City Police and the Collector of Customs of Manila.

On January 14, 1964, before defendants filed their answer but after Marges posted a surety bond in the amount of P40,000.00, His Honor, Judge Alberto V. Averia, issued a writ of replevin commanding the provincial sheriff of Cavite at Trece Martires City to take immediate possession of the M/B "Bukang Liwayway", retain the same in his custody and keep it and/or dispose of it according to law. On the following day the provincial sheriff served the writ upon the commanding officer of the Philippine Naval base at Cavite City. The latter, however, refused to surrender custody over the vessel. On January 16, 1964, acting upon the sheriff's manifestation, the court ordered the arrest of the naval base commander for contempt of court. On the same day said base commander filed an urgent motion to lift writ of replevin and order of arrest.

On January 20, 1964 the Republic of the Philippines, through the Bureau of Customs, filed a motion for intervention. Then on January 27, 1964 the Republic and defendant base commander filed a motion to dismiss the complaint and to lift the writ of replevin on the grounds that the Court of First Instance has no jurisdiction over the object in litigation (M/B "Bukang Liwayway"), the same being the subject of seizure proceedings in the Bureau of Customs; that the action for replevin was premature inasmuch as administrative remedies have not been exhausted; that a criminal action for smuggling was being prepared against Marges under which case M/B "Bukang Liwayway" would be liable for forfeiture, as an instrument of the crimes; and that the surety bond of P40,000.00 was insufficient. The Court denied the motion to lift writ of replevin on February 17, 1964 but ordered Marges to post an additional surety bond of P60,000.00.

Marges posted the additional surety bond of P60,000.00 and on February 20, 1964 defendant Flag Officer of the Philippine Navy delivered the M/B "Bukang Liwayway" to Provincial Sheriff Proceso P. Silangcruz without the previous knowledge and consent of the Collector of Customs of Manila.

Acting on the belief that the provincial sheriff was about to deliver M/B "Bukang Liwayway" to its owner, the Collector of Customs of Manila and the Commander of the Philippine Naval Base of Cavite City filed with this Court on February 29, 1964 the instant petition for certiorari with preliminary injunction.

Not known however to the Customs and Philippine Navy authorities, Provincial Sheriff Proceso P. Silangcruz had delivered the M/B. "Bukang Liwayway" on February 25, 1964 to Eusebio Marges. On March 2, 1964, after the filing of the petition for certiorari in this Court, petitioners received an order dated February 21, 1964 of the lower court denying their motion to dismiss and to lift writ of replevin.

On March 4, 1964 We required the respondents, Honorable Alberto V. Averia, Judge of the Court of First Instance of Cavite, Proceso P. Silangcruz, Provincial Sheriff of Cavite, and Eusebio Marges, to answer the petition for certiorari, and at the same time granted, without bond, preliminary prohibitory mandatory injunction, enjoining the respondent Judge and Sheriff together with their agents from enforcing the writ of replevin of January 14, 1964 and order dated February 17, 1964; prohibiting them further from delivering the M/B "Bukang Liwayway" to Eusebio Marges; and commanding them to deliver said vessel to petitioners. Respondent Sheriff however manifested on March 17, 1964 that he had already delivered the vessel in question to its owner on February 25, 1964 after petitioners failed to object to the sufficiency of the surety bond filed by Eusebio Marges and after they failed to file a counterbond needed for the retention of the vessel.

On April 22, 1964 this court issued another preliminary writ: Writ of preliminary mandatory injunction, commanding the Provincial Sheriff of Cavite to take possession again of M/B "Bukang Liwayway" and to keep the same under his custody until further orders from this Court. Respondent Sheriff received copy of the writ of preliminary mandatory injunction on April 28, 1964. For more than one month said sheriff did not make a return of the writ. Not until the Solicitor General moved on June 3, 1964 to require respondent Sheriff to report to this Court whether or not he has complied with the aforesaid writ and, if so, to order him to allow petitioners and their agents to inspect the vessel in question but, if not, to require him to show causes why he may not be declared in contempt of court. When asked to comment on the Solicitor's motion, respondent Sheriff on June 11, 1964 returned the writ unsatisfied, stating that said writ was served upon Eusebio Marges, owner of M/B "Bukang Liwayway" on April 30, 1964 who informed him in writing that the vessel in question was on a fishing expedition; that Marges promised to surrender the same upon its return; and that despite diligent efforts said vessel could not be located.

On July 22, 1964 this Court required respondent Sheriff to show cause why he should not be dealt with for contempt of court. Said Sheriff submitted his explanation on August 11, 1964 restating the allegations in his return filed with this Court on June 11, 1964. The Solicitor General filed his comment thereon on September 2, 1964 recommending that respondent Sheriff be declared in contempt of court.

On the basis of respondent Sheriff's explanation and the comment of the Solicitor General this Court once more required said Sheriff to show cause within ten days why he should not be dealt with in contempt of court. In compliance, he manifested on September 25, 1964 the following: (1) On August 15, 1964 he caused to be served on, and delivered to, Eusebio Marges his letter dated August 13, 1964 which reads:

"This is in connection with the Writ of Preliminary Mandatory Injunction issued by the Hon. Supreme Court in G.R. No. L-22526, entitled 'Pedro Pacis, et al. vs. Hon. Alberto V. Averia, et al.', requiring the undersigned Provincial Sheriff to take possession of the motor boat, 'M/B BUKANG LIWAYWAY,' which writ was served upon you on April 30, 1964.

"Please inform the undersigned whether the said motor boat which you alleged had been on fishing expedition has already arrived inasmuch as more than three (3) months have already elapsed since the writ was served upon you, and in the event that the motor boat is still in the fishing expedition, you are hereby required to contact forthwith the crew members thereof and direct them to proceed home immediately, in order that the writ issued by the Hon. Supreme Court may be complied with."

(2)Eusebio Marges replied by letter dated August 24, 1964, to wit:

"I would like to inform you that the M/B BUKANG LIWAYWAY was due to arrive last week, but up to the present I have not heard of its whereabouts. I am afraid that the said boat might be lost due to several typhoons.

"Assistance of the Philippine Constabulary Commander of Cavite was asked to locate the whereabouts of said motor boat, as per copy of the letter hereto attached.

"Please be rest assured that I will not hesitate to surrender the said boat to you as soon as it is located."

Marges' letter to the Provincial Commander of Cavite states:

"My fishing boat, M/B BUKANG LIWAYWAY was due to arrive from Palawan last Thursday morning August 6, 1964, but up to the present, it has not arrived at our place at Rosario, Cavite.

"I am afraid that due to the storm 'Senyang', my said boat might have been caught by said storm on its way home, so please help us locate my boat for the safety of the eight (8) crew members on board the boat.

"I have sent similar request to the Provincial Commanders of Mindoro, Batangas and Bataan asking their help in locating my boat as well as my crew members. Please inform me of any development."

(3)On September 1, 1964 respondent Sheriff sent the following communication to the Provincial Commander of the Philippine Constabulary in Cavite:

"I am in receipt of a letter of Mr. Eusebio Marges dated August 24, 1964 regarding the motor boat M/B BUKANG LIWAYWAY', copy of which is hereto attached.

"Please inform the undersigned as to what action or step your command has taken on the request of Mr. Marges."

to which the Provincial Commander made the following reply:

"Respectfully returned to Mr. Proceso P. Silangcruz, Provincial Sheriff of Cavite, Trece Martires City, the herein attached true copy of the original communication with the information that all shoreline troops detailed to look for the M/B 'Bukang Liwayway' failed to locate the same.

"No definite information has as yet been obtained as to the whereabouts of the boat, hence, this Command is still in the process of looking for it.

"Rest assured that whatever progress made of the search will be sent to the Office."

(4)Again respondent Sheriff addressed a letter dated September 15, 1964 to the Cavite Provincial Commander in the following tenor:

"Relative your 1st Indorsement dated September 4, 1964, assuring this office that further information will be furnished regarding the motor boat M/B 'Bukang Liwayway', please inform the undersigned of whatever progress your command has made on the subject matter in view of the Writ of Preliminary Injunction issued by the Honorable Court."

(5)On September 11 and 16, 1964 respondent Sheriff telegrammed the PC Provincial Commanders of Batangas, Palawan, Mindoro and Butuan requesting their help to locate the M/B "Bukang Liwayway" but he has not received any answer thereto.

Treating the motion of the Solicitor General dated June 3, 1964 as a written charge for contempt against Provincial Sheriff Proceso P. Silangcruz and the latter's comment thereto as his answer, this Court set the contempt incident for hearing on September 21, 1966. Only the counsel for Provincial Sheriff Proceso P. Silangcruz appeared.

Up to now respondent Provincial Sheriff has not taken custody of the motor boat in question.

The issues are:

1.Whether or not petitioners could elevate the case at bar to this Court on a petition for certiorari.

2.Whether or not the owner of M/B "Bukang Liwayway" could recover possession of the same by way of a civil case with replevin; and

3.Whether or not Provincial Sheriff Proceso P. Silangcruz may be adjudged in contempt of the Supreme Court for failure to comply with the writ of preliminary mandatory injunction issued in this case on April 22, 1964.

The first issue is on the availability of the remedy of certiorari with preliminary injunction. It is pressed that the order of the lower court dated February 17, 1964 denying the motion to dismiss and to lift the writ of replevin is an interlocutory order, hence not appealable.

It should be remembered that the case before Us is not an appeal. It is a special civil action of certiorari under Section 1 of Rule 65 of the Rules of Court to annul the aforesaid order for having been rendered without or in excess of the lower court's jurisdiction. The points of inquiry therefore should be on whether or not the respondent court acted without or in excess of its jurisdiction and whether or not there is an appeal or any plain, speedy and adequate remedy in the ordinary course of law.

The pertinent provision of the Rules of Court reads:1

"Section 1.Petition for certiorari — When any tribunal, board, or officer exercising judicial functions, has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings, as the law requires, of such tribunal, board or officers."

In a certiorari proceeding under the above-quoted rule, the court is confined to questions of jurisdiction.2 The reason is that the function of the writ of certiorari is to keep an inferior court within its jurisdiction.3 It is available for such purpose and not to correct errors of procedure or mistakes in the judge's findings or conclusion.4 Precisely, in this case, petitioners are assailing the jurisdiction of the Court of First Instance of Cavite to issue the order of February 17, 1964.

The parties have not put in controversy the non-availability of appeal or any plain, speedy and adequate remedy in the ordinary course of law. Appeal is not open to them for We have already set at course the ruling that denial of a motion to dismiss a complaint does not entitle a party whose motion is denied to forthwith appeal therefrom.5 Respondents have pointed out however that petitioners failed to allege such fact in their petition for certiorari. Aside from the fact that the absence of appeal and similar ordinary remedies is patent from the petition's allegations the defect, if any, has been cured by the allegation in paragraph 17 of the supplemental petition expressly stating the same.

Certiorari was therefore properly brought.

We now come to the propriety of the filing of Civil Case No. TM- 114 in the Court of First Instance of Cavite for the purpose of recovering possession of MB "Bukang Liwayway" which was then held in detention by the Philippine Navy in the Cavite Naval base for the Bureau of Customs which instituted seizure and forfeiture proceedings (Seizure Identification Nos. 8009 & 8009-A) against it.

At issue is the jurisdiction of the Court of First Instance of Cavite to entertain Civil Case No. TM-114, and the existence of therein plaintiff's cause of action.

Petitioners would contend that the jurisdiction of the Bureau of Customs to conduct seizure and forfeiture proceedings of vessels for violation of the Tariff and Customs Code is exclusive of the Courts of First Instance. They would further maintain that the issuance of a writ of replevin, as what actually transpired in this case, will prevent the Bureau of Customs from further proceeding with the seizure and forfeiture for allegedly under Section 2531 of the Tariff and Customs Code, forfeiture could be effected only when and while the thing subject to forfeiture is in the custody of the Bureau of Customs.

The Tariff and Customs Code, in Section 2530 thereof, lists the kinds of property subject to forfeiture. At the same time, in Part 2 of Title VI thereof, it provides for the procedure in seizure and forfeiture cases and vests in the Collector of Customs the authority to hear and decide said cases.6 The Collector's decision is appealable to the Commissioner of Customs7 whose decision is in turn appealable to the Court of Tax Appeals.8 An aggrieved party may appeal from a judgment of the Court of Tax Appeals directly to this Court.9 On the other hand, Section 44 (c) of the Judiciary Act of 1948 10 lodges in the Court of First Instance original jurisdiction in all cases in which the value of the property in controversy amounts to more than ten thousand pesos. This original jurisdiction of the Court of First Instance, when exercised in an action for recovery of personal property which is a subject of a forfeiture proceeding in the Bureau of Customs, tends to encroach upon, and to render futile, the jurisdiction of the Collector of Customs in seizure and forfeiture proceedings. This is precisely what took place in this case. The seizure and forfeiture proceedings against the M/B "Bukang Liwayway" before the Collector of Customs of Manila was stifled by the issuance of a writ of replevin by the Court of First Instance of Cavite.

Should Section 44(c) of the Judiciary Act of 1948 give way to the provisions of the Tariff and Customs Code, or vice versa? In Our opinion, in this particular case, the Court of First Instance should yield to the jurisdiction of the Collector of Customs. The jurisdiction of the Collector of Customs is provided for in Republic Act 1937 which took effect on July 1, 1957, much later than the Judiciary Act of 1948. It is axiomatic that a later law prevails over a prior statute.11 Moreover, on grounds of public policy, it is more reasonable to conclude that the legislators intended to divest the Court of First Instance of the prerogative to replevin a property which is a subject of a seizure and forfeiture proceedings for violation of the Tariff and Customs Code. Otherwise, actions for forfeiture of property for violation of Customs laws could easily be undermined by the simple device of replevin.

Furthermore, Section 2303 of the Tariff and Customs Code requires the Collector of Customs to give to the owner of the property sought to be forfeited written notice of the seizure and to give him the opportunity to be heard in his defense. This provision clearly indicates the intention of the law to confine in the Bureau of Customs the determination of all questions affecting the disposal of property proceeded against in a seizure and forfeiture case. The judicial recourse of the property owner is not in the Court of First Instance but in the Court of Tax Appeals, and only after exhausting administrative remedies in the Bureau of Customs.

We come to the last question whether or not respondent Provincial Sheriff Proceso P. Silangcruz is in contempt of this Court for failure to comply with the writ of preliminary mandatory injunction issued by this Court on April 22, 1964.

The writ of preliminary mandatory injunction was received by respondent Provincial Sheriff Proceso P. Silangcruz on April 28, 1964. Thenceforth, nothing was heard of the writ nor from said Sheriff. Only after June 3, 1964 when the Solicitor General filed a motion charging him of contempt of court for non-compliance with the writ did Provincial Sheriff Proceso P. Silangcruz oblige himself to make a return of the writ, informing Us that he could not enforce the same because the subject vessel was out on a fishing expedition. For this undue delay in making a return on the writ, respondent Sheriff offered no explanation.

Such conduct of Sheriff Silangcruz is a far cry from his behavior on January 16, 1964 when he made not merely a return of the writ of replevin but a manifestation before the Court of First Instance of Cavite ONE DAY after he served the same advising said court of the refusal of the Philippine Navy Commander to obey it and praying for the arrest of said Commander for contempt of court. It is also a great contrast from his excellent efficiency in delivering the subject vessel to its owner notwithstanding the absence of an express order from the court and one day earlier than the time provided for in the Rules of Court. On those two occasions he was in the process of obtaining possession for the vessel's owner. Incidentally, and of course We fully comprehend the situation, the writ issued by this Court would deprive the alleged boat owner of possession over the boat, thus putting to naught respondent Sheriff's previous efforts.

The more than one month's time when the writ of preliminary mandatory injunction stayed frozen in the hands of Sheriff Silangcruz made it possible for interested parties to whisk the boat in question from the reach of the law. The boat allegedly disappeared and the respondent Sheriff together with the alleged boat owner conveniently put the blame for its alleged disappearance on typhoon Senyang. They insinuate that M/B "Bukang Liwayway" was sunk or wrecked on its way from Palawan to Cavite by said typhoon. Probably, Sheriff Silangcruz and boat owner Marges were misinformed about typhoon Senyang. The official reports of the Weather Bureau, 12 considered as within judicial notice, do not indicate that said typhoon affected Palawan and Cavite. On August 5, 1964 said typhoon was in the Pacific Ocean, 690 miles East of Manila. On August 6, 1964 it was 670 miles East Southeast of Casiguran, Quezon. On August 7, typhoon Senyang hit Southern Luzon causing heavy rains to fall in the Manila-Cavite area but it turned North to Cagayan Province and the Batanes. Then it blew towards the China Sea, Hongkong and the Gulf of Tongkin. Very prominent, however, is the report of Col. Segundo L. Gazmin, II PC Zone Commander about one fishing boat (from Cavite) missing carrying 20 crew members. The M/B "Bukang Liwayway" had only eight crew members on board. Undoubtedly, the missing boat could not have been the M/B "Bukang Liwayway."

One more thing. It has caught our notice, especially because the Solicitor General called our attention, that respondent Sheriff has practically taken the cudgels for boat owner Eusebio Marges in this proceeding for certiorari. In his answers to the petition for certiorari and to the supplemental petition, he went beyond justifying his official acts and proceeded to espouse the cause of the boat owner thereby giving the impression that his interest in the case and in the subject matter of this litigation is more than just the interest of a public official complying with his duties as such.

On the foregoing premises, We are constrained to conclude that respondent Sheriff's failure to enforce the writ and his failure to make a return thereof for quite a time had in effect prevented this Court from taking possession of M/B "Bukang Liwayway", thus directly interfering, impeding or obstructing the processes of this Court. The respondent Sheriff's non-performance has resulted in the frustration of the mandates of this Court and the setback of the administration of justice. This Court can not tolerate evasion of its commands, by any omission, negligence, artifice or contrivance of any kind, nor would it countenance any disregard of its authority. For it is essential to the effective administration of justice that the processes of the courts be obeyed. And upon no one does this obligation of obedience rest with more binding force than a judicial officer such as respondent Sheriff. 13

We therefore find and declare Provincial Sheriff Proceso P. Silangcruz guilty of contempt of the Supreme Court punishable under Section 6 of Rule 71 of the Rules of Court.

WHEREFORE, the petition for certiorari is granted. The writ of replevin issued on January 14, 1964 and the order issued on February 17, 1964 by the Court of First Instance of Cavite are hereby declared null and void. The mandatory injunction of April 22, 1964 to deliver the Boat M/B "Bukang Liwayway" is hereby reiterated.

Respondent Sheriff of Cavite, Proceso P. Silangcruz, is hereby declared in contempt of the Supreme Court, and considering all attendant circumstances, sentenced to imprisonment of six months and to pay a fine of P1,000.00. No pronouncement as to costs. So ordered.

vi. Generalia specialibus non derogant- latin maxim which means universal things do not detract from specific things. This well-known proposition of law says that when a matter falls under any specific provision, then it must be governed by that provision and not by the general provision. The general provisions must admit to the specific provisions of law.

vii. special law prevails over general law1 fiestan vs CA [G.R. No. 81552. May 28, 1990.]

D E C I S I O N

FERNAN, C.J p:

In this petition for review on certiorari, petitioners spouses Dionisio Fiestan and Juanita Arconada, owners of a parcel of land (Lot No. 2-B) situated in Ilocos Sur covered by TCT T-13218 which they mortgaged to the Development Bank of the Philippines (DBP) as security for their P22,400.00 loan, seek the reversal of the decision of the Court of Appeals 1 dated June 5, 1987 affirming the dismissal of their complaint filed against the Development Bank of the Philippines, Laoag City Branch, Philippine National Bank, Vigan Branch, Ilocos Sur, Francisco Peria and the Register of Deeds of Ilocos Sur, for annulment of sale, mortgage, and cancellation of transfer certificates of title. llcd

Records show that Lot No. 2-B was acquired by the DBP as the highest bidder at a public auction sale on August 6, 1979 after it was extrajudicially foreclosed by the DBP in accordance with Act No. 3135, as amended by Act No. 4118, for failure of petitioners to pay their mortgage indebtedness. A certificate of sale was subsequently issued by the Provincial Sheriff of Ilocos Sur on the same day and the same was registered on September 28, 1979 in the Office of the Register of Deeds of Ilocos Sur. Earlier, or on September 26, 1979, petitioners executed a Deed of Sale in favor of DBP which was likewise registered on September 28, 1979.

Upon failure of petitioners to redeem the property within the one (1) year period which expired on September 28, 1980, petitioners' TCT T-13218 over Lot No. 2-B was cancelled by the Register of Deeds and in lieu thereof TCT T-19077 was issued to the DBP upon presentation of a duly executed affidavit of consolidation of ownership.

On April 13, 1982, the DBP sold the lot to Francisco Peria in a Deed of Absolute Sale and the same was registered on April 15, 1982 in the Office of the Register of Deeds of Ilocos Sur. Subsequently, the DBP's title over the lot was cancelled and in lieu thereof TCT T-19229 was issued to Francisco Peria.

After title over said lot was issued in his name, Francisco Peria secured a tax declaration for said lot and accordingly paid the taxes due thereon. He thereafter mortgaged said lot to the PNB-Vigan Branch as security for his loan of P115,000.00 as required by the bank to increase his original loan from P49,000.00 to P66,000.00 until it

finally reached the approved amount of P115,000.00. Since petitioners were still in possession of Lot No. 2-B, the Provincial Sheriff ordered them to vacate the premises.

On the other hand, petitioners filed on August 23, 1982 a complaint for annulment of sale, mortgage and cancellation of transfer certificates of title against the DBP-Laoag City, PNB-Vigan Branch, Ilocos Sur, Francisco Peria and the Register of Deeds of Ilocos Sur, docketed as Civil Case No. 3447-V before the Regional Trial Court of Vigan, Ilocos Sur.

After trial, the RTC of Vigan, Ilocos Sur, Branch 20, rendered its decision 2 on November 14, 1983 dismissing the complaint, declaring therein, as valid the extrajudicial foreclosure sale of the mortgaged property in favor of the DBP as highest bidder in the public auction sale held on August 6, 1979, and its subsequent sale by DBP to Francisco Peria as well as the real estate mortgage constituted thereon in favor of PNB-Vigan as security for the P115,000.00 loan of Francisco Peria.

The Court of Appeals affirmed the decision of the RTC of Vigan, Ilocos Sur on June 20, 1987. prLL

The motion for reconsideration having been denied 3 on January 19, 1988, petitioners filed the instant petition for review on certiorari with this Court.

Petitioners seek to annul the extrajudicial foreclosure sale of the mortgaged property on August 6, 1979 in favor of the Development Bank of the Philippines (DBP) on the ground that it was conducted by the Provincial Sheriff of Ilocos Sur without first effecting a levy on said property before selling the same at the public auction sale. Petitioners thus maintained that the extrajudicial foreclosure sale being null and void by virtue of lack of a valid levy, the certificate of sale issued by the Provincial Sheriff cannot transfer ownership over the lot in question to the DBP and consequently the deed of sale executed by the DBP in favor of Francisco Peria and the real estate mortgage constituted thereon by the latter in favor of PNB-Vigan Branch are likewise null and void.

The Court finds these contentions untenable.

The formalities of a levy, as an essential requisite of a valid execution sale under Section 15 of Rule 39 and a valid attachment lien under Rule 57 of the Rules of Court, are not basic requirements before an extrajudicially foreclosed property can be sold at public auction. At the outset, distinction should be made of the three different kinds of sales under the law, namely: an ordinary execution sale, a judicial foreclosure sale, and an extrajudicial foreclosure sale, because a different set of law applies to each class of sale mentioned. An ordinary execution sale is governed by the pertinent provisions of Rule 39 of the Rules of Court. Rule 68 of the Rules of Court applies in cases of judicial foreclosure sale. On the other hand, Act No. 3135, as amended by Act No. 4118 otherwise known as "An Act to Regulate the Sale of Property under Special Powers Inserted in or Annexed to Real Estate Mortgages" applies in cases of extrajudicial foreclosure sale. prcd

The case at bar, as the facts disclose, involves am extrajudicial foreclosure sale. The public auction sale conducted on August 6, 1979 by the Provincial Sheriff of Ilocos Sur refers to the "sale" mentioned in Section 1 of Act No. 3135, as amended, which was made pursuant to a special power inserted in or attached to a real estate mortgage made as security for the payment of money or the fulfillment of any other obligation. It must be noted that in the mortgage contract, petitioners, as mortgagor, had appointed private respondent DBP, for the purpose of extrajudicial foreclosure, "as his attorney-in-fact to sell the property mortgaged under Act No. 3135, as amended, to sign all documents and perform any act requisite and necessary to accomplish said purpose . . . . In case of foreclosure, the Mortgagor hereby consents to the appointment of the mortgagee or any of its employees as receiver, without any bond, to take charge of the mortgaged property at once, and to hold possession of the same . . . ." 4

There is no justifiable basis, therefore, to apply by analogy the provisions of Rule 39 of the Rules of Court on ordinary execution sale, particularly Section 15 thereof as well as the jurisprudence under said provision, to an extrajudicial foreclosure sale conducted under the provisions of Act No. 3135, as amended. Act No. 3135, as amended, being a special law governing extrajudicial foreclosure proceedings, the same must govern as against the provisions on ordinary execution sale under Rule 39 of the Rules of Court.

In that sense, the case of Aparri v. Court of Appeals, 13 SCRA 611 (1965), cited by petitioners, must be distinguished from the instant case. On the question of what should be done in the event the highest bid made for the property at the extrajudicial foreclosure sale is in excess of the mortgage debt, this Court applied the rule and practice in a judicial foreclosure sale to an extrajudicial foreclosure sale in a similar case considering that the governing provisions of law as mandated by Section 6 of Act No. 3135, as amended, specifically Sections 29, 30 and 34 of Rule 39 of the Rules of Court (previously Sections 464, 465 and 466 of the Code of Civil Procedure) are silent on the matter. The said ruling cannot, however, be construed as the legal basis for applying the requirement of a levy under Section 15 of Rule 39 of the Rules of Court before an extrajudicially foreclosed property can be sold at public auction when none is expressly required under Act No. 3135, as amended.

Levy, as understood under Section 15, Rule 39 of the Rules of Court in relation to execution of money judgments, has been defined by this Court as the act whereby a sheriff sets apart or appropriates for the purpose of satisfying the command of the writ, a part or the whole of the judgment-debtor's property. 5

In extrajudicial foreclosure of mortgage, the property sought to be foreclosed need not be identified or set apart by the sheriff from the whole mass of property of the mortgagor for the purpose of satisfying the mortgage indebtedness. For, the essence of a contract of mortgage indebtedness is that a property has been identified or set apart from the mass of the property of the debtor-mortgagor as security for the payment of money or the fulfillment of an obligation to answer the amount of indebtedness, in case of default of payment. By virtue of the special power inserted or attached to the mortgage contract, the mortgagor has authorized the mortgagee-creditor or any other person authorized to act for him to sell said property in accordance with the formalities required under Act No. 3135, as amended.

The Court finds that the formalities prescribed under Sections 2, 3 and 4 of Act No. 3135, as amended, were substantially complied with in the instant case. Records show that the notices of sale were posted by the Provincial Sheriff of Ilocos Sur and the same were published in Ilocos Times, a newspaper of general circulation in the province of Ilocos Sur, setting the date of the auction sale on August 6, 1979 at 10:00 a.m. in the Office of the Sheriff, Vigan, Ilocos Sur. 6

The nullity of the extrajudicial foreclosure sale in the instant case is further sought by petitioners on the ground that the DBP cannot acquire by purchase the mortgaged property at the public auction sale by virtue of par. (2) of Article 1491 and par. (7) of Article 1409 of the Civil Code which prohibits agents from acquiring by purchase, even at a public or judicial auction either in person or through the mediation of another, the property whose administration or sale may have been entrusted to them unless the consent of the principal has been given. prLL

The contention is erroneous.

The prohibition mandated by par. (2) of Article 1491 in relation to Article 1409 of the Civil Code does not apply in the instant case where the sale of the property in dispute was made under a special power inserted in

or attached to the real estate mortgage pursuant to Act No. 3135, as amended. It is a familiar rule of statutory construction that, as between a specific statute and general statute, the former must prevail since it evinces the legislative intent more clearly than a general statute does. 7 The Civil Code (R.A. 386) is of general character while Act No. 3135 as amended, is a special enactment and therefore the latter must prevail. 8

Under Act No. 3135, as amended, a mortgagee-creditor is allowed to participate in the bidding and purchase under the same conditions as any other bidder, as in the case at bar, thus:

"Section 5.At any sale, the creditor, trustee, or other person authorized to act for the creditor, may participate in the bidding and purchase under the same conditions as any other bidder, unless the contrary has been expressly provided in the mortgage or trust deed under which the sale is made."

In other words, Section 5 of Act No. 3135, as amended, creates and is designed to create an exception to the general rule that a mortgagee or trustee in a mortgage or deed of trust which contains a power of sale on default may not become the purchaser, either directly or through the agency of a third person, at a sale which he himself makes under the power. Under such an exception, the title of the mortgagee-creditor over the property cannot be impeached or defeated on the ground that the mortgagee cannot be a purchaser at his own sale.

Needless to state, the power to foreclose is not an ordinary agency that contemplates exclusively the representation of the principal by the agent but is primarily an authority conferred upon the mortgagee for the latter's own protection. It is an ancillary stipulation supported by the same cause or consideration for the mortgage and forms an essential and inseparable part of that bilateral agreement. 9 Even in the absence of statutory provision, there is authority to hold that a mortgagee may purchase at a sale under his mortgage to protect his own interest or to avoid a loss to himself by a sale to a third person at a price below the mortgage debt. 10 The express mandate of Section 5 of Act No. 3135, as amended, amply protects the interest of the mortgagee in this jurisdiction.

WHEREFORE, in view of the foregoing, the petition is DENIED for lack of merit and the decision of the Court of Appeals dated June 20, 1987 is hereby AFFIRMED. No cost. Cdrep SO ORDERED.

Exceptions1. bagatsing vs Ramirez [G.R. No. L-41631. December 17, 1976.]

D E C I S I O N

MARTIN, J p:

The chief question to be decided in this case is what law shall govern the publication of a tax ordinance enacted by the Municipal Board of Manila, the Revised City Charter (R.A. 409, as amended), which requires publication of the ordinance before its enactment and after its approval, or the Local Tax Code (P.D. No. 231), which only demands publication after approval. cd

On June 12, 1974, the Municipal Board of Manila enacted Ordinance No. 7522, "AN ORDINANCE REGULATING THE OPERATION OF PUBLIC MARKETS AND PRESCRIBING FEES FOR THE RENTALS OF STALLS AND PROVIDING PENALTIES FOR VIOLATION THEREOF AND FOR OTHER PURPOSES." The petitioner City Mayor, Ramon D. Bagatsing, approved the ordinance on June 15, 1974.

On February 17, 1975, respondent Federation of Manila Market Vendors, Inc. commenced Civil Case 96787 before the Court of First Instance of Manila, presided over by respondent Judge, seeking the declaration of nullity of Ordinance No. 7522 for the reason that (a) the publication requirement under the Revised Charter of the City of Manila has not been complied with; (b) the Market Committee was not given any participation in the enactment of the ordinance, as envisioned by Republic Act 6039; (c) Section 3 (e) of the Anti-Graft and Corrupt Practices Act has been violated; and (d) the ordinance would violate Presidential Decree No. 7 of September 30, 1972 prescribing the collection of fees and charges on livestock and animal products. prLL

Resolving the accompanying prayer for the issuance of a writ of preliminary injunction, respondent Judge issued an order on March 1, 1975, denying the plea for failure of the respondent Federation of Manila Market Vendors, Inc. to exhaust the administrative remedies outlined in the Local Tax Code.

After due hearing on the merits, respondent Judge rendered its decision on August 29, 1975, declaring the nullity of Ordinance No. 7522 of the City of Manila on the primary ground of non-compliance with the requirement of publication under the Revised City Charter. Respondent Judge ruled:

"There is, therefore, no question that the ordinance in question was not published at all in two daily newspapers of general circulation in the City of Manila before its enactment. Neither was it published in the same manner after approval, although it was posted in the legislative hall and in all city public markets and city public libraries. There being no compliance with the mandatory requirement of publication before and after approval, the ordinance in question is invalid and, therefore, null and void."

Petitioners moved for reconsideration of the adverse decision, stressing that (a) only a post-publication is required by the Local Tax Code; and (b) private respondent failed to exhaust all administrative remedies before instituting an action in court.

On September 26, 1975, respondent Judge denied the motion.

Forthwith, petitioners brought the matter to Us through the present petition for review on certiorari.

We find the petition impressed with merits.

1.The nexus of the present controversy is the apparent conflict between the Revised Charter of the City of Manila and the Local Tax Code on the manner of publishing a tax ordinance enacted by the Municipal Board of Manila. For, while Section 17 of the Revised Charter provides:

"Each proposed ordinance shall be published in two daily newspapers of general circulation in the city, and shall not be discussed or enacted by the Board until after the third day following such publication. . . . Each approved ordinance . . . shall be published in two daily newspapers of general circulation in the city, within ten days after its approval; and shall take effect and be in force on and after the twentieth day following its publication, if no date is fixed in the ordinance."

Section 43 of the Local Tax Code directs: Cdpr

"Within ten days after their approval, certified true copies of all provincial, city, municipal and barrio ordinances levying or imposing taxes, fees or other charges shall be published for three consecutive days in a newspaper or publication widely circulated within the jurisdiction of the local government, or posted in the local legislative hall or premises and in two other conspicuous places within the territorial jurisdiction of the local government. In either case, copies of all provincial, city, municipal and barrio ordinances shall be furnished the treasurers of the respective component and mother units of a local government for dissemination."

In other words, while the Revised Charter of the City of Manila requires publication before the enactment of the ordinance and after the approval thereof in two daily newspapers of general circulation in the city, the Local Tax Code only prescribes for publication after the approval of "ordinances levying or imposing taxes, fees or other charges" either in a newspaper or publication widely circulated within the jurisdiction of the local government or by posting the ordinance in the local legislative hall or premises and in two other conspicuous places within the territorial jurisdiction of the local government. Petitioners' compliance with the Local Tax Code rather than with the Revised Charter of the City spawned this litigation.

There is no question that the Revised Charter of the City of Manila is a special act since it relates only to the City of Manila, whereas the Local Tax Code is a general law because it applies universally to all local governments. Blackstone defines general law as a universal rule affecting the entire community and special law as one relating to particular persons or things of a class. 1 And the rule commonly said is that a prior special law is not ordinarily repealed by a subsequent general law. The fact that one is special and the other general creates a presumption that the special is to be considered as remaining an exception of the general, one as a general law of the land, the other as the law of a particular case. 2 However, the rule readily yields to a situation where the special statute refers to a subject in general, which the general statute treats in particular. The exactly is the circumstance obtaining in the case at bar. Section 17 of the Revised Charter of the City of Manila speaks of "ordinance" in general, i.e., irrespective of the nature and scope thereof, whereas, Section 43 of the Local Tax Code relates to "ordinances levying or imposing taxes, fees or other charges" in particular. In regard, therefore, to ordinances in general, the Revised Charter of the City of Manila is doubtless dominant, but, that dominant force loses its continuity when it approaches the realm of "ordinances levying or imposing taxes, fees or other charges" in particular. There, the Local Tax Code controls. Here, as always, a general provision must give way to a particular provision. 3 Special provision governs. 4 This is especially true where the law containing the particular provision was enacted later than the one containing the general provision. The City Charter of Manila was promulgated on June 18, 1949 as against the Local Tax Code which was decreed on June 1, 1973. The law-making power cannot be said to have intended the establishment of conflicting and hostile systems upon the same subject, or to leave in force provisions of a prior law by which the new will of the legislating power may be thwarted and overthrown. Such a result would render legislation a useless and idle ceremony, and subject the law to the reproach of uncertainty and unintelligibility. 5

The case of City of Manila v. Teotico 6 is opposite. In that case, Teotico sued the City of Manila for damages arising from the injuries he suffered when he fell inside an uncovered and unlighted catchbasin or manhole on P. Burgos Avenue. The City of Manila denied liability on the basis of the City Charter (R.A. 409) exempting the City of Manila from any liability for damages or injury to persons or property arising from the failure of the city officers to enforce the provisions of the charter or any other law or ordinance, or from negligence of the City Mayor, Municipal Board, or other officers while enforcing or attempting to enforce the provisions of the charter or of any other law or ordinance. Upon the other hand, Article 2189 of the Civil Code makes cities liable for damages for the death of, or injury suffered by any persons by reason of the defective condition of roads, streets, bridges, public buildings, and other public works under their control or supervision. On review, the Court held the Civil Code controlling. It is true that, insofar as its territorial application is concerned, the Revised City Charter is a special law and the subject matter of the two laws, the Revised City Charter establishes a general rule of liability arising from negligence in general, regardless of the object thereof, whereas the Civil Code constitutes a particular prescription for liability due to defective streets in particular. In the same manner, the Revised Charter of the City prescribes a rule for the publication of "ordinance" in general, while the Local Tax Code establishes a rule for the publication of "ordinance levying or imposing taxes fees or other charges in particular. LibLex

In fact, there is no rule which prohibits the repeal even by implication of a special or specific act by a general or broad one. 7 A charter provision may be impliedly modified or superseded by a later statute, and where a statute is controlling, it must be read into the charter notwithstanding any particular charter provision. 8 A subsequent general law similarly applicable to all cities prevails over any conflicting charter provision, for the reason that a charter must not be inconsistent with the general laws and public policy of the state. 9 A chartered city is not an independent sovereignty. The state remains supreme in all matters not purely local. Otherwise stated, a charter must yield to the constitution and general laws of the state, it is to have read into it that general law which governs the municipal corporation and which the corporation cannot set aside but to which it must yield. When a city adopts a charter, it in effect adopts as part of its charter general law of such character. 10

2.The principle of exhaustion of administrative remedies is strongly asserted by petitioners as having been violated by private respondent in bringing a direct suit in court. This is because Section 47 of the Local Tax Code provides that any question or issue raised against the legality of any tax ordinance, or portion thereof, shall be referred for opinion to the city fiscal in the case of tax ordinance of a city. The opinion of the city fiscal is appealable to the Secretary of Justice, whose decision shall be final and executory unless contested before a competent court within thirty (30) days. But, the petition below plainly shows that the controversy between the parties is deeply rooted in a pure question of law: whether it is the Revised Charter of the City of Manila or the Local Tax Code that should govern the publication of the tax ordinance. In other words, the dispute is sharply focused on the applicability of the Revised City Charter or the Local Tax Code on the point at issue, and not on the legality of the imposition of the tax. Exhaustion of administrative remedies before resort to judicial bodies is not an absolute rule. It admits of exceptions. Where the question litigated upon is purely a legal one, the rule does not apply. 11 The principle may also be disregarded when it does not provide a plain, speedy and adequate remedy. It may and should be relaxed when its application may cause great and irreparable damage. 12

3.It is maintained by private respondent that the subject ordinance is not a "tax ordinance," because the imposition of rentals, permit fees, tolls and other fees is not strictly a taxing power but a revenue-raising function, so that the procedure for publication under the Local Tax Code finds no application. The pretense bears its own marks of fallacy. Precisely, the raising of revenues is the principal object of taxation. Under Section 5, Article XI of the New Constitution, "Each local government unit shall have the power to create its own sources of revenue and to levy taxes, subject to such provisions as may be provided by law." 13 And one of those sources of revenue is what the Local Tax Code points to in particular: "Local governments may collect fees or rentals for the occupancy or use of public markets and premises . . ." 14 They can provide for and regulate market stands, stalls and privileges, and, also, the sale, lease or occupancy thereof. They can license, or permit the use of, lease, sell or otherwise dispose of stands, stalls or marketing privileges. 15

It is a feeble attempt to argue that the ordinance violates Presidential Decree No. 7, dated September 30, 1972, insofar as it affects livestock and animal products, because the said decree prescribes the collection of other fees and charges thereon "with the exception of ante-mortem and post-mortem inspection fees, as well as the delivery, stockyard and slaughter fees as may be authorized by the Secretary of Agriculture and Natural Resources." 16Clearly, even the exception clause of the decree itself permits the collection of the proper fees for livestock. And the Local Tax Code (P.D. 231, July 1, 1973) authorizes in its Section 31: "Local governments may collect fees for the slaughter of animals and the use of corrals . . ."

4.The non-participation of the Market Committee in the enactment of Ordinance No. 7522 supposedly in accordance with Republic Act No. 6039, an amendment to the City Charter of Manila, providing that "the market committee shall formulate, recommend and adopt, subject to the ratification of the municipal board, and approval of the mayor, policies and rules or regulation repealing or maneding existing provisions of the market code" does not infect the ordinance with any germ of invalidity. 17 The function of the committee is purely recommendatory as the underscored phrase suggests, its recommendation is without binding effect on the Municipal Board and the City Mayor. Its prior acquiescence of an intended or proposed city ordinance is not a condition sine qua non before the Municipal Board could enact such

ordinance. The native power of the Municipal Board to legislate remains undisturbed even in the slightest degree. It can move in its own initiative and the Market Committee cannot demur. At most, the Market Committee may serve as a legislative aide of the Municipal Board in the enactment of city ordinances affecting the city markets or, in plain words, in the gathering of the necessary data, studies and the collection of consensus for the proposal of ordinances regarding city markets. Much less could it be said that Republic Act 6039 intended to delegate to the Market Committee the adoption of regulatory measures for the operation and administration of the city markets.Potestas delegata non delegare potest. prcd

5.Private respondent bewails that the market stall fees imposed in the disputed ordinance are diverted to the exclusive private use of the Asiatic Integrated Corporation since the collection of said fees had been let by the City of Manila to the said corporation in a "Management and Operating Contract." The assumption is of course saddled on erroneous premise. The fees collected do not go direct to the private coffers of the corporation. Ordinance No. 7522 was not made for the corporation but for the purpose of raising revenues for the city. That is the object it serves. The entrusting of the collection of the fees does not destroy the public purpose of the ordinance. So long as the purpose is public, it does not matter whether the agency through which the money is dispensed is public or private. The right to tax depends upon the ultimate use, purpose and object for which the fund is raised. It is not dependent on the nature or character of the person or corporation whose intermediate agency is to be used in applying it. The people may be taxed for a public purpose, although it be under the direction of an individual or private corporation. 18

Nor can the ordinance be stricken down as violative of Section 3(e) of the Anti-Graft and Corrupt Practices Act because the increased rates of market stall fees as levied by the ordinance will necessarily inure to the unwarranted benefit and advantage of the corporation. 19 We are concerned only with the issue whether the ordinance in question is intra vires. Once determined in the affirmative, the measure may not be invalidated because of consequences that may arise from its enforcement. 20

ACCORDINGLY, the decision of the court below is hereby reversed and set aside. Ordinance No. 7522 of the City of Manila, dated June 15, 1975, is hereby held to have been validly enacted. No. costs. cdasia

SO ORDERED.

2.Lichanco vs cebu aeronautics G.R. No. L-32979-81 February 29, 1972

Original petition for certiorari with preliminary injunction to annul and set aside Civil Aeronautics Board resolutions Nos. 165 (70), 321 (70) and 330 (70), fixing temporary and permanent rate or fare adjustments of three domestic air carriers, Philippine Air Lines (PAL), Filipinas Orient Airways (FOA) and Air Manila, and dismissing petitioner's objections thereto, based on alleged lack of jurisdiction.

The issue submitted for Our decision is whether authority to fix air carrier's rates is vested in the Civil Aeronautics Board (CAB) or in the Public Service Commission (PSC).

Petitioner Lechoco contends that by the enactment of Republic Act No. 2677 (on 18 June 1960) amending sections 13 (a) and 14 of Commonwealth Act No. 146 (the original PSC Act), jurisdiction to control rates of airships was taken away from the Civil Aeronautics Board and revested in the PSC, since Republic Act 2677 impliedly repealed section 10(c) (2) of Republic Act No. 776, passed on 20 June 1952, conferring control over air rates fares on the CAB.

Respondents aver, on the other hand, that, at the least, jurisdiction over air fares and rates was, under statutes, exercisable concurrently by the CAB and the PSC, and that following the rule on concurrent jurisdictions of judicial bodies, the first to exercise or take jurisdiction (CAB in this case) should retain it to the exclusion of the other body.

In resolving the issue posed, it is apposite to review various laws enacted on the matter.

In 1932, the Philippine (pre Commonwealth) Legislature provided by Public Law No. 3996, in its section 15, that any —

Person or persons engaged in air commerce shall submit for approval to the Public Service Commission or its authorized representative uniform charges applied to merchandise and passengers per kilometer or over specified distances ... .

In consonance with said law, the legislative franchise granted in November of 1935 to the Philippine Aerial Taxi Company, Inc. (Act No. 4271) specified that (section 3) —

The grantee shall fix just, reasonable and uniform rates for the transportation of passengers and freight, subject to the supervision and approval of the Public Service Commission ... .

The following year the PSC was reorganized by Commonwealth Act No. 146, enacted 7 November 1936. Section 13 thereof granted PSC "general supervision and regulation of, jurisdiction and control over, all public services..." except as otherwise provided. The same section, however contained the following reservation:

... Provided further, That the Commission shall not exercise any control or supervision over aircraft in the Philippines, except with regard to the fixing of maximum passenger and freight rates ... .

In the aftermath of World War II the Legislature of independent Republic of the Philippines passed Republic Act No. 51, on 4 October 1946, authorizing the Chief Executive to reorganize within one year the different executive departments, bureaus, offices agencies and other instrumentalities of the government, including corporations owned or controlled by it. In the exercise of the broad powers thus conferred, the President of the Philippines, by Executive Order No. 94, of 4 October 1947, in its section 149, abolished the Civil Aeronautics Commission and transferred its functions and duties to the Civil Aeronautics Board created by said Order No. 94, with the following provision:

The ... functions provided in section 13 of Commonwealth Act No. 146, pertaining to the power of the Public Service Commission to fix the maximum passenger and freight rates that may be charged by airlines ... are hereby transferred to and consolidated in the Civil Aeronautics Administration and/or Civil Aeronautics Board.

The foregoing transfer of functions was virtually ratified by Republic Act No. 776, effective on 20 June 1952, entitled "An Act to Reorganize the Civil Aeronautics Board and the Civil Aeronautics Administration, to provide for the regulation of civil aeronautics in the Philippines ..." that delimited the powers of the Board. Section 10 of Act 776 prescribed, inter alia, the following:

SEC. 10. Powers and duties of the Board. — (A) Except as otherwise provided herein, the Board shall have the power to regulate the economic aspect of air transportation, and shall have the general supervision and regulation of, and jurisdiction and control over, air carriers as well as their property, property rights, equipment, facilities, and franchise, in so far as may be necessary for the purpose of carrying out the provisions of this Act.

xxx xxx xxx

(C) The Board shall have the following specific powers and duties:

(2) To fix and determine reasonable individual, joint, or special rates, charges or fares which an air carrier may demand, collect or receive for any service in connection with air commerce. The Board may adopt any original, amended, or new individual, joint or special rates, charges or fares proposed by an air carrier if the proposed individual, joint, or special rates, charges or fares are not unduly preferential or unduly discriminatory or unreasonable. The burden of proof to show that the proposed individual, joint or special rates, charges or fares are just and reasonable shall be upon the air carrier proposing the same.

Latest enactment of the series was Republic Act No. 2677, in effect on 18 June 1960, that amended various sections of Commonwealth Act No. 146, the basic Public Service Act. Among those amended was section 14, which was made to read:

SEC. 14. — The following are exempted from the provision of the preceding section: 1

xxx xxx xxx

(c) Airships within the Philippines except as regards the fixing of their maximum rates on freight and passengers. (Emphasis supplied)

Contrary to the views of petitioner Lechoco, there is nothing in Republic Act 2677 that expressly repeals Republic Act No. 776. While section 3 of Republic Act 2677 provides that "All Acts or parts of Acts inconsistent with the provisions of this Act are hereby repealed", the fact is that the derogation was thereby made dependent upon actual inconsistency with previous laws. This is the very foundation of the rule of implied repeal. However, there is nothing in Act 2677 that evidences an intent on the part of the Legislature to set aside the carefully detailed regulation of civil air transport as set forth in Act 776. Said Act in itself constitutes a recognition of the need of entrusting regulation, supervision and control of civil aviation to a specialized body.

We find no irreconcilable inconsistency between section 14 of the Public Service Act, as amended by Republic Act 2677, and section 10(c) (2) of the prior Republic Act 776, above quoted, except for the fact that power over rates to be charged by air carriers on passengers and freight are vested in different entities, the CAB and the PSC. Even that will result in no more than a concurrent jurisdiction in both supervisory entities, and not in the divesting of the power of one in favor of the other.

The absence of intent to repeal Republic Act No. 776 by the enactment of Act 2677 is also evidenced by the explanatory note to House Bill 4030 (that later became Act 2677). It expressly stated the desire to broaden the jurisdiction of the PSC "by vesting it with the power to supervise and control maritime transportation ... except air transportation and warehouses which are now subject to regulation and supervision by the Civil Aeronautics Board and the Bureau of Commerce respectively." 2

The same legislative intent to maintain the jurisdiction and powers of the CAB appears from a consideration of the legislation subsequent to the enactment of Republic Act 2677. Thus, Republic Act No. 4147, enacted 20 June 1964 (granting an air transportation franchise to Filipinas Orient Airways), and Republic Act No. 4501, passed in 19 June 1965 (granting a similar franchise to Air Manila, Inc.), both uniformly require (in their section 3) that the franchise grantee —

shall fix just and reasonable and uniform rates for the transportation of passengers and freight, subject to the regulations and approval of the Civil Aeronautics Board or such other regulatory agencies as the Government may designate for this purpose. (Emphasis supplied)

Such references to the Civil Aeronautics Board after the enactment of Republic Act No. 2677 would be difficult to explain if said law had already repealed the power of the CAB over fares or rates, as contended by petitioner Lechoco.

Be that as it may, the well-established principle is that implied repeals are not favored and consequently statutes must be so construed as to harmonize all apparent conflicts and give effect to all the provisions whenever possible. 3 This rule makes it imperative to reconcile both section 14 of the Public Service Act as amended by Republic Act No. 2677, and section 10(c) (2) of Republic Act No. 776, recognizing the power of the Civil Aeronautics Board "fix and determine reasonable individual, joint or special rates, charges or fares" for air carriers (under Republic Act 776) but subject to the "maximum rates on freight and passengers" that may be set by the Public Service Commission (as per Republic Act 2677); so that the rates, charges or fares allowed or fixed by CAB may in no case exceed the maxima prescribed now or to be prescribed in the future by the PSC.

The respondents have suggested that the retention in Republic Act 2677 of the power of the PSC to fix maximum rates on air freight and passengers was the result of legislative inadvertence, considering that in House Bill No. 4030 the phrase conferring such power on the PSC appeared in brackets, indicating that said passage was to be eliminated. But however plausible the suggestion should be, this Court is powerless to ignore the express grant of the authority in question in the wording of Republic Act 2677 as finally approved. The elimination of the words "except as regards the fixing of their maximum rates on freight and passengers" from section 14(c) of the Public Service Act, as amended by Republic Act 2677, in order to avoid conflict with Republic Act 776, and to unify jurisdiction and control over civil aviation in the Philippines, can only be obtained from the Legislature itself.

PREMISES CONSIDERED, the questioned order of the Civil Aeronautics Board, asserting its jurisdiction to fix the reasonable fares that air carriers may demand, are in accord with law, there being no showing that the Public Service Commission has fixed any maximum rates therefor.

WHEREFORE, the writ of certiorari with preliminary injunction applied for is hereby denied. Costs against petitioner Napoleon Lechoco.

viii. Pari material rule- Of the same matter; on the same subject; as, laws pari materia must be construed with reference to each other.- Statutes sharing a common purpose or relating to the same subject and which are construed together.

ix. re-enacted statutes

1. montelibano vs ferrer [G.R. No. L-7899. June 23, 1955.]

SYLLABUS

2.STATUTORY CONSTRUCTION; INTERPRETATION OF REENACTED STATUTES. — Considering that the Charter of the City of Bacolod merely incorporates therein the pertinent provisions of the Charter of the City of Manila, it may be presumed that the Legislature intended to adopt also the settled interpretation already given to the latter by the judicial department.

D E C I S I O N

CONCEPCION, J p:

The question involved in this case is one purely of law.

On June 13, 1953, respondent Jose F. Benares filed, with the Municipal Court of the City of Bacolod, a criminal complaint, which was docketed as Case No. 2864 of said court, against petitioners herein, Alfredo Montelibano, Pastor Mallorca, Gonzalgo de la Torre and Jose Articulo, charging them with the crime of malicious mischief. It is alleged in said complaint:

"That on or about the 5th, the 7th and the 8th of June, 1953, in the City of Bacolod, Philippines, and within the jurisdiction of this court, Alfredo Montelibano, as author by inducement, Pastor Mallorca, Gonzalgo de la Torre and Jose Articulo, as authors by direct participations, conspiring and confederating together and helping one another, did then and there, wilfully, unlawfully and deliberately cause damage to the sugarcane plantation belonging to Jose F. Benares, the offended party herein, intentionally and using bulldozer and destroying completely eighteen (18) hectares of sugarcanes obviously under the impulse of hatred and a desire for revenge, as the accused, Alfredo Montelibano, failed in his attempt to have the herein offended party punished for contempt of Court in Civil Case No. 1896 of the Court of First Instance of Negros Occidental, thereby causing upon said Jose F. Benares damage in the amount of more than P13,000.00."

Upon the filing of this complaint, due course was given thereto by the herein respondent, Hon. Felix S. Ferrer, Municipal Judge of the City of Bacolod, who, likewise, issued the corresponding warrant of arrest. On or about June 22, 1953, the aforementioned defendants (petitioners herein) filed a motion to quash said warrant of arrest, as well as the complaint, upon several grounds, which may be reduced to two, namely: (1) The only officer authorized by the Charter of the City of Bacolod to initiate criminal cases in the courts thereof is its City Attorney, who is opposed to the institution of said Case No. 2864; and (2) Said case involves a prejudicial question.

In this connection, petitioners alleged, and Benares has not denied, the following: Sometime in 1940, the Capitol Subdivision Inc. (hereinafter referred to as the Subdivision), of which petitioner Alfredo Montelibano is the president and general manager, leased Lot No. 1205-I-1 (which is the same property involved in Case No. 2864) to Benares, for a period of five (5) crop years, ending in the crop-year 1944-1945, with an option in favor of Benares, of another five (5) crop years. On June 5, 1951, the Subdivision instituted against Benares, unlawful detainer case No. 1896 of the Municipal Court of the City of Bacolod, which, in due course, subsequently, rendered a decision ordering his ejectment from said lot. Benares appealed to the Court of First Instance of Negros Occidental (in which it was docketed as Civil Case No. 1896). On motion of the Subdivision, this court issued a writ of preliminary mandatory injunction, commanding Benares to turn over the aforementioned lot to the Subdivision, which filed a bond undertaking to pay to Benares "all damages which he may sustain" by reason of the issuance of said writ, "if the court should finally decide that the plaintiff was not entitled thereto." Inasmuch as Benares continued planting on Lot No. 1205-L-1, instead of delivering it to the Subdivision, the latter filed a petition praying that the former be declared in contempt of court. This petition was denied, by an order dated April 30, 1953, which, however, required Benares to "immediately and promptly obey the order of preliminary mandatory injunction." On June 5, 1953, the provincial sheriff delivered the land in question to the Subdivision. Seemingly, acting upon instructions of petitioner Montelibano, his co-petitioners thereupon cleared the land of the sugarcane planted therein by Benares. Hence, the criminal complaint filed by the latter.

The Municipal Court denied the aforementioned motion to quash said complaint and the warrant of arrest, as well as a subsequent motion for reconsideration, whereupon petitioners instituted the case at bar, in the Court of First Instance of Negros Occidental, where it was docketed as Civil Case No. 2828, against said Municipal Judge, and complainant Benares, for the purpose of securing a writ of certiorari and mandamus — "annulling and vacating all the proceedings so far taken by respondent Judge in said Case No. 2864" and "holding that said Judge had no jurisdiction to take cognizance of the same" and "dismissing said case" — with a writ of preliminary injunction, enjoining respondent judge "to desist from further proceedings in the case." The writ of preliminary injunction was issued by said court of first instance, which, in due course, eventually rendered a decision, dismissing the petition for certiorari and mandamus, and dissolving the writ of preliminary injunction, with costs against the petitioners. The case is now before us on appeal taken, from said decision, by the aforementioned petitioners, the defendants in said criminal case.

It is not disputed that the complaint in question was filed by Benares directly with the municipal court of Bacolod, and that the City Attorney had, not only no intervention whatsoever therein, but, also, expressed, in open court, his opposition thereto. The issue boils down to whether said municipal court may entertain said complaint. Petitioners contend that it may not, relying upon section 22 of Commonwealth Act No. 326, otherwise known as the Charter of the City of Bacolod, the pertinent part of which provides:

". . . The City attorney . . . shall also have charge of the prosecution of all crimes, misdemeanors, and violations of city ordinances, in the court of First Instance and the Municipal Court of the city, and shall discharge all the duties in respect to criminal prosecutions enjoined by law upon provincial fiscals.

"The city attorney shall cause to be investigated all charges of crimes, misdemeanors, and violation of ordinances, and have the necessary informations or complaints prepared or made against the persons accused . . ."

Upon the other hand, respondents argue that this provision is merely declaratory of the powers of the City Attorney of Bacolod and does not preclude the application of Sec. 2 of Rule 106 of the Rules of Court reading:

"Complaint is a sworn written statement charging a person with an offense, subscribed by the offended party, any peace officer or other employees of the government or governmental institution in charge of the enforcement or execution of the law violated."

This was the very same provision invoked by the petitioner in the case of Espiritu vs. Dela Rosa (45 Off. Gaz. 196), in which this Court refused to issue a writ of mandamus to compel the Court of First Instance of Manila to accept a complaint filed, directly with said court, by the offended party in a given case, without the intervention of the City Fiscal of Manila. In his concurring opinion therein, then Chief Justice Moran had the following to say:

"I concur upon the ground that Rule 108 section 4 does not apply in the City of Manila where the only officer authorized by law to conduct preliminary investigation is the City Fiscal (sec. 2474, Adm. Code) and therefore, all criminal complaints should be filed with that officer who in turn may, after investigation, file the corresponding information with the Court of First Instance. The provisions of the Administrative Code on this matter have not been repealed by the Rules of Court. (Hashim vs. Boncan, 40 Off. Gaz., p. 13.)" (Italics supplied.)

As indicated in said decision, the same was based, partly, upon the rule laid down in Hashim vs. Boncan (71 Phil. 216), which, in turn, was predicated upon earlier precedents (U. S. vs. Wilson, 4 Phil. 317; U.

S. vs. McGovern, 6 Phil. 621; U. S. vs. Ocampo, 18 Phil. 1; U. S. vs. Grant and Kennedy, 18 Phil. 122; U. S. vs. Carlos, 21 Phil. 553).

In case of Sayo vs. Chief of Police (45 Off. Gaz. 4875) the language used by this Court was:

"Under the law, a complaint charging a person with the commission of an offense cognizable by the courts of Manila is not filed with the municipal court of First Instance of Manila, because as above stated, the latter do not make or conduct a preliminary investigation proper. The complaint must be made or filed with the city fiscal of Manila who, personally or through one of his assistance, makes the investigation, not for the purpose of ordering the arrest of the accused, but of filing with the proper court the necessary information against the accused if the result of the investigation so warrants, and obtaining from the court a warrant of arrest or commitment of the accused.

xxx xxx xxx

"In the City of Manila, where complaints are not filed directly with the municipal court or the Court of First Instance, the officer or person making the arrest without warrant shall surrender or take the person arrested to the city fiscal, and the latter shall make the investigation above mentioned and file, if proper, the corresponding information without the time prescribed by section 125 of the Revised Penal Code, so that the court may issue a warrant of commitment for the temporary detention of the accused . . ." (Italics supplied.)

It is clear, therefore, that, in the City of Manila, criminal complaints may be filed only with the City Fiscal, who is thereby given, by implication, the exclusive authority to institute criminal cases in the different courts of said city, under the provisions of its Charter, originally found in Section 39 of Act No. 183, the pertinent part of which we quote:

". . . The prosecuting attorney of the city of Manila shall have charge of the prosecution of all crimes, misdemeanors, and violations of city ordinances, in the Court of First Instance and the municipal courts of the city of Manila. He shall investigate all charges of crimes, misdemeanors, and violations of ordinances, and prepare the necessary informations or make the necessary complaints against the persons accused, and discharge all other duties in respect to criminal prosecutions enjoined upon provincial fiscals . . ."

This provision was mutatis mutandis reproduced, firstly, in section 2437 of the Old Administrative Code (Act No. 2657), then in section 2465 of the Revised Administrative Code, and lastly in section 38 of Republic Act No. 409. We do not see, and respondents herein have not pointed out, any reason why the above quoted provision of the Charter of the City of Bacolod, should be interpreted differently from said sections of the Charter of the City of Manila, which are substantially identical thereto. On the contrary, considering that said provisions of the Charter of the City of Manila had been consistently construed in the manner above indicated, before being incorporated in the Charter of the City of Bacolod, the conclusion is inevitable that the framers of the latter had reproduced the former with intent of adopting, also its settled interpretation by the judicial department (In re Dick, 38 Phil. 41, 77).

"In the interpretation of reenacted statutes the court will follow the construction which they received when previously in force. The legislature will be presumed to know the effect which such status originally had, and by reenactment to intend that they should again have the same effect . . . It is not necessary that a statute should be reenacted in identical words in order that the rule may apply. It is sufficient if it is reenacted in substantially the same words . . . The rule has been held to apply to the reenactment of a statute which received a practical construction on the part of those who are called upon to execute it. The Supreme Court of Nebraska says: 'Where the legislature in framing an act resorts to language similar in its import to the language of other acts which have received a practical construction by the executive departments and by the legislature itself, it is fair to presume that the language was used in the later act with a view to the construction so given the earlier.' . . ." (Sutherland Statutory Construction, Vol. II, 2d. ed., section 403).

". . . two statutes with a parallel scope, purpose and terminology should, each in its own field, have a like interpretation, unless in particular instances there is something peculiar in the question under consideration, or dissimilar in the terms of the act relating thereto, requiring a different conclusion." (50 Am. Jur. 343).

". . . Since it may be presumed that the legislature knew a construction, long acquieced in, which had been given by the courts to a statute re-enacted by the legislature, there is a presumption of an intention to adopt the construction as well as the language of the prior enactment. It is accordingly a settled rule of statutory construction that when a statute or a clause or provision thereof has been construed by a court of last resort, and the same is substantially reenacted, the legislature may be regarded as adopting such construction." (50 Am. Jur. 461).

In view of the foregoing, the decision appealed from must be, as it is hereby, reversed and another one shall be entered annulling the warrant of arrest issued by respondent Judge and enjoining the latter to refrain from entertaining the complaint aforementioned and to dismiss the same. With cost against respondent Jose F. Benares. It is so ordered.

Bengzon, Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo, Labrador and Reyes, J.B.L., JJ., concur.

X. adopted statutesmeaningconstruction

xi. common law principle vs. statutory provisiona. constructionb. cases

1. alvendia vs intermediate court [G.R. No. 72138. January 22, 1990.]

D E C I S I O N

In G.R. No. 72138, the spouses Felicidad M. Alvendia and Jesus F. Alvendia filed an urgent motion for extension of time to file an appeal by certiorari from the denial of their motion for reconsideration of the decision of the then Intermediate Appellate Court (IAC) dismissing their petition docketed therein as AC-G.R. No. SP-04423, entitled "Alvendia, et al. v. Telan, etc., et al."

In G.R. No. 72373, a petition for certiorari and prohibition was filed by Bonifacio Bonamy, seeking to annul and set aside: [a] Resolution II dated September 11, 1985 granting the motion filed by the spouses Alvendia to pay Bonifacio Bonamy the amount of the judgment in cash, and [b] Resolution I dated October 8, 1985 denying Bonamy's motion for reconsideration of the aforesaid resolution both issued by the Fourth Special Cases Division in said AC-G.R. No. SP-04423.

Although no appeal was ever filed in G.R. No. 72138, the same was ordered consolidated with G.R. No. 72373 in the resolution of February 3, 1986 of the First Division of this Court.

The instant petitions trace their genesis to a simple collection suit, Civil Case No. 5182-M 1 filed on September 12, 1977, by Bonifacio Bonamy against the spouses Jesus F. Alvendia and Felicidad M. Alvendia before the then Court of First Instance (CFI) of Bulacan, 5th Judicial District, Branch VI, for the sum of P107,481.50 representing construction materials which the Alvendias had purchased on credit from Bonamy.

After the Alvendias had filed a "Motion to Dismiss" dated October 31, 1977 which was opposed by Bonamy on November 16, 1977 and an "Answer with Affirmative and Negative Defenses and Counterclaim" dated December 1, 1977, both parties submitted to the trial court on January 6, 1978 a "Compromise Agreement" providing, among other things:

xxx xxx xxx

"(1)That defendants do hereby acknowledge the indebtedness of their family corporation, Doña Felisa Village and Housing Corporation, in the amount of P107,481.50, representing the cost of construction materials bought on credit from plaintiff from June 20 to August 12, 1975 and jointly with said family corporation, do hereby bind themselves to pay said obligation out of the first release or releases of funds from the Government Service Insurance System (GSIS) for housing units and lots sold by the said corporation to members of the GSIS provided, however, that the P47,000.00 previously assigned to Wells and Pu shall be first satisfied before applying such GSIS release to satisfaction of said indebtedness to the herein plaintiff;

"(2)That the plaintiff and defendants shall thereby join hands in asking the GSIS to expedite the releases of the funds due to said corporation; and

"(3)That for and in consideration of this agreement the plaintiff and defendants hereby waive any and all further claims monetary or otherwise against each other regarding the subject matter of this case.

xxx xxx xxx" 2

On the same date, the trial court, finding the aforesaid compromise agreement not to be contrary to laws, morals, good customs, public policy and public order, approved and adopted the same as the decision in the case. 3

Subsequently, Bonamy moved for execution of judgment, alleging that the Alvendias "have not submitted any finished project with the GSIS, thereby preventing the full realization of the aforesaid decision." 4

On December 6, 1979, over the objection of the Alvendias, the court ordered the issuance of the writ prayed for. The Alvendias did not move for reconsideration nor did they elevate the matter to the higher courts. 5

In a motion dated April 23, 1980, Bonamy sought the issuance of an alias writ of execution, the first writ having been returned unsatisfied. He admitted though in the same motion that he received P20,000.00 in cash from the Alvendias sometime in January 1980 and an additional amount of P4,000.00 by way of proceeds of the sale of the Alvendias' vehicle. 6

Pursuant to the alias writ issued by the Court on May 2, 1980, the Bulacan provincial sheriff levied on the Alvendias "leasehold rights" over a fishpond (lease application no. V-1284 (EV-87) Lot I PSU-141243), located at Baluarte, Bulacan, Bulacan.

On January 15, 1981, a certificate of sale over said leasehold right was executed by the Sheriff in favor of Bonamy.

More than a year later, or on February 2, 1982, the spouses moved for the quashal and annulment of the writ of execution, levy and sale.

A final deed of sale was executed on January 25, 1983 and registered with the Register of Deeds of Bulacan on April 27, 1983.

In an order dated September 10, 1984, the trial court (now RTC of Bulacan, 3rd Judicial Region, Br. VIII) denied the spouses' motion to quash and ordered instead the issuance of a writ of possession in Bonamy's favor, thus:

"Premises considered, the pending incidents are hereby resolved, as follows:

"1.The motion to quash or annul the writ of execution is hereby denied;

"2.The sale of the Toyota Land Cruiser is hereby declared null and void, consequently, let the defendants be restored in the ownership and possession thereof;

"3.The levy and sale of the defendants' rights over Foreshore Lease Application No. V-1284 (EV-87) Lot 1 PSU-141243 is hereby confirmed and declared valid, for which reason, let a writ of possession of the said premises be issued forthwith." 7

The records show that as per sheriffs return, possession of the fishpond was delivered to Bonamy on October 8, 1984. 8

In a petition for certiorari and prohibition with prayer for preliminary injunction and temporary restraining order filed with the Intermediate Appellate Court, (docketed as CA-G.R. No. SP-04423) the spouses Alvendias sought the annulment of the writ of execution, the levy made upon the leasehold rights and the writ of possession.

In a nutshell, the spouses argued as follows: [1] that the writ and the alias writ of execution levied upon properties not referred to in the judgment by compromise; [2] the writs made only the Alvendias liable, when under the "agreement" their family corporation was also supposed to be liable; [3] the writ was premature because the Compromise Agreement

contained a condition which had not yet been fulfilled, namely, the release of a loan from the GSIS; [4] the fishpond, owned by the government though leased to the Alvendias, cannot be a proper subject of a levy on execution; and [5] the leasehold rights possessed by the Alvendias had already expired before the issuance of the order. 9

In its Decision dated February 27, 1985, the IAC dismissed the aforesaid petition. The pertinent portion is hereunder quoted, thus:

xxx xxx xxx

"Firstly, we note that after the questioned writ of possession had been issued, no motion for reconsideration was filed to give the respondent judge an opportunity to correct any error that may have been committed.

"Secondly, the orders complained of and which are attached to the petition are not certified true copies, in violation of the requirements under the rules of court.

"Thirdly, the writ of execution could properly levy on the properties of the Alvendias because their debt had already matured and remained unpaid despite demands. The judgment does not have to indicate what specific properties should be levied upon.

"Fourthly, there could be no execution against the family corporation because it was not a party to the case, was not a party or signatory to the compromise agreement. Neither was it represented by the Alvendias.

"Fifthly, the issuance of the writs was not premature. There is nothing in the compromise agreement which says that the release of the GSIS loan was a condition precedent to the payment of the debt. True there was an indication by the Alvendias as to where they would obtain the needed financing, but this did not make the obtaining of the same a suspensive condition which would give rise to the creation of their obligation. The obligation to pay was admittedly there — even before any reference to the GSIS. Had they desired to make the fund release a condition sine qua non, words should have been used to that effect. Indeed, it is absurd to say that if the GSIS would not release the money the Alvendias would be excused from the payment of their acknowledged indebtedness.

"Sixthly, it is not the fishpond that was levied upon but the leasehold rights of the Alvendias.

"Seventhly, if it is really true that the lease had already expired before the writs were issued, this is a matter that can be raised by the government, not the Alvendias who have already ceased to become real parties in interest regarding the property. . . . . . .

"WHEREFORE, the instant petition is denied due course, and is hereby DISMISSED. The restraining order previously issued is hereby lifted." 10

The Alvendias filed an urgent motion for reconsideration. Pending action thereon, the spouses manifested to the court, thru motion, their willingness to immediately pay to Bonamy the remaining balance of the judgment sought to be enforced, which they place at P37,481.50, plus interests due and/or any amount as the court may determine to be due (the said amount was reached by deducting from the total sum of P107,481.50: P20,000.00, P4,000.00 representing the value of the

Toyota Land Cruiser and the further amount of P46,000.00 representing the actual value of the Toyota Land Cruiser minus the amount of P4,000.00 allegedly realized from the execution sale thereof). 11

On September 11, 1985, the IAC issued two resolutions, denominated as Resolutions I and II.

Resolution I denied the Alvendias' motion for reconsideration for lack of merit, without prejudice to what was stated in Resolution II hereunder.

Resolution II granted their motion to satisfy the judgment sought to be enforced in cash thereby directing the parties to submit to the court an agreement duly signed by both parties regarding full satisfaction of the judgment but only after the total amount involved in said judgment had been tendered and delivered to Bonamy. 12

The Alvendias then tendered payment to Bonamy in the form of a cashier's check in the amount of P100,000.00. 13 Bonamy refused said tender of payment, and instead moved for a reconsideration of Resolution II. LLjur

In the meantime, the spouses moved for the issuance of a temporary restraining order to prevent or stop the allegedly unjust enforcement of the questioned writ of execution/possession and to prevent the sheriff and Bonamy and all persons acting under them from entering and encroaching on the fishpond area.

On October 2, 1985, the IAC restrained Bonamy and his co-respondents therein from enforcing the questioned Writ of Execution/Possession issued in Civil Case No. 5182-M, as well as from entering and encroaching further into the subject fishpond. 14

Bonamy moved for the lifting of that order on the averment, among others, that the acts sought to be restrained had already been executed, Bonamy having been placed in possession on October 8, 1984 by Deputy Sheriff Rufino I. Santiago of Bulacan by virtue of the Writ of Possession issued in Civil Case No. 5182-M. 15

In an urgent motion for extension of time to file appeal by certiorari (from respondent court's order denying their motion for reconsideration) spouses Alvendias elevated their case to this Tribunal, docketed as G.R. No. 72138. Such motion was granted by the Court. A second motion was, however, denied. Hence, no petition was filed in G.R. No. 72138.

On October 8, 1985, the IAC issued three resolutions embodied in a single document: Resolution I — denying Bonamy's motion for reconsideration; II — ordering him to comment on the motion for Deposit filed by the Alvendias; III — ordering the spouses to comment on the Manifestation and Motion to lift restraining order filed by Bonamy.

Hence, this petition for certiorari and prohibition, praying for the annulment of respondent court's Resolution II of September 11, 1985 and its Resolution I of October 8, 1985, filed with this Court on October 21, 1985 by Bonamy and docketed as G.R. No. 72373.

As earlier stated, on February 3, 1986, notwithstanding the Alvendias' failure to file a petition in G.R. No. 72138, the Court resolved to consolidate the two cases, namely, G.R. Nos. 72138 and 72373, in the resolution of February 3, 1986, of the First Division of this Court. 16

On February 24, 1986, Bonamy, as private respondent in G.R. No. 72138, filed a manifestation that since the Alvendias did not file their petition in said case, the proceeding should be ordered dismissed and that entry of the IAC judgment be ordered.

Upon the Alvendias' failure to comply with the court's order to comment on the aforementioned manifestation, this Court issued a 'show cause' resolution to the spouses.

Pleading absolute good faith and honesty and attributing failure to file the required comment to the confusing circumstances engendered by the issued resolutions (denying respondents' motion for reconsideration but granting their motion to satisfy judgment in cash) the Alvendias prayed the Court to consider instead their urgent petition (to extend time to file appeal) as their sufficient appeal, anchoring their entreaty on Bonamy's petition which is also pending in this Court and which has, anyway, opened the entire case for review. This explanation and manifestation of counsel for private respondents was noted in the resolution of October 15, 1986 of the Second Division of this Court where this case was eventually referred. *

The petition in G.R. No. 72373 is impressed with merit. The pivotal issue in this case is whether or not the judgment debtors may successfully ask that they be allowed to pay the judgment debt in cash long after they have failed to pay or redeem their properties which have been sold in execution. LexLib

Bonamy puts forward the averment that respondent court committed grave abuse of discretion in granting the Alvendias' motion that they be allowed to pay the judgment debt in cash.

He anchors his contention on the fact that there having been a valid levy and sale on execution of the Alvendias' leasehold rights over the fishpond in question, there is no longer any money judgment to be satisfied.

He maintains the position that all the questioned writs herein as well as the questioned orders have already been found by respondent IAC to be proper and legal and had in fact dismissed the petition of the Alvendias in its decision of February 27, 1985. Since then, he has been in ownership and possession of the disputed fishpond in Baluarte, Bulacan, and has been exercising all the acts of possession with respect to the same. 17

Hence, petitioner claims that the assailed resolutions are in effect [a] an annulment of the assailed Orders and Writs of the Bulacan Regional Trial Court, the Certificate of Sale and the Final Deed of Sale of the Leasehold Rights over the Foreshore Lands; [b] an extension of the Alvendias' period to redeem the leasehold rights over said land; and [c] orders directing Bonamy and the Alvendias to enter into a contract of sale over said leasehold rights for the price of the judgment debt embodied in the Compromise Agreement. 18

Verily, it is unrefuted that the writs and orders of the lower court sought to be annulled or at least reopened are already final and executory and in fact already executed.

The judgment which was executed was a compromise judgment, duly approved by the court and therefore, final and immediately executory. 19 Bonamy was clearly entitled to execution since the Alvendias failed to pay on time the judgment. Hence, the Bulacan Court ordered the execution thereof on December 9, 1979. 20

The compromise judgment against the Alvendias had been duly and legally executed and fully satisfied as of January 15, 1981 in accordance with Section 15 of Rule 39 of the Rules of Court when the Bulacan Sheriff levied on the Alvendias' foreshore leasehold rights by selling the same and paying the judgment creditor Bonamy. The Alvendias had one year within which to redeem said property rights but they failed to do so. Hence, the Sheriff issued the Final Deed of Sale on January 25, 1983.

As above stated, on certiorari and prohibition in CA-G.R. No. SP-04423, all these orders and writs, taken up one by one by the Intermediate Appellate Court were found to be legal and proper for which reason, the petition was dismissed in the decision of February 27, 1985.

In this Court, private respondents moved for extension of time to file a petition for review in G.R. No. 72138 but failed to file the same, thereby foreclosing their right to appeal.

In any event, it is axiomatic that there is no justification in law and in fact for the reopening of a case which has long become final and which has in fact been executed. 21 Time and again this Court has said that the doctrine of finality of judgments is grounded on fundamental consideration of public policy and sound practice that at the risk of occasional error the judgments of courts must become final at some definite date fixed by law. 22

On the other hand, the Alvendias invoke equity and aver that the IAC acted correctly in granting their motion to pay the balance of the judgment indebtedness in view of highly exceptional circumstances such as the supposedly grossly fraudulent irregularities committed by Bonamy and the Special Sheriff of Bulacan. prcd

It is a settled rule, however, that said Special Sheriff is under the control and supervision of the trial court which issued the assailed writ of execution to the exclusion of other courts. Accordingly, the court which rendered the judgment has a general supervisory control over its process of execution and this power carries with it the right to determine every question of fact and law which may be involved in the execution. 23 But as earlier stated, private respondents neither moved for reconsideration of the December 6, 1979 order of the trial court directing the issuance of the writ of execution, nor appealed the same to the higher courts.

In any event, the Alvendias cannot invoke equity as a ground for reopening the case and making the payment of the judgment in cash possible. The records show that they had all the opportunity to make such payments on four occasions but failed. These are: [1] from the time they got the building and construction materials worth P107,461.50 from the petitioner (from June 26 to August 12, 1975) up to the time they agreed to a compromise agreement on January 6, 1978; [2] from the compromise judgment to the time execution was ordered by the respondent court (Order dated December 6, 1979); [3] from the Execution Order to the Execution Sale (on January 15, 1981); and [4] from the Execution Sale up to the end of the redemption period, finally ending in the Final Deed of Sale. 24

There is no question therefore, that the Alvendias failed to pay on time the judgment of which the execution sale was a necessary consequence. They also failed to redeem the property within the required period despite the fact that the Final Deed of Sale was issued only on January 25, 1983, long past the aforesaid period; undeniably showing a lack of intention or capability to pay the same.

Instead the offer to pay the judgment in cash was first made by private respondents Alvendias on April 23, 1985 or two months after the decision of respondent Appellate Court on February 27, 1985 and more than two years after the redemption period had elapsed. More importantly, the offer was made after Bonamy had introduced improvements on the property worth one million pesos (P1,000,000.00) as evidenced by irrefutable proof. Of course, the Alvendias claim the same amount as the value of the fishpond presumably before execution but such claim besides having been raised only on appeal, specifically after the promulgation of the decision of the Intermediate Appellate Court on February 27, 1985, is unsupported by evidence on record. On the contrary, petitioner Bonamy's pictures of the leased premises before and after he took possession of the same belie said claim of private respondents. 25

As insisted upon by petitioner, the money judgment against the Alvendias has already been satisfied and there is no more need to pay, in cash or otherwise. Hence, as ruled by this Court, when judgment has been satisfied, the same passes

beyond review, for satisfaction thereof is the last act and end of the proceedings. Payment produces permanent and irrevocable discharge. 26

On the other hand, equity has been aptly described as "a justice outside legality"; which is applied only in the absence of and never against statutory law or as in this case, judicial rules of procedure. 27 The rule is "equity follows the law" but where a particular remedy is given by the law and that remedy is bounded and circumscribed by particular rules, it would be very improper, for the court to take it up where the law leaves it and to extend it further than the law allows. 28 There may be a moral obligation but if there is no enforceable legal duty, the action for reconveyance must fail. 29 Courts exercising equity jurisdiction are bound by rules of law and have no arbitrary discretion to disregard them. Equitable reasons will not control against any well-settled rule of law or public policy. 30

Moreover, it is oft repeated that "He who comes into Equity must come with clean hands." 31 At this stage, to allow private respondents to pay in cash the balance of the judgment account for which they offered P100,000.00 to redeem the property on which petitioner has spent one million pesos (P1,000,000.00) in terms of improvements introduced would be less than fair. If equity is to be applied at all, it should be applied for the benefit of the petitioner. Thus, this Court in applying equity jurisprudence in a partition case, ruled that improvements introduced on the property by one who necessarily and in good faith improved the same and enhanced its value at his own cost, should be taken into account under the familiar principle that "one who seeks equity must do equity." 32

In resume, the Alvendias, after having allowed the period of redemption to lapse without availing themselves of the same, and after petitioner had introduced improvements on the property at the latter's expense, cannot now be allowed to redeem the property sold to the latter thru the expediency of a motion or manifestation. cdrep

As to other matters, there appears to be no cogent reason to disturb the findings and conclusions of the Intermediate Appellate Court in its decision of February 27, 1985 which has become final and executory when the Alvendias failed to file their contemplated petition for review on certiorari in G.R. No. 72138. It has been held that failure to perfect an appeal renders the lower court's judgment final and executory and a modification of such judgment by the appellate court cannot be allowed. Furthermore, an appellee who is not also an appellant may also assign errors in his brief where his purpose is to maintain the judgment on other grounds, but he may not do so if his purpose is to have the judgment modified or reversed, for, in such case, he must appeal. 33

However, where there is an ambiguity caused by an omission or mistake in the dispositive portion of the decision, in this case in the questioned "Writ of Possession" issued by the trial court, where the twenty-three (23) hectare foreshore land (23.467 hec.) described in the Sheriff's Certificate of Sale and Final Deed of Sale 34 became a forty-hectare foreshore land (40.63 hec.), 35 it has been held that this Court may clarify such ambiguity by an amendment even after the judgment had become final. 36

WHEREFORE, the assailed resolutions are hereby SET ASIDE and the decision dismissing the Alvendias' petition is AFFIRMED save that portion upholding the validity of the writ of possession which continued an error in property description. Hence, the writ of possession is hereby AMENDED to conform to the description appearing in the Certificate of Sale and the Final Deed of Sale. Let the restraining order issued by the Intermediate Appellate Court on October 2, 1985 relative to the enforcement of said writ be lifted accordingly.

Petitioner is hereby ordered to return to private respondents, the amount of P12,518.50 pesos, which amount represents the difference between the execution price of P100,000.00 and P87,481.50, the latter amount having been arrived at by deducting P20,000.00 from the total amount of indebtedness which is P107,481.50. 37

In G.R. No. 72138, the petition for review on certiorari of Resolution I of the Intermediate Appellate Court denying private respondents' motion for reconsideration of its decision of February 27, 1985, not having been filed, entry of judgment of aforesaid decision may now be made by said Appellate Court. LexLib

SO ORDERED.

2. bonamy vs paras G.R. No. L-72138 January 22, 1990

SPS. FELICIDAD M. ALVENDIA and JESUS F. ALVENDIA, petitioners, vs.HON. INTERMEDIATE APPELLATE COURT, HON. ELSIE LIGOT-TELAN in her capacity as Presiding Judge of the Regional Trial Court of Bulacan, Third Judicial Region, Branch VIII, the PROVINCIAL SHERIFF OF BULACAN, and BONIFACIO BONAMY, respondents.

G.R. No. L-72373 January 22, 1990

BONIFACIO BONAMY, petitioner, vs.HON. EDGARDO L. PARAS, in his capacity as Associate Appellate Justice and Chairman, HON. VICENTE V. MENDOZA, in his capacity as Associate Appellate Justice and Member, and HON. LUIS A. JAVELLANA, in his capacity as Associate Appellate Justice and Member of the Fourth Special Cases Division of the Intermediate Appellate Court; FELICIDAD M. ALVENDIA and JESUS F. ALVENDIA, respondents.

Lesaca, Villasor, Espiritu, Orlina & Ferrer for petitioners in 72138.

De Guzman, Florentino & Associates for Bonifacio Bonamy.

FERNAN, C.J.:

In G.R. No. 72138, the spouses Felicidad M. Alvendia and Jesus F. Alvendia filed an urgent motion for extension of time to file an appeal by certiorari from the denial of their motion for reconsideration of the decision of the then Intermediate Appellate Court (IAC) dismissing their petition docketed therein as AC-G.R. No. SP-04423, entitled "Alvendia et al. v. Telan etc., et al."

In G.R. No. 72373, a petition for certiorari and prohibition was filed by Bonifacio Bonamy, seeking to annul and set aside: [a] Resolution II dated September 11, 1985 granting the motion filed by the spouses Alvendia to pay Bonifacio Bonamy the amount of the judgment in cash, and [b] Resolution I dated October 8, 1985 denying Bonamy's motion for reconsideration of the aforesaid resolution both issued by the Fourth Special Cases Division in said AC-G.R. No. SP-04423.

Although no appeal was ever filed in G.R. No. 72138, the same was ordered consolidated with G.R. No. 72373 in the resolution of February 3, 1986 of the First Division of this Court.

The instant petitions trace their genesis to a simple collection suit, Civil Case No. 5182-M 1 filed on September 12, 1977, by Bonifacio Bonamy against the spouses Jesus F. Alvendia and Felicidad M. Alvendia before the then Court of First

Instance (CFI) of Bulacan, 5th Judicial District, Branch VI, for the sum of P107,481.50 representing construction materials which the Alvendias had purchased on credit from Bonamy.

After the Alvendias had filed a "Motion to Dismiss" dated October 31, 1977 which was opposed by Bonamy on November 16, 1977 and an "Answer with Affirmative and Negative Defenses and Counterclaim" dated December 1, 1977, both parties submitted to the trial court on January 6, 1978 a "Compromise Agreement" providing, among other things:

xxx xxx xxx

(1) That defendants do hereby acknowledge the in debtedness of their family corporation, Dona Felisa Village and Housing Corporation, in the amount of P107,481.50, representing the cost of construction materials bought on credit from plaintiff from June 20 to August 12, 1975 and jointly with said family corporation, do hereby bind themselves to pay said obligation out of the first release or releases of funds from the Government Service Insurance System (GSIS) for housing units and lots sold by the said corporation to members of the GSIS provided, however, that the P47,000.00 previously assigned to Wells and Pu shall be first satisfied before applying such GSIS release to satisfaction of said indebtedness to the herein plaintiff;

(2) That the plaintiff and defendants shall thereby join hands in asking the GSIS to expedite the releases of the funds due to said corporation; and

(3) That for and in consideration of this agreement the plaintiff and defendants hereby waive any and all further claims monetary or otherwise against each other regarding the subject matter of this case.

xxx xxx xxx

On the same date, the trial court, finding the aforesaid compromise agreement not to be contrary to laws, morals, good customs public policy and public order, approved and adopted the same as the decision in the case. 3

Subsequently, Bonamy moved for execution of judgment, alleging that the Alvendias "have not submitted any finished project with the GSIS, thereby preventing the full realization of the aforesaid decision." 4

On December 6, 1979, over the objection of the Alvendias, the court ordered the issuance of the writ prayed for. The Alvendias did not move for reconsideration nor did they elevate the matter to the higher courts. 5

In a motion dated April 23,1980, Bonamy sought the issuance of an alias writ of execution, the first writ having been returned unsatisfied. He admitted though in the same motion that he received P20,000.00 in cash from the Alvendias sometime in January 1980 and an additional amount of P4,000.00 by way of proceeds of the sale of the Alvendias vehicle. 6

Pursuant to the alias writ issued by the Court on May 2,1980, the Bulacan provincial sheriff levied on the Alvendias "leasehold rights" over a fishpond (lease application no. V-1284 (EV-87) Lot I PSU-141243), located at Baluarte, Bulacan, Bulacan.

On January 15, 1981, a certificate of sale over said leasehold right was executed by the Sheriff in favor of Bonamy.

More than a year later, or on February 2, 1982, the spouses moved for the quashal and annulment of the writ of execution, levy and sale.

A final deed of sale was executed on January 25, 1983 and registered with the Register of Deeds of Bulacan on April 27, 1983.

In an order dated September 10, 1984, the trial court (now RTC of Bulacan, 3rd Judicial Region, Br. VIII) denied the spouses' motion to quash and ordered instead the issuance of a writ of possession in Bonamy's favor, thus:

Premises considered, the pending incidents are hereby resolved, as follows:

(1) The motion to quash or annul the writ of execution is hereby denied;

(2) The sale of the Toyota Land Cruiser is hereby declared null and void, consequently, let the defendants be restored in the ownership and possession thereof;

(3) The levy and sale of the defendants' rights over Foreshore Lease Application No. V-1284 (EV-87) Lot 1 PSU-141243 is hereby confirmed and declared valid, for which reason, let a writ of possession of the said premises be issued forthwith. 7

The records show that as per sheriffs return, possession of the fishpond was delivered to Bonamy on October 8, 1984. 8

In a petition for certiorari and prohibition with prayer for preliminary injunction and temporary restraining order filed with the Intermediate Appellate Court, (docketed as CA-G.R. No. SP-04423) the spouses Alvendias sought the annulment of the writ of execution, the levy made upon the leasehold rights and the writ of possession.

In a nutshell, the spouses argued as follows:[1] that the writ and the alias writ of execution levied upon properties not referred to in the judgment by compromise; [2] the writs made only the Alvendias liable, when under the "agreement" their family corporation was also supposed to be liable; [3] the writ was premature because the Compromise Agreement contained a condition which had not yet been fulfilled, namely, the release of a loan from the GSIS; [4] the fishpond, owned by the government though leased to the Alvendias, cannot be a proper subject of a levy on execution; and [5] the leasehold rights possessed by the Alvendias had already expired before the issuance of the order. 9

In its Decision dated February 27, 1985, the IAC dismissed the aforesaid petition. The pertinent portion is hereunder quoted, thus:

xxx xxx xxx

Firstly, we note that after the questioned writ of possession had been issued, no motion for reconsideration was filed to give the respondent judge an opportunity to correct any error that may have been committed.

Secondly, the orders complained of and which are attached to the petition are not certified true copies, in violation of the requirements under the rules of court

Thirdly, the writ of execution could properly levy on the properties of the Alvendias because their debt had already matured and remained unpaid despite demands. The judgment does not have to indicate what specific properties should be levied upon.

Fourthly, there could be no execution against the family corporation because it was not a party to the case, was not a party or signatory to the compromise agreement. Neither was it represented by the Alvendias.

Fifthly, the issuance of the writs was not premature. There is nothing in the compromise agreement which says that the release of the GSIS loan was a condition precedent to the payment of the debt.True, there was an indication by the Alvendias as to where they would obtain the needed financing, but this did not make the obtaining of the same a suspensive condition which would give rise to the creation of their obligation. The obligation to pay was admittedly there — even before any reference to the GSIS. Had they desired to make the fund release a condition sine qua non words should have been used to that effect. Indeed, it is absurd to say that if the GSIS would not release the money the Alvendias would be excused from the payment of their acknowledged indebtedness.

Sixthly, it is not the fishpond that was levied upon but the leasehold rights of the Alvendias.

Seventhly, if it is really true that the lease had already expired before the writs were issued, this is a matter that can be raised by the government, not the Alvendias who have already ceased to become real parties in interest regarding the property.

xxx xxx xxx

WHEREFORE, the instant petition is denied due course, and is hereby DISMISSED. The restraining order previously issued is hereby lifted. 10

The Alvendias filed an urgent motion for reconsideration. Pending action thereon, the spouses manifested to the court, thru motion, their willingness to immediately pay to Bonamy the remaining balance of the judgment sought to be enforced, which they place at P 37,481.50, plus interests due and/or any amount as the court may determine to be due (the said amount was reached by deducting from the total sum of P107,481.50: P20,000.00, P4,000.00 representing the value of the Toyota Land Cruiser and the further amount of P46,000.00 representing the actual value of the Toyota Land Cruiser minus the amount of P4,000.00 allegedly realized from the execution sale thereof). 11

On September 11, 1985, the IAC issued two resolutions, denominated as Resolutions I and II.

Resolution I denied the Alvendias' motion for reconsideration for lack of merit, without prejudice to what was stated in Resolution II hereunder.

Resolution II granted their motion to satisfy the judgment sought to be enforced in cash thereby directing the parties to submit to the court an agreement duly signed by both parties regarding full satisfaction of the judgment but only after the total amount involved in said judgment had been tendered and delivered to Bonamy. 12

The Alvendias then tendered payment to Bonamy in the form of a cashier's check in the amount of P100,000.00.13 Bonamy refused said tender of payment, and instead moved for a reconsideration of Resolution II.

In the meantime, the spouses moved for the issuance of a temporary restraining order to prevent or stop the allegedly unjust enforcement of the questioned writ of execution/possession and to prevent the sheriff and Bonamy and all persons acting under them from entering and encroaching on the fishpond area.

On October 2, 1985, the IAC restrained Bonamy and his corespondents therein from enforcing the questioned Writ of Execution/Possession issued in Civil Case No. 5182-M, as well as from entering and encroaching further into the subject fishpond. 14

Bonamy moved for the lifting of that order on the averment, among others, that the acts sought to be restrained had already been executed, Bonamy having been placed in possession on October 8, 1984 by Deputy Sheriff Rufino I. Santiago of Bulacan by virtue of the Writ of Possession issued in Civil Case No. 5182-M. 15

In an urgent motion for extension of time to file appeal by certiorari (from respondent court's order denying their motion for reconsideration) spouses Alvendias elevated their case to this Tribunal, docketed as G.R. No. 72138. Such motion was granted by the Court. A second motion was, however, denied. Hence, no petition was filed in G.R. No. 72138.

On October 8,1985, the IAC issued three resolutions embodied in a single document: Resolution I—denying Bonamy's motion for reconsideration; II—ordering him to comment on the motion for Deposit filed by the Alvendias; III—ordering the spouses to comment on the Manifestation and Motion to lift restraining order filed by Bonamy.

Hence, this petition for certiorari and prohibition, praying for the annulment of respondent court's Resolution II of September 11, 1985 and its Resolution I of October 8, 1985, filed with this Court on October 21, 1985 by Bonamy and docketed as G.R. No. 72373.

As earlier stated, on February 3, 1986, notwithstanding the Alvendias failure to file a petition in G.R. No. 72138, the Court resolved to consolidate the two cases, namely, G.R. Nos. 72138 and 72373, in the resolution of February 3, 1986, of the First Division of this Court. 16

On February 24, 1986, Bonamy, as private respondent in G.R. No. 72138, filed a manifestation that since the Alvendias did not file their petition in said case, the proceeding should be ordered dismissed and that entry of the IAC judgment be ordered.

Upon the Alvendias' failure to comply with the court's order to comment on the aforementioned manifestation, this Court issued a "show cause" resolution to the spouses.

Pleading absolute good faith and honesty and attributing failure to file the required comment to the confusing circumstances engendered by the issued resolutions (denying respondents' motion for reconsideration but granting their motion to satisfy judgment in cash) the Alvendias prayed the Court to consider instead their urgent petition (to extend time to file appeal) as their sufficient appeal, anchoring their entreaty on Bonamy's petition which is also pending in this Court and which has, anyway, opened the entire case for review. This explanation and manifestation of counsel for private respondents was noted in the resolution of October 15, 1986 of the Second Division of this Court where this case was eventually referred.*

The petition in G.R. No. 72373 is impressed with merit. The pivotal issue in this case is whether or not the judgment debtors may successfully ask that they be allowed to pay the judgment debt in cash long after they have failed to pay or redeem their properties which have been sold in execution.

Bonamy puts forward the averment that respondent court committed grave abuse of discretion in granting the Alvendias' motion that they be allowed to pay the judgment debt in cash.

He anchors his contention on the fact that there having been a valid levy and sale on execution of the Alvendias' leasehold rights over the fishpond in question, there is no longer any money judgment to be satisfied.

He maintains the position that all the questioned writs herein as well as the questioned orders have already been found by respondent IAC to be proper and legal and had in fact dismissed the petition of the Alvendias in its decision of February 27, 1985. Since then, he has been in ownership and possession of the disputed fishpond in Baluarte, Bulacan, and has been exercising all the acts of possession with respect to the same. 17

Hence, petitioner claims that the assailed resolutions are in effect [a] an annulment of the assailed Orders and Writs of the Bulacan Regional Trial Court, the Certificate of Sale and the Final Deed of Sale of the Leasehold Rights over the Foreshore Lands; [b] an extension of the Alvendias' period to redeem the leasehold rights over said land; and [c] orders directing Bonamy and the Alvendias to enter into a contract of sale over said leasehold rights for the price of the judgment debt embodied in the Compromise Agreement. 18

Verily, it is unrefuted that the writs and orders of the lower court sought to be annulled or at least reopened are already final and executory and in fact already executed.

The judgment which was executed was a compromise judgment, duly approved by the court and therefore, final and immediately executory. 19 Bonamy was clearly entitled to execution since the Alvendias failed to pay on time the judgment. Hence, the Bulacan Court ordered the execution thereof on December 9, 1979. 20

The compromise judgment against the Alvendias had been duly and legally executed and fully satisfied as of January 15,1981 in accordance with Section 15 of Rule 39 of the Rules of Court when the Bulacan Sheriff levied on the Alvendias foreshore leasehold rights by selling the same and paying the judgment creditor Bonamy. The Alvendias had one year within which to redeem said property rights but they failed to do so. Hence, the Sheriff issued the Final Deed of Sale on January 25, 1983.

As above stated, on certiorari and prohibition in CA-G.R. No. SP-04423, all these orders and writs, taken up one by one by the Intermediate Appellate Court were found to be legal and proper for which reason, the petition was dismissed in the decision of February 27, 1985.

In this Court, private respondents moved for extension of time to file a petition for review in G.R. No. 72138 but failed to file the same, thereby foreclosing their right to appeal.

In any event, it is axiomatic that there is no justification in law and in fact for the reopening of a case which has long become final and which has in fact been executed. 21 Time and again this Court has said that the doctrine of finality of judgments is grounded on fundamental consideration of public policy and sound practice that at the risk of occasional error the judgments of courts must become final at some definite date fixed by law. 22

On the other hand, the Alvendias invoke equity and aver that the IAC acted correctly in granting their motion to pay the balance of the judgment indebtedness in view of highly exceptional circumstances such as the supposedly grossly fraudulent irregularities committed by Bonamy and the Special Sheriff of Bulacan.

It is a settled rule, however, that said Special Sheriff is under the control and supervision of the trial court which issued the assailed writ of execution to the exclusion of other courts. Accordingly, the court which rendered the judgment has a general supervisory control over its process of execution and this power carries with it the right to determine every question of fact and law which may be involved in the execution. 23 But as earlier stated, private respondents neither moved for reconsideration of the December 6, 1979 order of the trial court directing the issuance of the writ of execution, nor appealed the same to the higher courts.

In any event, the Alvendias cannot invoke equity as a ground for reopening the case and making the payment of the judgment in cash possible. The records show that they had all the opportunity to make such payments on four occasions but failed. These are: [1] from the time they got the building and construction materials worth P107,461.50 from the petitioner (from June 26 to August 12, 1975) up to the time they agreed to a compromise agreement on January 6, 1978; [2] from the compromise judgment to the time execution was ordered by the respondent court (Order dated December 6, 1979); [3] from the Execution Order to the Execution Sale (on January 15, 1981); and [4] from the Execution Sale up to the end of the redemption period, finally ending in the Final Deed of Sale. 24

There is no question therefore, that the Alvendias failed to pay on time the judgment of which the execution sale was a necessary consequence. They also failed to redeem the property within the required period despite the fact that the Final Deed of Sale was issued only on January 25, 1983, long past the aforesaid period; undeniably showing a lack of intention or capability to pay the same.

Instead the offer to pay the judgment in cash was first made by private respondents Alvendias on April 23, 1985 or two months after the decision of respondent Appellate Court on February 27, 1985 and more than two years after the redemption period had elapsed. More importantly, the offer was made after Bonamy had introduced improvements on the property worth one million pesos (P1,000,000.00) as evidenced by irrefutable proof. Of course, the Alvendias claim the same amount as the value of the fishpond presumably before execution but such claim besides having been raised only on appeal, specifically after the promulgation of the decision of the Intermediate Appellate Court on February 27, 1985, is unsupported by evidence on record. On the contrary, petitioner Bonamy's pictures of the leased premises before and after he took possession of the same belie said claim of private respondents. 25

As insisted upon by petitioner, the money judgment against the Alvendias has already been satisfied and there is no more need to pay, in cash or otherwise. Hence, as ruled by this Court, when judgment has been satisfied, the same passes beyond review, for satisfaction thereof is the last act and end of the proceedings. Payment produces permanent and irrevocable discharge. 26

On the other hand, equity has been aptly described as "a justice outside legality"; winch is applied only in the absence of and never against statutory law or as in this case, judicial rules of procedure. 27 The rule is "equity follows the law" but where a particular remedy is given by the law and that remedy is bounded and circumscribed by particular rules, it would be very improper, for the court to take it up where the law leaves it and to extend it further than the law allows. 28 There may be a moral obligation but if there is no enforceable legal duty, the action for reconveyance must fail. 29 Courts exercising equity jurisdiction are bound by rules of law and have no arbitrary discretion to disregard them. Equitable reasons will not control against any well-settled rule of law or public policy.30

Moreover, it is oft repeated that "He who comes into Equity must come with clean hands." 31 At this stage, to allow private respondents to pay in cash the balance of the judgment account for which they offered P100,000.00 to redeem the property on which petitioner has spent one million pesos (P1,000,000.00) in terms of improvements introduced would be less than fair. If equity is to be applied at all, it should be applied for the benefit of the petitioner. Thus, this Court in applying equity jurisprudence in a partition case, ruled that improvements introduced on the property by one who necessarily and in good faith improved the same and enhanced its value at his own cost, should be taken into account under the familiar principle that "one who seeks equity must do equity." 32

In resume, the Alvendias, after having allowed the period of redemption to lapse without availing themselves of the same, and after petitioner had introduced improvements on the property at the latter's expense, cannot now be allowed to redeem the property sold to the latter thru the expediency of a motion or manifestation.

As to other matters, there appears to be no cogent reason to disturb the findings and conclusions of the Intermediate Appellate Court in its decision of February 27, 1985 which has become final and executory when the Alvendias failed to file their contemplated petition for review on certiorari in G.R. No. 72138. It has been held that failure to perfect an appeal renders the lower court's judgment final and executory and a modification of such judgment by the appellate court cannot be allowed. Furthermore, an appellee who is not also an appellant may also assign errors in his brief where his purpose is to maintain the judgment on other grounds, but he may not do so if his purpose is to have the judgment modified or reversed, for, in such case, he must appeal. 33

However, where there is an ambiguity caused by an omission or mistake in the dispositive portion of the decision, in this case in the questioned "Writ of Possession" issued by the trial court, where the twenty-three (23) hectare foreshore land (23.467 hec.), described in the Sheriffs Certificate of Sale and Final Deed of Sale 34 became a forty-hectare foreshore land (40.63 hec.), 35 it has been held that this Court may clarify such ambiguity by an amendment even after the judgment had become final. 36

WHEREFORE, the assailed resolutions are hereby SET ASIDE and the decision dismissing the Alvendias' petition is AFFIRMED save that portion upholding the validity of the writ of possession which contained an error in property description. Hence, the writ of possession is hereby AMENDED to conform to the description appearing in the Certificate of Sale and the Final Deed of Sale. Let the restraining order issued by the Intermediate Appellate Court on October 2, 1985 relative to the enforcement of said writ be lifted accordingly.

Petitioner is hereby ordered to return to private respondents, the amount of P12,518.50 pesos, which amount represents the difference between the execution price of P100,000.00 and P 87,481.50, the latter amount having been arrived at by deducting P20,000.00 from the total amount of indebtedness which is P107,481.50. 37

In G.R. No. 72138, the petition for review on certiorari of Resolution I of the Intermediate Appellate Court denying private respondents' motion for reconsideration of its decision of February 27, 1985, not having been filed, entry of judgment of aforesaid decision may now be made by said Appellate Court.

SO ORDERED.

3. Andres vs mftg hanover & trust co. [G.R. No. 82670. September 15, 1989.]

SYLLABUS

2.STATUTORY CONSTRUCTION; SPECIFIC PROVISION OF LAW PREVAILS OVER COMMON LAW PRINCIPLE. — Between a common law principle and a statutory provision, the latter must prevail in this jurisdiction.

Assailed in this petition for review on certiorari is the judgment of the Court of Appeals, which, applying the doctrine of solutio indebiti, reversed the decision of the Regional Trial Court, Branch CV, Quezon City by deciding in favor of private respondent.

Petitioner, using the business name "Irene's Wearing Apparel," was engaged in the manufacture of ladies garments, children's wear, men's apparel and linens for local and foreign buyers. Among its foreign buyers was Facets Funwear, Inc. (hereinafter referred to as FACETS) of the United States.

In the course of the business transaction between the two, FACETS from time to time remitted certain amounts of money to petitioner in payment for the items it had purchased. Sometime in August 1980, FACETS instructed the First National State Bank of New Jersey, Newark, New Jersey, U.S.A. (hereinafter referred to as FNSB) to transfer $10,000.00 to petitioner via Philippine National Bank, Sta. Cruz Branch, Manila (hereinafter referred to as PNB). llcd

Acting on said instruction, FNSB instructed private respondent Manufacturers Hanover and Trust Corporation to effect the above-mentioned transfer through its facilities and to charge the amount to the account of FNSB with private respondent. Although private respondent was able to send a telex to PNB to pay petitioner $10,000.00 through the Pilipinas Bank, where petitioner had an account, the payment was not effected immediately because the payee designated in the telex was only "Wearing Apparel." Upon query by PNB, private respondent sent PNB another telex dated August 27, 1980 stating that the payment was to be made to "Irene's Wearing Apparel." On August 28, 1980, petitioner received the remittance of $10,000.00 through Demand Draft No. 225654 of the PNB.

Meanwhile, on August 25, 1980, after learning about the delay in the remittance of the money to petitioner, FACETS informed FNSB about the situation. On September 8, 1980, unaware that petitioner had already received the remittance, FACETS informed private respondent about the delay and at the same time amended its instruction by asking it to effect the payment through the Philippine Commercial and Industrial Bank (hereinafter referred to as PCIB) instead of PNB.

Accordingly, private respondent, which was also unaware that petitioner had already received the remittance of $10,000.00 from PNB instructed the PCIB to pay $10,000.00 to petitioner. Hence, on September 11, 1980, petitioner received a second $10,000.00 remittance.

Private respondent debited the account of FNSB for the second $10,000.00 remittance effected through PCIB. However, when FNSB discovered that private respondent had made a duplication of the remittance, it asked for a recredit of its account in the amount of $10,000.00. Private respondent complied with the request.

Private respondent asked petitioner for the return of the second remittance of $10,000.00 but the latter refused to pay. On May 12, 1982 a complaint was filed with the Regional Trial Court, Branch CV, Quezon City which was decided in favor of petitioner as defendant. The trial court ruled that Art. 2154 of the New Civil Code is not applicable to the case because the second remittance was made not by mistake but by negligence and petitioner was not unjustly enriched by virtue thereof [Record, p. 234]. On appeal, the Court of Appeals held that Art. 2154 is applicable and reversed the RTC decision. The dispositive portion of the Court of Appeals' decision reads as follows:

WHEREFORE, the appealed decision is hereby REVERSED and SET ASIDE and another one entered in favor of plaintiff-appellant and against defendant-appellee Domelita (sic) M. Andres, doing business under the name and style "Irene's Wearing Apparel" to reimburse and/or return to plaintiff-appellant the amount of $10,000.00, its equivalent in Philippine currency, with interests at the legal rate from the filing of the complaint on May 12, 1982 until the whole amount is fully paid, plus twenty percent (20%) of the amount due as attorney's fees; and to pay the costs.

With costs against defendant-appellee.

SO ORDERED. [Rollo, pp. 29-30.]

Thereafter, this petition was filed.

The sole issue in this case is whether or not the private respondent has the right to recover the second $10,000.00 remittance it had delivered to petitioner. The resolution of this issue would hinge on the applicability of Art. 2154 of the New Civil Code which provides that:

Art. 2154.If something received when there is no right to demand it, and it was unduly delivered through mistake, the obligation to return it arises.

This provision is taken from Art. 1895 of the Spanish Civil Code which provided that:

Art. 1895.If a thing is received when there was no right to claim it and which, through an error, has been unduly delivered, an obligation to restore it arises.

In Velez v. Balzarza, 73 Phil. 630 (1942), the Court, speaking through Mr. Justice Bocobo explained the nature of this article thus:

Article 1895 [now Article 2154] of the Civil Code abovequoted, is therefore applicable. This legal provision, which determines the quasi-contract of solutio indebiti, is one of the concrete manifestations of the ancient principle that no one shall enrich himself unjustly at the expense of another. In the Roman Law Digest the maxim was formulated thus: "Jure naturae acquum est, neminem cum alterius detrimento et injuria fieri locupletiorem." And the Partidas declared: "Ninguno non deue enriquecerse tortizeramente con dano de otro." Such axiom has grown through the centuries in legislation, in the science of law and in court decisions. The lawmaker has found it one of the helpful guides in framing statutes and codes. Thus, it is unfolded in many articles scattered in the Spanish Civil Code. (See for example, articles, 360, 361, 464, 647, 648, 797, 1158, 1163, 1295, 1303, 1304, 1893 and 1895, Civil Code.) This time-honored aphorism has also been adopted by jurists in their study of the conflict of rights. It has been accepted by the courts, which have not hesitated to apply it when the exigencies of right and equity demanded its assertion. It is a part of that affluent reservoir of justice upon which judicial discretion draws whenever the statutory laws are inadequate because they do not speak or do so with a confused voice. [at p. 632.]

For this article to apply the following requisites must concur: "(1) that he who paid was not under obligation to do so; and, (2) that payment was made by reason of an essential mistake of fact" [City of Cebu v. Piccio, 110 Phil. 558, 563 (1960)]. cdrep

It is undisputed that private respondent delivered the second $10,000.00 remittance. However, petitioner contends that the doctrine of solutio indebitidoes not apply because its requisites are absent.

First, it is argued that petitioner had the right to demand and therefore to retain the second $10,000.00 remittance. It is alleged that even after the two $10,000.00 remittances are credited to petitioner's receivables from FACETS, the latter allegedly still had a balance of $49,324.00. Hence, it is argued that the last $10,000.00 remittance being in payment of a pre-existing debt, petitioner was not thereby unjustly enriched.

The contention is without merit.

The contract of petitioner, as regards the sale of garments and other textile products, was with FACETS. It was the latter and not private respondent which was indebted to petitioner. On the other hand, the contract for the transmittal of dollars from the United States to petitioner was entered into by private respondent with FNSB. Petitioner, although named as the payee was not privy to the contract of remittance of dollars. Neither was private respondent a party to the contract of sale between petitioner and FACETS. There being no contractual relation between them, petitioner has no right to apply the second $10,000.00 remittance delivered by mistake by private respondent to the outstanding account of FACETS.

Petitioner next contends that the payment by respondent bank of the second $10,000.00 remittance was not made by mistake but was the result of negligence of its employees.

In connection with this the Court of Appeals made the following finding of facts: LLphil

The fact that Facets sent only one remittance of $10,000.00 is not disputed. In the written interrogatories sent to the First National State Bank of New Jersey through the Consulate General of the Philippines in New York, Adelaide C. Schachel, the investigation and reconciliation clerk in the said bank testified that a request to remit a payment for Facet Funwear Inc. was made in August, 1980. The total amount which the First National State Bank of New Jersey actually requested the plaintiff-appellant Manufacturers Hanover & Trust Corporation to remit to Irene's Wearing Apparel was US $10,000.00. Only one remittance was requested by First National State Bank of New Jersey as per instruction of Facets Funwear (Exhibit "J", pp. 4-5).

That there was a mistake in the second remittance of US$10,000.00 is borne out by the fact that both remittances have the same reference invoice number which is 263 80. (Exhibits "A-1-Deposition of Mr. Stanley Panasow" and "A-2-Deposition of Mr. Stanley Panasow").

Plaintiff-appellant made the second remittance on the wrong assumption that defendant-appellee did not receive the first remittance of US$10,000.00. [Rollo, pp. 26-27.]

It is evident that the claim of petitioner is anchored on the appreciation of the attendant facts which petitioner would have this Court review. The Court holds that the finding by the Court of Appeals that the second $10,000.00 remittance was made by mistake, being based on substantial evidence, is final and conclusive. The rule regarding questions of fact being raised with this Court in a petition for certiorari under Rule 45 of the Revised Rules of Court has been stated in Remalante v. Tibe, G.R. No. 59514, February 25, 1988, 158 SCRA 138, thus: Cdpr

The rule in this jurisdiction is that only questions of law may be raised in a petition for certiorari under Rule 45 of the Revised Rules of Court. "The jurisdiction of the Supreme Court in cases brought to it from the Court of Appeals is limited to reviewing and revising the errors of law imputed to it, its findings of fact being conclusive" [Chan v. Court of Appeals, G.R. No. L-27488, June 30, 1970, 33 SCRA 737, reiterating a long line of decisions]. This Court has emphatically declared that "it is not the function of the Supreme Court to analyze or weigh such evidence all over again, its jurisdiction being limited to reviewing errors of law that might have been committed by the lower court" [Tiongco v. De la Merced, G.R. No. L-24426, July 25, 1974, 58

SCRA 89; Corona v. Court of Appeals, G.R. No. L-62482, April 28, 1983, 121 SCRA 865; Baniqued v. Court of Appeals, G.R. No. L-47531, February 20, 1984, 127 SCRA 596]. "Barring, therefore, a showing that the findings complained of are totally devoid of support in the record, or that they are so glaringly erroneous as to constitute serious abuse of discretion, such findings must stand, for this Court is not expected or required to examine or contrast the oral and documentary evidence submitted by the parties" [Santa Ana, Jr. v. Hernandez, G.R. No. L-16394, December 17, 1966, 18 SCRA 973]. [at pp. 144-145.]

Petitioner invokes the equitable principle that when one of two innocent persons must suffer by the wrongful act of a third person, the loss must be borne by the one whose negligence was the proximate cause of the loss.

The rule is that principles of equity cannot be applied if there is a provision of law specifically applicable to a case [Phil. Rabbit Bus Lines, Inc. v. Arciaga, G.R. No. L-29701, March 16, 1987, 148 SCRA 433; Zabat, Jr. v. Court of Appeals, G.R. No. L-36958, July 10, 1986, 142 SCRA 587; Rural Bank of Parañaque, Inc. v. Remolado, G.R. No. 62051, March 18, 1985, 135 SCRA 409; Cruz v. Pahati, 98 Phil. 788 (1956)]. Hence, the Court in the case of De Garcia v. Court of Appeals, G.R. No. L-20264, January 30, 1971, 37 SCRA 129, citing Aznar v. Yapdiangco, G.R. No. L-18536, March 31, 1965, 13 SCRA 486, held:

. . . The common law principle that where one of two innocent persons must suffer by a fraud perpetrated by another, the law imposes the loss upon the party who, by his misplaced confidence, has enabled the fraud to be committed, cannot be applied in a case which is covered by an express provision of the new Civil Code, specifically Article 559. Between a common law principle and a statutory provision, the latter must prevail in this jurisdiction. [at p. 135.]

Having shown that Art. 2154 of the Civil Code, which embodies the doctrine of solutio indebiti, applies in the case at bar, the Court must reject the common law principle invoked by petitioner. cdll

Finally, in her attempt to defeat private respondent's claim, petitioner makes much of the fact that from the time the second $10,000.00 remittance was made, five hundred and ten days had elapsed before private respondent demanded the return thereof. Needless to say, private respondent instituted the complaint for recovery of the second $10,000.00 remittance well within the six years prescriptive period for actions based upon a quasi-contract [Art. 1145 of the New Civil Code].

WHEREFORE, the petition is DENIED and the decision of the Court of Appeals is hereby AFFIRMED.

SO ORDERED.