DEAN ED VINCENT S. ALBANO : SURVEY OF 2011-2013 SC CASES IN RE REMEDIAL LAW

 

 SURVEY OF 2011-2013 SC CASES IN

REMEDIAL LAWBy: Dean ED VINCENT S. ALBANO

JURISDICTIONHLURB’s jurisdiction.

In a case, the basic issue was settled was whether or not the HLURB has the authority to hear and decide a case is determined by the nature of the cause of action, the subject matter or property involved, and the parties.  Section 1 of P.D. 1344 vests in the HLURB the exclusive jurisdiction to hear and decide the following cases:

(a) unsound real estate business practices;(b) claims involving refund and any other claims filed by subdivision lot or condominium unit buyer against the project owner, developer, dealer, broker, or salesman; and(c) cases involving specific performance of contractual and statutory obligations filed by buyers of subdivision lots or condominium units against the owner, developer, dealer, broker or salesman.

Unlike paragraphs (b) and (c) above, paragraph (a) does not state which party can file a claim against an unsound real estate business practice.  But, in the context of the evident objective of Section 1, it is implicit that the “unsound real estate business practice” would, like the offended party in paragraphs (b) and (c), be the buyers of lands involved in development.  The policy of the law is to curb unscrupulous practices in real estate trade and business that prejudice buyers.

This position is supported by the Court’s statement in Delos Santos v. Sarmiento that not every case involving buyers and sellers of subdivision lots or condominium units can be filed with the HLURB.  Its jurisdiction is limited to those cases filed by the buyer or owner of a subdivision lot or condominium unit and based on any of the causes of action enumerated in Section 1 of P.D. 1344.

Obviously, the City had not bought a lot in the subject area from Ortigas which would give it a right to seek HLURB intervention in enforcing a local ordinance that regulates the use of private land within its jurisdiction in the interest of the general welfare.  It has the right to bring such kind of action but only before a court of general jurisdiction such as the RTC. (Ortigas & Co. Ltd. Partnership v. CA, et al., G.R. No. 129822, June 20, 2012, Abad, J).

RULE 2 – ACTIONSCause of action; action delicto is separate and distinct from civil liability arising from other sources of obligations.

A single act or omission that causes damage to an offended party may give rise to two separate civil liabilities on the part of the offender (1)civil liability ex delicto, that is, civil liability arising from the criminal offense under Article 100 of the Revised Penal Code, and (2)independent civil liability, that is, civil liability that may be pursued

independently of the criminal proceedings. The independent civil liability may be based on “an obligation not arising from the act or omission complained of as a felony,” as provided in Article 31 of the Civil Code (such as for breach of contract or for tort). It may also be based on an act or omission that may constitute felony but, nevertheless, treated independently from the criminal action by specific provision of Article 33 of the Civil Code (“in cases of defamation, fraud and physical injuries”).

The civil liability arising from the offense or ex delicto is based on the acts or omissions that constitute the criminal offense; hence, its trial is inherently intertwined with the criminal action. For this reason, the civil liability  ex delicto is impliedly instituted with the criminal offense. If the action for the civil liability ex delicto is instituted prior to or subsequent to the filing of the criminal action, its proceedings are suspended until the final outcome of the criminal action. The civil liability based on delict is extinguished when the court hearing the criminal action declares that “the act or omission from which the civil liability may arise did not exist.”

On the other hand, the independent civil liabilities are separate from the criminal action and may be pursued independently, as provided in Articles 31 and 33 of the Civil Code, which state that:

ART. 31. When the civil action is based on an obligation not arising from the act or omission complained of as a felony, such civil action may proceed independently of the criminal proceedings and regardless of the result of the latter. (Emphasis supplied.)

ART. 33. In cases of defamation, fraud, and physical injuries a civil action for damages, entirely separate and distinct from the criminal action, may be brought by the injured party. Such civil action shall  proceed independently of the criminal prosecution, and shall require only a preponderance of evidence. (Emphasis supplied.)

Because of the distinct and independent nature of the two kinds of civil liabilities, jurisprudence holds that the offended party may pursue the two types of civil liabilities simultaneously or cumulatively, without offending the rules on forum shopping, litis pendentia, or res judicata. As explained in Cancio, Jr. v. Isip:

One of the elements of res judicata is identity of causes of action. In the instant case, it must be stressed that the action filed by petitioner is an independent civil action, which remains separate and distinct from any criminal prosecution based on the same act. Not being deemed instituted in the criminal action based on culpa criminal, a ruling on the culpability of the offender will have no bearing on said independent civil action based on an entirely different cause of action, i.e., culpa contractual.

In the same vein, the filing of the collection case after the dismissal of the estafa cases against [the offender] did not amount to forum-shopping. The essence of forum shopping is the filing of multiple suits involving the same parties for the same cause of action, either simultaneously or successively, to secure a favorable judgment. Although the cases filed by [the offended party] arose from the same act or omission of [the offender], they are, however, based on different causes of action. The criminal cases for estafa are based on culpa criminalwhile the civil action for collection is anchored on culpa contractual.

Moreover, there can be no forum-shopping in the instant case because the law expressly allows the filing of a separate civil action which can proceed independently of the criminal action.

Since civil liabilities arising from felonies and those arising from other sources of obligations are authorized by law to proceed independently of each other, the resolution of the present issue hinges on whether the two cases herein involve different kinds of civil obligations such that they can proceed independently of each other. The

answer is in the affirmative. The first action is clearly a civil action ex delicto, it having been instituted together with the criminal action.

On the other hand, the second action, judging by the allegations contained in the complaint, is a civil action arising from a contractual obligation and for tortious conduct (abuse of rights). In her civil complaint, Lim basically alleges that she entered into a sale contract with Co under the following terms: that she bought 37,200 bags of cement at the rate of P64.00 per bag from Co; that, after full payment, Co delivered to her the withdrawal authorities issued by FRCC corresponding to these bags of cement; that these withdrawal authorities will be honored by FRCC for six months from the dates written thereon. Lim then maintains that the defendants breached their contractual obligations to her under the sale contract and under the withdrawal authorities; that Co and his codefendants wanted her to pay more for each bag of cement, contrary to their agreement to fix the price at P64.00 per bag and to the wording of the withdrawal authorities; that FRCC did not honor the terms of the withdrawal authorities it issued; and that Co did not comply with his obligation under the sale contract to deliver the 37,200 bags of cement to Lim. From the foregoing allegations, it is evident that Lim seeks to enforce the defendants’  contractual obligations, given that she has already performed her obligations. She prays that the defendants either honor their part of the contract or pay for the damages that their breach has caused her.

Lim also includes allegations that the actions of the defendants were committed in such manner as to cause damage to Lim without regard for morals, good customs and public policy. These allegations, if proven, would constitute tortious conduct (abuse of rights under the Human Relations provisions of the Civil Code.

Thus, Civil Case No. 05-112396 involves only the obligations arising from contract and from tort, whereas the appeal in the estafa case involves only the civil obligations of Co arising from the offense charged. They present different causes of action, which, under the law, are considered "separate, distinct, and different from each other. Both cases can proceed to their final adjudication, subject to the prohibition on double recovery under Article 2177 of the Civil Code. (Lily Lim v. Kuo Co Ping, G. R. No. 179160, 175256, August 23, 2012).

If there is no cause of action, complaint must be dismissed.Q – In a case, the SB of Mabini, Bohol enacted a Resolution allowing petitioner to operate a cockpit since the winning bidder from January 1989 to December 1992 failed to comply with the legal requirements for operating a cockpit. He continued to operate until 1997 after obtaining a business permit from the mayor. The SB suspended the operation by enacting a resolution, hence, he filed a petition for prohibition to prevent the enforcement of the resolution suspending his operation. Is the petition proper? Why?

Answer: No. He has no cause of action as he has no legal right to operate a cockpit in the municipality. The only reason why he was allowed to operate the cockpit was due to the failure of the winning bidder to comply with the requirements for the operation of a cockpit for a certain period. And, the only reason why he was able to continue operating was because the SB failed to monitor the status of the cockpit in the municipality.

And even if he was able to get a business permit from respondent mayor, this did not give him a license to operate a cockpit.  Under Section 447(a)(3)(v) of the LGC, it is the Sangguniang Bayan which is empowered to “authorize and license the establishment, operation and maintenance of cockpits, and regulate cockfighting and commercial breeding of gamecocks.”  Considering that no public bidding was conducted for the operation of a cockpit, petitioner cannot claim that he was duly authorized by the Sangguniang Bayan to operate his cockpit.  Respondent members of the Sangguniang Bayan, therefore, had every reason to suspend the operation of his cockpit by enacting Municipal Resolution No. 065, series of 1997. As the chief executive of the municipal government, respondent mayor was duty-bound to enforce the suspension of the operation of petitioner’s cockpit pursuant to the said Resolution. (Judge Leynes v. COA, 463 Phil. 557 (2003)).  Hence, Municipal Resolution No. 065, series of

1997 is valid. (Du v. Venancio Jayona, et al., G.R. No. 175042, April 23, 2012).Note:License to operate a cockpit is a mere privilege.

1.                In   addition,   it   is  well enshrined  in  our  jurisprudence   that   “a   license authorizing the operation and exploitation of a cockpit is not property of which the holder may not be deprived without due process of law, but a mere privilege that may be revoked when public interests so require.” (Pedro v. Provincial Board of Rizal, 56 Phil. 123 (1931)).  Having said that, petitioner’s allegation that he was deprived of due process has no leg to stand on.

Petitioner not entitled to damagesWithout any legal right to operate a cockpit in the municipality, petitioner is not entitled to damages.  Injury alone does not give petitioner the right to recover damages; he must also have a right of action for the legal wrong inflicted by the respondents.  We need not belabor that “in order that the law will give redress for an act causing damage, there must be damnum et injuria – that act must be not only hurtful, but wrongful.” (Tan v. Perena, 492 Phil. 2000 (2005)).A cause of action is defined as “the act or omission by which a party violates a right of another.” Corollarily, the essential elements of a cause of action are: (1) a right in favor of the plaintiff; (2) an obligation on the part of the defendant to respect such right; and (3) an act or omission on the part of the defendant in violation of the plaintiff’s right with a resulting injury or damage to the plaintiff for which the latter may file an action for the recovery of damages or other appropriate relief. (Soloiol, Inc. v. Phil. Coconut Authority, G.R. No. 174806, August 11, 2010, 628 SCRA 185).Indefeasibility of title; real parties in interest; representative parties.An action for reconveyance is an action available to a person whose property has been wrongfully registered under the Torrens system in another’s name.16 While it is a real action, it is an action in personam, for it binds a particular individual only, although it concerns the right to an intangible thing. Any judgment in this action is binding only upon the parties properly impleaded. This is in keeping with the principle that every action must be prosecuted or defended in the name of the real party-ininterest, i.e., the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit,18 as embodied in Section 2, Rule 3 of the Rules of Court which provides that a real party in interest is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized by law or these Rules, every action must be prosecuted or defended in the name of the real party in interest.Any decision rendered against a person who is not a real party-in-interest in the case cannot be executed. Hence, a complaint filed against such a person should be dismissed for failure to state a cause of action. (Carmencita Guizano v. Veneracion, G.R. No. 191128, September 12, 2012, Brion, J).

RULE 2 – CAUSE OF ACTIONCause of action, defined.               Section 2, Rule 2 of the Rules of Court defines cause of action as the acts or omission by which a party violates a right of another. A cause of action is a formal statement of the operative facts that give rise to a remedial right. The question of whether the complaint states a cause of action is determined by its averments regarding the acts committed by the defendant. Thus, it must contain a concise statement of the ultimate or essential facts constituting the plaintiff’s cause of action. Failure to make a sufficient allegation of a cause of action in the complaint warrants its dismissal.The essential elements of a cause of action are (1) a right in favor of the plaintiff by whatever means and under whatever law it arises or is created; (2) an obligation on the part of the named defendant to respect or not to violate such right; and (3) an act or omission on the part of such defendant in violation of the right of the plaintiff or constituting a breach of the obligation of the defendant to the plaintiff for which the latter may maintain an action for recovery of damages or other appropriate relief.In determining whether a complaint states a cause of action, the RTC can consider all the pleadings filed, including

annexes, motions, and the evidence on record. The focus is on the sufficiency, not the veracity, of the material allegations. Moreover, the complaint does not have to establish facts proving the existence of a cause of action at the outset; this will have to be done at the trial on the merits of the case.Thus, the first paragraph of Section 1, Rule 8 of the Rules of Court provides that “[e]very pleading shall contain in a methodical and logical form, a plain, concise and direct statement of the ultimate facts on which the party pleading relies for his claim or defense, as the case may be, omitting the statement of mere evidentiary facts.”Ultimate facts mean the important and substantial facts which either directly form the basis of the plaintiff’s primary right and duty or directly make up the wrongful acts or omissions of the defendant. They refer to the principal, determinative, constitutive facts upon the existence of which the cause of action rests. (Belle Corp. v. De Leon-Banks, et al., G.R. No. 174669, September 19, 2012).

RULE ON SUMMARY PROCEDUREPetition for relief from judgment is prohibited under the Summary Procedure.Q – A complaint for ejectment was filed with the MTC. After judgment was rendered there was a petition for relief from judgment filed with the RTC which the latter dismissed for lack of jurisdiction. Is the dismissal correct? Why?Answer: Yes. A petition for relief from judgment in forcible entry and unlawful detainer cases, is a prohibited pleading. The reason for this is to achieve an expeditious and inexpensive determination of the cases subject of summary procedure. (Sec. 36, BP 129; Sec. 13(4) Rule 70; Sec. 19(d), Rule on Summary Procedure; Afdal, et al. v. Carlos, G.R. No. 173379, December 1, 2010).Q – In the above-cited case, the defendants were not properly served with summons as the return merely showed that it was signed by one “Gary Acob (a relative)” and the other return showed that it was duly served but refused to sign without specifying to whom it was served. Judgment was rendered against the defendants, who filed a petition for relief from judgment with the RTC, which dismissed the petition. Under the circumstances, what is the appropriate remedy? Explain.Answer: The defendant can file a special civil action for certiorari before the RTC as there was a showing of grave abuse of discretion amounting to lack of jurisdiction. The court did not acquire jurisdiction over the persons of the defendants due to improper service of summons.A petition for relief from judgment, if allowed by the Rules and not a prohibited pleading, should be filed with and resolved by the court in the same case from which the petition arose.          In the present case, petitioners cannot file the petition for relief with the MTC because it is a prohibited pleading in an unlawful detainer case.  Petitioners cannot also file the petition for relief with the RTC because the RTC has no jurisdiction to entertain petitions for relief from judgments of the MTC.  Therefore, the RTC did not err in dismissing the petition for relief from judgment of the MTC.         The remedy of petitioners in such a situation is to file a petition for certiorari with the RTC under Rule 65 of the Rules of Court on the ground of lack of jurisdiction of the MTC over the person of petitioners in view of the absence of summons to petitioners.  Here, the petition for relief from judgment was treated as a petition for certiorari before the RTC. (Afdal, et al. v. Carlos, G.R. No. 173379, December 1, 2010).

RULE 5Arbitration in the barangay is compulsory.Q – The crime of slander was committed at the workplace of two (2) employees at the RTC, Las Piñas City. The complaint was filed in court without undergoing a barangay arbitration process. May the court dismiss the same? Explain.Answer: Yes. The compulsory process of arbitration is a pre-condition for the filing of the complaint in court. Where the complaint (a) did not state that it is one of excepted cases, or (b) it did not allege prior availment of said conciliation process, or (c) did not have a certification that no conciliation had been reached by the parties, the case should be dismissed. (Leticia Agbayani v. CA, et al., G.R. No. 183623, June 25, 2012).

RULE 7 – VERIFICATION

Q – In an appeal from a decision in a forcible entry case, it was contended that the verification was defective as it should be based on personal knowledge or on authentic record and not simply upon “knowledge, information, and belief.” Is the contention correct? Why?Answer: No. The respondents confirmed that they had read the allegations in the Complaint which were true and correct based on their personal knowledge. The addition of the words "to the best" before the phrase "of our own personal knowledge" did not violate the requirement under Section 4, Rule 7, it being sufficient that the respondents declared that the allegations in the complaint are true and correct based on their personal knowledge. (NHA v. Basa, Jr., G.R. No. 149121, April 20, 2012, 618 SCRA 461).

Verification is deemed substantially complied with when one who has ample knowledge to swear to the truth of the allegations in the complaint or petition signs the verification, and when matters alleged in the petition have been made in good faith or are true and correct. (Vda. de Formosa v. PNB, et al., G.R. No. 154704, June 1, 2011; Estel v. Heirs of Diego, G.R. No. 174082, January 16, 2012, Peralta, J).

Q – Non-Forum Shopping Certificate, Verification/Certification reveals that they, in fact, certified therein that they have not commenced any similar action before any other court or tribunal and to the best of their knowledge no such other action is pending therein. The only missing statement is respondents' undertaking that if they should thereafter learn that the same or similar action has been filed or is pending, they shall report such fact to the court. State the effect of the failure to state such undertaking? Explain.Answer: There is substantial compliance with the requirement of the Rules.It is settled that with respect to the contents of the certification against forum shopping, the rule of substantial compliance may be availed of. (Santos v. Litton Mills, Inc., G.R. No. 170646, June 22, 2011).  This is because the requirement of strict compliance with the provisions regarding the certification of non-forum shopping merely underscores its mandatory nature in that the certification cannot be altogether dispensed with or its requirements completely disregarded. (Heirs of Juan Valdez v. CA, G.R. No. 163208, August 13, 2008; Donato v. CA, 417 SCRA 216 (2003)). It does not thereby interdict substantial compliance with its provisions under justifiable circumstances. (Benedicto v. Lacson, G.R. No. 141508, May 5, 2010, 620 SCRA 82; Estel v. Heirs of Diego, G.R. No. 174082, January 16, 2012, (Peralta, J).

RULE 10 – AMENDED AND SUPPLEMENTAL PLEADINGSAmendment to conform to evidence.               Section 1, Rule 9 of the Rules of Court Section 1, Rule 9 of the Rules of Court states that “defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived.” Hence, a party is barred from raising the defense of payment if not raised in a MTD. However, Section 5, Rule 10 of the Rules of Court allows the amendment to conform to or authorize presentation of evidence.The provision envisions two scenarios, namely, when evidence is introduced in an issue not alleged in the pleadings and no objection was interjected; and when evidence is offered on an issue not alleged in the pleadings but this time an objection was raised. When the issue is tried without the objection of the parties, it should be treated in all respects as if it had been raised in the pleadings. On the other hand, when there is an objection, the evidence may be admitted where its admission will not prejudice him. (Sps. Mariano & Lota Dela Cruz vs. Ana Marie Concepcion, G.R. No. 172825, October 11, 2012).Thus, while respondent judicially admitted in her Answer that she only paid P2 million and that she still owed petitioners P200,000.00, respondent claimed later and, in fact, submitted an evidence to show that she already paid the whole amount of her unpaid obligation. It is noteworthy that when respondent presented the evidence of payment, petitioners did not object thereto. When the receipt was formally offered as evidence, petitioners did not

manifest their objection to the admissibility of said document on the ground that payment was not an issue. Apparently, petitioners only denied receipt of said payment and assailed the authority of Losloso to receive payment. Since there was an implied consent on the part of petitioners to try the issue of payment, even if no motion was filed and no amendment of the pleading has been ordered, the RTC cannot be faulted for admitting respondent’s testimonial and documentary evidence to prove payment.

As stressed by the Court in Royal Cargo Corporation v. DFS Sports Unlimited, Inc.,The failure of a party to amend a pleading to conform to the evidence adduced during trial does not preclude adjudication by the court on the basis of such evidence which may embody new issues not raised in the pleadings. x x x Although, the pleading may not have been amended to conform to the evidence submitted during trial, judgment may nonetheless be rendered, not simply on the basis of the issues alleged but also on the issues discussed and the assertions of fact proved in the course of the trial. The court may treat the pleading as if it had been amended to conform to the evidence, although it had not been actually amended. xx x Clearly, a court may rule and render judgment on the basis of the evidence before it even though the relevant pleading had not been previously amended, so long as no surprise or prejudice is thereby caused to the adverse party. Put a little differently, so long as the basic requirements of fair play had been met, as where the litigants were given full opportunity to support their respective contentions and to object to or refute each other's evidence, the court may validly treat the pleadings as if they had been amended to conform to the evidence and proceed to adjudicate on the basis of all the evidence before it.Payment; when there is payment.

Article 1240. Payment shall be made to the person in whose favor the obligation has been constituted,  or his successor in interest, or any person authorized to receive it. (Emphasis supplied)The Court explained in Cambroon v. City of Butuan, cited in Republic v. De Guzman, to whom payment should be made in order to extinguish an obligation:

Payment made by the debtor to the person of the creditor or to one authorized by him or by the law to receive it extinguishes the obligation. When payment is made to the wrong party, however, the obligation is not extinguished as to the creditor who is without fault or negligence even if the debtor acted in utmost good faith and by mistake as to the person of the creditor or through error induced by fraud of a third person.In general, a payment in order to be effective to discharge an obligation, must be made to the proper person. Thus, payment must be made to the obligee himself or to an agent having authority, express or implied, to receive the particular payment. Payment made to one having apparent authority to receive the money will, as a rule, be treated as though actual authority had been given for its receipt. Likewise, if payment is made to one who by law is authorized to act for the creditor, it will work a discharge. The receipt of money due on a judgment by an officer authorized by law to accept it will, therefore, satisfy the debt. (Cembrano v. City of Butuan, G.R. No. 163605, September 20, 2006, 502 SCRA 494; Sps. Dela Cruz v. Concepcion, G.R. No. 172825, October 11, 2012).

RULE 9 – EFFECT OF FAILURE TO PLEADGrant of 5% monthly interest is way beyond the 12% per annum interest sought in the Complaint and smacks of violation of due process.Q – The Real Estate Mortgage executed by the parties does not include any provision on interest. When petitioner filed her Complaint before the RTC, she alleged that respondents borrowed from her “the sum of FORTY-FIVE THOUSAND PESOS (P45,000.00), with interest thereon at the rate of 12% per annum” and sought payment thereof. She did not allege or pray for the disputed 5% monthly interest. Defendant did not file an answer, hence, a default order was issued.Neither did she present evidence nor testified thereon. Yet, the RTC’s award of 5% monthly interest or 60% per annum. Is the ruling of the court correct? Why?

Answer: No. It is settled that courts cannot grant a relief not prayed for in the pleadings or in excess of what is being sought by the party. They cannot also grant a relief without first ascertaining the evidence presented in support thereof. Due process considerations require that judgments must conform to and be supported by the pleadings and evidence presented in court. In Development Bank of the Philippines v. Teston, this Court expounded that:Due process considerations justify this requirement. It is improper to enter an order which exceeds the scope of relief sought by the pleadings, absent notice which affords the opposing party an opportunity to be heard with respect to the proposed relief. The fundamental purpose of the requirement that allegations of a complaint must provide the measure of recovery is to prevent surprise to the defendant.Notably, the Rules is even more strict in safeguarding the right to due process of a defendant who was declared in default than of a defendant who participated in trial. For instance, amendment to conform to the evidence presented during trial is allowed the parties under the Rules. But the same is not feasible when the defendant is declared in default because Section 3(d), Rule 9 of the Rules of Court comes into play and limits the relief that may be granted by the courts to what has been prayed for in the Complaint. It provides that a judgment rendered against a party in default shall not exceed the amount or be different in kind from that prayed for nor award unliquidated damages.The raison d’être in limiting the extent of relief that may be granted is that it cannot be presumed that the defendant would not file an Answer and allow himself to be declared in default had he known that the plaintiff will be accorded a relief greater than or different in kind from that sought in the Complaint. No doubt, the reason behind Section 3(d), Rule 9 of the Rules of Court is to safeguard defendant’s right to due process against unforeseen and arbitrarily issued judgment. This, to the mind of this Court, is akin to the very essence of due process. It embodies “the sporting idea of fair play” and forbids the grant of relief on matters where the defendant was not given the opportunity to be heard thereon. (Diona v. Balangue, et al., G.R. No. 173559, January 7, 2013).Note:Neither can the grant of the 5% monthly interest be considered subsumed by petitioner’s general prayer for “[o]ther reliefs and remedies just and equitable under the premises x x x.” To repeat, the court’s grant of relief is limited only to what has been prayed for in the Complaint or related thereto, supported by evidence, and covered by the party’s cause of action. Besides, even assuming that the awarded 5% monthly or 60% per annum interest was properly alleged and proven during trial, the same remains unconscionably excessive and ought to be equitably reduced in accordance with applicable jurisprudence. In Bulos, Jr. v. Yasuma,44 this Court held:In the case of Ruiz v. Court of Appeals, citing the cases of Medel v. Court of Appeals, Garcia v. Court of Appeals, Spouses Bautista v. Pilar Development Corporation and the recent case of Spouses Solangon v. Salazar, this Court considered the 3% interest per month or 36% interest per annum as excessive and unconscionable. Thereby, the Court, in the said case, equitably reduced the rate of interest to 1% interest per month or 12% interest per annum. (Citations omitted)It is understandable for the respondents not to contest the default order for, as alleged in their Comment, “it is not their intention to impugn or run away from their just and valid obligation.” Nonetheless, their waiver to present evidence should never be construed as waiver to contest patently erroneous award which already transgresses their right to due process, as well as applicable jurisprudence.RULE 13 – FILING & SERVICE OF PLEADINGSInsertion #14Service upon counsel at old address is proper; his fault if he did not file a notice of change of address.Q – Judgment was rendered in a case which was served at his given, although old address. He, however, changed his address without notifying the court of the same. Was there proper service? Explain.Answer: Yes, because it was his fault that he did not file a notice of change of address. Service at his old office is service upon him, hence, the period of appeal started to run.Under Rule 13, Section 10 thereof, service by registered mail is complete upon actual receipt by the addressee, or five (5) days from the date he received the first notice of the postmaster, whichever date is earlier. The purpose of

the afore-quoted rule on service is to make sure that the party being served with the pleading, order or judgment is duly informed of the same so that such party can take steps to protect the interests, i.e., enable to file an appeal or apply for other appropriate reliefs before the decision becomes final. (PPA v. Hon. Pedro Solis, et al., G.R. No. 170269, August 22, 2012).As between the claim of non-receipt of notices of registered mail by a party and the assertion of an official whose duty is to send notices, which assertion is fortified by the presumption that the official duty has been regularly performed, the choice is not difficult to make. (Santos v. CA, G.R. No. 128061, September 3, 1998, 295 SCRA 147). As shown in the records, the postmaster included in his certification the manner, date and the recipient of the delivery, a criterion for the proper service of judgment. In Santos v. Court of Appeals, it was said that clearly then, proof should always be available to the post office not only of whether or not the notices of registered mail have been reported delivered by the letter carrier but also of how or to whom and when such delivery has been made. Consequently, it cannot be too much to expect that when the post office makes a certification regarding delivery of registered mail, such certification should include the data not only as to whether or not the corresponding notices were issued or sent but also as to how, when and to whom the delivery thereof was made. (PPA v. Hon. Cesar Solis, et al., G.R. No. 170269, August 22, 2012, Perez, J).Once a judgment becomes final, the prevailing party isentitled as a matter of right to a writ of execution.As a matter of law, once a judgment becomes final, the prevailing party is entitled as a matter of right to a Writ of Execution. (Section 1, Rule 39 of the 1997 Rules of Civil Procedure)It is a basic rule that a petition for certiorari under Rule 65 does not by itself interrupt the course of the proceedings. It is necessary to avail of either a temporary restraining order or a writ of preliminary injunction to be issued by a higher court against a public respondent so that it may, during the pendency of the petition, refrain from further proceedings.In Peza v. Hon. Alikpala,243 Phil. 196 91988), it was ruled that it is elementary that the mere pendency of a special civil action for certiorari, commenced in relation to a case pending before a lower Court, does not interrupt the course of the latter when there is no writ of injunction restraining it.In Balintawak Construction Supply Corp. v. Valenzuela, it was ruled that it is basic that once a judgment becomes final, the prevailing party is entitled as a matter of right to a Writ of Execution, and the issuance thereof is the Court's ministerial duty, compellable by Mandamus. In fact, it has been fittingly said that "an execution is the fruit and end of the suit, and is very aptly called the life of the law." Petitioner, therefore, as the prevailing party was entitled as a matter of right to the execution of the judgment x x x in its favor that had become final and executory. (G.R. No. L-57525, August 30, 1983, 124 SCRA 333; PPA v. Hon. Cesar Solic, et al., G.R. No. 170269, August 22, 2012).RULE 14Court acquires jurisdiction over the person of the defendant through proper service of summons.The fundamental rule is that jurisdiction over a defendant in a civil case is acquired either through service of summons or through voluntary appearance in court and submission to its authority. If a defendant has not been properly summoned, the court acquires no jurisdiction over its person, and a judgment rendered against it is null and void.Where the action is in personam and the defendant is in the Philippines, service of summons may be made through personal service, that is, summons shall be served by handing to the defendant in person a copy thereof, or if he refuses to receive and sign for it, by tendering it to him. If the defendant cannot be personally served with summons within a reasonable time, it is then that substituted service may be made. Personal service of summons should and always be the first option, and it is only when the said summons cannot be served within a reasonable time can the process server resort to substituted service.No valid substituted service of summonsQ – In a case, the Return of Summons did not specifically show or indicate in detail the actual exertion of efforts or any positive step taken by the officer or process server in attempting to serve the summons

personally to the defendant. The return merely stated the alleged whereabouts of the defendant without indicating that such information was verified from a person who had knowledge thereof. Indeed, the sheriff’s return shows a mere perfunctory attempt to cause personal service of the summons on Chandumal. There was no indication if he even asked defendant’s mother as to her specific whereabouts except that she was “out of the house”, where she can be reached or whether he even tried to await her return. Did the court acquire jurisdiction over the person of the defendant? Why?Answer: No. The sheriff resorted to substituted service of summons due to his failure to serve it personally. In Manotoc v. Court of Appeals, the Court detailed the requisites for a valid substituted service of summons, summed up as follows: (1) impossibility of prompt personal service – the party relying on substituted service or the sheriff must show that the defendant cannot be served promptly or there is impossibility of prompt service; (2) specific details in the return – the sheriff must describe in the Return of Summons the facts and circumstances surrounding the attempted personal service; (3) a person of suitable age and discretion – the sheriff must determine if the person found in the alleged dwelling or residence of defendant is of legal age, what the recipient’s relationship with the defendant is, and whether said person comprehends the significance of the receipt of the summons and his duty to immediately deliver it to the defendant or at least notify the defendant of said receipt of summons, which matters must be clearly and specifically described in the Return of Summons; and (4) a competent person in charge, who must have sufficient knowledge to understand the obligation of the defendant in the summons, its importance, and the prejudicial effects arising from inaction on the summons. These were reiterated and applied in Pascual v. Pascual, where the substituted service of summon made was invalidated due to the sheriff’s failure to specify in the return the necessary details of the failed attempts to effect personal service which would justify resort to substituted service of summons. The efforts exerted by the sheriff did not suffice to justify substituted serve and his failure to comply with the requisites, rendered such service ineffective.Respondent voluntarily submitted to the jurisdiction of the trial court.Q – Despite that there was no valid substituted service of summons, the defendant filed an Urgent Motion to Set Aside Order of Default and to Admit Attached Answer. State the effect of such act. Explain.Answer: The defendant effectively submitted her person to the jurisdiction of the trial court as the filing of a pleading where one seeks an affirmative relief is equivalent to service of summons and vests the trial court with jurisdiction over the defendant’s person. Thus, it was ruled that the filing of motions to admit answer, for additional time to file answer, for reconsideration of a default judgment, and to lift order of default with motion for reconsideration is considered voluntary submission to the trial court’s jurisdiction.Given the defendant’s voluntary submission to the jurisdiction of the trial court, the court had all authority to render its Decision.RULE 15 – MOTIONSMotion must be set for hearing; rule is not absolute.Q – A motion must be set in compliance with the 3-day notice rule. Is the rule a hard and fast rule? Explain.Answer: No. It is not a hard and fast rule and substantial compliance is allowed.The law is clear that it intends for the other party to receive a copy of the written motion at least three days before the date set for its hearing.  The purpose of the three (3)-day notice requirement, which was established not for the benefit of the movant but rather for the adverse party, is to avoid surprises upon the latter and to grant it sufficient time to study the motion and to enable it to meet the arguments interposed therein. (Sembrano v. Ramirez, 248 Phil. 260 (1988) citing E & L Mercantile, Inc. v. IAC, 226 Phil. 299 (1986).   In Preysler, Jr. v. Manila Southcoast Development Corporation, it was said that “the date of the hearing should be at least three days after receipt of the notice of hearing by the other parties.” (G.R. No. 171872, June 28, 2010, 621 SCRA 636).It is not, however, a hard and fast rule. Where a party has been given the opportunity to be heard, the time to study the motion and oppose it, there is compliance with the rule. In Jehan Shipping Corporation v. National Food Authority, 514 Phil. 166 (2005), where it was written:Purpose Behind the

Notice RequirementThis Court has indeed held time and time again that, under Sections 4 and 5 of Rule 15 of the Rules of Court, mandatory is the notice requirement in a motion, which is rendered defective by failure to comply with the requirement. As a rule, a motion without a notice of hearing is considered pro forma and does not affect the reglementary period for the appeal or the filing of the requisite pleading.As an integral component of procedural due process, the three-day notice required by the Rules is not intended for the benefit of the movant. Rather, the requirement is for the purpose of avoiding surprises that may be sprung upon the adverse party, who must be given time to study and meet the arguments in the motion before a resolution by the court. Principles of natural justice demand that the right of a party should not be affected without giving it an opportunity to be heard.The test is the presence of the opportunity to be heard, as well as to have time to study the motion and meaningfully oppose or controvert the grounds upon which it is based. Considering the circumstances of the present case, we believe that the requirements of procedural due process were substantially complied with, and that the compliance justified a departure from a literal application of the rule on notice of hearing. (514 Phil. 166 (2005)).RULE 16 – MOTION TO DISMISSOrder denying MTD is interlocutory.               The orders that the petitioner seeks to challenge and to annul are the orders denying his motion to dismiss. It is settled, however, that an order denying a motion to dismiss, being merely interlocutory, cannot be the basis of a petition for certiorari. An interlocutory order is not the proper subject of a certiorari challenge by virtue of its not terminating the proceedings in which it is issued. To allow such order to be the subject of review by certiorari not only delays the administration of justice, but also unduly burdens the courts. (Sps. Lim v. CA, et al., G.R. No. 192615, January 20, 2013).But a petition for certiorari may be filed to assail an interlocutory order if it is issued without jurisdiction, or with excess of jurisdiction, or in grave abuse of discretion amounting to lack or excess of jurisdiction. This is because as to such order there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law.Note:The exception does not apply to this challenge. The petitioner has not demonstrated how the assailed orders could have been issued without jurisdiction, or with excess of jurisdiction, or in grave abuse of discretion amounting to lack or excess of jurisdiction. Nor has he convinced us that he had no plain, speedy, and adequate remedy in the ordinary course of law.Hierarchy of courts.Another reason to dismiss the petition for certiorari exists. Although the Court, the CA and the RTC have concurrence of jurisdiction to issue writs of certiorari, the petitioner had no unrestrained freedom to choose which among the several courts might his petition for certiorari be filed in. In other words, he must observe the hierarchy of courts, the policy in relation to which has been explicitly defined in Section 4 of Rule 65 concerning the petitions for the extraordinary writs of certiorari, prohibition and mandamus, to wit:The petition shall be filed in the Supreme Court or, if it relates to the acts or omissions of a lower court or of a corporation, board, officer or person, in the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed in the Court of Appeals whether or not the same is in the aid of its appellate jurisdiction, or in the Sandiganbayan if it is in aid of its appellate jurisdiction. If it involves the acts or omissions of a quasijudicial agency, unless otherwise provided by law or these rules, the petition shall be filed in and cognizable only by the Court of Appeals.No extension of time to file the petition shall be granted except for compelling reason and in no case exceeding fifteen (15) days. (4a)Accordingly, his direct filing of the petition for certiorari in this Court instead of in the CA should be disallowed considering that he did not present in the petition any special and compelling reasons to support his choice of this Court as the forum.

Reason for the rule on hierarchy of courts.The Court must enjoin the observance of the policy on the hierarchy of courts, and now affirms that the policy is not to be ignored without serious consequences. The strictness of the policy is designed to shield the Court from having to deal with causes that are also well within the competence of the lower courts, and thus leave time to the Court to deal with the more fundamental and more essential tasks that the Constitution has assigned to it. The Court may act on petitions for the extraordinary writs of certiorari, prohibition andmandamus only when absolutely necessary or when serious and important reasons exist to justify an exception to the policy. This was why the Court stressed in Vergara, Sr. v. Suelto:xxx. The Supreme Court is a court of last resort, and must so remain if it is to satisfactorily perform the functions assigned to it by the fundamental charter and immemorial tradition. It cannot and should not be burdened with the task of dealing with causes in the first instance. Its original jurisdiction to issue the so-called extraordinary writs should be exercised only where absolutely necessary or where serious and important reasons exist therefor. Hence, that jurisdiction should generally be exercised relative to actions or proceedings before the Court of Appeals, or before constitutional or other tribunals, bodies or agencies whose acts for some reason or another are not controllable by the Court of Appeals. Where the issuance of an extraordinary writ is also within the competence of the Court of Appeals or a Regional Trial Court, it is in either of these courts that the specific action for the writ’s procurement must be presented. This is and should continue to be the policy in this regard, a policy that courts and lawyers must strictly observe. (Emphasis supplied)In People v. Cuaresma, the Court has also amplified the need for strict adherence to the policy of hierarchy of courts. There, noting “a growing tendency on the part of litigants and lawyers to have their applications for the so-called extraordinary writs, and sometimes even their appeals, passed upon and adjudicated directly and immediately by the highest tribunal of the land,” the Court has cautioned lawyers and litigants against taking a direct resort to the highest tribunal, viz:xxx. This Court’s original jurisdiction to issue writs of certiorari (as well as prohibition, mandamus, quo warranto, habeas corpusand injunction) is not exclusive. It is shared by this Court with Regional Trial Courts x x x, which may issue the writ, enforceable in any part of their respective regions. It is also shared by this Court, and by the Regional Trial Court, with the Court of Appeals x x x, although prior to the effectivity of  Batas Pambansa Bilang 129 on August 14, 1981, the latter's competence to issue the extraordinary writs was restricted to those "in aid of its appellate jurisdiction.” This concurrence of jurisdiction is not, however, to be taken as according to parties seeking any of the writs an absolute, unrestrained freedom of choice of the court to which application therefor will be directed. There is after all a hierarchy of courts. That hierarchy is determinative of the venue of appeals, and should also serve as a general determinant of the appropriate forum for petitions for the extraordinary writs. A becoming regard for that judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against first level (“inferior”) courts should be filed with the Regional Trial Court, and those against the latter, with the Court of Appeals. A direct invocation of the Supreme Court's original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition. This is established policy. It is a policy that is necessary to prevent inordinate demands upon the Court’s time and attention which are better devoted to those matters within its exclusive jurisdiction, and to prevent further over-crowding of the Court's docket. Indeed, the removal of the restriction on the jurisdiction of the Court of Appeals in this regard, supra— resulting from the deletion of the qualifying phrase, “in aid of its appellate jurisdiction” — was evidently intended precisely to relieve this Court pro tanto of the burden of dealing with applications for the extraordinary writs which, but for the expansion of the Appellate Court corresponding jurisdiction, would have had to be filed with it. XxxxThe Court therefore closes this decision with the declaration for the information and evidence of all concerned, that it will not only continue to enforce the policy, but will require a more strict observance thereof.There being no special, important or compelling reason that justified the direct filing of the petition for certiorari in

this Court in violation of the policy on hierarchy of courts, its outright dismissal is unavoidable. Still, even granting that the petition for certiorari might be directly filed in this Court, its dismissal must also follow because its consideration and resolution would unavoidably demand the consideration and evaluation of evidentiary matters. The Court is not a trier of facts, and cannot accept the petition for certiorari for that reason.Q – In an action for revival of judgment, the prescriptive period is not apparent. May the defendant file a motion to dismiss on the ground of prescription? Explain.Answer: No. The defense of prescription to bar the action for revival presents an evidentiary concern. Article 1144 of the Civil Coderequires, indeed, that an action to revive a judgment must be brought before it is barred by prescription, which was ten years from the accrual of the right of action. Such a defense could not be determined in the hearing of the petitioner’s motion to dismiss considering that the complaint did not show on its face that the period to bring the action to revive had already lapsed. An allegation of prescription, as the Court put it in  Pineda v. Heirs of Eliseo Guevara, “can effectively be used in a motion to dismiss only when the complaint on its face shows that indeed the action has already prescribed, [o]therwise, the issue of prescription is one involving evidentiary matters requiring a full blown trial on the merits and cannot be determined in a mere motion to dismiss.” (Juan Banez, Jr. v. Hon. Concepcion, et al., G.R. No. 159508, August 29, 2012).Note:The mere lapse of the period per se did not render the judgment stale within the context of the law on prescription, for events that effectively suspended the running of the period of limitation might have intervened. In other words, the Estate of Gomez was not precluded from showing such events, if any. The Court recognized this possibility of suspension in Lancita v. Magbanua:In computing the time limited for suing out of an execution, although there is authority to the contrary, the general rule is that there should not be included the time when execution is stayed, either by agreement of the parties for a definite time, by injunction, by the taking of an appeal or writ of error so as to operate as a  supersedeas, by the death of a party or otherwise. Any interruption or delay occasioned by the debtor will extend the time within which the writ may be issued without scire facias.Verily, the need to prove the existence or non-existence of significant matters, like supervening events, in order to show the action for revival was batted by prescription or not was present and undeniable. Moreover, the petitioner himself raised factual issues in his motion to dismiss, like his averment of full payment or discharge of the obligation of Ramos and the waiver or abandonment of rights under the compromise agreement. The proof thereon cannot be received in certiorari proceedings before the Court, but should be established in the RTC.Litis pendentia, a ground for dismissal; concept.Litis pendentia, as a ground for the dismissal of an action, refers to a situation in which another action is pending between the same parties for the same cause of action, and the second action becomes unnecessary and vexatious. (Bangko Silangan Dev. Bank v. CA, 412 Phil. 755 (2001)). In order to successfully invoke the rule, the movant must prove the existence of the following requisites: (a) the identity of parties, or at least like those representing the same interest in both actions; (b) the identity of rights asserted and relief prayed for, the relief being founded on the same facts; and (c) the identity of the two (2) cases, such that the judgment that may be rendered in the pending case would, regardless of which party is successful, amount to res judicata in the other. (Marisrcal v. CA, 370 Phil. 52 (1999)).The crucial consideration in litis pendentia is the identity and similarity of the issues under litigation. (Mariscal v. CA, supra.). As early as in J. Northcott & Co., Inc. v. Villa-Abrille, we ruled: “One of the recognized tests of such identity is to discover whether a judgment in the prior action would be conclusive as to the liability sought to be enforced in the second and would operate as a bar to the latter. In other words, if a final judgment in the prior action, be it of whatsoever character it may, would support the plea of res judicata in the second, the two suits may be considered identical; otherwise not.” (41 Phil. 465 (2001); The United Abangan, Clan, Inc. v. Yolanda Sabellano-Sumayang, et al., G.R. No. 186722, June 18, 2012).RULE 22Counting of period clarified.

               Section 1, Rule 22 of the Rules of Court relied upon by petitioner provides:                        Section 1. How to compute time. – In computing any period of time prescribed or allowed by these Rules, or by order of the court, or by any applicable statute, the day of the act or event from which the designated period of time begins to run is to be excluded and the date of performance included.  If the last day of the period, as thus computed, falls on a Saturday, a Sunday, or a legal holiday in the place where the court sits, the time shall not run until the next working day.               The Court then clarified the above-quoted provision when we issued A.M. No. 00-2-14-SC dated February 29, 2000 (Re: Computation of Time When the Last Day Falls on a Saturday, Sunday or a Legal Holiday and a Motion for Extension on Next Working Day is Granted) which reads:           x x x xWhereas, the aforecited provision [Section 1, Rule 22 of the Rules of Court] applies in the matter of filing of pleadings in courts when the due date falls on a Saturday, Sunday or legal holiday, in which case, the filing of the said pleading on the next working day is deemed on time; 

Whereas, the question has been raised if the period is extended ipso jure to the next working day immediately following where the last day of the period is a Saturday, Sunday or a legal holiday, so that when a motion for extension of time is filed, the period of extension is to be reckoned from the next working day and not from the original expiration of the period. 

NOW THEREFORE, the Court Resolves, for the guidance of the Bench and the Bar, to declare that Section 1, Rule 22 speaks only of "the last day of the period" so that when a party seeks an extension and the same is granted, the due date ceases to be the last day and hence, the provision no longer applies. Any extension of time to file the required pleading should therefore be counted from the expiration of the period regardless of the fact that said due date is a Saturday, Sunday or legal holiday.         In De la Cruz v. Maersk Filipinas Crewing, Inc., we said:            Section 1, Rule 22, as clarified by the circular, is clear. Should a party desire to file any pleading, even a motion for extension of time to file a pleading, and the last day falls on a Saturday, Sunday or a legal holiday, he may do so on the next working day. This is what petitioner did in the case at bar. 

            However, according to the same circular, the petition for review on certiorari was indeed filed out of time. The provision states that in case a motion for extension is granted, the due date for the extended period shall be counted from the original due date, not from the next working day on which the motion for extension was filed. In Luz v. National Amnesty Commission, we had occasion to expound on the matter. In that case, we held that the extension granted by the court should be tacked to the original period and commences immediately after the expiration of such period. 

            In the case at bar, although petitioner's filing of the motion for extension was within the period provided by law, the filing of the petition itself was not on time. Petitioner was granted an additional period of 30 days within which to file the petition. Reckoned from the original period, he should have filed it on May 8, 2006. Instead, he did so only on May 11, 2006, that is, 3 days late. Based on Section 1, Rule 22 of the Rules of Court, where the last day of the period for doing any act required by law falls on a Saturday, a Sunday, or a legal holiday in the place where the court sits, the time shall not run until the next working day. In this case, the original period for filing the petition for review with the CA was on  May 19, 2007, a Saturday.  Petitioner's filing of his motion for extension of time to file a petition for review on May 21, 2007, the next working day which followed the last day for filing which fell on a Saturday, was therefore on time.  However, petitioner prayed in his motion for extension that he be granted 15 days from May 21, 2007 or up to June 5, 2007 within which to file his petition. He then filed his petition for review on June 5, 2007.  The CA did not act on the motion for extension, but instead issued a Resolution dated September 21, 2007dismissing the

petition for review for being filed out of time.               The CA correctly ruled that the petition for review was filed out of time based on our clarification in A.M. No. 00-2-14-SC that the 15-day extension period prayed for should be tacked to the original period and commences immediately after the expiration of such period.  Thus, counting 15 days from the expiration of the period which was on May 19, 2007, the petition filed on June 5, 2007 was already two days late. However, we find the circumstances obtaining in this case to merit the liberal application of the rule in the interest of justice and fair play.               Notably, the petition for review was already filed on June 5, 2007, which was long before the CA issued its Resolution dated September 21, 2007 dismissing the petition for review for being filed out of time.  There was no showing that respondent suffered any material injury or his cause was prejudiced by reason of such delay.  Moreover, the RTC decision which was sought to be reversed in the petition for review filed in the CA had affirmed the MTC judgment convicting petitioner of direct assault, hence, the petition involved no less than petitioner’s liberty.  We do not find anything on record that shows petitioner's deliberate intent to delay the final disposition of the case as he had filed the petition for review within the extended period sought, although erroneously computed.  These circumstances should have been taken into consideration for the CA not to dismiss the petition outright.               Being a few days late in the filing of the petition for review does not automatically warrant the dismissal thereof.  And even assuming that a petition for review is filed a few days late, where strong considerations of substantial justice are manifest in the petition, we may relax the stringent application of technical rules in the exercise of our equity jurisdiction.               Courts should not be so strict about procedural lapses that do not really impair the proper administration of justice. After all, the higher objective of procedural rule is to insure that the substantive rights of the parties are protected.  Litigations should, as much as possible, be decided on the merits and not on technicalities. Every party-litigant must be afforded ample opportunity for the proper and just determination of his case, free from the unacceptable plea of technicalities. (Montajes v. People, G.R. No. 183449, March 12, 2012).RULE 17 – DISMISSAL OF ACTIONSFailure to set pre-trial within a reasonable period; ground for dismissal.Under Section 3, Rule 17 of the 1997 Rules of Civil Procedure, as amended, the failure on the part of the plaintiff, without any justifiable cause, to comply with any order of the court or the Rules, or to prosecute his action for an unreasonable length of time, may result in the dismissal of the complaint either motu proprio or on motion by the defendant. The failure of a plaintiff to prosecute the action without any justifiable cause within a reasonable period of time will give rise to the presumption that he is no longer interested to obtain from the court the relief prayed for in his complaint; hence, the court is authorized to order the dismissal of the complaint on its own motion or on motion of the defendants. The presumption is not, by any means, conclusive because the plaintiff, on a motion for reconsideration of the order of dismissal, may allege and establish a justifiable cause for such failure. [25]  The burden to show that there are compelling reasons that would make a dismissal of the case unjustified is on the petitioners.Under Section 1, Rule 18 of the 1997 Rules of Civil Procedure, as amended, it is the duty of the plaintiff, after the last pleading has been served and filed, to promptly moveex parte that the case be set for pre-trial.  On August 16, 2004, A.M. No. 03-1-09-SC  (Re: Proposed Rule on Guidelines to be Observed by Trial Court Judges and Clerks of Court in the Conduct of Pre-Trial and Use of Deposition-Discovery Measures) took effect, which provides that:Within five (5) days from date of filing of the reply, the plaintiff must promptly move ex parte that the case be set for pre-trial conference. If the plaintiff fails to file said motion within the given period, the Branch COC shall issue a notice of pre-trial.               In this case, the case was already at the pre-trial stage and it was the failure of petitioners to set the case anew for pre-trial conference which prompted the trial court to dismiss their complaint. (Eloisa Merchandising Inc., et al. v. Banco de Oro Universal Bank, G.R. No. 192716, June 13, 2012).Exception to the rule; relaxation.

               In Olave v. Mistas, the Court said that even if the plaintiff fails to promptly move for pre-trial without any justifiable cause for such delay, the extreme sanction of dismissal of the complaint might not be warranted if no substantial prejudice would be caused to the defendant, and there are special and compelling reasons which would make the strict application of the rule clearly unjustified.  In the more recent case of Espiritu v. Lazaro, this Court affirmed the dismissal of a case for failure to prosecute, the plaintiff having failed to take the initiative to set the case for pre-trial for almost one year from their receipt of the Answer.  Although said case was decided prior to the effectivity of A.M. No. 03-1-09-SC, the Court considered the circumstances showing petitioners’ and their counsel’s lack of interest and laxity in prosecuting their case.In this case, while there was no substantial prejudice caused to herein respondent, who has already consolidated the ownership of petitioners’ properties, secured new titles in its name and successfully implemented a writ of possession issued by another branch, there was neither patent abuse in the trial court’s dismissal of the complaint for the third time, the earlier two dismissals having been precipitated by petitioners’ non-appearance at the pre-trial conference.  Contrary to petitioners’ assertion, the trial court did not find their offered excuses as meritorious or justifiable; the trial court in the exercise of discretion simply reinstated the case “in the interest of justice” but explicitly warned petitioners to be more circumspect in attending to the case.RULE 35 & 35 – JUDGMENT ON THE PLEADINGS/SUMMARY JUDGMENTIf there are triable issues, summary judgment is improper.Q – The plaintiff filed a complaint to Annul a Promise to sell two (2) parcels of land to Solid Builders Inc. alleging that its offer to buy was more advantageous to PNB-Republic. The offer of Solid Builders was lower than its offer, hence, its offer should be approved but instead of doing so, PNB-Republic executed a Promise to Sell to Solid. The defendant PNB-Republic filed an answer alleging that the complaint stated no cause of action as the offer of Solid was the highest and most advantageous at the time and that the plaintiff First Leverage & Services Group, Inc. never made an offer. At the time it submitted its offer, the offer of Solid was already approved. Same line of defense was adopted by Solid.               A motion for judgment on the pleadings was filed after pre-trial which was granted, ordering the declaration of nullity of Solid’s verbal offer as the offer of First Leverage was more superior it being written. On appeal, the Court set aside the order, hence, First Leverage appealed to the SC contending that the CA erred in not setting aside the Judgment on the Pleadings. Rule on the contention. Explain.Answer: The contention is not correct as the answer tendered issues. Whether the offer was more advantageous or not and whether the offer was validly made are issues that must be resolved at the trial. In fact, what the RTC issued as a Summary Judgment which was not even proper.               A perusal of the answer would show that Solid denied the material allegations in the complaint, hence, issues were raised. Even a summary judgment is not proper in this case. (First Leverage & Services Group, Inc. v. Solid Builders, Inc., G.R. No. 155680, July 12, 2012).Nature of summary judgment.Summary judgment is a procedural device resorted to in order to avoid long drawn out litigations and useless delays where the pleadings on file show that there are no genuine issues of fact to be tried. (Maritime Industry Authority v. Mac Properties Corp., G.R. No. 173128, February 15, 2012).  A “genuine issue” is such issue of fact which requires the presentation of evidence as distinguished from a sham, fictitious, contrived or false claim. There can be no summary judgment where questions of fact are in issue or where material allegations of the pleadings are in dispute. A party who moves for summary judgment has the burden of demonstrating clearly the absence of any genuine issue of fact, or that the issue posed in the complaint is so patently unsubstantial as not to constitute a genuine issue for trial, and any doubt as to the existence of such an issue is resolved against the movant. (Maritime Industry Authority v. Mac Properties Corp., supra.).Trial courts have limited authority to render summary judgments and may do so only when there is clearly no genuine issue as to any material fact. (PBCom v. Go, G.R. No. 175514, February 14, 2011, 642 SCRA 693). The burden of demonstrating clearly the absence of genuine issues of fact rests upon the movant, in this case First Leverage, and not upon Solid Builders who opposed the motion for summary judgment. Any doubt as to the

propriety of the rendition of a summary judgment must thus be resolved against First Leverage. (First Leverage & Services Group, Inc. v. Solid Builders, Inc., G.R. No. 155680, July 2, 2012, Peralta, J).RULE 33 – DEMURRER TO EVIDENCEQ – May the defendant file a demurrer to evidence after a Decision had been rendered in the case? Why?Answer: No. Section 1, Rule 33 of the Rules of Court provides that after the plaintiff has completed the presentation of his evidence, the defendant may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief.  If his motion is denied, he shall have the right to present evidence.  If the motion is granted but on appeal the order of dismissal was reversed he shall be deemed to have waived the right to present evidence.”               The Court has previously explained the nature of a demurrer to evidence in the case of Celino v. Heirs of Alejo and Teresa Santiago as follows:        “A demurrer to evidence is a motion to dismiss on the ground of insufficiency of evidence and is presented after the plaintiff rests his case.  It is an objection by one of the parties in an action, to the effect that the evidence which his adversary produced is insufficient in point of law, whether true or not, to make out a case or sustain the issue.  The evidence contemplated by the rule on demurrer is that which pertains to the merits of the case.”                In passing upon the sufficiency of the evidence raised in a demurrer, the court is merely required to ascertain whether there is competent or sufficient proof to sustain the judgment.  Being considered a motion to dismiss, thus, a demurrer to evidence must clearly be filed before the court renders its judgment. (Gonzales, et al. v. Bungaay, et al., G.R. No. 173008, February 22, 2012).               In this case, respondents demurred to petitioners' evidence after the RTC promulgated its Decision. While respondents' motion for reconsideration and/or new trial was granted, it was for the sole purpose of receiving and offering for admission the documents not presented at the trial.  As respondents never complied with the directive but instead filed a demurrer to evidence, their motion should be deemed abandoned.  Consequently, the RTC's original Decision stands.RULE 35 – SUMMARY JUDGMENTRULE 36 – SEPARATE JUDGMENTForfeiture proceeding is civil in nature.Q – This is a sequel of the earlier case of Rep. v. SB where there was a Forfeiture Case filed against the Marcoses due to their alleged ill-gotten wealth. Six (6) Swiss Accounts were the subjects of the proceedings. There was a Motion for Summary Judgment as the answer merely alleged lack of knowledge as to the truth of the matters alleged in the complaint. The Motion did not mention the Alerma Account in Switzerland. There was a judgment rendered by the SC as there was a negative pregnant. What is the nature of such judgment? Explain.Answer: It is a separate judgment pursuant to Sec. 5, Rule 36 which provides that when more than one claim for relief is presented in an action, the court, at any stage, upon a determination of the issues material to a particular claim and all counterclaims arising out of the transaction or occurrence which is the subject matter of the claim, may render a separate judgment disposing of such claim. The judgment shall terminate the action with respect to the claim so disposed of and the action shall proceed as to the remaining claims. In case a separate judgment is rendered, the court by order may stay its enforcement until the rendition of a subsequent judgment or judgments and may prescribe such conditions as may be necessary to secure the benefit thereof to the party in whose favor the judgment is rendered.Rule 35 on summary judgments, admits of a situation in which a case is not fully adjudicated on motion, and judgment is not rendered upon all of the reliefs sought. InPhilippine Business Bank v. Chua,[55] we had occasion to rule that a careful reading of its Section 4 reveals that a partial summary judgment was never intended to be considered a “final judgment,” as it does not “[put] an end to an action at law by declaring that the plaintiff either has or has not entitled himself to recover the remedy he sues for.” In this case, there was never any final or complete adjudication of Civil Case No. 0141, as the Sandiganbayan’s partial summary judgment in the Swiss

Deposits Decision made no mention of the Arelma account.               Section 4 of Rule 35 pertains to a situation in which separate judgments were necessary because some facts existed without controversy, while others were controverted. However, there is nothing in this provision or in the Rules that prohibits a subsequent separate judgment after a partial summary judgment on an entirely different subject matter had earlier been rendered. There is no legal basis for petitioners’ contention that a judgment over the Swiss accounts bars a motion for summary judgment over the Arelma account.               Thus, the Swiss Deposits Decision has finally and thoroughly disposed of the forfeiture case only as to the five Swiss accounts. Respondent’s 2004 Motion is in the nature of a separate judgment, which is authorized under Section 5 of Rule 36. (Marcos, Jr. v. Rep., G.R. No. 189434 & companion cases, April 25, 2012, Sereno, J).Q – What is the effect if the defendant files an answer and alleges “no knowledge sufficient to form a belief” but done in bad faith? Explain.Answer: There is a negative pregnant which is equivalent to an admission of the material allegations in the complaint. In the first Republic case, the SC said that petitioners give the same stock answer to the effect that the Marcoses did not engage in any illegal activities, and that all their properties were lawfully acquired. They failed to state with particularity the ultimate facts surrounding the alleged lawfulness of the mode of acquiring the funds in Arelma (which totaled USD 3,369,975.00 back in 1983), considering that the entirety of their lawful income amounted only to USD 304,372.43, or only 9% of the entire Arelma fund. Then, as now, they employ what the Court in G.R. No. 152154 characterized as a “negative pregnant,” not just in denying the criminal provenance of the Arelma funds, but in the matter of ownership of the said funds. As discussed by the Court in the first Republic case, cited by the Sandiganbayan:Evidently, this particular denial had the earmark of what is called in the law on pleadings as a negative pregnant, that is, a denial pregnant with the admission of the substantial facts in the pleading responded to which are not squarely denied. It was in effect an admission of the averments it was directed at. Stated otherwise, a negative pregnant is a form of negative expression which carries with it an affirmation or at least an implication of some kind favorable to the adverse party. It is a denial pregnant with an admission of the substantial facts alleged in the pleading. Where a fact is alleged with qualifying or modifying language and the words of the allegation as so qualified or modified are literally denied, it has been held that the qualifying circumstances alone are denied while the fact itself is admitted. (Marcos, Jr. v. Rep., G.R. No. 189434 & companion cases, April 25, 2012, Sereno, J).When summary judgment allowed.Summary judgment may be allowed where there is no genuine issue as to any material fact and where the moving party is entitled to a judgment as a matter of law. (Rule 35, Sec. 3, Rules of Court). InYuchengco v. Sandiganbayan, the Court has previously discussed the importance of summary judgment in weeding out sham claims or defenses at an early stage of the litigation in order to avoid the expense and loss of time involved in a trial, viz:Even if the pleadings appear, on their face, to raise issues, summary judgment may still ensue as a matter of law if the affidavits, depositions and admissions show that such issues are not genuine. The presence or absence of a genuine issue as to any material fact determines, at bottom, the propriety of summary judgment. A “genuine issue”, as differentiated from a fictitious or contrived one, is an issue of fact that requires the presentation of evidence. To the party who moves for summary judgment rests the onus of demonstrating clearly the absence of any genuine issue of fact, or that the issue posed in the complaint is patently unsubstantial so as not to constitute a genuine issue for trial.  (515 Phil. 1 (2006)).Even if in the Answer itself there appears to be a tender of issues requiring trial, yet when the relevant affidavits, depositions, or admissions demonstrate that those issues are not genuine but sham or fictitious, the Court is justified in dispensing with the trial and rendering summary judgment for plaintiff. (Carcon Dev. Corp. v/ CA, 259 Phil. 836 (1989)).Summary judgment, or accelerated judgment as it is sometimes known, may also call for a hearing so that both the movant and the adverse party may justify their positions. However, the hearing contemplated (with 10-day

notice) is for the purpose of determining whether the issues are genuine or not, not to receive evidence of the issues set up in the pleadings. In Carcon Development Corporation v. Court of Appeals, [72] the Court ruled that a hearing is not de riguer. The matter may be resolved, and usually is, on the basis of affidavits, depositions, and admissions. This does not mean that the hearing is superfluous; only that the court is empowered to determine its necessity.It is the law itself that determines when a summary judgment is proper. Under the rules, summary judgment is appropriate when there are no genuine issues of fact that call for the presentation of evidence in a full-blown trial. Even if on their face the pleadings appear to raise issues, when the affidavits, depositions and admissions show that such issues are not genuine, then summary judgment as prescribed by the rules must ensue as a matter of law. What is crucial to a determination, therefore, is the presence or absence of a genuine issue as to any material fact. When the facts as pleaded appear uncontested or undisputed, then summary judgment is called for. (Evadel Realty v. Sps. Soriano, 409 Phil. 450 (2001); Marcos, Jr. v. Rep., G.R. No. 189434, & companion cases, April 25, 2012, Sereno, J).Q – In this forfeiture proceedings, Ferdinand Marcos, Jr. argues that R.A. 1379 is a penal law; therefore a person charged under its provisions must be accorded all the rights granted to an accused under the Constitution and penal laws. He asserted that the Marcoses were entitled to all the substantial rights of an accused, one of these being the right “to present their evidence to a full blown trial as per Section 5 of R.A. 1379.” He relied on the 1962 case, Cabal v. Kapunan, 116 Phil. 1361 (1962) where the Court ruled that:We are not unmindful of the doctrine laid down in Almeda vs. Perez, L-18428 (August 30, 1962) in which the theory that, after the filing of respondents' answer to a petition for forfeiture under Republic Act No. 1379, said petition may not be amended as to substance pursuant to our rules of criminal procedure, was rejected by this Court upon the ground that said forfeiture proceeding is civil in nature. This doctrine refers, however, to the purely procedural aspect of said proceeding, and has no bearing on the substantial rights of the respondents therein, particularly their constitutional right against self-incrimination.Is the contention correct? Why?Answer: No. He conveniently neglected to quote which clearly classified forfeiture proceedings as quasi-criminal, not criminal. And even so, Cabal declared that forfeiture cases partake of a quasi-criminal nature only in the sense that the right against self-incrimination is applicable to the proceedings, i.e., in which the owner of the property to be forfeited is relieved from the compulsory production of his books and papers:Generally speaking, informations for the forfeiture of goods that seek no judgment of fine or imprisonment against any person are deemed to be civil proceedings in rem. Such proceedings are criminal in nature to the extent that where the person using the res illegally is the owner or rightful possessor of it, the forfeiture proceeding is in the nature of a punishment.Proceedings for forfeitures are generally considered to be civil and in the nature of proceedings in rem. The statute providing that no judgment or other proceedings in civil cases shall be arrested or reversed for any defect or want of form is applicable to them. In some aspects, however, suits for penalties and forfeitures are of quasi-criminal nature and within the reason of criminal proceedings for all the purposes of * * * that portion of the Fifth Amendment which declares that no person shall be compelled in any criminal case to be a witness against himself. The proceeding is one against the owner, as well as against the goods; for it is his breach of the laws which has to be proved to establish the forfeiture and his property is sought to be forfeited.As already observed, the various constitutions provide that no person shall be compelled in any criminal case to be a witness against himself. This prohibition against compelling a person to take the stand as a witness against himself applies only to criminal, quasi-criminal, and penal proceedings, including a proceeding civil in form for forfeiture of property by reason of the commission of an offense , but not a proceeding in which the penalty recoverable is civil or remedial in nature.The right of the Marcoses against self-incrimination has been amply protected by the provisions of R.A. 1379, which prohibits the criminal prosecution of individuals for or on account of any transaction, matter or thing concerning which they are compelled -- after having claimed the privilege against self-incrimination -- to testify or

produce evidence, documentary or otherwise. Since this case’s inception in 1991, they have participated in the hearings, argued their case, and submitted their pleadings and other documents, never once putting at issue their right against self-incrimination or the violation thereof. (G.R. No. 90529, August 16, 1991, 200 SCRA 667; Marcos, Jr. v. Rep., G.R. No. 189434; Marcos v. Rep., 189505, April 25, 2012).Distinction between Cabal and Marcos cases.In Cabal, which was originally initiated as an action in personam. Manuel C. Cabal, then Chief of Staff of the Armed Forces of the Philippines, was charged with “graft, corrupt practices, unexplained wealth, conduct unbecoming of an officer and gentleman, dictatorial tendencies, giving false statements of his assets and liabilities in 1958 and other equally reprehensible acts.” In contradistinction, the crux of the present case devolves solely upon the recovery of assets presumptively characterized by the law as ill-gotten, and owned by the State; hence, it is an action in rem. In Republic v. Sandiganbayan, this Court settled the rule that forfeiture proceedings are actions in rem and therefore civil in nature. Proceedings under R.A. 1379 do not terminate in the imposition of a penalty but merely in the forfeiture of the properties illegally acquired in favor of the State. (G.R. No. 90529, August 16, 1991, 200 SCRA 667).As early as Almeda v. Judge Perez, G.R. No. L-18428, 115 Phil. 120 (1962), the difference between criminal and civil forfeiture and classified the proceedings under R.A. 1379 as belonging to the latter, viz:“Forfeiture proceedings may be either civil or criminal in nature, and may be in rem or in personam. If they are under a statute such that if an indictment is presented the forfeiture can be included in the criminal case, they are criminal in nature, although they may be civil in form; and where it must be gathered from the statute that the action is meant to be criminal in its nature it cannot be considered as civil. If, however, the proceeding does not involve the conviction of the wrongdoer for the offense charged the proceeding is of a civil nature; and under statutes which specifically so provide, where the act or omission for which the forfeiture is imposed is not also a misdemeanor, such forfeiture may be sued for and recovered in a civil action.”In the first place a proceeding under the Act (Rep. Act No. 1379) does not terminate in the imposition of a penalty but merely in the forfeiture of the properties illegally acquired in favor of the state. (Sec. 6) In the second place the procedure outlined in the law leading to forfeiture is that provided for in a civil action. Thus there is a petition (Sec. 3), then an answer (Sec. 4), and lastly, a hearing. The preliminary investigation which is required prior to the filing of the petition, in accordance with Sec. 2 of the Act, is provided expressly to be one similar to a preliminary investigation in a criminal case. If the investigation is only similar to that in a criminal case, but the other steps in the proceedings are those for civil proceedings, it stands to reason that the proceeding is not criminal. xxx. (citations omitted)Forfeiture cases impose neither a personal criminal liability, nor the civil liability that arises from the commission of a crime (ex delicto). The liability is based solely on a statute that safeguards the right of the State to recover unlawfully acquired properties.[29] Executive Order No. 14 (E.O. No. 14), Defining the Jurisdiction Over Cases Involving the Ill-gotten Wealth of Former President Ferdinand Marcos, authorizes the filing of forfeiture suits  that will proceed independently of any criminal proceedings. Section 3 of E.O. 14 empowered the PCGG to file independent civil actions separate from the criminal actions.[30]

Thus, petitioners cannot equate the present case with a criminal case and assail the proceedings before the Sandiganbayan on the bare claim that they were deprived of a “full-blown trial.” In affirming the Sandiganbayan and denying petitioners’ Motion for Reconsideration in the Swiss Deposits Decision, the Court held:Section 5 of RA 1379 provides:The court shall set a date for a hearing which may be open to the public, and during which the respondent shall be given ample opportunity to explain, to the satisfaction of the court, how he has acquired the property in question.And pursuant to Section 6 of the said law, if the respondent is unable to show to the satisfaction of the court that he has lawfully acquired the property in question, then the court shall declare such property forfeited in favor of the State.

1. xxx                              xxx                              xxxA careful analysis of Section 5 of RA 1379 readily discloses that the word “hearing” does not always require the

formal introduction of evidence in a trial, only that the parties are given the occasion to participate and explain how they acquired the property in question.  If they are unable to show to the satisfaction of the court that they lawfully acquired the property in question, then the court shall declare such property forfeited in favor of the State.  There is no provision in the law that a full blown trial ought to be conducted before the court declares the forfeiture of the subject property.  Thus, even if the forfeiture proceedings do not reach trial, the court is not precluded from determining the nature of the acquisition of the property in question even in a summary proceeding.As forfeiture suits under R.A. 1379 are civil in nature, it follows that Rule 35 of the Rules of Court on Summary Judgment may be applied to the present case. This is consistent with our ruling in the Swiss Deposits Decision upholding the summary judgment rendered by the Sandiganbayan over the Swiss deposits, which are subject of the same Petition for Forfeiture as the Arelma assets.               R.A. 1379 provides that whenever any public officer or employee has acquired during his incumbency an amount of property manifestly out of proportion to his salary as such public officer and to his other lawful income, said property shall be presumed prima facie to have been unlawfully acquired.[35] The elements that must concur for thisprima facie presumption to apply are the following: (1) the offender is a public officer or employee; (2) he must have acquired a considerable amount of money or property during his incumbency; and (3) said amount is manifestly out of proportion to his salary as such public officer or employee and to his other lawful income and income from legitimately acquired property.                Thus, in determining whether the presumption of ill-gotten wealth should be applied, the relevant period is incumbency, or the period in which the public officer served in that position. The amount of the public officer’s salary and lawful income is compared against any property or amount acquired for that same period.  In the Swiss Deposits Decision, the Court ruled that petitioner Republic was able to establish the prima facie presumption that the assets and properties acquired by the Marcoses “were manifestly and patently disproportionate to their aggregate salaries as public officials.” (See also: Heirs of Jolly Bugarin v. Republic, G.R. No. 174431, August 6, 2012, Mendoza, J).RULE 37 – MOTION FOR NEW TRIALRULE 37 – MOTION FOR RECONSIDERATIONRULE 41 – APPEALSA party is given a “fresh period” of fifteen (15) days from receipt of the court’s resolution on a motion for reconsideration within which to file a notice of appeal.Section 3, Rule 41 of the Rules of Court prescribes the period to appeal from judgments or final orders of RTCs, as follows:Sec. 3. Period of ordinary appeal. – The appeal shall be taken within fifteen (15) days from notice of the judgment or final order appealed from. Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within thirty (30) days from notice of the judgment or final order. x x x.The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No motion for extension of time to file a motion for new trial or reconsideration shall be allowed.In Neypes v. Court of Appeals decided by this Court on September 14, 2005, it was ruled that to standardize the appeal periods provided in the Rules of Court and to afford litigants a fair opportunity to appeal their cases, the Court deems it practical to allow a fresh period of fifteen (15) days within which to file the notice of appeal in the RTC, counted from receipt of the order dismissing a motion for new trial or motion for reconsideration.Said “fresh period rule” also aims to regiment or make the appeal period uniform. It eradicates the confusion as to when the fifteen (15)-day appeal period should be counted – from receipt of notice of judgment or from receipt of notice of final order appealed from.Thus, in similar cases decided by this Court after Neypes, the fresh period rule was applied, thereby allowing appellants who had filed with the trial court a motion for reconsideration the full fifteen (15)-day period from receipt of the resolution resolving the motion within which to file a notice of appeal. Among these cases is  Sumiran v. Damaso, wherein we reiterated our ruling in Makati Insurance Co., Inc. v. Reyes22 and De Los Santos v. Vda. de Mangubat23 to explain that the rule can be applied to actions pending upon its effectivity:

As early as 2005, the Court categorically declared in Neypes v. Court of Appeals that by virtue of the power of the Supreme Court to amend, repeal and create new procedural rules in all courts, the Court is allowing a fresh period of 15 days within which to file a notice of appeal in the RTC, counted from receipt of the order dismissing or denying a motion for new trial or motion for reconsideration. This would standardize the appeal periods provided in the Rules and do away with the confusion as to when the 15-day appeal period should be counted. x x xx x x xThe foregoing ruling of the Court was reiterated in Makati Insurance Co., Inc. v. Reyes, to wit: “Propitious to petitioner is Neypes v. Court of Appeals, promulgated on 14 September 2005 while the present Petition was already before us. x x x x x x xWith the advent of the “fresh period rule,” parties who availed themselves of the remedy of motion for reconsideration are now allowed to file a notice of appeal within fifteen days from the denial of that motion.x x x xIn De los Santos v. Vda. de Mangubat, we applied the same principle of “fresh period rule”, expostulating that procedural law refers to the adjective law which prescribes rules and forms of procedure in order that courts may be able to administer justice. Procedural laws do not come within the legal conception of a retroactive law, or the general rule against the retroactive application of statutes. The “fresh period rule” is irrefragably procedural, prescribing the manner in which the appropriate period for appeal is to be computed or determined and, therefore, can be made applicable to actions pending upon its effectivity, such as the present case, without danger of violating anyone else’s rights.” (Citations omitted)The retroactivity of the Neypes ruling was further explained in our Resolution dated June 25, 2008 in Fil-Estate Properties, Inc. v. Homena-Valencia, wherein we held:The determinative issue is whether the “fresh period” rule announced in Neypes could retroactively apply in cases where the period for appeal had lapsed prior to 14 September 2005 when Neypes was promulgated. That question may be answered with the guidance of the general rule that procedural laws may be given retroactive effect to actions pending and undetermined at the time of their passage, there being no vested rights in the rules of procedure. Amendments to procedural rules are procedural or remedial in character as they do not create new or remove vested rights, but only operate in furtherance of the remedy or confirmation of rights already existing.Sps. De los Santos reaffirms these principles and categorically warrants that Neypes bears the quested retroactive effect, x x x.( Suico Ind’l. Corp., et al. v. Hon. Marilyn Laguna-Yap, et al., G.R. No. 177711, September 5, 2012).Notice of judgment must be to counsel of record; Neypes principle once again reiterated.Q – Judgment was rendered against UP in an action for sum of money. Motion for Reconsideration was filed but it was denied. The order of denial was served upon Atty. Nolasco of the UPLB Legal Office although the legal counsel was the OLS in Diliman, Quezon City. Appeal was made from the judgment, but it was denied due course because it was belatedly filed. Is the denial correct? Why?Answer: No. Firstly, the service of the denial of the motion for reconsideration upon Atty. Nolasco of the UPLB Legal Office was invalid and ineffectual because he was admittedly not the counsel of record of the UP. The rule is that it is on the counsel and not the client that the service should be made. (Antonio v. CA, G.R. No. L-35434, November 9, 1988, 167 SCRA 127).The fact that Atty. Nolasco was in the employ of the UP at the UPLB Legal Office did not render the service upon him effective. It is settled that where a party has appeared by counsel, service must be made upon such counsel. Service on the party or the party’s employee is not effective because such notice is not notice in law. This is clear enough from Section 2, second paragraph, of Rule 13, Rules of Court, which explicitly states that: “If any party has appeared by counsel, service upon him shall be made upon his counsel or one of them, unless service upon the party himself is ordered by the court. Where one counsel appears for several parties, he shall only be entitled to one copy of any paper served upon him by the opposite side.”Secondly, the period of appeal has not yet lapsed applying the Neypes principle.Equity calls for the retroactive application in the UP’s favor of the fresh-period rule that the Court first announced in mid-September of 2005 through its ruling in Neypes v. Court of Appeals, viz:

To standardize the appeal periods provided in the Rules and to afford litigants fair opportunity to appeal their cases, the Court deems it practical to allow a fresh period of 15 days within which to file the notice of appeal in the Regional Trial Court, counted from receipt of the order dismissing a motion for a new trial or motion for reconsideration.The retroactive application of the fresh-period rule, a procedural law that aims “to regiment or make the appeal period uniform, to be counted from receipt of the order denying the motion for new trial, motion for reconsideration (whether full or partial) or any final order or resolution,” is  impervious to any serious challenge. This is because there are no vested rights in rules of procedure. A law or regulation is procedural when it prescribes rules and forms of procedure in order that courts may be able to administer justice. It does not come within the legal conception of a retroactive law, or is not subject of the general rule prohibiting the retroactive operation of statues, but is given retroactive effect in actions pending and undetermined at the time of its passage without violating any right of a person who may feel that he is adversely affected. (UP, et al v. Hon. Agustin Dizon, et al., G.R. No. 171182, April 23, 2012).A procedural rule that is amended for the benefit of litigants in furtherance of the administration of justice shall be retroactively applied to likewise favor actions then pending, as equity delights in equality. Stringent procedural rules may even be relaxed in order to serve substantial justice and in the exercise of this Court’s equity jurisdiction. Equity jurisdiction aims to do complete justice in cases wherea court of law is unable to adapt its judgments to the special circumstances of a case because of the inflexibility of its statutory or legal jurisdiction.To deny the benefit of the freshperiod rule to the UP would amount to injustice and absurdity – injustice, because the judgment in question was issued on November 28, 2001 as compared to the judgment in Neypes that was rendered in 1998; absurdity, because parties receiving notices of judgment and final orders issued in the year 1998 would enjoy the benefit of the fresh-period rule but the later rulings of the lower courts like that herein would not.Consequently, even if the reckoning started from May 17, 2002, when Atty. Nolasco received the denial, the UP’s filing on June 3, 2002 of the  notice of appeal was not tardy within the context of the fresh-period rule. For the UP, the fresh period of 15-days counted from service of the denial of the motion for reconsideration would end on June 1, 2002, which was a Saturday. Hence, the UP had until the next working day, or June 3, 2002, a Monday, within which to appeal, conformably with Section 1 of Rule 22, Rules of Court, which holds that: “If the last day of the period, as thus computed, falls on a Saturday, a Sunday, or a legal holiday in the place where the court sits, the time shall not run until the next working day.” (UP, et al. v. Hon. Agustin Dizon, et al., G.R. No. 171182, August 23, 2012, Bersamin, J).It is true that a decision that has attained finality becomes immutable and unalterable, and cannot be modified in any respect, even if the modification is meant to correct erroneous conclusions of fact and law, and whether the modification is made by the court that rendered it or by this Court as the highest court of the land. Public policy dictates that once a judgment becomes final, executory and unappealable, the prevailing party should not be deprived of the fruits of victory by some subterfuge devised by the losing party. Unjustified delay in the enforcement of such judgment sets at naught the role and purpose of the courts to resolve justiciable controversies with finality. Indeed, all litigations must at some time end, even at the risk of occasional errors.But the doctrine of immutability of a final judgment has not been absolute, and has admitted several exceptions, among them: (a) the correction of clerical errors; (b) the so-called nunc pro tunc entries that cause no prejudice to any party; (c) void judgments; and (d) whenever circumstances transpire after the finality of the decision that render its execution unjust and inequitable.90 Moreover, in Heirs of Maura So v. Obliosca, G.R. No. 147082, January 28, 2008, 542 SCRA 406 the SC said that despite the absence of the preceding circumstances, the Court is not precluded from brushing aside procedural norms if only to serve the higher interests of justice and equity. (UP, et al. v. Hon. Agustin Dizon, et al., G.R. No. 171182, August 23, 2012, Bersamin, J).RULE 39 – ENFORCEMENT OF JUDGMENTRes judicata; sbus. Identity; motu proprio dis; grounds-R-9

A complaint may be dismissed pursuant to the doctrine of res judicata when, upon the juxtaposition and comparison of the action sought to be dismissed and a previous one, there is (1) an identity between the parties or at least such as representing the same interest in both actions; (2) a similarity of rights asserted and relief prayed for (that is, the relief is founded on the same facts); and (3) identity in the two particulars is such that any judgment which may be rendered in the other action will, regardless of which party is successful, fully adjudicate or settle the issues raised in the action under consideration.As held in Heirs of Faustina Adalid v. Court of Appeals, “[o]nly substantial identity is necessary to warrant the application of res judicata. The addition or elimination of some parties does not alter the situation. There is substantial identity of parties when there is a community of interest between a party in the first case and a party in the second case albeit the latter was not impleaded in the first case.” (Rizal Com. Banking Corp. v. Hilario, et al., G.R. No. 160446, September 19, 2012).Grounds for dismissal of action motu proprio.In Heirs of Domingo Valientes v. Ramas, it was said that Rule 9, Section 1 the Rules of Court allows courts to dismiss cases motu proprio on any of the enumerated grounds - ( 1) lack of jurisdiction over the subject matter; (2) lit is pendentia; (3) res judicata; and ( 4) prescription - provided that the ground for dismissal is apparent from the pleadings or the evidence on record." Such a dismissal may be ordered even on appeal. (Rizal Com. Banking Corp. v. Hilario, et al., G.R. No. 160446, September 19, 2012).Doctrine of immutability of judgment; effect.               In Montemayor v. Millora, G.R. No. 168251, July 27, 2011, the SC once again had the occasion to say that well-settled is the rule that a decision that has attained finality can no longer be modified even if the modification is meant to correct erroneous conclusions of fact or law.  The doctrine of finality of judgment is explained in Gallardo-Corro v. Gallardo. (403 Phil. 498).Nothing is more settled in law than that once a judgment attains finality it thereby becomes immutable and unalterable. It may no longer be modified in any respect, even if the modification is meant to correct what is perceived to be an erroneous conclusion of fact or law, and regardless of whether the modification is attempted to be made by the court rendering it or by the highest court of the land. Just as the losing party has the right to file an appeal within the prescribed period, the winning party also has the correlative right to enjoy the finality of the resolution of his case. The doctrine of finality of judgment is grounded on fundamental considerations of public policy and sound practice, and that, at the risk of occasional errors, the judgments or orders of courts must become final at some definite time fixed by law; otherwise, there would be no end to litigations, thus setting to naught the main role of courts of justice which is to assist in the enforcement of the rule of law and the maintenance of peace and order by settling justiciable controversies with finality.“Such definitive judgment is no longer subject to change, revision, amendment or reversal.  Upon finality of the judgment, the Court loses its jurisdiction to amend, modify or alter the same.  Except for correction of clerical errors or the making ofnunc pro tunc entries which cause no prejudice to any party, or where the judgment is void, the judgment can neither be amended nor altered after it has become final and executory. This is the principle of immutability of final judgment.” (Bongcac v. SB, G.R. Nos. 156687-88, May 21, 2009, 588 SCRA 64).Redemption of property; to whom payment of redemption money should be made.               In Sps. Yap v. Sps. Dy, Sr., et al., G.R. No. 171868; Dumaguete Rural Bank, Inc. v. Sps. Dy, Sr., et al., G.R. No. 171991, July 27, 2011, Villarama, , the SC was confronted with the issue as to whom payment of the redemption money should be made. Applying Section 31, Rule 29, the SCHeld: If the judgment debtor redeem, he must make the same payments as are required to effect a redemption by a redemptioner, whereupon the effect of the sale is terminated and he is restored to his estate, and the person to whom the payment is made must execute and deliver to him a certificate of redemption acknowledged or approved before a notary public or other officer authorized to take acknowledgments of conveyances of real property. Such certificate must be filed and recorded in the office of the registrar of deeds of the province in which the property is situated, and the registrar of deeds must note the record thereof on the margin of the record of the certificate of sale. The payments mentioned in this and the last preceding sections may be made to the purchaser or

redemptioner, or for him to the officer who made the sale.          Here, the Dys and the Maxinos complied with the above-quoted provision. Well within the redemption period, they initially attempted to pay the redemption money not only to the purchaser, DRBI, but also to the Yaps. Both DRBI and the Yaps however refused, insisting that the Dys and Maxinos should pay the whole purchase price at which all the foreclosed properties were sold during the foreclosure sale. Because of said refusal, the Dys and Maxinos correctly availed of the alternative remedy by going to the sheriff who made the sale. As held in Natino v. Intermediate Appellate Court, G.R. No. 73573, May 23, 1991, 197 SCRA 323, the tender of the redemption money may be made to the purchaser of the land or to the sheriff.  If made to the sheriff, it is his duty to accept the tender and execute the certificate of redemption.APPEAL; R-41; MRQ – In a case, the petitioners contended that the CA committed grave abuse of discretion in entertaining the appeal of Shell and Tabangao in contravention of Section 1, Rule 41 of the Rules of Court, which proscribes an appeal of the denial of a motion for reconsideration.Shell and Tabangao countered that their appeal was not proscribed because the action could be said to be completely disposed of only upon the rendition on October 5, 1999 of the assailed resolution denying their motion for reconsideration; that, as such, the decision of February 3, 1998 and the denial of their motion for reconsideration formed one integrated disposition of the merits of the action; and that the CA justifiably applied the rules of procedure liberally. Is the appeal prohibited? Why?Answer: No. Appeal by Shell and Tabangao of the denial of their motion for reconsideration was not proscribedThe contention that the appeal by Shell and Tabangao should be rejected on the ground that an appeal of the denial of their motion for reconsideration was prohibited cannot be sustained. It is true that the original text of Section 1, Rule 41 of the 1997 Rules of Civil Procedure expressly limited an appeal to a judgment or final order, and proscribed the taking of an appeal from an order denying a motion for new trial or reconsideration.In all the instances under Sec. 1, Rule 41, where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65.The inclusion of the order denying a motion for new trial or a motion for reconsideration in the list of issuances of a trial court not subject to appeal was by reason of such order not being the final order terminating the proceedings in the trial court. This nature of the order is reflected in Section 9 of Rule 37 of the 1997 Rules of Civil Procedure, which declares that such order denying a motion for new trial or reconsideration is not appealable, “the remedy being an appeal from the judgment or final order.”In Heirs of Spouses Teofilo M. Reterta and Elisa Reterta v. Spouses Lorenzo Mores and Virginia Lopez, the Court further expounded:The restriction against an appeal of a denial of a motion for reconsideration independently of a judgment or final order is logical and reasonable. A motion for reconsideration is not putting forward a new issue, or presenting new evidence, or changing the theory of the case, but is only seeking a reconsideration of the judgment or final order based on the same issues, contentions, and evidence either because: (a) the damages awarded are excessive; or (b) the evidence is insufficient to justify the decision or final order; or (c) the decision or final order is contrary to law. By denying a motion for reconsideration, or by granting it only partially, therefore, a trial court finds no reason either to reverse or to modify its judgment or final order, and leaves the judgment or final order to stand. The remedy from the denial is to assail the denial in the course of an appeal of the judgment or final order itself.Q – What does the proscription against appealing the order denying a motion for reconsideration refer? Explain.Answer: In Quelnan v. VHF Philippines, Inc., the Court has interpreted the proscription against appealing the order denying a motion for reconsideration to refer only to a motion for reconsideration filed against an interlocutory order, not to a motion for reconsideration filed against a judgment or final order, to wit:[T]his Court finds that the proscription against appealing from an order denying a motion for reconsideration refers to an interlocutory order, and not to a final order or judgment. That that was the

intention of the above-quoted rules is gathered from Pagtakhan v. CIR, 39 SCRA 455 (1971), cited in above-quoted portion of the decision in Republic, in which this Court held that an order denying a motion to dismiss an action is interlocutory, hence, not appealable.The rationale behind the rule proscribing the remedy of appeal from an interlocutory order is to prevent undue delay, useless appeals and undue inconvenience to the appealing party by having to assail orders as they are promulgated by the court, when they can be contested in a single appeal. The appropriate remedy is thus for the party to wait for the final judgment or order and assign such interlocutory order as an error of the court on appeal.The denial of the motion for reconsideration of an order of dismissal of a complaint is not an interlocutory order, however, but a final order as it puts an end to the particular matter resolved, or settles definitely the matter therein disposed of, and nothing is left for the trial court to do other than to execute the order.Not being an interlocutory order, an order denying a motion for reconsideration of an order of dismissal of a complaint is effectively an appeal of the order of dismissal itself.The reference by petitioner, in his notice of appeal, to the March 12, 1999 Order denying his Omnibus Motion—Motion for Reconsideration should thus be deemed to refer to the January 17, 1999 Order which declared him non-suited and accordingly dismissed his complaint.If the proscription against appealing an order denying a motion for reconsideration is applied to any order, then there would have been no need to specifically mention in both above-quoted sections of the Rules “final orders or judgments” as subject of appeal. In other words, from the entire provisions of Rule 39 and 41, there can be no mistaking that what is proscribed is to appeal from a denial of a motion for reconsideration of an interlocutory order.In Apuyan v. Haldeman, too, the Court categorized an order denying the motion for reconsideration as the final resolution of the issues a trial court earlier passed upon and decided, and accordingly held that the notice of appeal filed against the order of denial was deemed to refer to the decision subject of the motion for reconsideration. (Sps. Ramon & Araceli Mendiola v. CA, et al., G.R. No. 159746, July 18, 2012).Note:Subsequently, in Neypes v. Court of Appeals, where the decisive issue was whether or not the appeal was taken within the reglementary period, with  petitioners contending that they had timely filed their notice of appeal based on their submission that the period of appeal should be reckoned from July 22, 1998, the day they had received the final order of the trial court denying their motion for reconsideration (of the order dismissing their complaint), instead of on March 3, 1998, the day they had received the February 12, 1998 order dismissing their complaint, the Court, citing Quelnan v. VHF Philippines, Inc. and Apuyan v. Haldeman, ruled that the receipt by petitioners of the denial of their motion for reconsideration filed against the dismissal of their complaint, which was a final order, started the reckoning point for the filing of their appeal, to wit:Rule 41, Section 3 of the 1997 Rules of Civil Procedure states:SEC. 3. Period of ordinary appeal. ― The appeal shall be taken within fifteen (15) days from the notice of the judgment or final order appealed from. Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within thirty (30) days from the notice of judgment or final order.The period to appeal shall be interrupted by a timely motion for new trial or reconsideration. No motion for extension of time to file a motion for new trial or reconsideration shall be allowed.Based on the foregoing, an appeal should be taken within 15 days from the notice of judgment or final order appealed from. A final judgment or order is one that finally disposes of a case, leaving nothing more for the court to do with respect to it. It is an adjudication on the merits which, considering the evidence presented at the trial, declares categorically what the rights and obligations of the parties are; or it may be an order or judgment that dismisses an action.As already mentioned, petitioners argue that the order of July 1, 1998 denying their motion for reconsideration should be construed as the “final order,” not the February 12, 1998 order which dismissed their complaint. Since they received their copy of the denial of their motion for reconsideration only on July 22, 1998, the 15-day

reglementary period to appeal had not yet lapsed when they filed their notice of appeal on July 27, 1998.What therefore should be deemed as the “final order,” receipt of which triggers the start of the 15-day reglementary period to appeal – the February 12, 1998 order dismissing the complaint or the July 1, 1998 order dismissing the MR?Q – In a case, the trial court declared petitioner Quelnan non-suited and accordingly dismissed his complaint. Upon receipt of the order of dismissal, he filed an omnibus motion to set it aside. When the omnibus motion was filed, 12 days of the 15-day period to appeal the order had lapsed. He later on received another order, this time dismissing his omnibus motion. He then filed his notice of appeal. But this was likewise dismissed ― for having been filed out of time. The court  a quo ruled that petitioner should have appealed within 15 days after the dismissal of his complaint since this was the final order that was appealable under the Rules. Is the ruling correct? Why?Answer: No. It was the denial of the motion for reconsideration of an order of dismissal of a complaint which constituted the final order as it was what ended the issues raised there.In the more recent case of Apuyan v.  Haldeman et al. the Court considered the order denying the motion for reconsideration as the final order which finally disposed of the issues involved in the case.Based on the aforementioned cases, we sustain petitioners’ view that the order dated July 1, 1998 denying their motion for reconsiderationwas the final order contemplated in the Rules.As the aftermath of these rulings, the Court issued its resolution in A.M. No. 07-7-12-SC to approve certain amendments to Rules 41, 45, 58 and 65 of the Rules of Court effective on December 27, 2007. Among the amendments was the delisting of an order denying a motion for new trial or motion for reconsideration from the enumeration found in Section 1, Rule 41 of the 1997 Rules of Civil Procedure of what are not appealable. The amended rule now reads:Section 1. Subject of appeal.— An appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by these Rules to be appealable. No appeal may be taken from:

1. (a)    An order denying a petition for relief or any similar motion seeking relief from judgment;2. (b)    An interlocutory order;3. (c)     An order disallowing or dismissing an appeal;4. (d)    An order denying a motion to set aside a judgment by consent, confession or compromise on the

ground of fraud, mistake or duress, or any other ground vitiating consent;5. (e)    An order of execution;6. (f)     A judgment or final order for or against one or more of several parties or in separate claims,

counterclaims, cross-claims and third-party complaints, while the main case is pending, unless the court allows an appeal therefrom; and

7. (g)    An order dismissing an action without prejudice. In any of the foregoing circumstances, the aggrieved party may file an appropriate special civil action as provided in Rule 65.

Based on the foregoing developments, Shell and Tabangao’s appeal, albeit seemingly directed only at the October 5, 1999 denial of their motion for reconsideration, was proper. Thus, we sustain the CA’s denial for being in accord with the rules and pertinent precedents. We further point out that for petitioners to insist that the appeal was limited only to the assailed resolution of October 5, 1999 was objectively erroneous, because Shell and Tabangao expressly indicated in their appellant’s brief that their appeal was directed at both the February 3, 1998 decision and the October 5, 1999 resolution.The petition cannot prosper if the CA acted in accordance with law and jurisprudence. Certiorari, prohibition and mandamus are extraordinary remedies intended to correct errors of jurisdiction and to check grave abuse of discretion. The term grave abuse of discretionconnotes capricious and whimsical exercise of judgment as is equivalent to excess, or a lack of jurisdiction. The abuse must be so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility. Yet, here, petitioners utterly failed to establish that the CA abused its discretion, least of all gravely.

2.  Makati case is barred and should be dismissed on ground of res judicata and waiverQ – After the foreclosure sale, there was a deficiency. The mortgagee filed a complaint for the deficiency. The defendant filed an answer with a counterclaim alleging that the foreclosure was devoid of basis in a fact and law and that it was filed in bad faith. Later, he filed a complaint to annul the foreclosure proceedings in Makati. Is the action proper? Why?Answer: No. The Makati case should have been earlier disallowed to proceed on the ground of  litis pendentia, or, once the decision in the Manila case became final, should have been dismissed on the ground of being barred by res judicata.In the Manila case, the defendant averred a compulsory counterclaim asserting that the extrajudicial foreclosure of the mortgage had been devoid of basis in fact and in law; and that the foreclosure and the filing of the action had been made in bad faith, with malice, fraudulently and in gross and wanton violation of his rights. His pleading thereby showed that the cause of action he later pleaded in the Makati case - that of annulment of the foreclosure sale - was identical to the compulsory counterclaim he had set up in the Manila case.Rule 6 of the 1997 Rules of Civil Procedure defines a compulsory counterclaim as follows:Section  7. Compulsory counterclaim. — A compulsory counterclaim is one which, being cognizable by the regular courts of justice, arises out of or is connected with the transaction or occurrence constituting the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. Such a counterclaim must be within the jurisdiction of the court both as to the amount and the nature thereof, except that in an original action before the Regional Trial Court, the counterclaim may be considered compulsory regardless of the amount. (n)Accordingly, a counterclaim is compulsory if: (a) it arises out of or is necessarily connected with the transaction or occurrence which is the subject matter of the opposing party’s claim; (b) it does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction; and (c) the court has jurisdiction to entertain the claim both as to its amount and nature, except that in an original action before the RTC, the counterclaim may be considered compulsory regardless of the amount.A compulsory counterclaim that a defending party has at the time he files his answer shall be contained therein. Pursuant to Section 2, Rule 9 of the 1997 Rules of Civil Procedure, a compulsory counterclaim not set up shall be barred. (Sps. Ramon & Araceli Mendiola v. CA, et al., G.R. No. 159746, July 18, 2012).Q – State the four (4) tests in determining whether a counterclaim is compulsory or not.Answer: The four tests to determine whether a counterclaim is compulsory or not are the following, to wit: (a) Are the issues of fact or law raised by the claim and the counterclaim largely the same? (b) Would res judicata bar a subsequent suit on defendant’s claims, absent the compulsory counterclaim rule? (c) Will substantially the same evidence support or refute plaintiff’s claim as well as the defendant’s counterclaim? and (d) Is there any logical relation between the claim and the counterclaim, such that the conduct of separate trials of the respective claims of the parties would entail a substantial duplication of effort and time by the parties and the court? Of the four, the one compelling test of compulsoriness is the logical relation between the claim alleged in the complaint and that in the counterclaim. Such relationship exists when conducting separate trials of the respective claims of the parties would entail substantial duplication of time and effort by the parties and the court; when the multiple claims involve the same factual and legal issues; or when the claims are offshoots of the same basic controversy between the parties. If these tests result in affirmative answers, the counterclaim is compulsory.The four tests are affirmatively met as far as the Makati case was concerned. The Makati case had the logical relation to the Manila case because both arose out of the extrajudicial foreclosure of the real estate mortgage constituted to secure the payment of petitioners’ credit purchases under the distributorship agreement with Shell. Specifically, the right of Shell to demand the deficiency was predicated on the validity of the extrajudicial foreclosure, such that there would not have been a deficiency to be claimed in the Manila case had Shell not validly foreclosed the mortgage. As earlier shown, Ramon’s cause of action for annulment of the extrajudicial foreclosure was a true compulsory counterclaim in the Manila case. Thus, the Makati RTC could not have missed the logical relation between the two actions.

Therefore the Makati case is already barred by res judicata. Hence, its immediate dismissal is warranted. (Sps. Mendiola v. CA, et al., G.R. No. 159746, July 18, 2012).Q – When is there res judicata? Explain.Answer: Bar by res judicata avails if the following elements are present, to wit: (a) the former judgment or order must be final; (b) the judgment or order must be on the merits; (c) it must have been rendered by a court having jurisdiction over the subject matter and the parties; (d) there must be, between the first and the second action, identity of parties, of subject matter and cause of action. (Sps. Mendiola v. CA, et al., G.R. No. 159746, July 18, 2012).The Manila RTC had jurisdiction to hear and decide on the merits Shell’s complaint to recover the deficiency, and its decision rendered on May 31, 1990 on the merits already became final and executory. Hence, the first, second and third elements were present. Anent the fourth element, the Makati RTC concluded that the Manila case and the Makati case had no identity as to their causes of action, explaining that the former was a personal action involving the collection of a sum of money, but the latter was a real action affecting the validity of the foreclosure sale, stating in its order of October 5, 1999 denying Shell’s motion for reconsideration as follows:Q – What is the true test in determining whether causes of actions are identical? Explain.Answer: The test of identity of causes of action lies not in the form of an action but on whether the same evidence would support and establish the former and the present causes of action. The difference of actions in the aforesaid cases is of no moment. It has been held that a party cannot by varying the form of action or adopting a different method of presenting his case, escape the operation of the principle that one and the same cause of action shall not be twice litigated between the same parties and their privies. (Sangalang vs. Caparas, 151 SCRA 53; Gutierrez vs. Court of Appeals, 193 SCRA 437. (Sps. Mendiola v. CA, et al., G.R. No. 159746, July 18, 2012).Q – What does identity of causes of actions mean? Explain.Answer: The identity of causes of action does not mean absolute identity; otherwise, a party may easily escape the operation of res judicataby changing the form of the action or the relief sought. The test to determine whether the causes of action are identical is to ascertain whether the same evidence will sustain the actions, or whether there is an identity in the facts essential to the maintenance of the actions. If the same facts or evidence will sustain the actions, then they are considered identical, and a judgment in the first case is a bar to the subsequent action.The Makati case and Shell’s Manila case undeniably required the production of the same evidence. In fact, Shell’s counsel faced a dilemma upon being required by the Makati RTC to present the original copies of certain documents because the documents had been made part of the records of the Manila case elevated to the CA in connection with the appeal of the Manila RTC’s judgment. Also, both cases arose from the same transaction ( i.e., the foreclosure of the mortgage), such that the success of Ramon in invalidating the extrajudicial foreclosure would have necessarily negated Shell’s right to recover the deficiency. (Sps. Mendiola v. CA, et al., G.R. No. 159746, July 18, 2012).Note:Apparently, the Makati RTC had the erroneous impression that the Manila RTC did not have jurisdiction over the complaint of petitioners because the property involved was situated within the jurisdiction of the Makati RTC. Thereby, the Makati RTC confused venue of a real action with jurisdiction. Its confusion was puzzling, considering that it was well aware of the distinction between venue and jurisdiction, and certainly knew that venue in civil actions was not jurisdictional and might even be waived by the parties. To be clear, venue related only to the place of trial or the geographical location in which an action or proceeding should be brought and does not equate to the jurisdiction of the court. It is intended to accord convenience to the parties, as it relates to the place of trial, and does not restrict their access to the courts.45 In contrast, jurisdiction refers to the power to hear and determine a cause,46 and is conferred by law and not by the parties.By virtue of the concurrence of the elements of res judicata, the immediate dismissal of the Makati case would have been authorized under Section 1, Rule 9 of the 1997 Rules of Civil Procedure, which provides:Section 1. Defenses and objections not pleaded. — Defenses and objections not pleaded either in a motion to

dismiss or in the answer are deemed waived. However, when it appears from the pleadings or the evidence on record that the court has no jurisdiction over the subject matter, that there is another action pending between the same parties for the same cause, or that the action is barred by a prior judgment orby statute of limitations, the court shall dismiss the claim. (2a)The rule expressly mandated the Makati RTC to dismiss the case motu proprio once the pleadings or the evidence on record indicated the pendency of the Manila case, or, later on, disclosed that the judgment in the Manila case had meanwhile become final and executory.RULE 70 – FORCIBLE ENTRYMere caretaker has no right of possession.               In forcible entry cases, the only issue is who has the better right of possession over the subject property.Q – Rogelio Sr. was employed in order to help the respondents run the water distribution system. Hence, it was actually through the respondents that the petitioners’ predecessor-in-interest was able to enter the disputed lot. Do the heirs of Rogelio, Sr. have the right to possess the land? Why?Answer: No. Their possession cannot be superior to that of the respondents since they merely derived their possession from their predecessor-in-interest.Actual possession of land consists in the manifestation of acts of dominion over it of such a nature as those a party would naturally exercise over his own property. It is not necessary that the owner of a parcel of land should himself occupy the property as someone in his name may perform the act. In other words, the owner of real estate has possession, either when he himself is physically in occupation of the property, or when another person who recognizes his rights as a owner is in such occupancy. This declaration is in conformity with Article 524 of the Civil Code providing that possession maybe exercised in one’s own name or in the name of another. (Reyes v. CA).               In Dalida v. Court of Appeals, it was held that a mere caretaker of a land has no right of possession over such land. (Heirs of Rogelio Isip, Sr., et al. v. Quintos, et al., G.R. No. 172008, August 1, 2012).UNLAWFUL DETAINERThe complaint for unlawful detainer; issue is possession.The present petition is an action for unlawful detainer governed by Section 1, Rule 70 of the Rules of Court.9 As the principal issue in an unlawful detainer case is the right to possess a real property, the subject matter must refer to a particular property. In an unlawful detainer, the defendant’s possession of the plaintiff’s property is based on the plaintiff’s permission expressed through an express or implied contract between them.The defendant’s possession becomes illegal only when the plaintiff demands the return of the property, either because of the expiration of the right to possess it or the termination of their contract, and the defendant refuses to heed the demand. (Zosima, Inc. v. Lilia Salimbagat, G.R. No. 174376, September 12, 2012, Brion, J).When there is tacita reconduccion.An implied new lease will set in if it is shown that: (a) the term of the original contract of lease has expired; (b) the lessor has not given the lessee a notice to vacate; and (c) the lessee continued enjoying the thing leased for 15 days with the acquiescence of the lessor.This acquiescence may be inferred from the failure of the lessor to serve notice to vacate upon the lessee.15 This principle is provided for under Article 1670 of the Civil Code:Article 1670. If at the end of the contract the lessee should continue enjoying the thing leased for fifteen days with the acquiescence of the lessor, and unless a notice to the contrary by either party has previously been given, it is understood that there is an implied new lease, not for the period of the original contract, but for the time established in Articles 1682 and 1687. The other terms of the original contract shall be revived. [emphasis and underscoring ours]The cited Article 1687, on the other hand, provides:Article 1687. If the period for the lease has not been fixed, it is understood to be from year to year, if the rent agreed upon is annual; from month to month, if it is monthly; from week to week, if the rent is weekly; and from day to day, if the rent is to be paid daily. However, even though a monthly rent is paid, and no period for the lease has been set, the courts may fix a longer term for the lease after the lessee has occupied the premises for over

one year. If the rent is weekly, the courts may likewise determine a longer period after the lessee has been in possession for over six months. In case of daily rent, the courts may also fix a longer period after the lessee has stayed in the place for over one month. ( Zosima, Inc. v. Lilia Salimbagat, G.R. No. 174376, September 12, 2012, Brion, J).RULE 47Lack of due process as additional ground for annulment of judgment under Rule 47.               The grant of a relief neither sought by the party in whose favor it was nor supported by the evidence presented violates the opposing party’s right to due process and may be declared void ab initio in a proper proceeding.A Petition for Annulment of Judgment under Rule 47 of the Rules of Court is a remedy granted only under exceptional circumstances where a party, without fault on his part, has failed to avail of the ordinary remedies of new trial, appeal, petition for relief or other appropriate remedies. Said rule explicitly provides that it is not available as a substitute for a remedy which was lost due to the party’s own neglect in promptly availing of the same. “The underlying reason is traceable to the notion that annulling final judgments goes against the grain of finality of judgment. Litigation must end and terminate sometime and somewhere, and it is essential to an effective administration of justice that once a judgment has become final, the issue or cause involved therein should be laid to rest.”While under Section 2, Rule 47 of the Rules of Court a Petition for Annulment of Judgment may be based only on the grounds of extrinsic fraud and lack of jurisdiction, jurisprudence recognizes lack of due process as additional ground to annul a judgment. In Arcelona v. Court of Appeals, this Court declared that a final and executory judgment may still be set aside if, upon mere inspection thereof, its patent nullity can be shown for having been issued without jurisdiction or for lack of due process of law. (Diona v. Balangue, et al., G.R. No. 173559, January 7, 2013).Judicial declaration of heirship and cancellation of entries in the civil register are not identical.Q – Is there a distinction between judicial declaration of heirship and cancellation of entries in the civil register? Explain.Answer: Yes. An action for declaration of heirship (declaracion de herederos) refers to a special proceeding in which a person claiming the status of heir seeks prior judicial declaration of his or her right to inherit from a decedent. (Suiliong & Co. v. Chio-Taysan, 12 Phil. 13 (1908); Cabuyao v. Caagbay, 95 Phil. 614 (1954)).  On the other hand, an action for cancellation of entry in the civil register refers to a special proceeding whereby a substantial change affecting the civil status of a party is sought through the amendment of the entry in the civil register. (Rep. v. Medina, 204 Phil. 615 (1982)).In the former, what is established is a party’s right of succession to the decedent; in the latter, among those settled are the issues of nationality, paternity, filiation, legitimacy of the marital status, and registrability of an event affecting the status or nationality of an individual. Because the respective subject matters in the two actions differ, any decision that may be rendered in one of them cannot constitute res judicata in the other. A judicial declaration of heirship is inconclusive on the fact of occurrence of an event registered or to be registered in the civil register, while changes in the entries in the civil register do not in themselves settle the issue of succession. (United Abangan Clan, Inc. v. Yolanda Sobellano-Sumagang, et al., G.R. No. 186722, June 18, 2012).RULE 86 – CLAIMS AGAINST THE ESTATEQuasi-contracts are included in claims that should be filed under Rule 86, Sec. 5.Q – A is the owner of a proper. B, in good faith took possession and introduced necessary improvements. After his death, his heirs inherited the property, hence, B filed a complaint for the reimbursement of the expenses in introducing the improvements. The heir contended that the claim should be filed against the estate of A. Is the contention correct? Why?Answer: Yes. A claim for necessary expenses by a possessor of a parcel of land is a kind of quasi-contract, hence, it should be filed in the estate proceedings.In Maclan v. Garcia, Gabriel Maclan filed a civil case to recover from Ruben Garcia the necessary expenses he

spent as possessor of a piece of land. Garcia acquired the land as an heir of its previous owner. He set up the defense that this claim should have been filed in the special proceedings to settle the estate of his predecessor. Maclan, on the other hand, contended that his claim arises from law and not from contract, express or implied.Thus, it need not be filed in the settlement of the estate of Garcia’s predecessor, as mandated by Section 5, Rule 87 of the Rules of Court (now Section 5, Rule 86). The Court held under these facts that a claim for necessary expenses spent as previous possessor of the land is a kind of quasi-contract. Citing Leung Ben v. O’Brien, it explained that the term “implied contracts,” as used in our remedial law, originated from the common law where obligations derived from quasi-contracts and from law are both considered as implied contracts. Thus, the term quasi-contract is included in the concept “implied contracts” as used in the Rules of Court. Accordingly, liabilities of the deceased arising from quasi-contracts should be filed as claims in the settlement of his estate, as provided in Section 5, Rule 86 of the Rules of Court. (Metropolitan Bank & Trust Co. v. Absolute Management Corp., G.R. No. 170498, January 9, 2013, Brion, J).Metrobank’s fourth-party complaint is based on quasi-contract.Both the RTC and the CA described Metrobank’s claim against Chua’s estate as one based on quasi-contract. A quasi-contract involves a juridical relation that the law creates on the basis of certain voluntary, unilateral and lawful acts of a person, to avoid unjust enrichment. The Civil Code provides an enumeration of quasi-contracts, but the list is not exhaustive and merely provides examples.According to the CA, Metrobank’s fourth-party complaint falls under the quasi-contracts enunciated in Article 2154 of the Civil Code. Article 2154 embodies the concept “solutio indebiti” which arises when something is delivered through mistake to a person who has no right to demand it. It obligates the latter to return what has been received through mistake.Solutio indebiti, as defined in Article 2154 of the Civil Code, has two indispensable requisites: first, that something has been unduly delivered through mistake; and second, that something was received when there was no right to demand it.In its fourth-party complaint, Metrobank claims that Chua’s estate should reimburse it if it becomes liable on the checks that it deposited to Ayala Lumber and Hardware’s account upon Chua’s instructions. This fulfills the requisites of solutio indebiti. First, Metrobank acted in a manner akin to a mistake when it deposited the AMC checks to Ayala Lumber and Hardware’s account; because of Chua’s control over AMC’s operations, Metrobank assumed that the checks payable to AMC could be deposited to Ayala Lumber and Hardware’s account. Second, Ayala Lumber and Hardware had no right to demand and receive the checks that were deposited to its account; despite Chua’s control over AMC and Ayala Lumber and Hardware, the two entities are distinct, and checks exclusively and expressly payable to one cannot be deposited in the account of the other.This disjunct created an obligation on the part of Ayala Lumber and Hardware, through its sole proprietor, Chua, to return the amount of these checks to Metrobank. The Court notes, however, that its description of Metrobank’s fourthparty complaint as a claim closely analogous to solutio indebiti is only to determine the validity of the lower courts’ orders denying it. It is not an adjudication determining the liability of Chua’s estate against Metrobank. The appropriate trial court should still determine whether Metrobank has a lawful claim against Chua’s estate based on quasi-contract.Metrobank’s fourth-party complaint, as a contingent claim, falls within the claims that should be filed underSection 5, Rule 86 of the Rules of CourtA distinctive character of Metrobank’s fourth-party complaint is its contingent nature – the claim depends on the possibility that Metrobank would be adjudged liable to AMC, a future event that may or may not happen. This characteristic unmistakably marks the complaint as a contingent one that must be included in the claims falling under the terms of Section 5, Rule 86 of the Rules of Court:Sec. 5. Claims which must be filed under the notice. If not filed, barred; exceptions. – All claims for money against the decedent, arising from contract, express or implied, whether the same be due, not due, or contingent, all claims for funeral expenses and expenses for the last sickness of the decedent, and judgment for money against

the decedent, must be filed within the time limited in the notice[.] [italics ours]Specific provisions of Section 5, Rule 86 of the Rules of Court prevail over general provisions of Section 11, Rule 6 of the Rules of Court.Metrobank argues that Section 11, Rule 6 of the Rules of Court should apply because it impleaded Chua’s estate for reimbursement in the same transaction upon which it has been sued by AMC. On this point, the Court supports the conclusion of the CA, to wit:Notably, a comparison of the respective provisions of Section 11, Rule 6 and Section 5, Rule 86 of the Rules of Court readily shows that Section 11, Rule 6 applies to ordinary civil actions while Section 5, Rule 86 specifically applies to money claims against the estate. The specific provisions of Section 5, Rule 86 x x x must therefore prevail over the general provisions of Section 11, Rule 6[.]We read with approval the CA’s use of the statutory construction principle of lex specialis derogat generali, leading to the conclusion that the specific provisions of Section 5, Rule 86 of the Rules of Court should prevail over the general provisions of Section 11, Rule 6 of the Rules of Court; the settlement of the estate of deceased persons (where claims against the deceased should be filed) is primarily governed by the rules on special proceedings, while the rules provided for ordinary claims, including Section 11, Rule 6 ofthe Rules of Court, merely apply suppletorily.In sum, on all counts in the considerations material to the issues posed, the resolution points to the affirmation of the assailed CA decision and resolution. Metrobank's claim in its fourth-party complaint against Chua's estate is based on quasi-contract. It is also a contingent claim that depends on another event. Both belong to the category of claims against a deceased person that should be filed under Section 5, Rule 86 of the Rules of Comi and, as such, should have been so filed in Special Proceedings No. 99-0023.ESCHEATEscheat; banks are served with summons upon the President, etc.; as to depositors, by publication.Q – In an escheat proceeding, bank assailed the CA judgment insofar as it ruled that notice by personal service upon respondents is a jurisdictional requirement in escheat proceedings. It contended that respondents were not the owners of the unclaimed balances and were thus not entitled to notice from the RTC Clerk of Court. It hinged its claim on the theory that the funds represented by the Manager’s Check were deemed transferred to the credit of the payee or holder upon its issuance. Is the contention correct? Why?Answer: No. Insofar as banks are concerned, service of processes is made by delivery of a copy of the complaint and summons upon the president, cashier, or managing officer of the defendant bank. On the other hand, as to depositors or other claimants of the unclaimed balances, service is made by publication of a copy of the summons in a newspaper of general circulation in the locality where the institution is situated. A notice about the forthcoming escheat proceedings must also be issued and published, directing and requiring all persons who may claim any interest in the unclaimed balances to appear before the court and show cause why the dormant accounts should not be deposited with the Treasurer.Accordingly, the CA committed reversible error when it ruled that the issuance of individual notices upon respondents was a jurisdictional requirement, and that failure to effect personal service on them rendered the Decision and the Order of the RTC void for want of jurisdiction. Escheat proceedings are actions in rem, whereby an action is brought against the thing itself instead of the person. Thus, an action may be instituted and carried to judgment without personal service upon the depositors or other claimants. Jurisdiction is secured by the power of the court over the res. Consequently, a judgment of escheat is conclusive upon persons notified by advertisement, as publication is considered a general and constructive notice to all persons interested. (RCBC v. Hi-Tri Dev. Corp., G.R. No. 192413, June 13, 2012).Q – State the nature of escheat proceedings.Answer: Escheat proceedings refer to the judicial process in which the state, by virtue of its sovereignty, steps in and claims abandoned, left vacant, or unclaimed property, without there being an interested person having a legal claim thereto. In the case of dormant accounts, the state inquires into the status, custody, and ownership of the

unclaimed balance to determine whether the inactivity was brought about by the fact of death or absence of or abandonment by the depositor. If after the proceedings the property remains without a lawful owner interested to claim it, the property shall be reverted to the state “to forestall an open invitation to self-service by the first comers.” However, if interested parties have come forward and lain claim to the property, the courts shall determine whether the credit or deposit should pass to the claimants or be forfeited in favor of the state. We emphasize that escheat is not a proceeding to penalize depositors for failing to deposit to or withdraw from their accounts. It is a proceeding whereby the state compels the surrender to it of unclaimed deposit balances when there is substantial ground for a belief that they have been abandoned, forgotten, or without an owner. (RCBC v. Hi-Tri Dev. Corp., G.R. No. 192413, June 13, 2012).Act No. 3936, as amended, outlines the proper procedure to be followed by banks and other similar institutions in filing a sworn statement with the Treasurer concerning dormant accounts:Sec. 2. Immediately after the taking effect of this Act and within the month of January of every odd year,  all banks, building and loan associations, and trust corporations shall forward to the Treasurer of the Philippines a statement, under oath, of their respective managing officers, of all credits and deposits held by them in favor of persons known to be dead, or who have not made further deposits or withdrawals during the preceding ten years or more, arranged in alphabetical order according to the names of creditors and depositors, and showing:

1. (a)     The names and last known place of residence or post office addresses of the persons in whose favor such unclaimed balances stand;

1. (b)     The amount and the date of the outstanding unclaimed balance and whether the same is in money or in security, and if the latter, the nature of the same;

1. (c)     The date when the person in whose favor the unclaimed balance stands died, if known, or the date when he made his last deposit or withdrawal; and

1. (d)    The interest due on such unclaimed balance, if any, and the amount thereof.A copy of the above sworn statement shall be posted in a conspicuous place in the premises of the bank, building and loan association, or trust corporation concerned for at least sixty days from the date of filing thereof: Provided, That immediately before filing the above sworn statement, the bank, building and loan association, and trust corporation shall communicate with the person in whose favor the unclaimed balance stands at his last known place of residence or post office address.It shall be the duty of the Treasurer of the Philippines to inform the Solicitor General from time to time the existence of unclaimed balances held by banks, building and loan associations, and trust corporations. (Emphasis supplied.)As seen in the afore-quoted provision, the law sets a detailed system for notifying depositors of unclaimed balances. This notification is meant to inform them that their deposit could be escheated if left unclaimed. Accordingly, before filing a sworn statement, banks and other similar institutions are under obligation to communicate with owners of dormant accounts. The purpose of this initial notice is for a bank to determine whether an inactive account has indeed been unclaimed, abandoned, forgotten, or left without an owner. If the depositor simply does not wish to touch the funds in the meantime, but still asserts ownership and dominion over the dormant account, then the bank is no longer obligated to include the account in its sworn statement. It is not the intent of the law to force depositors into unnecessary litigation and defense of their rights, as the state is only interested in escheating balances that have been abandoned and left without an owner.In case the bank complies with the provisions of the law and the unclaimed balances are eventually escheated to the Republic, the bank “shall not thereafter be liable to any person for the same and any action which may be brought by any person against in any bank xxx for unclaimed balances so deposited xxx shall be defended by the Solicitor General without cost to such bank.” Otherwise, should it fail to comply with the legally outlined procedure to the prejudice of the depositor, the bank may not raise the defense provided under Section 5 of Act No. 3936, as amended.CRIMINAL PROCEDURE

RULE 13 – SERVICE OF PLEADING & OTHER PAPERSThere is violation of the right to due process if defendant is not served with summons.The Rules of Court has been laid down to insure the orderly conduct of litigation and to protect the substantive rights of all party litigants. It is for this reason that the basic rules on the modes of service provided under Rule 13 of the Rules of Court have been made mandatory and, hence, should be strictly followed. In Marcelino Domingo v. Court of Appeals, [14] the Court wrote:Section 11, Rule 13 of the Rules of Court states:SEC. 11. Priorities in modes of service and filing. — Whenever practicable, the service and filing of pleadings and other papers shall be done personally. Except with respect to papers emanating from the court, a resort to other modes must be accompanied by a written explanation why the service or filing was not done personally. A violation of this Rule may be cause to consider the paper as not filed.Section 11 is mandatory. In Solar Team Entertainment, Inc. v. Judge Ricafort, the Court held that:Pursuant x x x to Section 11 of Rule 13, service and filing of pleadings and other papers must, whenever practicable, be done personally; and if made through other modes, the party concerned must provide a written explanation as to why the service or filing was not done personally. x x xPersonal service and filing are preferred for obvious reasons. Plainly, such should expedite action or resolution on a pleading, motion or other paper; and conversely, minimize, if not eliminate, delays likely to be incurred if service or filing is done by mail, considering the inefficiency of postal service. Likewise, personal service will do away with the practice of some lawyers who, wanting to appear clever, resort to the following less than ethical practices: (1) serving or filing pleadings by mail to catch opposing counsel off-guard, thus leaving the latter with little or no time to prepare, for instance, responsive pleadings or an opposition; or (2) upon receiving notice from the post office that the registered parcel containing the pleading of or other paper from the adverse party may be claimed, unduly procrastinating before claiming the parcel, or, worse, not claiming it at all, thereby causing undue delay in the disposition of such pleading or other papers.If only to underscore the mandatory nature of this innovation to our set of adjective rules requiring personal service whenever practicable, Section 11 of Rule 13 then gives the court the discretion to consider a pleading or paper as not filed if the other modes of service or filing were resorted to and no written explanation was made as to why personal service was not done in the first place. The exercise of discretion must, necessarily, consider the practicability of personal service, for Section 11 itself begins with the clause "whenever practicable."We thus take this opportunity to clarify that under Section 11, Rule 13 of the 1997 Rules of Civil Procedure, personal service and filing is the general rule, and resort to other modes of service and filing, the exception. Henceforth, whenever personal service or filing is practicable, in light of the circumstances of time, place and person, personal service or filing is mandatory. Only when personal service or filing is not practicable may resort to other modes be had, which must then be accompanied by a written explanation as to why personal service or filing was not practicable to begin with. In adjudging the plausibility of an explanation, a court shall likewise consider the importance of the subject matter of the case or the issues involved therein, and the prima facie merit of the pleading sought to be expunged for violation of Section 11. This Court cannot rule otherwise, lest we allow circumvention of the innovation introduced by the 1997 Rules in order to obviate delay in the administration of justice.x x x xx x x [F]or the guidance of the Bench and Bar, strictest compliance with Section 11 of Rule 13 is mandated.Q – In a case, the records disclose that after the Court rendered its April 15, 1988 Decision in G.R. No. 69866, annulling the RTC orders dated November 8, 1983, May 11, 1984 and September 21, 1984 and ordering the remand of the case to the RTC for further proceedings, the RTC issued an order dated August 17, 1990 directing the petitioners to report the addresses and whereabouts of the respondents so that they would be properly notified of the proceedings. This directive was issued by the RTC considering that the respondents’ counsel of record, the OSG, could no longer represent them and because the respondents were no longer holding official government positions because of a change in government brought about

by the 1986 EDSA Revolution.  This order was likewise made in response to the motion filed by the petitioners praying that the respondents be required to file their answer.Instead of complying with the RTC’s directive to report the respondents’ addresses and whereabouts, the petitioners filed a motion dated September 4, 1990 to declare the respondents in default. On December 27, 1990, the RTC denied the petitioners’ default motion because the respondents were not duly notified of the April 15, 1988 Decision of this Court and the OSG no longer wanted to represent them. The RTC likewise ordered the petitioners to comply with its August 17, 1990 Order, otherwise, the case would be archived and eventually dismissed. On February 1, 1991, the RTC denied the petitioners’ motion for reconsideration and on March 7, 1991, it issued an order dismissing the case without prejudice.Surprisingly, on June 4, 1991, the RTC issued an order setting aside its March 7, 1991 Order and reinstating the case. It directed the petitioners, among others, to cause the publication of a notice on the respondents to file answer or responsive pleading. After the petitioners complied with the publication requirements, the RTC issued the order dated December 5, 1991 declaring the respondents in default and directing the petitioners to present evidence ex-parte. Is the order correct? Explain.Answer: No. The respondents were completely deprived of due process when they were declared in default based on a defective mode of service – service of notice to file answer by publication. The rules on service of pleadings, motions, notices, orders, judgments, and other papers were not strictly followed in declaring the respondents in default. The Court agrees with the CA that the RTC committed procedural lapses in declaring the respondents in default and in allowing the petitioners to present evidence ex-parte.In view of the peculiar circumstances surrounding the case, the RTC should have instead directed the petitioners to exert diligent efforts to notify the respondents either personally or by registered mail. In case the preferred modes were impractical, the Court should have required the petitioners to at least report in writing why efforts exerted towards personal service or service by mail failed. In other words, a convincing proof of an impossibility of personal service or service by mail to the respondents should have been shown first.  The RTC, thus, erred when it ruled that the publication of a notice to file answer to the respondents substantially cured the procedural defect equivalent to lack of due process. The RTC cannot just abandon the basic requirement of personal service and/or service by mail.At any rate, the Court is of the view that personal service to the respondents was practicable under the circumstances considering that they were well-known persons who used to occupy high government positions. (Aberca v. Ver, G.R. No. 166216, March 14, 2012).To stress, the only modes of service of pleadings, motions, notices, orders, judgments and other papers allowed by the rules are personal service, service by mail and substituted service if either personal service or service by mail cannot be made, as stated in Sections 6, 7 and 8 of Rule 13 of the Rules of Court. Nowhere under this rule is service of notice to file answer by publication is mentioned, much less recognized.Q – If a person was served with summons by publication, how is the judgment served? Explain.Answer: Service by publication only applies to service of summons stated under Rule 14 of the Rules of Court where the methods of service of summons in civil cases are: (1) personal service;  (2) substituted service; and (3) service by publication. Similarly, service by publication can apply to judgments, final orders and resolutions as provided under Section 9, Rule 13 of the Rules of Court, as follows:“Judgments, final orders or resolutions shall be served either personally or by registered mail. When a party summoned by publication has failed to appear in the action, judgments, final orders or resolutions against him shall be served upon him also by publication at the expense of the prevailing party.” (Aberca v. Ver, G.R. No. 166216, March 14, 2012).RULE 110 – SUFFICIENCY OF THE INFORMATIONQ – In a case, the accused claimed that his constitutional right to be informed of the nature and cause of accusation against him was infringed when he was convicted for Murder, since the manner by which he carried out the killing with the qualifying circumstance of treachery was not alleged in the Information against him.  Thus, he asserted, he was effectively only charged with Homicide.  Is the contention correct?

Why?Answer: No. Under Section 6, Rule 110 the Information is sufficient if it contains the full name of the accused, the designation of the offense given by the statute, the acts or omissions constituting the offense, the name of the offended party, the approximate date, and the place of the offense.”  The Information herein complied with these conditions.  Contrary to Asilan’s contention, the qualifying circumstance of “treachery” was specifically alleged in the Information.  “The rule is that qualifying circumstances must be properly pleaded in the Information in order not to violate the accused’s constitutional right to be properly informed of the nature and cause of the accusation against him.” Asilan never claimed that he was deprived of his right to be fully apprised of the nature of the charges against him due to the insufficiency of the Information. (People v. Asilan, G.R. No. 188322, April 11, 2012).Note:In any case, it is now too late for Asilan to assail the sufficiency of the Information on the ground that there was failure to specifically allege therein how treachery was carried out.  Section 9, Rule 117 of the Rules of Court provides:SEC. 9.  Failure to move to quash or to allege any ground therefor.- The failure of the accused to assert any ground of a motion to quash before he pleads to the complaint or information, either because he did not file a motion to quash or failed to allege the same in said motion, shall be deemed a waiver of any objections except those based on the grounds provided for in paragraphs (a), (b), (g), and (i) of section 3 of this Rule. Moreover, in People v. Candaza, this Court held that “[a]n Information which lacks essential allegations may still sustain a conviction when the accused fails to object to its sufficiency during the trial, and the deficiency was cured by competent evidence presented therein.”  In this case, Asilan not only failed to question the sufficiency of the Information at any time during the pendency of his case before the RTC, he also allowed the prosecution to present evidence, proving the elements of treachery in the commission of the offense.  Asilan is thus deemed to have waived any objections against the sufficiency of the Information.RULE 110 – PROSECUTION OF OFFENSESImportance of allegations of the nature and causes of accusation; due process.In the trial of every criminal case, a judge must rigidly test the State’s evidence of guilt in order to ensure that such evidence adheres to the basic rules of admissibility before pronouncing an accused guilty of the crime charged upon such evidence. Nothing less is demanded of the judge; otherwise, the guarantee of due process of law is nullified. The accused need not adduce anything to rebut evidence that is discredited for failing the test. Acquittal should then follow.Petitioner contends that the RTC grossly violated her Constitutional right to be informed of the nature and cause of the accusation when: (a) it held that the information did not have to allege her falsification of the duplicate receipts, and (b) when it convicted her of estafa under Article 315, paragraph 1(b) of the Revised Penal Code by relying on the evidence on falsification.The contention of petitioner cannot be sustained.The Bill of Rights guarantees some rights to every person accused of a crime, among them the right to be informed of the nature and cause of the accusation, viz:Section 14. (1) No person shall be held to answer for a criminal offense without due process of law.(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable.Rule 110 of the Revised Rules of Court, the rule then in effect when the information was filed in the RTC, contained the following provisions on the proper manner of alleging the nature and cause of the accusation in the information, to wit:

Section 8.Designation of the offense.– Whenever possible, a complaint or information should state the designation given to the offense by the statute, besides the statement of the acts or omissions constituting the same, and if there is no such designation, reference should be made to the section or subsection of the statute punishing it. (7)Section 9.Cause of accusation. – The acts or omissions complained of as constituting the offense must be stated in ordinary and concise language without repetition, not necessarily in the terms of the statute defining the offense, but in such form as is sufficient to enable a person of common understanding to know what offense is intended to be charged, and enable the court to pronounce proper judgment. (8)The importance of the proper manner of alleging the nature and cause of the accusation in the information should never be taken for granted by the State. An accused cannot be convicted of an offense that is not clearly charged in the complaint or information. To convict him of an offense other than that charged in the complaint or information would be violative of the Constitutional right to be informed of the nature and cause of the accusation. Indeed, the accused cannot be convicted of a crime, even if duly proven, unless the crime is alleged or necessarily included in the information filed against him. (Patula v. People, G.R. No. 164457, April 11, 2012).Allegation of age, relation between offender and offended in rape casesOnce again, the SC in People v. Arcillas, G.R. No. 181491, July 30, 2012, the SC ruled that the rape of a female over 12 years but under 18 years of age by the common-law spouse of her mother is qualified rape. Yet, the crime is only simple rape, although the State successfully proves the common-law relationship, where the information does not properly allege the qualifying circumstance of relationship between the accused and the female. This is because the right of the accused to be informed of the nature and cause of the accusation against him is inviolable.               Arcillas’ being the common-law husband of BBB at the time of the commission of the rape, even if established during the trial, could not be appreciated because the information did not specifically allege it as a qualifying circumstance. Otherwise, he would be deprived of his right to be informed of the charge lodged against him.Liability for exemplary damages.According to the Civil Code, exemplary damages may be imposed in criminal cases as part of the civil liability “when the crime was committed with one or more aggravating circumstances.” The law permits such damages to be awarded “by way of example or correction for the public good, in addition to the moral, temperate, liquidated or compensatory damages.” Accordingly, the CA and the RTC should have recognized the entitlement of AAA to exemplary damages on account of the attendance of her minority and the common-law relationship between him and her mother. It did not matter that such qualifying circumstances were not taken into consideration in fixing his criminal liability, because the term aggravating circumstances as basis for awarding exemplary damages under the Civil Code was understood in its generic sense. As the Court well explained in People v. Catubig:The term “aggravating circumstances” used by the Civil Code, the law not having specified otherwise, is to be understood in its broad or generic sense. The commission of an offense has a two-pronged effect, one on the public as it breaches the social order and the other upon the private victim as it causes personal sufferings, each of which is addressed by, respectively, the prescription of heavier punishment for the accused and by an award of additional damages to the victim. The increase of the penalty or a shift to a graver felony underscores the exacerbation of the offense by the attendance of aggravating circumstances, whether ordinary or qualifying, in its commission. Unlike the criminal liability which is basically a State concern, the award of damages, however, is likewise, if not primarily, intended for the offended party who suffers thereby. It would make little sense for an award of exemplary damages to be due the private offended party when the aggravating circumstance is ordinary but to be withheld when it is qualifying. Withal, the ordinary or qualifying nature of an aggravating circumstance is a distinction that should only be of consequence to the criminal, rather than to the civil, liability of the offender. In fine, relative to the civil aspect of the case, an aggravating circumstance, whether ordinary or qualifying, should entitle the offended party to an award of exemplary damages within the unbridled meaning of Article 2230 of the Civil Code.RULE 12 – PRELIMINARY INVESTIGATION

Courts will not interfere with determination of probable cause for the filing of an investigation.Under the doctrine of separation of powers, the courts have no right to directly decide matters over which full discretionary authority has been delegated to the Executive Branch of the Government, or to substitute their own judgments for that of the Executive Branch, represented in this case by the Department of Justice. The settled policy is that the courts will not interfere with the executive determination of probable cause for the purpose of filing an information, in the absence of grave abuse of discretion. That abuse of discretion must be so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law or to act at all in contemplation of law, such as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility. For instance, in Balanganan v. Court of Appeals, Special Nineteenth Division, Cebu City, the Court ruled that the Secretary of Justice exceeded his jurisdiction when he required “hard facts and solid evidence” in order to hold the defendant liable for criminal prosecution when such requirement should have been left to the court after the conduct of a trial.A preliminary investigation for the purpose of determining the existence of probable cause is not part of a trial. At a preliminary investigation, the investigating prosecutor or the Secretary of Justice only determines whether the act or omission complained of constitutes the offense charged. Probable cause refers to facts and circumstances that engender a well-founded belief that a crime has been committed and that the respondent is probably guilty thereof. There is no definitive standard by which probable cause is determined except to consider the attendant conditions; the existence of probable cause depends upon the finding of the public prosecutor conducting the examination, who is called upon not to disregard the facts presented, and to ensure that his finding should not run counter to the clear dictates of reason. (Metrobank v. Tobias, G.R. No. 177780, January 25, 2012).EVIDENCEQ – Tobias was charged with estafa through falsification of public document the elements of which are: (a) the accused uses a fictitious name, or falsely pretends to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or employs other similar deceits; (b) such false pretense, fraudulent act or fraudulent means must be made or executed prior to or simultaneously with the commission of the fraud; (c) the offended party must have relied on the false pretense, fraudulent act or fraudulent means, that is, he was induced to part with his money or property because of the false pretense, fraudulent act or fraudulent means; and (d) as a result thereof, the offended party suffered damage. It is required that the false statement or fraudulent representation constitutes the very cause or the only motive that induced the complainant to part with the thing.METROBANK urged the application of the presumption of authorship against Tobias based on his having offered the duplicate copy of the spurious title to secure the loan; and posits that there is no requirement that the presumption shall apply only when there is absence of a valid explanation from the person found to have possessed, used and benefited from the forged document. Is the bank correct? Why?Answer: No. Firstly, a presumption affects the burden of proof that is normally lodged in the State.  The effect is to create the need of presenting evidence to overcome the prima facie case that shall prevail in the absence of proof to the contrary. As such, a presumption of law is material during the actual trial of the criminal case where in the establishment thereof the party against whom the inference is made should adduce evidence to rebut the presumption and demolish the prima facie case. This is not so in a preliminary investigation, where the investigating prosecutor only determines the existence of a prima facie case that warrants the prosecution of a criminal case in court.Secondly, the presumption of authorship, being disputable, may be accepted and acted upon where no evidence upholds the contention for which it stands. It is not correct to say, consequently, that the investigating prosecutor will try to determine the existence of the presumption during preliminary investigation, and then to disregard the evidence offered by the respondent. The fact that the finding of probable cause during a preliminary investigation is an executive function does not excuse the investigating prosecutor or the Secretary of Justice from discharging the duty to weigh the evidence submitted by the parties. Towards that end, the investigating prosecutor, and, ultimately, the Secretary of Justice have ample discretion to determine the existence of probable cause,  a

discretion that must be used to file only a criminal charge that the evidence and inferences can properly warrant.The presumption that whoever possesses or uses a spurious document is its forger applies only in the absence of a satisfactory explanation. As said by the CA to which the SC concurred:It would seem that under the above proposition of the petitioner, the moment a person has in his possession a falsified document and has made use of it, probable cause or prima facie is already established and that no amount of satisfactory explanation will prevent the filing of the case in court by the investigating officer, for any such good explanation or defense can only be threshed out in the trial on the merit. We are not to be persuaded. To give meaning to such argumentation will surely defeat the very purpose for which preliminary investigation is required in this jurisdiction.A preliminary investigation is designed to secure the respondent involved against hasty, malicious and oppressive prosecution. A preliminary investigation is an inquiry to determine whether (a) a crime has been committed, and (b) whether there is probable cause to believe that the accused is guilty thereof (De Ocampo vs. Secretary of Justice, 480 SCRA 71 [2006]). It is a means of discovering the person or persons who may be reasonably charged with a crime (Preferred Home Specialties, Inc. vs. Court of Appeals, 478 SCRA 387, 410 [2005]). Prescindingly, under Section 3 of Rule 112 of the Rules of Criminal Procedure, the respondent must be informed of the accusation against him and shall have the right to examine the evidence against him and submit his counter-affidavit to disprove criminal liability. By far, respondent in a criminal preliminary investigation is legally entitled to explain his side of the accusation.We are not unaware of the established presumption and rule that when it is proved that a person has in his possession a falsified document and makes use of the same the presumption or inference is that such person is the forger (Serrano vs. Court of Appeals, 404 SCRA 639, 651 [2003]), citing Koh Tieck Heng vs. People, 192 SCRA 533, 546-547 [1990]). Yet, the Supreme Court declared that in the absence of satisfactory explanation, one who is found in possession of a forged document and who used it is presumed to be the forger (citing People vs. Sendaydiego, 81 SCRA 120, 141 [1978]). Very clearly then, a satisfactory explanation could render ineffective the presumption which, after all, is merely a disputable one. (Metrobank v. Tobias, G.R. No. 177780, January 25, 2012).DEMURRER TO EVIDENCEOnce court grant demurrer to evidence appeal puts accused in double jeopardyQ – In a criminal case, the petitioner claimed that the State was denied due process because of the nonfeasance committed by the special prosecutor in failing to present sufficient evidence to prove its case. It claims that the prosecutor failed to protect the State’s interest in the proceedings before the Sandiganbayan. To support its position, petitioner cited the case ofMerciales v. Court of Appeals where the Court nullified the dismissal of the criminal cases due to the serious nonfeasance committed by the public prosecutor.It argued that the Sandiganbayan committed grave abuse of discretion amounting to lack or excess of jurisdiction that resulted in a miscarriage of justice prejudicial to the State’s interest when it took the demurrers to evidence at face value instead of requiring the presentation of additional evidence, taking into consideration the huge amounts of public funds involved and the special prosecutor’s failure to oppose the demurrers to evidence. Rule on the contention. Explain.Answer: The contention is not meritorious as the court was called to overturn a judgment of acquittal in favor of the accused brought about by the dismissal, for insufficiency of evidence, of the malversation charged in the two criminal cases.  As a rule, once the court grants the demurrer, the grant amounts to an acquittal; any further prosecution of the accused would violate the constitutional proscription on double jeopardy.  Notably, the proscription against double jeopardy only envisages appeals based on errors of judgment, but not errors of jurisdiction. Jurisprudence recognizes two grounds where double jeopardy will not attach, these are: (i) on the ground of grave abuse of discretion amounting to lack or excess of jurisdiction; and/or (ii) where there is a denial of a party’s due process rights.A judgment of acquittal sought to be reviewed on the basis of grave abuse of discretion amounting to lack or

excess of jurisdiction or on the ground of denial of due process implies an invalid or otherwise void judgment. If either or both grounds are established, the judgment of acquittal is considered void; as a void judgment, it is legally inexistent and does not have the effect of an acquittal. Thus, the defense of double jeopardy will not lie in such a case.Accordingly, a review of a dismissal order of the Sandiganbayan granting an accused’s demurrer to evidence  may be done via the special civil action of certiorari under Rule 65, based on the narrow ground of grave abuse of discretion amounting to lack or excess of jurisdiction.  Mere allegations of grave abuse of discretion, however, are not enough to establish this ground; so also, mere abuse of discretion is not sufficient.  On the petitioner lies the burden of demonstrating, plainly and distinctly, all facts essential to establish its right to a writ of  certiorari. (People v. SB, G.R. No. 153304-05, February 7, 2012, Brion, J).Note:           State’s right to due processIn People v. Leviste, we stressed that the State, like any other litigant, is entitled to its day in court; in criminal proceedings, the public prosecutor acts for and represents the State, and carries the burden of diligently pursuing the criminal prosecution in a manner consistent with public interest. The State’s right to be heard in court rests to a large extent on whether the public prosecutor properly undertook his duties in pursuing the criminal action for the punishment of the guilty.The prosecutor’s role in the administration of justice is to lay before the court, fairly and fully, every fact and circumstance known to him or her to exist, without regard to whether such fact tends to establish the guilt or innocence of the accused and without regard to any personal conviction or presumption on what the judge may or is disposed to do.  The prosecutor owes the State, the court and the accused the duty to lay before the court the pertinent facts at his disposal with methodical and meticulous attention, clarifying contradictions and filling up gaps and loopholes in his evidence to the end that the court’s mind may not be tortured by doubts; that the innocent may not suffer; and that the guilty may not escape unpunished. In the conduct of the criminal proceedings, the prosecutor has ample discretionary power to control the conduct of the presentation of the prosecution evidence, part of which is the option to choose what evidence to present or who to call as witness.The petitioner claims that the special prosecutor failed in her duty to give effective legal representation to enable the State to fully present its case against the respondents, citing Merciales v. Court of Appeals where we considered the following factual circumstances - (1) the public prosecutor rested the case knowing fully well that the evidence adduced was insufficient; (2) the refusal of the public prosecutor to present other witnesses available to take the stand; (3) the knowledge of the trial court of the insufficiency of the prosecution’s evidence when the demurrer to evidence was filed before it; and (4) the trial court’s failure to require the presentation of additional evidence before it acted on the demurrer to evidence.  All these circumstances effectively resulted in the denial of the State’s right to due process, attributable to the inaction of the public prosecutor and/or the trial court.Merciales was followed by Valencia v. Sandiganbayan, where we recognized the violation of the State’s right to due process in criminal proceedings because of sufficient showing that the special prosecutor haphazardly handled the prosecution. In upholding the prosecution’s right to present additional evidence under the circumstances, Valencia took into account the fact that the former special prosecutor rested his case solely on the basis of a Joint Stipulation of Facts that was not even signed by the accused.These two cases, to our mind, not only show the existing factual considerations that led to the conclusion that the public prosecutor willfully and deliberately failed to perform his mandated duty to represent the State’s interest, but stress as well that there must be sufficient facts on record supporting this conclusion. In the absence of these supporting facts, no conclusion similar to the Merciales and Valencia outcomes can be reached.The requirement for supporting factual premises finds complement in the general rule founded on public policy that the negligence or mistake of a counsel binds the client. While this rule admits of exceptions (as when the gross negligence of a counsel resulted in depriving the client of due process), the application of the exception likewise depends on a showing of facts on record demonstrating a clear violation of the client’s due process rights.   EVIDENCE

The Offer of Compromise may not be considered as evidence against respondent.In a case, the SC once again ruled that the fact that respondent made a compromise offer to petitioner SMC cannot be considered as an admission of liability. In Pentagon Steel Corporation v. Court of Appeals, the SC examined the reasons why compromise offers must not be considered as evidence against the offeror:First, since the law favors the settlement of controversies out of court, a person is entitled to "buy his or her peace" without danger of being prejudiced in case his or her efforts fail; hence, any communication made toward that end will be regarded as privileged. Indeed, if every offer to buy peace could be used as evidence against a person who presents it, many settlements would be prevented and unnecessary litigation would result, since no prudent person would dare offer or entertain a compromise if his or her compromise position could be exploited as a confession of weakness.Second, offers for compromise are irrelevant because they are not intended as admissions by the parties making them. A true offer of compromise does not, in legal contemplation, involve an admission on the part of a defendant that he or she is legally liable, or on the part of a plaintiff, that his or her claim is groundless or even doubtful, since it is made with a view to avoid controversy and save the expense of litigation. It is the distinguishing mark of an offer of compromise that it is made tentatively, hypothetically, and in contemplation of mutual concessions.   (SMC v. Kalalo, G.R. No. 185522, June 13, 2012).Q – It was further argued that respondent’s Offer of Compromise may be received in evidence as an implied admission of guilt. Is the contention correct? Why?Answer: No. In civil cases, an offer of compromise is not an admission of any liability, and is not admissible in evidence against the offeror.In criminal cases, except those involving quasi-offenses (criminal negligence) or those allowed by law to be compromised, an offer of compromise by the accused may be received in evidence as an implied admission of guilt. (Sec. 27, Rule 130, Rules of Court).The Offer of Compromise was made prior to the filing of the criminal complaint against her for a violation of the Bouncing Checks Law. The Offer of Compromise was clearly not made in the context of a criminal proceeding and, therefore, cannot be considered as an implied admission of guilt. (SMC v. Kalalo, G.R. No. 185522, June 13, 2012).Finally, during the testimony of respondent and after her receipt of the Statement of Account from SMC, she recanted the contents of the Offer of Compromise. She explained that, at the time she had the letter prepared, the final amount owed to petitioner SMC was yet undetermined; and that she was constantly facing threats of imprisonment from petitioner’s agents.  The trial courts and the CA gave weight to her justification, and we find no cogent reason to disturb their findings. We rule, therefore, that the Offer of Compromise may not be considered as evidence against respondent Kalalo, nor can it be the basis of her liability to petitioner in the amount of ₱921,215.WRIT OF HABEAS DATAWrit of habeas data.Q – Gamboa alleged that the Philippine National Police in Ilocos Norte (PNP–Ilocos Norte) conducted a series of surveillance operations against her and her aides, and classified her as someone who keeps a PAG. Purportedly without the benefit of data verification, PNP–Ilocos Norte forwarded the information gathered on her to the Zeñarosa Commission, thereby causing her inclusion in the Report’s enumeration of individuals maintaining PAGs.On 6 and 7 July 2010, ABS-CBN broadcasted on its evening news program the portion of the Report naming Gamboa as one of the politicians alleged to be maintaining a PAG. Gamboa averred that her association with a PAG also appeared on print media. Thus, she was publicly tagged as someone who maintains a PAG on the basis of the unverified information that the PNP-Ilocos Norte gathered and forwarded to the Zeñarosa Commission. As a result, she claimed that her malicious or reckless inclusion in the enumeration of personalities maintaining a PAG as published in the Report also made her, as well as her supporters and other people identified with her, susceptible to harassment and police surveillance operations.Contending that her right to privacy was violated and her reputation maligned and destroyed, Gamboa filed a Petition for the issuance of a writ of habeas data against respondents in their capacities as officials of the PNP-

Ilocos Norte. In her Petition, she prayed for the following reliefs: (a) destruction of the unverified reports from the PNPIlocos Norte database; (b) withdrawal of all information forwarded to higher PNP officials; (c) rectification of the damage done to her honor; (d) ordering respondents to refrain from forwarding unverified reports against her; and (e) restraining respondents from making baseless reports.The case was docketed as Special Proc. No. 14979 and was raffled to RTC Br. 13, which issued the corresponding writ on 14 July 2010 after finding the Petition meritorious on its face. Thus, the trial court (a) instructed respondents to submit all information and reports forwarded to and used by the Zeñarosa Commission as basis to include her in the list of persons maintaining PAGs; (b) directed respondents, and any person acting on their behalf, to cease and desist from forwarding to the Zeñarosa Commission, or to any other government entity, information that they may have gathered against her without the approval of the court; (c) ordered respondents to make a written return of the writ together with supporting affidavits; and (d) scheduled the summary hearing of the case on 23 July 2010.In their Return of the Writ, respondents alleged that they had acted within the bounds of their mandate in conducting the investigation and surveillance of Gamboa. The information stored in their database supposedly pertained to two criminal cases in which she was implicated, namely: (a) a Complaint for murder and frustrated murder docketed as NPS DOC No. 1-04-INQ-091-00077, and (b) a Complaint for murder, frustrated murder and direct assault upon a person in authority, as well as indirect assault and multiple attempted murder, docketed as NPS DOCKET No. 1-04-INV-10-A-00009.Respondents likewise asserted that the Petition was incomplete for failing to comply with the following requisites under the Rule on the Writ of Habeas Data: (a) the manner in which the right to privacy was violated or threatened with violation and how it affected the right to life, liberty or security of Gamboa; (b) the actions and recourses she took to secure the data or information; and (c) the location of the files, registers or databases, the government office, and the person in charge, in possession or in control of the data or information. They also contended that the Petition for Writ of Habeas Data, being limited to cases of extrajudicial killings and enforced disappearances, was not the proper remedy to address the alleged besmirching of the reputation of Gamboa.RTC dismissed the Petition. The trial court categorically ruled that the inclusion of Gamboa in the list of persons maintaining PAGs, as published in the Report, constituted a violation of her right to privacy.Despite the foregoing findings, RTC Br. 13 nevertheless dismissed the Petition on the ground that Gamboa failed to prove through substantial evidence that the subject information originated from respondents, and that they forwarded this database to the Zeñarosa Commission without the benefit of prior verification. The trial court also ruled that even before respondents assumed their official positions, information on her may have already been acquired. Finally, it held that the Zeñarosa Commission, as the body tasked to gather information on PAGs and authorized to disclose information on her, should have been impleaded as a necessary if not a compulsory party to the Petition.Gamboa then filed the instant Appeal by Certiorari dated 24 September 2010,38 raising the following assignment of errors:

1. The trial court erred in declaring that [Gamboa] failed to present sufficient proof to link respondents as the informant to [sic] the Zeñarosa Commission;

2. The trial court failed to satisfy the spirit of Habeas Data;On the other hand, respondents maintain the following arguments: (a) Gamboa failed to present substantial evidence to show that her right to privacy in life, liberty or security was violated, and (b) the trial court correctly dismissed the Petition on the ground that she had failed to present sufficient proof showing that respondents were the source of the report naming her as one who maintains a PAG.Meanwhile, Gamboa argues that although A.O. 275 was a lawful order, fulfilling the mandate to dismantle PAGs in the country should be done in accordance with due process, such that the gathering and forwarding of unverified information on her must be considered unlawful. She also reiterates that she was able to present sufficient evidence showing that the subject information originated from respondents.In determining whether Gamboa should be granted the privilege of the writ of habeas data, this Court is called

upon to, first, unpack the concept of the right to privacy; second, explain the writ of  habeas data as an extraordinary remedy that seeks to protect the right to informational privacy; and finally, contextualize the right to privacy vis-à-vis the state interest involved in the case at bar.The Right to PrivacyThe right to privacy, as an inherent concept of liberty, has long been recognized as a constitutional right. This Court, in Morfe v. Mutuc, thus enunciated:The due process question touching on an alleged deprivation of liberty as thus resolved goes a long way in disposing of the objections raised by plaintiff that the provision on the periodical submission of a sworn statement of assets and liabilities is violative of the constitutional right to privacy. There is much to be said for this view of Justice Douglas:“Liberty in the constitutional sense must mean more than freedom from unlawful governmental restraint; it must include privacy as well, if it is to be a repository of freedom . The right to be let alone is indeed the beginning of all freedom.” As a matter of fact, this right to be let alone is, to quote from Mr. Justice Brandeis “the most comprehensive of rights and the right most valued by civilized men.”The concept of liberty would be emasculated if it does not likewise compel respect for his personality as a unique individual whose claim to privacy and interference demands respect. x x x.x x x x x x x x xx x x [I]n the leading case of Griswold v. Connecticut, Justice Douglas, speaking for five members of the Court, stated: “Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers ‘in any house’ in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the ‘right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: ‘The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” After referring to various American Supreme Court decisions, Justice Douglas continued: “These cases bear witness that the right of privacy which presses for recognition is a legitimate one.”x x x x x x x x xSo it is likewise in our jurisdiction. The right to privacy as such is accorded recognition independently of its identification with liberty; in itself, it is fully deserving of constitutional protection. The language of Prof. Emerson is particularly apt: “The concept of limited government has always included the idea that governmental powers stop short of certain intrusions into the personal life of the citizen. This is indeed one of the basic distinctions between absolute and limited government.Ultimate and pervasive control of the individual, in all aspects of his life, is the hallmark of the absolute state. In contrast, a system of limited government, safeguards a private sector, which belongs to the individual, firmly distinguishing it from the public sector, which the state can control.Protection of this private sector — protection, in other words, of the dignity and integrity of the individual — has become increasingly important as modern society has developed. All the forces of a technological age — industrialization, urbanization, and organization — operate to narrow the area of privacy and facilitate intrusion into it. In modern terms, the capacity to maintain and support this enclave of private life marks the difference between a democratic and a totalitarian society.”In Ople v. Torres, this Court traced the constitutional and statutory bases of the right to privacy in Philippine jurisdiction, to wit:Indeed, if we extend our judicial gaze we will find that the right of privacy is recognized and enshrined in several provisions of our Constitution. It is expressly recognized in section 3 (1) of the Bill of Rights:Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law.

Other facets of the right to privacy are protected in various provisions of the Bill of Rights, viz:Sec. 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.x x x x x x x x xSec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health as may be provided by law.x x x x x x x x xSec. 8. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged.Sec. 17. No person shall be compelled to be a witness against himself. Zones of privacy are likewise recognized and protected in our laws. The Civil Code provides that “[e]very person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons” and punishes as actionable torts several acts by a person of meddling and prying into the privacy of another. It also holds a public officer or employee or any private individual liable for damages for any violation of the rights and liberties of another person, and recognizes the privacy of letters and other private communications. The Revised Penal Code makes a crime the violation of secrets by an officer, the revelation of trade and industrial secrets, and trespass to dwelling. Invasion of privacy is an offense in special laws like the Anti-Wiretapping Law, the Secrecy of Bank Deposits Act and the Intellectual Property Code. The Rules of Court on privileged communication likewise recognize the privacy of certain information.Unlike the dissenters, we prescind from the premise that the right to privacy is a fundamental right guaranteed by the Constitution, hence, it is the burden of government to show that A.O. No. 308 is justified by some compelling state interest and that it is narrowly drawn. x x x. (Emphases supplied)Clearly, the right to privacy is considered a fundamental right that must be protected from intrusion or constraint. However, in Standard Chartered Bank v. Senate Committee on Banks, this Court underscored that the right to privacy is not absolute, viz:With respect to the right of privacy which petitioners claim respondent has violated, suffice it to state that privacy is not an absolute right. While it is true that Section 21, Article VI of the Constitution, guarantees respect for the rights of persons affected by the legislative investigation, not every invocation of the right to privacy should be allowed to thwart a legitimate congressional inquiry. In Sabio v. Gordon, we have held that the right of the people to access information on matters of public concern generally prevails over the right to privacy of ordinary financial transactions. In that case, we declared that the right to privacy is not absolute where there is an overriding compelling state interest.Employing the rational basis relationship test, as laid down in Morfe v. Mutuc, there is no infringement of the individual’s right to privacy as the requirement to disclosure information is for a valid purpose, in this case, to ensure that the government agencies involved in regulating banking transactions adequately protect the public who invest in foreign securities.Suffice it to state that this purpose constitutes a reason compelling enough to proceed with the assailed legislative investigation. Therefore, when the right to privacy finds tension with a competing state objective, the courts are required to weigh both notions. In these cases, although considered a fundamental right, the right to privacy may nevertheless succumb to an opposing or overriding state interest deemed legitimate and compelling.The Writ of Habeas DataThe writ of habeas data is an independent and summary remedy designed to protect the image, privacy, honor,

information, and freedom of information of an individual, and to provide a forum to enforce one’s right to the truth and to informational privacy. It seeks to protect a person’s right to control information regarding oneself, particularly in instances in which such information is being collected through unlawful means in order to achieve unlawful ends. It must be emphasized that in order for the privilege of the writ to be granted, there must exist a nexus between the right to privacy on the one hand, and the right to life, liberty or security on the other. Section 1 of the Rule on the Writ ofHabeas Data reads:Habeas data. – The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data information regarding the person, family, home and correspondence of the aggrieved party.The notion of informational privacy is still developing in Philippine law and jurisprudence. Considering that even the Latin Americanhabeasdata, on which our own Rule on the Writ of Habeas Data is rooted, finds its origins from the European tradition of data protection, this Court can be guided by cases on the protection of personal data decided by the European Court of Human Rights (ECHR). Of particular note is Leander v. Sweden, in which the ECHR balanced the right of citizens to be free from interference in their private affairs with the right of the state to protect its national security. In this case, Torsten Leander (Leander), a Swedish citizen, worked as a temporary replacement museum technician at the Naval Museum, which was adjacent to a restricted military security zone. He was refused employment when the requisite personnel control resulted in an unfavorable outcome on the basis of information in the secret police register, which was kept in accordance with the Personnel Control Ordinance and to which he was prevented access. He claimed, among others, that this procedure of security control violated Article 8 of the European Convention of Human Rights on the right to privacy, as nothing in his personal or political background would warrant his classification in the register as a security risk.The ECHR ruled that the storage in the secret police register of information relating to the private life of Leander, coupled with the refusal to allow him the opportunity to refute the same, amounted to an interference in his right to respect for private life. However, the ECHR held that the interference was justified on the following grounds: (a) the personnel control system had a legitimate aim, which was the protection of national security, and (b) the Personnel Control Ordinance gave the citizens adequate indication as to the scope and the manner of exercising discretion in the collection, recording and release of information by the authorities.The following statements of the ECHR must be emphasized:58. The notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued (see, inter alia, the Gillow judgment of 24 November 1986, Series A no. 109, p. 22, § 55).59. However, the Court recognises that the national authorities enjoy a margin of appreciation, the scope of which will depend not only on the nature of the legitimate aim pursued but also on the particular nature of the interference involved. In the instant case, the interest of the respondent State in protecting its national security must be balanced against the seriousness of the interference with the applicant’s right to respect for his private life.There can be no doubt as to the necessity, for the purpose of protecting national security, for the Contracting States to have laws granting the competent domestic authorities power, firstly, to collect and store in registers not accessible to the public information on persons and, secondly, to use this information when assessing the suitability of candidates for employment in posts of importance for national security.Admittedly, the contested interference adversely affected Mr. Leander’s legitimate interests through the consequences it had on his possibilities of access to certain sensitive posts within the public service. On the other hand, the right of access to public service is not as such enshrined in the Convention (see, inter alia, the Kosiek judgment of 28 August 1986, Series A no. 105, p. 20, §§ 34-35), and, apart from those consequences, the interference did not constitute an obstacle to his leading a private life of his own choosing.In these circumstances, the Court accepts that the margin of appreciation available to the respondent State in assessing the pressing social need in the present case, and in particular in choosing the means for achieving the

legitimate aim of protecting national security, was a wide one.x x x x x x x x x66. The fact that the information released to the military authorities was not communicated to Mr. Leander cannot by itself warrant the conclusion that the interference was not “necessary in ademocratic society in the interests of national security”, as it is the very absence of such communication which, at least partly, ensures the efficacy of the personnel control procedure (see, mutatis mutandis, the above-mentioned Klass and Others judgment, Series A no. 28, p. 27, § 58).The Court notes, however, that various authorities consulted before the issue of the Ordinance of 1969, including the Chancellor of Justice and the Parliamentary Ombudsman, considered it desirable that the rule of communication to the person concerned, as contained in section 13 of the Ordinance, should be effectively applied in so far as it did not jeopardize the purpose of the control.67. The Court, like the Commission, thus reaches the conclusion  that the safeguards contained in the Swedish personnel control system meet the requirements of paragraph 2 of Article 8 (art. 8-2). Having regard to the wide margin of appreciation available to it, the respondent State was entitled to consider that in the present case the interests of national security prevailed over the individual interests of the applicant (see paragraph 59 above). The interference to which Mr. Leander was subjected cannot therefore be said to have been disproportionate to the legitimate aim pursued. (Emphases supplied)Leander illustrates how the right to informational privacy, as a specific component of the right to privacy, may yield to an overriding legitimate state interest. In similar fashion, the determination of whether the privilege of the writ of habeas data, being an extraordinary remedy, may be granted in this case entails a delicate balancing of the alleged intrusion upon the private life of Gamboa and the relevant state interest involved.The collection and forwarding of information by the PNP vis-à-vis the interest of the state to dismantle private armiesThe Constitution explicitly mandates the dismantling of private armies and other armed groups not recognized by the duly constituted authority. It also provides for the establishment of one police force that is national in scope and civilian in character, and is controlled and administered by a national police commission.Taking into account these constitutional fiats, it is clear that the issuance of A.O. 275 articulates a legitimate state aim, which is to investigate the existence of PAGs with the ultimate objective of dismantling them permanently.To enable the Zeñarosa Commission to achieve its goals, A.O. 275 clothed it with the powers of an investigative body, including the power to summon witnesses, administer oaths, take testimony or evidence relevant to the investigation and use compulsory processes to produce documents, books, and records.62 A.O. 275 likewise authorized the Zeñarosa Commission to deputize the Armed Forces of the Philippines, the National Bureau of Investigation, the Department of Justice, the PNP, and any other law enforcement agency to assist the commission in the performance of its functions.Meanwhile, the PNP, as the national police force, is empowered by law to (a) enforce all laws and ordinances relative to the protection of lives and properties; (b) maintain peace and order and take all necessary steps to ensure public safety; and (c) investigate and prevent crimes.Pursuant to the state interest of dismantling PAGs, as well as the foregoing powers and functions accorded to the Zeñarosa Commission and the PNP, the latter collected information on individuals suspected of maintaining PAGs, monitored them and counteracted their activities. One of those individuals is herein petitioner Gamboa.This Court holds that Gamboa was able to sufficiently establish that the data contained in the Report listing her as a PAG coddler came from the PNP. Contrary to the ruling of the trial court, however, the forwarding of information by the PNP to the Zeñarosa Commission was not an unlawful act that violated or threatened her right to privacy in life, liberty or security.The PNP was rationally expected to forward and share intelligence regarding PAGs with the body specifically created for the purpose of investigating the existence of these notorious groups. Moreover, the Zeñarosa Commission was explicitly authorized to deputize the police force in the fulfillment of the former’s mandate, and thus had the power to request assistance from the latter.

Following the pronouncements of the ECHR in Leander, the fact that the PNP released information to the Zeñarosa Commission without prior communication to Gamboa and without affording her the opportunity to refute the same cannot be interpreted as a violation or threat to her right to privacy since that act is an inherent and crucial component of intelligence gathering and investigation. Additionally, Gamboa herself admitted that the PNP had a validation system, which was used to update information on individuals associated with PAGs and to ensure that the data mirrored the situation on the field. Thus, safeguards were put in place to make sure that the information collected maintained its integrity and accuracy. Pending the enactment of legislation on data protection, this Court declines to make any further determination as to the propriety of sharing information during specific stages of intelligence gathering. To do otherwise would supplant the discretion of investigative bodies in the accomplishment of their functions, resulting in an undue encroachment on their competence.Information sharing must be with strict confidentiality.However, to accord the right to privacy with the kind of protection established in existing law and jurisprudence, this Court nonetheless deems it necessary to caution these investigating entities that information-sharing must observe strict confidentiality. Intelligence gathered must be released exclusively to the authorities empowered to receive the relevant information.After all, inherent to the right to privacy is the freedom from “unwarranted exploitation of one’s person or from intrusion into one’s private activities in such a way as to cause humiliation to a person’s ordinary sensibilities.”In this case, respondents admitted the existence of the Report, but emphasized its confidential nature. That it was leaked to third parties and the media was regrettable, even warranting reproach. But it must be stressed that Gamboa failed to establish that respondents were responsible for this unintended disclosure. In any event, there are other reliefs available to her to address the purported damage to her reputation, making a resort to the extraordinary remedy of the writ of habeas data unnecessary and improper.Finally, this Court rules that Gamboa was unable to prove through substantial evidence that her inclusion in the list of individuals maintaining PAGs made her and her supporters susceptible to harassment and to increased police surveillance. In this regard, respondents sufficiently explained that the investigations conducted against her were in relation to the criminal cases in which she was implicated. As public officials, they enjoy the presumption of regularity, which she failed to overcome.It is clear from the foregoing discussion that the state interest of dismantling PAGs far outweighs the alleged intrusion on the private life of Gamboa, especially when the collection and forwarding by the PNP of information against her was pursuant to a lawful mandate. Therefore, the privilege of the writ of habeas data must be denied.