SECOND DIVISION

[G.R. No. 144708. August 10, 2001]

RAFAEL ALBANO, VENANCIO ALBANO and EDWIN PATRICIO, petitioners, vs. COURT OF APPEALS (Seventh Division) and IGLESIA FILIPINA INDEPENDIENTE assisted by BISHOP JUANITO FERRER, FR. BEN VILANUEVA, Vintar Parish Priest and AMADOR LEANO, Layman's Vice Chairman, respondents. DECISION
BELLOSILLO, J.:

WITH A THOUSAND AND ONE INQUIETUDES then besetting the Roman Catholic Church, Monico Albano and Nemesio Albano strayed away from its flock and joined Bishop Gregorio Aglipay in his newly-founded congregation - the Iglesia Filipina Independiente ("IFI"). To express their piety and devotion to their new faith, sometime in 1908 the Albanos allowed the IFI to construct a small iglesia within a 1,854-square meter unregistered property in Vintar, Ilocos Sur, which their family had been occupying for years. In due time, a modest structure of sawali and cogon rose beside the Albanos' ancestral brick house. In 1909, Fr. Platon de Villanueva, parish priest of Vintar, pleaded with the Albanos to donate to the congregation the property occupied by the iglesia. The pleas of Fr. Platon did not fall on deaf ears. On 21 June 1909 Vicente, son of Nemesio Albano, executed an instrument granting the assiduous priest with its administration. But Fr. Platon wanted more. He pursued the Albanos until the latter eventually transferred ownership in his favor. Thus on 1 May 1910 Monico Albano and Vicente Albano executed a new document whereby they agreed, in exchange for a parcel of land, to transfer ownership of the Vintar property in favor of Fr. Platon. They agreed to give him sufficient time after the harvest to look for an arable land which could yield five (5) "uyones a pagay." It was further agreed that in the event Fr. Platon failed to deliver the parcel of land after the harvest and a new priest was sent over to manage the Vintar congregation, their agreement would be considered revoked. Two (2) years later Fr. Platon de Villanueva passed away. On 7 April 1916 Elena, Eulogia and Benigno Villanueva, sisters and brother of the deceased, as his surviving heirs, executed a document donating the Vintar property to the IFI. In December 1916 they executed another document bequeathing several properties of their deceased brother in favor of the Comite de Caballeros quen Damas of the IFI. In return, they asked that services be offered for the soul of their departed brother on the 22nd of July, November and December of every year.

Sometime in 1957 Fr. Loreto Balbas who took over as parish priest spoke before IFI devotees and inspired them to improve the condition of their chapel. Before long, through the efforts of the faithful under the leadership of Antonina Albano, Vicente's wife, the chapel was renovated and a convent was constructed nearby. Antonina capped the iglesia's expansion by donating a new bell. Thereafter, Antonina appealed to Fr. Balbas that she be allowed to stay in the convent together with one Jovencia Foronda. Inasmuch as Antonina was an "important member of the church" and a devotee who had spent much for its improvement, she was given lodging within church premises. A few months thereafter, Antonina and Jovencia put up a small sari-sari store inside the ruins of the old brick house. A decade later, Venancio Albano, son of Vicente and Antonina, appealed to the IFI to allow his brother Rafael to stay within the old brick house. Upon consultation with church elders, Bishop Lagasca readily acceded to Venancios request. Forthwith, Rafael repaired the crumbly brick house and made it habitable. Years later, his son-in-law, Edwin Patricio, came and occupied the northwestern portion of the lot. Together, they constructed a pig pen within the premises and extended Rafaels banana plantation which unfortunately destroyed the fence surrounding the property. Alarmed by the situation, the IFI summoned its elders and decided to write a letter of protest to Venancio Albano, Rafael Albano and Edwin Patricio telling them to desist from interfering with the structures built by the IFI.[1] In his reply, Venancio requested for a dialogue "reminding the church" that the property belonged to them and was never donated by their predecessors in favor of their church.[2] Upon hearing such reply, IFI was compelled to file an action for quieting of title against them, asserting that the disputed property belonged to the IFI by virtue of a donation from Elena, Eulogia and Benigno Villanueva, and that the donors, in turn, inherited the property from Fr. Platon de Villanueva who acquired the property from the Albanos in exchange for a parcel of land and an undetermined amount of money. Since the time of the donation, the IFI had been in possession of the property and had the lot declared in its name for taxation purposes.[3] Venancio, Rafael and Edwin denied the allegations in the complaint and claimed that their ancestors had been occupying the property since the 1800's.[4] Their great grandfather Rafael built a brick house within the property and it was in this house where his children and his childrens children were born. In 1909, upon the proddings of Fr. Platon de Villanueva, Monico and Nemesio Albano allowed the IFI to establish a small chapel within the property. They averred that although Monico and Vicente indeed donated the property in favor of the church, the donation was never realized as Fr. Platon failed to comply with its terms. According to Venancio, Rafael and Edwin, there was no document to support the claim of IFI that Fr. Platon delivered the riceland that could yield five (5) uyones a pagay in favor of their predecessors as promised. They also declared that a violent earthquake rendered the house unfit for habitation in 1922 and forced them to transfer to a new residence. Despite such misfortune, Florentino Espejo, Antonina's brother, stayed within the premises. After Florentino left, Antonina built a convenience store within the property which she herself tended until the outbreak of the Pacific War. After the war, they occasionally visited the brick house to check on its condition. In 1955 Rafael decided to settle in Vintar and with the consent of his siblings repaired the dilapidated house and made it his home. Sometime in 1967 the Supreme Bishop of the IFI conferred with Venancio and pleaded that the property be donated t o the congregation. But

Venancio turned down the request, saying that he was not the sole owner of the property whose consent alone to the donation should be sought. Meanwhile, Vicente Albano, brother of Rafael and Venancio, had a 487-square meter portion of the property declared in his name for taxation purposes. Prior thereto however it appeared that none of the Albanos paid taxes on the property except that in 1905 Monico had the entire property declared in his name for purposes of taxation and paid the corresponding taxes thereon. After trial on the merits, including an ocular inspection of the premises, [5] the trial court rendered judgment declaring the IFI owner of a portion of the disputed property "from the south running up to 55 meters to the north, more or less, at a point where the southern wall of the brick wall stands, including the convent and its immediate yard," and the Albanos "owner of the portion of the property actually occupied by the ruins of the brick house including the vacant space in front of the house."[6] The court ratiocinated that since Monico and Venancio Albano had failed to revoke their agreement with Fr. Platon de Villanueva, a presumption arose that the condition embodied in their contract had already been fulfilled. According to the court, such abstention on the part of the Albanos as well as Antonina's devotion to the church despite the alleged invalidity of the donation was a strong indication that the exchange and sale referred to in the agreement had really taken place. Furthermore, inasmuch as IFI had been in the possession of the property where the chapel and the convent stood in the concept of an owner for more than sixty (60) years, it acquired title thereto by acquisitive prescription. Insofar as the Albanos were concerned, the court opined that their proprietary right over the disputed property covered only the area where the brick house stood, measured at roughly 462-square meters, since they had possessed such portion for many years. Apparently dissatisfied, both the IFI and the Albanos sought recourse in the Court of Appeals through a petition for review on certiorari. But the Court of Appeals in its Decision of 22 February 2000, affirmed the trial court thus -

In the case at bar, the inaction of defendants-appellants with regard to the donations from 1910 to 1972 or a span of 63 years will surely constitute laches. The failure of Fr. Platon Villanueva to deliver the riceland should have been the proper time to revoke said donation. But defendants-appellants never lift(ed) a finger to enforce their rights.[7]
On 8 May 2000 the Albanos filed a Motion for Leave to Admit Attached Motion for Reconsideration praying that their Motion for Reconsideration be admitted into the records despite its being filed out of time.[8] Atty. Juanito F. Antonio, counsel for petitioners, explained that although a copy of the Decision was sent to his old address and received by a reliever guard on 3 March 2000, he was not notified thereof. However, according to his collaborating counsel, Atty. Edwin Patricio, he heard rumors in Vintar that an unfavorable decision had been rendered against them. This prompted Atty. Patricio to verify the veracity of the information with the Court of Appeals. Upon inquiry with the appellate court, he was informed that a copy of the Decision had already been sent to his collaborating counsel Atty. Antonio; he nevertheless demanded for and was accordingly furnished by the appellate court with a copy of the Decision on 26 April 2000. Despite their plea for reconsideration, the Court of Appeals denied their

motion and held that the "failure of the counsel for the defendants-appellants can never be considered or would constitute excusable negligence considering that [a] lawyer[s] should so arrange matters such that judicial communications sent by mail will reach him promptly and should he fail to do so, not only he but his clients as well must suffer the consequences of his negligence."[9] Undaunted, the Albanos moved for a second reconsideration but were once again rebuffed. Hence, this petition for certiorari under Rule 65 of the Rules of Court where petitioners pray that their Motion for Reconsideration be admitted into the records and the decision of the trial court awarding a portion of the property in favor of private respondent IFI be declared a nullity. Petitioners contend, as a first assignment of error, that the Court of Appeals acted without authority and jurisdiction in dismissing their Motion for Reconsideration despite its having been filed on time. Petitioners argue that since one of their lawyers was served with a copy of the Decision on 26 April 2000 then their Motion for Reconsideration, which was received by the Court of Appeals on 10 May 2000, was seasonably filed. In support of their position, petitioners assert that their counsel on record are entitled to separate service of the court's decision. It is further urged by petitioners that assuming Atty. Antonio had indeed been inattentive to their case then his negligence should not prejudice their "substantial or property rights" nor should it prevent them from fully exhibiting their cause.[10] Lastly, petitioners reiterate their stand in the Court of Appeals and stressed that the judgment of the trial court awarding a portion of the disputed property in favor of private respondent IFI should be nullified since private respondent is disqualified from holding lands of the public domain pursuant to Sec. 3, Art. XII, of the 1987 Constitution. [11] Petitioners invoke the ruling of the Court in Republic v. Iglesia ni Cristo where we held that a religious corporation sole, which has no nationality, is disqualified to acquire or hold alienable lands of the public domain except by lease.[12] In support of their position, petitioners admit that the disputed property "has not been titled under any law."[13] With regard to their first assignment of error, petitioners are on extremely shaky grounds when they argue that counsel on record are entitled to separate notices of the court's decision. This argument is obviously inconsistent with Sec. 2, Rule 13, of the Rules of Court which explicitly provides that if a party has appeared by counsel, "service upon him shall be made upon his counsel or one of them" (underscoring supplied). Clearly, notice to any one of the several counsel on record is equivalent to notice to all and such notice starts the time running for appeal notwithstanding that the other counsel on record has not received a copy of the decision. It appearing in the present case that a copy of the Decision of the appellate court was received by Atty. Juanito F. Antonio on 3 March 2000, then petitioners had until 18 March 2000 within which to move for reconsideration. As earlier stated, petitioners filed their motion for reconsideration only on 10 May 2000 or fifty-three (53) days from the expiration of the fifteen (15)-day reglementary period provided under the Rules of Court.[14] There is also much discussion by petitioners as to the merits of their petition. For one, they argue that as between the State and the IFI, the disputed property is still public land and the latter, as a corporation sole, is disqualified to own the property in view of the prohibition

imposed by the Constitution. Be that as it may, there is still an obstacle to the view advanced by petitioners which must be recognized. If it is petitioners' opinion that ownership of the disputed parcel of land is still vested in the State, then it is the State, and the State alone, that is entitled to question the occupation by IFI of the subject property. It is a fundamental principle in land registration that an opposition against a party's claim over a property must be based on the right of dominion, whether it be limited or absolute; and if the oppositor claims no right over the property, whatever it may be, then certainly he has no basis to question such claim.[15] WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals in CAG.R. No. CV 31630 which in turn affirmed the Decision of the RTC-Br. 13, Laoag City, in its Civil Case No. 6821 "declaring the IFI owner of a portion of the diputed property 'from the south running up to 55 meters to the north, more or less, at a point where the southern wall of the brick wall stands, including the convent and its immediate yard,' and the Albanos 'owner of the portion of the property actually occupied by the ruins of the brick house including the vacant space in front of the house,'" is in effect SUSTAINED insofar as the parties therein are concerned. SO ORDERED. Mendoza, Quisumbing, Buena and De Leon, Jr., JJ., concur.

FIRST DIVISION

[G.R. No. 140356. March 20, 2001]

DOLORES FAJARDO, petitioner, vs. COURT OF APPEALS and REXIE EFREN A. BUGARING, respondents. DECISION
PUNO, J.:

This is a petition for review on certiorari of the decision of the Court of Appeals dated February 4, 1999 and its resolution dated September 30, 1999 in CA-G.R. SP No. 49866 entitled "Dolores S. Fajardo vs. Hon. Percival M. Lopez, RTC, Branch 78, Quezon City, and Rexie Efren A. Bugaring." This case originated from a complaint filed by respondent Rexie Efren A. Bugaring before the Regional Trial Court of Quezon City against petitioner Dolores Fajardo for collection of attorney's fees. The complaint alleged that petitioner engaged the services of respondent to represent her in several civil and criminal cases pending before various courts. However, despite successful termination of some of these cases and subsequent demands made by respondent upon petitioner, the latter refused to pay respondent's fees. Respondent prayed that petitioner be ordered to pay

his unpaid attorney's fees and other legal service fees, plus interest, moral damages, exemplary damages, and other litigation expenses and costs.[1] Respondent was allowed to present evidence ex parte after the trial court declared petitioner as in default for failure to appear during the pre-trial. After the presentation of evidence, the trial court rendered a decision dated October 15, 1997 in favor of respondent. The dispositive portion stated: "ACCORDINGLY, judgment is hereby rendered in favor of plaintiff, Efren Rexie Bugaring and against defendant Dolores Fajardo, ordering the latter to pay plaintiff in the amount of THREE MILLION FIVE HUNDRED THIRTY TWO THOUSAND ONE HUNDRED SEVENTY (P3,532,170.00) PESOS for plaintiff's attorney's fees covering Civil Case No. B-3472 and Civil Case No. B-3896 plus legal interest reckoned from the time of the filing of this instant case, as actual and compensatory damages; plus costs of suit. SO ORDERED."[2] On December 10, 1997, respondent filed before the trial court a motion for correction of judgment. On February 3, 1998, petitioner, alleging that she received a copy of the trial court's decision on January 19, 1998, filed a notice of appeal. On the same day, the trial court denied the notice of appeal for being premature, considering that there was a pending motion for correction of the decision dated October 15, 1997.[3] On February 13, 1998, the trial court issued an order granting respondent's motion for correction. It revised the dispositive portion of the decision which now reads: "WHEREFORE, judgment is hereby rendered in favor of plaintiff, Efren C. Bugaring and against defendant Dolores Fajardo, ordering the latter to pay plaintiff in the amount of THREE MILLION FIVE HUNDRED THIRTY TWO THOUSAND ONE HUNDRED SEVENTY (P3,532,170.00) PESOS, Philippine Currency, for plaintiff's unpaid attorney's fees covering the legal cases which he handled in favor of defendant, as actual and compensatory damages; plus costs of suit. SO ORDERED."[4] Respondent subsequently filed a motion for issuance of a writ of execution which was granted by the trial court in its resolution dated September 28, 1998.[5]

On December 11, 1998, petitioner filed before the Court of Appeals a petition for certiorari seeking the annulment of: (1) Order dated February 3, 1998, (2) Order dated February 13, 1998, and (3) Resolution dated September 28, 1998, all issued by the trial court. She contended that the trial court acted with grave abuse of discretion in holding that the notice of appeal was premature because of the pendency of respondents motion for correction. She argued that said motion for correction was a mere scrap of paper because first, she was not furnished a copy thereof, and second, it contained no notice of hearing. She claimed that the filing of the notice of appeal perfected the appeal and consequently, the trial court no longer had jurisdiction over the case when it issued the order dated February 13, 1998 and resolution dated September 28, 1998.[6] The Court of Appeals dismissed the petition and affirmed the resolution of the trial court dated September 28, 1998 directing the issuance of a writ of execution. It held that the decision of the trial court became final and executory when petitioner failed to file a notice of appeal after she received a copy of the order amending its dispositive portion. The notice of appeal filed by petitioner on February 3, 1998 was not sufficient to elevate the case to the Court of Appeals as it was filed prematurely due to the pendency of the motion for correction filed by respondent. The Court of Appeals further ruled that even if the court considered the notice of appeal as an appeal from the original decision dated October 15, 1997, the same should still be dismissed for being late. Relying on the certification issued by Ms. Melina D. Oliva, Chief of Records Section, Philippine Postal Corporation, stating that a copy of the decision was received by petitioner on December 15, 1997, the Court of Appeals ruled that the notice of appeal submitted by petitioner on February 3, 1998 was filed out of time.[7] The Court of Appeals likewise denied petitioners motion for reconsideration.[8] Petitioner filed the instant petition with the following assignment of errors:
I. The Court of Appeals committed reversible error in finding that Branch 78 of the Regional Trial Court of Quezon City acted within its jurisdiction in issuing an amended decision after perfection of the appeal. II. The Court of Appeals committed reversible error in finding that Branch 78 of the Regional Trial Court of Quezon City acted within its jurisdiction in issuing Orders dated February 3 and 13, 1998 and Resolution dated September 28, 1998 after perfection of the appeal.[9]

The petition is impressed with merit. The Court of Appeals erred in ruling that the decision of the trial court dated October 15, 1997 as amended by its order dated February 13, 1998 became final and executory when petitioner failed to appeal therefrom within the reglementary period, and subsequently sustaining the validity of the order of execution issued by the trial court. It appears from the record that petitioner filed a notice of appeal from the

decision of the lower court dated October 15, 1997 on February 3, 1998. [10] The pendency of petitioners appeal tolled the finality of the assailed decision. Consequently, the resolution of the trial court ordering the execution of the assailed judgment was without basis. The lower court ruled that petitioners notice of appeal was premature due to the pendency of respondents motion for correction of judgment. It subsequently issued an order amending the original decision. We, however, find that these orders of the trial court were rendered without jurisdiction. These orders were issued in consideration of the motion for correction of judgment filed by respondent with the trial court. It appears, however, that said motion was defective as it did not have a proper notice of hearing. It did not specify the date and time of the hearing on the motion. This fact was never controverted by respondent. Such defect reduced the motion to a mere scrap of paper which may not be taken cognizance of by the court. The Rules of Court require that every written motion be set for hearing by the movant, except those motions which the court may act upon without prejudicing the rights of the adverse party. The notice of hearing must be addressed to all parties and must specify the time and date of the hearing. Sections 4 and 5 of Rule 15 of the 1997 Rules of Civil Procedure provide: Sec. 4. Hearing of motion. -- Except for motions which the court may act upon without prejudicing the rights of the adverse party, every written motion shall be set for hearing by the applicant. Every written motion required to be heard and the notice of the hearing thereof shall be served in such a manner as to ensure its receipt by the other party at least three (3) days before the date of hearing, unless the court for good cause sets the hearing on shorter notice. Sec. 5. Notice of hearing. -- The notice of hearing shall be addressed to all parties concerned, and shall specify the time and date of the hearing which must not be later than ten (10) days after the filing of the motion. A motion without notice of hearing is pro forma, a mere scrap of paper. It presents no question which the court could decide. The court has no reason to consider it and the clerk has no right to receive it. The rationale behind the rule is plain: unless the movant sets the time and place of hearing, the court will be unable to determine whether the adverse party agrees or objects to the motion, and if he objects, to hear him on his objection.[11] The objective of the rule is to avoid a capricious change of mind in order to provide due process to both parties and ensure impartiality in the trial.[12]

Hence, the orders dated February 3, 1998 and February 13, 1998 issued by the trial court based on a pro forma motion are of no force and effect. Respondent asserts that petitioners appeal was ineffective as she failed to pay the appeal docket fee. The argument is not well-taken. A partys omission to pay the appeal docket fee does not automatically result in the dismissal of the appeal. The failure to pay the appellate court docket fee within the reglementary period confers a discretionary, and not mandatory, power to dismiss the proposed appeal. Such power should be used in the exercise of the courts sound judgment in accordance with the tenets of justice and fair play and with great deal of circumspection, considering all attendant circumstances. Said discretion must be exercised wisely and prudently, never capriciously, with a view to substantial justice.[13] As regards the timeliness of petitioners notice of appeal, we find that the same was properly filed within the reglementary period. While it is true that the Chief of the Records Section of the Quezon City Central Post Office did certify that a copy of the decision was received by a certain Gloria Fajardo at petitioners given address on December 15, 1997,[14] the registry return receipt shows that a copy of the decision was received by petitioners counsel only on January 19, 1998.[15] The appeal should be taken within fifteen (15) days from notice of the judgment appealed from. [16] The fifteen-day period for filing the appeal should be counted from the date when petitioners counsel received a copy of said judgment because that is the effective service of the decision, not the service upon petitioner herself. When a party is represented by counsel, service of process must be made on counsel, not on the party. [17] thus, counting from the date of receipt of the decision by petitioners counsel on January 19, 1998, we find that the notice of appeal filed on February 3, 1998 was timely. IN VIEW WHEREOF, the petition is GRANTED. The Decision of the Court of Appeals dated February 4, 1999 and its Resolution dated September 30, 1999 are REVERSED and SET ASIDE. The Order dated February 3, 1998, Order dated February 13, 1998, and Resolution dated September 28, 1998, all issued by the trial court are likewise SET ASIDE. Let this case be REMANDED to the trial court for proper disposition. SO ORDERED. Davide, Jr., C.J., (Chairman), Kapunan, Pardo, and Ynares-Santiago, JJ., concur.

THIRD DIVISION

[G.R. No. 144533. September 23, 2003]

JIMMY L. BARNES a.k.a. JAMES L. BARNES, petitioner, vs. TERESITA C. REYES, ELIZABETH C. PASION, MA. ELSA C. GARCIA, IMELDA C. TRILLO, MA. ELENA C. DINGLASAN and RICARDO P. CRISOSTOMO, respondents. RESOLUTION
CORONA, J.:

This petition for review seeks to set aside the resolution of the Court of Appeals dated August 21, 2000 denying petitioner Jimmy L. Barnes a.k.a. James L. Barnes motion for reconsideration dated August 29, 2000 praying for the reinstatement of the Court of Appeals resolution dated December 15, 1999 dismissing respondent Teresita C. Reyes petition for review.
[1] [2]

This case emanated from a complaint for ejectment filed by siblings Teresita C. Reyes, Elizabeth C. Pasion, Imelda C. Trillo. Ma. Elena C. Dinglasan and Ricardo P. Crisostomo against petitioner Jimmy Barnes. The Metropolitan Trial Court, Branch 35 of Quezon City ruled in favor of Teresita and her co-parties. On appeal to the Regional Trial Court, Branch 227 of Quezon City, the said decision of the Metropolitan Trial Court was reversed. On December 9, 1999, respondents Teresita C. Reyes and her siblings filed a petition for review in the Court of Appeals. In its resolution dated December 15, 1999 the Court of Appeals dismissed the petition: The verification and certification on non-forum shopping was signed only by one of the six petitioners without any showing that the signatory (Teresita C. Reyes) was duly authorized to bind her fellow petitioners. Aside from that, no written explanation was submitted why copies of the petition have to be furnished the respondents by registered mail, instead of personal service (Solar Team Entertainment vs. Hon. Helen Bautista Ricafor, et al., 293 SCRA 661). The Petition for Review is denied due course and is hereby DISMISSED. SO ORDERED.
[3]

On February 4, 2000, Teresita filed a motion for reconsideration attaching therewith the Special Power of Attorney executed by the other five petitioners specifically authorizing her to sign the verification and certification page of their petition and file it on their behalf. The Court of Appeals required

petitioner Barnes to comment thereon. Petitioner complied and opposed respondents motion for reconsideration. On May 25, 2000, the Court of Appeals found respondents motion for reconsideration meritorious and reinstated their petition for review. Thereafter, petitioner was ordered to comment to respondents reinstated petition. On June 13, 2000, petitioner moved for the reconsideration of the aforesaid resolution of the Court of Appeals. After respondents filed their opposition thereto, the Court of Appeals, in its resolution dated August 21, 2000, denied petitioners motion for reconsideration for lack of merit. Hence, the instant petition before us. Petitioner Barnes contends that respondents petition for review in the CA suffered from two legal deficiencies. First, five out of the six respondents failed to signed the verification of their petition for review. He asserts that the subsequent filing of the Special Power of Attorney by respondents showing the authority of Teresita to file the petition in their behalf did not cure the fatal defect. Petitioner maintains that the six respondents were co-owners with equal shares of the subject property and thus were indispensable parties to the petition for review in the Court of Appeals. The subsequent compliance with the certification requirement on non-forum shopping could not excuse the failure to comply in the first instance. Second, respondents failed to comply with Section 11, Rule 13 of the 1997 Revised Rules of Civil Procedure requiring that pleadings and other papers must be personally served on the other party. A resort to other modes with a written explanation why the service was not made personally should have been included in the pleadings, otherwise, the pleadings should be considered as not filed. Petitioner opines that rules of procedure instituted by this Court should be mandatorily adhered to and observed by the members of the bench and bar, otherwise, coordination, consistency and discipline cannot be attained. Respondents, however, submit a contrary view. It is their position that the rule against forum-shopping was substantially complied with upon the subsequent filing of the Special Power of Attorney duly executed even before the filing of their petition for review in the Court of Appeals. The said Special Power Attorney was not required by the rules to be attached to the petition and thus became a matter of evidence if the authority was questioned, respondents argue.

As to the alleged non-compliance with Section 11, Rule 13 (on proof of service) of the 1997 Revised Rules on Civil Procedure, respondents claim that the rule on priorities in the modes of service and filing of pleadings is merely directory and not mandatory. In the case before the Court of Appeals, there was substantial compliance with the requirement with the attachment of the affidavit of service to the petition there. The petition before us must necessarily fail. Section 5, Rule 7 of the Revised Rules of Civil Procedure provides: x x x The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasijudicial agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed. xxx x xxx With respect to the contents of the certification which the pleader may prepare, the rule of substantial compliance applies. While this section requires that it be strictly complied with, in essence, what it means is that it cannot be altogether dispensed with or its requirements completely disregarded. But it does not thereby rule out substantial compliance under justifiable circumstances. The rule against forum-shopping was designed to serve as an instrument to promote and facilitate the orderly administration of justice and should not be interpreted with such absolute literalness as to subvert its ultimate objective the goal of all rules of procedure of achieving substantial justice as expeditiously as possible.
[4]

xx

In the instant case, the Court of Appeals correctly reconsidered the dismissal of the respondents petition after being informed of and presented with the authority of Teresita to sign the verification and certification of the petition, and file the same in the Court of Appeals. We note that Teresita represented her co-parties, who are her siblings, in the commencement of the action in the Metropolitan Trial Court and later in the Regional Trial Court,

both in Quezon City. Her authority therein was never questioned as she was, in fact, authorized by her co-parties to handle the case. The Rules of Civil Procedure should be applied with reason and liberality. This is called for specially because, as in the instant case, the strict application of the no forum-shopping rule will not serve the ends of justice.
[5]

The Court of Appeals has yet to determine the rights of the parties and decide the case on the merits. Technical rules, therefore, must yield to a more resolute judgment by the Court of Appeals based on the evidence as submitted by both parties. Furthermore, the rule on priorities in modes of service and filing of pleadings (insofar as it refers to the effects of non-compliance) is merely directory. Section 11, Rule 13 of the 1997 Revised Rules of Civil Procedure states: 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. The rule suggests the preferential mode of serving pleadings and other papers personally on the other party to ensure (and prove) the latters receipt thereof. The preference is apparent from the phrase whenever practicable. It is then incumbent upon the court to use its discretion in determining whether substantial justice will be served (or rights unjustifiably prejudiced) if it resolves to dismiss a petition because of non-compliance with a mere directory rule. We say directory because of the use of the word may. As aptly held in the case of Security Bank Corporation vs. Court of Appeals:
[6]

A litigation is rather a contest in which each contending party fully and fairly lays before the court the facts in issue and then, brushing aside as wholly trivial and indecisive all imperfections of form and technicalities of procedure, asks that justice be done on the merits. Finally, petitioner Barnes filed the instant petition pursuant to Rule 45 of the 1997 Revised Rules of Civil Procedure after the Court of Appeals denied his motion for reconsideration. However, Section 9, Rule 37 of the said rules provides that an order denying a motion for reconsideration is not appealable, the remedy being to appeal the judgment or final order itself. An order

denying a motion for reconsideration is interlocutory in nature and is therefore not appealable.
[7]

WHEREFORE, the petition is hereby DENIED. SO ORDERED. Puno, (Chairman), Panganiban, Sandoval-Gutierrez, and Carpio-Morales, JJ., concur.

SECOND DIVISION

[A.M. No. RTJ-04-1886. May 16, 2005]

ALFREDO G. BOISER, complainant, vs. JUDGE JOSE Y. AGUIRRE, JR., REGIONAL TRIAL COURT, BRANCH 55, HIMAMAYLAN CITY, NEGROS OCCIDENTAL, respondent. DECISION
CHICO-NAZARIO, J.:

The instant administrative case arose from the complaint of Alfredo G. Boiser filed with the Office of the Court Administrator (OCA) charging Judge Jose Y. Aguirre, Jr., Regional Trial Court (RTC) of Himamaylan City, Negros Occidental, Branch 55, with Grave Abuse of Discretion and Gross Ignorance of the Law.
[1]

Complainant Alfredo Boiser was the plaintiff in an ejectment case filed before the Municipal Trial Court (MTC) of Himamaylan City, Negros Occidental. On 11 July 2003, the MTC rendered a decision in favor of complainant, the dispositive portion of which reads:
[2]

WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendant as follows: 1) For the defendant to vacate subject land known as Lot No. 2023 situated at Brgy. Candumarao, Hinigaran, Negros Occiental, consisting of 5.5536 hectares leased by the plaintiff from Mary Nonasco and Ofelia Donado, heirs of the registered owners, the late spouses Narciso Gayares and Paz Nava, and to peacefully turn over possession thereof to the plaintiff;

2) For the defendant to pay plaintiff the amount of P200,000.00 by way of actual damages; 3) For defendant to pay plaintiff attorneys fees in the amount of P10,000.00 plus P1,000.00 as appearance fee and to pay the cost. The writ of preliminary injunction issued by the Court is hereby ordered dismissed. The case was appealed to the RTC of Negros Occidental, Branch 55. On 15 October 2003, defendant-appellant Salvador Julleza filed a motion to release bond on the ground that the MTC of Hinigaran, Negros Occidental, in its decision dated 11 July 2003, had already resolved the writ of preliminary injunction without mentioning the applicants liability. On 16 October 2003, respondent judge granted the motion.
[3]

Complainant alleged that the issuance by respondent judge of the Order dated 16 October 2003 is indicative of his ignorance of the law considering that the motion did not state that he was furnished a copy of the motion thereby depriving him of his right to due process. He also averred that the motion was a mere scrap of paper for failure to state the time and date of hearing. He further alleged that respondent manifested gross ignorance when he resolved to grant the motion to release the injunction bond considering that the same was meant to answer for damages that he may suffer due to defendants continued illegal possession of the land. On 15 January 2004, the OCA required respondent to file his comment.
[4]

In his comment dated 12 February 2004, respondent judge maintained that the filing of the administrative complaint against him is hasty and uncalled for. He said there must have been a miscommunication between the complainant and his counsel because had either of them exerted effort to find out the result of the appealed case, they would have discovered that he affirmed in toto the decision of the lower court in favor of the complainant.
[5]

On 14 April 2004, complainant filed a motion to withdraw complaint.

[6]

On 3 August 2004, the OCA submitted its recommendation, thus:

[7]

Respectfully submitted to the Honorable Court our recommendation that this administrative case be RE-DOCKETED as a regular administrative matter and that respondent Judge Jose Y. Aguirre, Jr., be FINED in the amount of P21,000.00 for Gross Ignorance of the Law and be STERNLY WARNED that a repetition of the same or similar acts will be dealt with more severely.

On 17 November 2004, we referred the case to Court of Appeals Justice Monina Zenarosa for investigation, report and investigation. Consequently, the case was scheduled for preliminary conference on 17 February 2005. On the said date, complainant Alfredo Boiser, with his counsel Atty. Salvador Sabio, and respondent judge appeared. During the preliminary conference, Atty. Sabio manifested that the complainant had already filed his motion to withdraw the complaint and was no longer interested in pursuing the case. On the other hand, respondent judge manifested he had retired from the service as of 01 November 2004 and is now appearing as a private citizen. He further informed the court that he was submitting the case without further comment as he had already filed his comment to the complaint.
[8]

After investigation, Justice Zenarosa submitted her report recommending the dismissal of the complaint.
[9]

Prefatorily, the Court must reiterate the rule that mere desistance on the part of the complainant does not warrant the dismissal of an administrative complaint against any member of the bench. The withdrawal of complaints cannot divest the Court of its jurisdiction nor strip it of its power to determine the veracity of the charges made and to discipline, such as the results of its investigation may warrant, an erring respondent. The courts interest in the affairs of the judiciary is a paramount concern that must not know bounds.
[10]

Anent respondents retirement on 01 November 2004, it has been settled that the Court is not ousted of its jurisdiction over an administrative case by the mere fact that the respondent public official ceases to hold office during the pendency of respondents case. This was expounded in the case of Perez v. Abiera, cited in the case of Judge Rolando G. How v. Teodora Ruiz, et. al., thus:
[11] [12] [13]

[T]he jurisdiction that was Ours at the time of the filing of the administrative complaint was not lost by the mere fact that the respondent public official had ceased to be in office during the pendency of his case. The court retains its jurisdiction either to pronounce the respondent official innocent of the charges or declare him guilty thereof. A contrary rule would be fraught with injustices and pregnant with dreadful and dangerous implications. x x x If only for reasons of public policy, this Court must assert and maintain its jurisdiction over members of the judiciary and other officials under its supervision and control for acts performed in office which are inimical to the service and prejudicial to the interests of litigants and the general public. If innocent, respondent official merits vindication of his name and integrity as he leaves the government which he served well and faithfully; if guilty, he deserves to receive the corresponding censure and a penalty proper and imposable under the situation.

We shall now discuss respondents liability relative to the lack of notice of hearing and proof of service of the questioned motion. The Rules of Court requires that every motion must be set for hearing by the movant, except those motions which the court may act upon without prejudicing the rights of the adverse party. The notice of hearing must be addressed to all parties and must specify the time and date of the hearing, with proof of service. Sections 4, 5 and 6 of Rule 15 of the 1997 Rules on Civil Procedure provide: SECTION 4. Hearing of motion.- Except for motions which the court may act upon without prejudicing the rights of the adverse party, every written motion shall be set for hearing by the applicant. Every written motion required to be heard and the notice of the hearing thereof shall be served in such a manner as to ensure its receipt by the other party at least three (3) days before the date of hearing, unless the court for good cause sets the hearing on shorter notice. SEC. 5. Notice of hearing.- The notice of hearing shall be addressed to all parties concerned, and shall specify the time and date of the hearing which must not be later than ten (10) days after the filing of the motion. SEC. 6. Proof of service necessary.- No written motion set for hearing shall be acted upon by the court without proof of service thereof. It appears that the Motion to Release Bond was defective as it did not have a proper notice of hearing. The date and time of the hearing were not specified. Neither complainant nor his counsel was furnished a copy thereof. These were never controverted by respondent judge. A motion without notice of hearing is pro forma, a mere scrap of paper. It presents no question which the court could decide. The court has no reason to consider it and the clerk has no right to receive it. The rationale behind the rule is plain: unless the movant sets the time and place of hearing, the court will be unable to determine whether the adverse party agrees or objects to the motion, and if he objects, to hear him on his objection, since the rules themselves do not fix any period within which he may file his reply or opposition. The objective of the rule is to avoid a capricious change of mind in order to provide due process to both parties and ensure impartiality in the trial.
[14] [15]

Also, without proof of service to the adverse party, a motion is nothing but an empty formality deserving no judicial cognizance. The rule mandates that the same shall not be acted upon by the court. Proof of service is mandatory.
[16] [17]

As can be seen the law involved is simple and elementary, lack of conversance therewith constitutes gross ignorance of the law. Judges are expected to exhibit more than just cursory acquaintance with statutes and procedural laws. They must know the laws and apply them properly in all good faith. Judicial competence requires no less.
[18]

Clearly, respondent judge had ignored a fundamental rule. He acted too precipitately in granting defendants motion despite the absence of the requirements as above prescribed. As a judge, Judge Aguirre is expected to keep abreast of laws and prevailing jurisprudence. Unfamiliarity with the rules is a sign of incompetence. Basic rules must be at the palm of his hand. A judge must be acquainted with legal norms and precepts as well as with procedural rules. When a judge displays utter lack of familiarity with the rules, he erodes the confidence of the public in the courts. Ignorance of the law by a judge can easily be the mainspring of injustice.
[19] [20] [21] [22]

Thus, in the following cases a fine of Five Thousand Pesos was imposed: 1. In Mutilan v. Adiong, A.M. No. RTJ-00-1581, 2 July 2002, 383 SCRA 513, the Court found respondent judge guilty of gross ignorance of the law for granting a motion for garnishment without compliance with the proof of service and notice of hearing requirements, and was sentenced to pay a fine of Five Thousand (P5,000.00) Pesos with a stern warning that repetition of the same or similar acts in the future will be dealt with more severely.
[23]

2. In Espino v. Salubre, the court found respondent judge guilty of gross ignorance of the law and was sentenced to pay a fine of Five Thousand Pesos (P5,000.00), when respondent judge continued with the investigation and subsequent issuance of a warrant of arrest against complainant notwithstanding that the records of the case had been transmitted to the provincial fiscal and an information has already been filed in court.
[24]

3. In Josefina M. Villanueva v. MTC Judge Benjamin E. Almazan, the court found respondent judge guilty of gross ignorance of the law and was sentenced to pay a fine of Five Thousand Pesos (P5,000.00), with stern warning that a repetition of the same or similar act shall be dealt with more severely, when he conducted a preliminary investigation in a case cognizable by the Municipal Trial Court.
[25]

4. In Acting Solicitor General Romeo de la Cruz v. Judge Carlito A. Eisma, RTC, Branch 13, Zamboanga City, a fine of P5,000.00 was imposed on the respondent judge for gross ignorance of the law and abuse of authority, for preventing the execution of the decision of the RTC, Branch 17, a court of equal rank and jurisdiction.
[26]

Ignorance of the law, which everyone is bound to know, excuses no one much more so judges. It is a truism that the life chosen by a judge as a dispenser of justice is one which is demanding. By virtue of the delicate position which he occupies in the society, he is duty bound to be the embodiment of competence and integrity. Because of this, a judge who is not knowledgeable of the law which he is obligated to implement will not be able to live up to the judiciarys exacting standards.
[27] [28] [29]

WHEREFORE, the Court finds Judge Jose Y. Aguirre, Jr., of the Regional Trial Court of Negros Occidental, Branch 55, guilty of gross ignorance of the law, and hereby imposes on him a fine of FIVE THOUSAND PESOS (P5,000.00) to be deducted from his retirement benefits. SO ORDERED. Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.

THIRD DIVISION

[G.R. No. 141180. January 11, 2005]

GERTRUDES TEH, petitioner, vs. THE PHILIPPINES, respondent. DECISION

SANDOVAL-GUTIERREZ, J.:

THE

PEOPLE OF

Before us is the petition for review on certiorari filed by Gertrudes Teh assailing the Resolution of the Court of Appeals dated October 4, 1999 in CA-G.R. CR No. 23482 dismissing her petition for review and its Resolution dated November 29, 1999 denying her motion for reconsideration.
[1]

The factual backdrop of this case is as follows:

Petitioner Gertrudes Teh and Josalie Baguio were charged with estafa before the Municipal Trial Courts in Cities (MTCC), Branch 2, Davao City. The Information, docketed as Criminal Case No. 45,542-B-96, reads: That on or about December 18, 1995, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, above-mentioned accused received on consignment basis from Rodsons Collection Center, represented by Elizabeth E. Maridable, goods worth P1,583.00 with the express obligation on her part to sell the consigned items and to remit the proceeds from the sale or to return the same if unsold to said complainant; but far from complying with the aforesaid obligation, with grave abuse of confidence and in violation of trust and with intent to defraud, the said accused willfully and unlawfully failed to remit the proceeds from the sale nor to return the same items despite demands therefore, thereby misappropriating and converting the same to her personal use and benefit, to the damage and prejudice of herein complainant in the said amount. CONTRARY TO LAW. Upon arraignment, petitioner, assisted by counsel, pleaded not guilty to the charge. Josalie Baguio has remained at large. The evidence for the prosecution show that petitioner was formerly an area manager of Rodsons Collection Center which sells various personal products, such as ladies T-shirts and perfumes, mens cologne, care soap and shading strip. Under her were several dealers, one of whom was Josalie Baguio. Based on a ride on system, the area manager was allowed in certain instances to withdraw stocks for sale in the name of the dealer, provided that both would sign a trust receipt agreement. The trust receipt agreement provides that they should remit the proceeds of the goods sold within a specified time. If not sold, then they should return the unsold items to Rodsons Collection Center. On December 18, 1995, petitioner and Josalie Baguio withdrew from the Rodsons Collection Center several items consisting of mens cologne, soap, and other sundries worth P1,583.00. Both signed the required trust receipt agreement. However, petitioner and Josalie failed to remit the proceeds of the sale despite Rodsons Collection Centers several demands, hence, they were charged with estafa. Petitioner contends that while she signed the trust receipt agreement, however, she did so only for the purpose of identifying her as the area

manager of Josalie Baguio. She denied receiving any item. The stocks withdrawn were for the account of Josalie. On February 15, 1999, the MTCC rendered its Decision, the dispositive portion of which reads: WHEREFORE, finding accused GERTRUDES TEH guilty beyond reasonable doubt, she is hereby sentenced to an imprisonment of THREE (3) MONTHS of arresto mayor as minimum to TWO (2) YEARS and FOUR (4) MONTHS of prision correccional as maximum; to indemnify the offended party the sum of ONE THOUSAND FIVE HUNDRED EIGHTY THREE PESOS (P1,583.00) and to pay the proportionate share of the costs. Accused is further ordered to indemnify the offended party expenses incurred in enforcing her claim from the time the case was filed in 1996 to its final termination in 1999, which the Court hereby fixed as reasonable in the amount of One Thousand Pesos (P1,000.00). As regards accused JOSALIE S. BAGUIO who remains at-large, let the case be sent to the ARCHIVES to be withdrawn therefrom as soon as she is apprehended. SO ORDERED.
[2]

In finding petitioner guilty as charged, the MTCC ruled that inasmuch as she signed the trust receipt agreement, she is bound by the terms stipulated therein. Her failure to remit the proceeds or to return the goods to Rodsons Collection Center constitutes estafa under Article 315(1) of the Revised Penal Code. On appeal, the Regional Trial Court (RTC), Branch 10, Davao City, affirmed the MTCC Decision. Petitioner then elevated the matter to the Court of Appeals by way of a petition for review. However, the Court of Appeals dismissed the petition for being insufficient in form, not being accompanied by duplicate original or certified true copies of the documents and material parts of the record that would support the allegations. Moreover, there was no written explanation why service of the petition was not done personally. Petitioner filed a motion for reconsideration but was denied by the Appellate Court.

Hence, the instant petition. Petitioner submits that the Court of Appeals erred in holding that she failed to comply with Section 2, Rule 42 and Section 11, Rule 13 of the 1997 Rules of Civil Procedure, as amended. In his comment on the petition, the Solicitor General maintains that the Court of Appeals did not err in dismissing the petition in CA-G.R. CR No. 23482. Section 2, Rule 42 of the same Rules provides: SEC. 2. Form and contents. The petition shall be filed in seven (7) legible copies, with the original copy intended for the court being indicated as such by the petitioner, and shall (a) state the full names of the parties to the case, without impleading the lower courts or judges thereof either as petitioners or respondents; (b) indicate the specific material dates showing that it was filed on time; (c) set forth concisely a statement of the matters involved, the issues raised, the specification of errors of fact or law, or both, allegedly committed by the Regional Trial Court, and the reasons or arguments relied upon for the allowance of the appeal; (d) be accompanied by clearly legible duplicate originals or true copies of the judgments or final orders of both lower courts, certified correct by the clerk of court of the Regional Trial Court, the requisite number of plain copies thereof and of the pleadings and other material portions of the record as would support the allegations of the petition. x x x We note that petitioner herself admits that the only documents attached to the petition in CA-G.R. CR No. 23482 were certified true copies of the Decisions of the RTC and the MTCC. There were no copies of the pleadings filed below or other material portions of the record which would support the allegations in the petition. Indeed, this is contrary to Section 2, Rule 42 quoted above. Section 11, Rule 13 of the 1997 Rules of Civil Procedure reads: 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. Again, petitioner admits that she failed to comply with the above provision. She contends, however, that no prejudice was caused to the parties by her non-compliance.

Clearly, petitioner violated both provisions quoted above which warrants the dismissal of her petition by the Court of Appeals. We thus rule that in dismissing the petition in CA-G.R. CR No. 23482, the Court of Appeals did not commit any error. WHEREFORE, the petition is DENIED. The Resolutions of the Court of Appeals dated October 4, 1999 and November 29, 1999 in CA-G.R. CR No. 23482 are AFFIRMED. Costs against petitioner. SO ORDERED. Panganiban, JJ., concur. (Chairman), Corona, Carpio-Morales, and Garcia,

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-57343 July 23, 1990 LUISA ECHAUS, petitioner, vs. COURT OF APPEALS, EMILIO GONZALES and VIVIAN GONZALES, respondents. Celso de las Alas for petitioner. Mary Carolynn S. Que-Albay for private respondents.

NARVASA, J.: Time honored and of constant observance is the principle that no judgment, or order whether final or interlocutory, has juridical existence until and unless it is set down in writing, signed, and promulgated, i.e., delivered by the Judge to the Clerk of Court for filing, release to the parties and implementation, 1 and that indeed, even after promulgation, it does not bind the parties until and unless notice thereof is duly served on them by any of the modes prescribed by law. 2 This is so even if the order or judgment has in fact been orally pronounced in the presence of the parties, or a draft thereof drawn up and signed and/or copy thereof somehow read or acquired by any party. 3 In truth, even after promulgation (i.e., filing with the clerk of court), and even after service on the parties of notice of an order or judgment, the Court rendering it indisputably has plenary power to recall and amend or revise it in substance or form on motion of any party or even motu proprio, provided that in the case of a final order or judgment, the same has not attained finality. 4 The appellate proceedings at bar originated from an action for collection of an indebtedness of P141,000.00 instituted in the then Court of First Instance of Quezon City by the Spouses Emilio

Gonzales and Vivian Gonzales against Luisa Echaus. 5 The action resulted in a judgment containing the following dispositive portion, to wit: 6 WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and against the defendant for the principal amount of P97,600.00 with interest thereon at ten percent (10%) per annum from the date of the filing of the complaint on December 14, 1978 until fully paid plus the costs of the suit. The plaintiffs are directed to return the watch which the plaintiffs claim to be valued at P8,000.00 but which value is not acceptable to the defendant, upon full payment by the defendant of her obligation to the plaintiffs. Luisa Echaus was duly served with notice of the judgment, and within the thirty-day period then prescribed for taking an appeal, filed a notice of appeal and appeal bond, as well as a motion for extension of time to file a record on appeal. 7 The respondent Judge denied the appeal it appearing, in his view, "that the decision rendered in this case ... was based strictly on the admission, agreement and waiver made by both parties at the previous pre-trial.." 8 Echaus promptly filed a motion for reconsideration of the order dismissing her appeal. She also filed the requisite record on appeal. About a week later, however, the respondent Judge ordered the issuance of a writ of executionin favor of the plaintiffs, the Spouses Emilio Gonzales and Vivian Gonzales. 9 Echaus hied herself off to the Court of Appeals, praying for the issuance of writs of certiorari and mandamus to annul the decision and orders of respondent Judge, and compel him to give due course to her appeal. 10 Her action was docketed as CA-G.R. No. SP-10149-R. Her plea for the writ of certiorari ("to set aside the decision .. in the stated Civil Case No. Q-26572") was denied, but her plea for the writ of mandamus was GRANTED by the judgment dated February 18, 1980 of the Court of Appeals which accordingly ordered the Judge "to give due course to the appeal of petitioner in the same said case." 11 The Gonzales Spouses' attempt to have this Court reverse the judgment of the Court of Appeals was unsuccessful. Their petition for review on certiorari 12 was denied by Resolution dated July 11, 1980 because filed late and having, in any case, no merit. On December 9, 1980, Echaus filed with the Trial Court an "Urgent Motion to Transmit Record on Appeal and other Pertinent Papers to the Appellate Court," which she set for hearing on December 15, 1980. 13 The Gonzales Spouses also filed on the same date but apparently at an earlier hour, 14 a "Motion for Execution Pending Appeal," which they set for hearing on December 18, 1980. 15 Echaus then presented an "Urgent Supplemental Motion to Implement ... (Judgment) of Court of Appeals dated February 18, 1980" 16 which judgment, as aforestated, required respondent Judge to give due course to her appeal. According to Echaus, at the hearing on December 15, 1980 of her aforesaid motion to transmit record on appeal and other papers to the Court of Appeals, respondent Judge verbally approved the record on appeal in open court, this allegedly being "evidenced by the calendar of Branch V .. (showing) the word 'APPROVED' written opposite the incident 'Urgent Motion to Transmit Record on Appeal, etc.,' with crossed markings. " 17 What was subsequently released by the Court, however, under date of December 15, 1980, was an order signed by His Honor holding "approval of defendant's record on appeal .. in abeyance until after the consideration and resolution of plaintiffs' .. Motion for Execution Pending Appeal' which is set for hearing on December 18, 1980 at 8:00 o'clock in the morning." 18

On December 19, 1980 Echaus moved for reconsideration of the Order of December 15, 1980. Without however waiting for its resolution, she filed on December 29, 1980 a motion in the Court of Appeals in CA-G.R. No. SP-10149-R praying inter alia that the Trial Judge be required to comply with the decision of February 18, 1980 and show cause why he should not be held in contempt of court for having thus far refused to do so. 19 After appropriate proceedings, the Court of Appeals denied Echaus's motion for lack of merit, by Resolution dated March 18, 1981. 20 It observed that "there was no wilful or deliberate refusal to comply with the decision .. dated February 18, 1980;" that what respondent Judge had been commanded to do by the decision was that he "should .. proceed to give due course to the appeal by considering and acting" thereon, but immediate transmittal of said record could not be compelled in the premises "because the correctness or accuracy .. (thereof) should be first passed upon and certified by the court a quo," even if there were no opposition thereto. The Court also pointed out that deferment of approval of the record on appeal had been ordered by the Trial Judge in keeping "with the proper and orderly procedure to the end that all pending incidents .. before him be first resolved .. in order that said incidents be not rendered moot and academic by the approval of said ... record on appeal;" and that, citingLaurilla v. Uichangco, et al., 104 Phil. 171 A verbal order or a mere notation in the minutes of the calendar of the court a quo .. indicating approval of the .. record on appeal is, in our view, not yet the ultimate and requisite formal order of approval of said record on appeal that would divest the court a quo of its jurisdiction to act on pending incidents. Even a written order approving a record on appeal may still be subject to a motion for reconsideration of an opposing party. If a written order which has not acquired finality may still be reconsidered by the court, with more reason can respondent judge modify his verbal order that has not been implemented nor even made known to the other party in the case. The Court of Appeals finally resolved that "as the motion for execution pending appeal is conceded to have been filed by the plaintiffs before the court below had approved (but only verbally) petitioner's record on appeal, the court a quo therefore still retained its jurisdiction to resolve the pending motion for execution pending appeal." Echaus subsequently asked the Court of Appeals to reconsider the Resolution. The Court of Appeals refused. But in its Resolution denying reconsideration, dated June 22, 1981, 21 the Court declared that it was prompted .. to enjoin the respondent judge to act upon and set for hearing and resolve at the soonest time possible, the stated motion for execution pending appeal if this incident is still pending before that Court, so that there will remain no further reason or cause for withholding his resolution on the petitioner's record on appeal or such other pleadings and orders as may be necessary for the perfection of petitioner's appeal. Then upon the formal approval of the record on appeal the case can be transmitted to this Court, in compliance with the judgment rendered in this case that the petitioner's appeal be given due course. All these, respondent judge is strongly urged to act upon with promptness and dispatch. These Resolutions-of March 18, 1981 and June 22, 1981 are challenged in the appellate proceeding at bar, initiated by petition for review on certiorari presented by Echaus. In this Court, Echaus argues that it was reversible error for the Court of Appeals to have "ignored the fact that .. (her) appeal had in fact been perfected when the Trial Judge (verbally) ordered the record

on appeal approved on December 15, 1980 and, in the light of the ruling of the Supreme Court in the case of Cabilao et al. v. Judge of the Court of First Instance of Zamboanga, 17 SCRA 992, any further action on the part of the Trial Judge in the case, particularly on respondent spouses' motion for execution pending appeal is null and void." 22 The argument is patently without merit and is here given short shrift. In line with the fundamental principles set forth in the opening paragraph of this opinion, the oral order approving the record on appeal had no juridical existence; to give it that existence it had to be reduced to writing and promulgated (i.e., Med with the clerk of court). 23 But even if it had been written and promulgated, indeed even if it had already been properly served on the parties, it nonetheless was yet plainly within the power of the Judge to recall it and set it aside. For every court has the inherent power, among others, to "amend and control its process and orders so as to make them conformable to law and justice." 24 And this Court has had occasion to rule that a trial court may set aside its order approving a record on appeal prior to the transmittal of the record. 25 So, even conceding arguendo, efficacy to the oral order approving Echaus's record on appeal, the respondent Judge nevertheless had the power to recall said order, or, as he actually did, hold approval thereof in abeyance until after he had resolved other pending incidents. This Court thus perceives no error on the part of the Appellate Court in giving its imprimatur to that act of the respondent Judge in the light of the attendant circumstances. To all intents and purposes, Echaus's record on appeal had never been approved. Now, the doctrine prevailing at the time was that prior to the approval of the record on appeal, the Trial Court retained jurisdiction to grant execution pending appeal, that approval being in fact the operative act denoting the end of the court's power to grant execution pending appeal. 26 The respondent Judge, therefore, cannot be deemed to have acted without or in excess of his jurisdiction, or to have gravely abused his discretion, in deferring action on the record on appeal so that he might first resolve the motion for execution pending appeal. Of course, as is by now known to all, the rules for taking an appeal to the Court of Appeals, and for execution pending appeal have since been altered and simplified. Under Batas Pambansa Bilang 129, appeals from final judgments or orders of the Regional Trial Court are taken to the Court of Appeals simply by filing a notice of appeal. 27 The requirement to file an appeal bond 28 or record on appeal has been done away with, except in special proceedings or actions in which multiple appeals are allowed in which cases a record on appeal is still needed. 29 Under the same BP129, an appeal by notice of appeal is deemed perfected upon the expiration of the last day to appeal by either party; and in the exceptional cases where a record on appeal is still required, the appeal is perfected upon approval thereof. 30 It should however be noted that a motion for execution pending appeal filed before perfection of an appeal by mere notice, may still be acted upon and granted after such perfection but before transmittal of the record to the appellate court. 31 WHEREFORE, the petition is DENIED for lack of merit, with costs against the petitioner. This Decision is immediately executory. SO ORDERED. Cruz, Gancayco, Grio-Aquino and Medialdea, JJ., concur.

THIRD DIVISION

[G.R. No. 143646. April 4, 2001]

SPOUSES HENRY G. LIM and ROSARIO T. LIM, petitioners, vs. PEPITO M. VERA CRUZ, respondent. DECISION
SANDOVAL-GUTIERREZ, J.:

Lis pendens is a Latin term which literally means a pending suit. Notice of lis pendens is filed for the purpose of warning all persons that the title to certain property is in litigation and that if they purchase the same, they are in danger of being bound by an adverse judgment.[1] The notice is, therefore, intended to be a warning to the whole world that one who buys the property does so at his own risk. This is necessary in order to save innocent third persons from any involvement in any future litigation concerning the property.[2] Petitioners filed the instant petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, assailing the Decision dated January 25, 2000 and Resolution dated June 9, 2000 of the Court of Appeals[3] which set aside the order of the trial court cancelling the notice of lis pendens. The antecedent facts of this case as found by the Court of Appeals are: A complaint for quieting of title, annulment and damages was filed by petitioner[4] against private respondents[5] before the Regional Trial Court, Branch 84, Malolos, Bulacan, docketed as Civil Case No. 195-M-94, alleging that he has been in possession since 1960 of a 200 square meter portion of Lot 4204 situated in Barrio Tikay, Malolos, Bulacan covered by TCT No. 191498 of the Registry of Deeds of Bulacan in the names of Turandut, Traviata, Marcelita, Pacita, Marlene, Mathews, Victoria and Rosary, all surnamed Aldaba; that on January 11, 1983, Rosary Aldaba sold to him said 200 square meter portion, which is included in the formers one-eight share in Lot 4204, consisting of 1,732 square meters; that a complaint for ejectment was filed against him in 1993 by private respondent Henry Lim, who claims to be the owner of the property occupied by him, being a portion of the parcel of land covered by TCT No. T-16375 registered in his name; that judgment was rendered against him in the ejectment case, which he elevated to the appellate court, and that upon investigation, he discovered that TCT No. T-16375 in the name of private respondents was obtained in bad faith, by fraud and/or clever machination. On the other hand, private respondents maintained that their title is valid and legal.

Petitioner caused the annotation of a notice of lis pendens at the back of TCT T16375. A motion to cancel notice of lis pendens was filed by private respondents on the grounds that said notice was designed solely to molest them/or it is not necessary to protect petitioners rights. The same was opposed by petitioner insisting that the notice of lis pendens was recorded in order to protect his right over the property covered by TCT No. T-16375 and to avoid sale of property pending the execution of the judgment in the case. On July 22, 1998, respondent judge issued an order cancelling the notice of lis pendens annotated at the back of TCT No. T-16375 upon the posting by private respondents of an indemnity bond in the amount of P2,000,000.00. Petitioners motion for reconsideration was denied in an order dated October 7, 1998. The issue before this Court is whether or not the Court of Appeals erred in holding that the trial court committed grave abuse of discretion in cancelling the notice of lis pendens. Petitioners contend that the cancellation of the notice of lis pendens by the trial court is justified because respondent had it registered for the sole purpose of molesting them and that it is not necessary to protect his rights. According to petitioners, the trial court correctly ratiocinated as follows: A very thin line exists and separates the protection afforded by the notice to the plaintiff and the restriction it imposes on the right of the defendants dominion over the property. Indubitably, the 200 square meter portion claimed by the plaintiff is grossly disproportional to the entire 5,432 square meter property which the notice virtually hold hostage. More so, the annotation proceeds from a still to be proven claim. Thus, based on the allegations in the pleadings, as between a bare assertion of ownership over the claimed portion anchored on an unregistered deed of sale as against the indefeasible title possessed by the defendants over the entire subject property, the presumption under our rules favor the latter, unless rebutted by evidence on the contrary. As it stands, plaintiffs unregistered deed of sale, cannot, therefore, be accorded more weight than the certificate of title in defendants name which is proof of ownership over the entire 5,432 square meter property. While afflictive consequences will be suffered by plaintiff if the notice is cancelled in case he is adjudged the lawful owner of the claim 200 square meter property, defendants will likewise suffer a grave injustice if denied the remedy of cancelling the notice, resort to which is allowed by law and discretionary on the courts upon proper showing. The injustice will take the form of an unlawful dispossession though what is

claimed only is 200 square meters, yet the entire 5,432 square meter property is affected. Instead of serving its real purpose as laid by law pursuant to public policy, the continued retention of the notice fosters inequity as clearly established based on the claimed portion vis a vis the unclaimed of free portion of the 5,432 square meter property. To the mind of the Court, this inequity translates to an unwanted and unjustified burden that utterly molest the tranquil possession and enjoyment by the defendants of the subject part. Nevertheless, in the interest of substantial justice and equity, the Court deems it wise under the prevailing circumstances to direct the defendants to post an indemnity bond in an amount commensurate and reasonable proportionate to the per square value of the claimed area of 200 square meter property. To the mind of the Court, thru the posting of a bond, the claim of the plaintiff (respondent herein) would still remain protected and safeguarded even though the notice is eventually cancelled. Equity and fair play dictate the same be resorted to by the Court relative to the peculiar circumstances of the case. Petitioners contention lacks merit. Sec. 14, Rule 13 of the 1997 Rules of Civil Procedure, as amended, provides: Sec. 14 Notice of lis pendens In an action affecting the title or the right of possession of real property, the plaintiff and the defendant, when affirmative relief is claimed in his answer, may record in the office of the registry of deeds of the province in which the property is situated a notice of the pendency of the action. Said notice shall contain the names of the parties and the object of the action or defense, and a description of the property in that province affected thereby. Only from the time of filing of such notice for record shall a purchaser, or encumbrancer of the property affected thereby, be deemed to have constructive notice of the pendency of the action, and only of its pendency against the parties designated by their real names. The notice of lis pendens hereinabove mentioned may be cancelled only upon order of the court, after proper showing that the notice is for the purpose of molesting the adverse party, or that it is not necessary to protect the rights of the party who caused it to be recorded. (Emphasis ours) Sec. 77 of Presidential Decree No. 1529 states: Sec. 77. Cancellation of lis pendens Before final judgment, a notice of lis pendens may be cancelled upon order of the court, after proper showing that the notice is for the purpose of molesting the adverse party, or that it is not necessary to protect the rights of the party who caused it to be registered. It may also be cancelled

by the Register of Deeds upon verified petition of the party who caused registration thereof. Petitioners claim that the notice of lis pendens practically covers his entire land covered by TCT No. T-16375 and thus molests his right as an owner. Lis pendens has been conceived to protect the real rights of the party causing the registration thereof. With the lis pendens duly recorded, he could rest secure that he would not lose the property or any part of it. For such notice serves as a warning to a prospective purchaser or incumbrancer that the particular property is in litigation; and that he should keep his hands off the same unless of course, he intends to gamble on the results of the litigation.[6] Based on this principle as well as the express provisions of Sec. 14, Rule 13 of the 1997 Rules of Civil Procedure, as amended, only the particular property subject of litigation is covered by the notice of lis pendens. In this case, only the 200 square meter portion of the entire area is embraced by the notice of lis pendens. In causing the annotation of such notice, respondents aim is to protect his right as an owner of this specific area. Thus, the ruling of the trial court that the notice of lis pendens is tantamount to an unlawful dispossession and restriction of petitioners right of dominion over the entire 5,432 square meter lot covered by TCT 16375 in their names is, therefore, an erroneous conclusion. Pursuant to Section 14, Rule 13 of the 1997 Rules of Civil Procedure, as amended, earlier quoted, courts can cancel a notice of lis pendens only on two grounds: a) after a proper showing that the notice is for the purpose of molesting the adverse party; or b) it is not necessary to protect the interest of the party who caused it to be recorded In justifying the cancellation of the notice of lis pendens, the trial court held that respondents unregistered deed of sale can not be accorded more weight than petitioners certificate of title. For purposes of annotating a notice of lis pendens, there is nothing in the rules which requires the party seeking annotation to show that the land belongs to him. In fact, there is no requirement that the party applying for the annotation of the notice must prove his right or interest over the property sought to be annotated.[7] Hence, even on the basis of an unregistered deed of sale, a notice of lis pendens may be annotated on the title. And such annotation can not be considered as a collateral attack against the certificate of title. This is based on the principle that the registration of a notice of lis pendens does not produce a legal effect similar to a lien. It does not create a right or lien. It only means that a person purchases or contracts on the property in dispute subject to the result of the pending litigation.[8]

We observe that the trial judge was convinced that the cancellation of the lis pendens is not in order. Otherwise, he should not have required petitioners to post a bond of P2,000,000.00 The doctrine of lis pendens is founded upon reasons of public policy and necessity, the purpose of which is to keep the properties in litigation within the power of the court until the litigation is terminated, and to prevent the defeat of the judgment or decree by subsequent alienation. This purpose would be rendered meaningless if petitioners are allowed to file a bond, regardless of the amount, in substitution of said notice. In Tan vs. Lantin[9], this Court held that the law does not authorize a judge to cancel a notice of lis pendens pending litigation upon the mere filing of sufficient bond by the party on whose title said notice is annotated. Petitioners likewise insist that since respondent lost in the ejectment suit they filed against him, it follows that he also lost whatever right he has in the 200 square meter portion and that, therefore, he has no more right to be protected by the notice of lis pendens. It bears emphasis that respondent caused the registration of the notice of lis pendens in Civil Case No. 195-M-94 for quieting of title to his, 200 square meter lot, not in the ejectment case. Consequently, the notice of lis pendens annotated on TCT No. T-16375 must stay. Indeed, there is nothing in the records indicating that the notice of lis pendens is for the purpose of molesting herein petitioners or that it is not necessary to protect the rights of respondent. WHEREFORE, the petition is DENIED. The assailed Decision of the Court of Appeals is AFFIRMED. Costs against petitioners. SO ORDERED. Melo, (Chairman), Vitug, Panganiban, and Gonzaga-Reyes, JJ., concur.

EN BANC

[G.R. No. 152259. July 29, 2004]

ALFREDO T. ROMUALDEZ, petitioner, vs. The Honorable SANDIGANBAYAN (Fifth Division) and the PEOPLE of the PHILIPPINES, respondents. DECISION

PANGANIBAN, J.:

Repetitive motions to invalidate or summarily terminate a criminal indictment prior to plea and trial, however they may be named or identified -whether as a motion to quash or motion to dismiss or by any other nomenclature -- delay the administration of justice and unduly burden the court system. Grounds not included in the first of such repetitive motions are generally deemed waived and can no longer be used as bases of similar motions subsequently filed. Section 5 of the Anti-Graft Law is constitutional. It penalizes certain presidential relatives who intervene, directly or indirectly, in any business, transaction, contract or application with the Government. This provision is not vague or impermissibly broad, because it can easily be understood with the use of simple statutory construction. Neither may the constitutionality of a criminal statute such as this be challenged on the basis of the overbreadth and the void-for-vagueness doctrines, which apply only to free-speech cases. The Case Before us is a Petition for Certiorari under Rule 65 of the Rules of Court, seeking to set aside the November 20, 2001 and the March 1, 2002 Resolutions of the Sandiganbayan in Criminal Case No. 13736. The first Resolution disposed thus:
[1] [2] [3]

WHEREFORE, for lack of merit, the Motion to Dismiss is hereby DENIED. The arraignment of the accused and the pre-trial of the case shall proceed as scheduled. The second Resolution denied reconsideration. The Facts The facts of the case are narrated by the Sandiganbayan as follows:

[4]

[The People of the Philippines], through the Presidential Commission on Good Government (PCGG), filed on July 12, 1989 an information before [the anti-graft court] charging the accused [with] violation of Section 5, Republic Act No. 3019, as amended. The Information reads:
[5]

That on or about and during the period from July 16, 1975 to July 29, 1975, in Metro Manila, Philippines, and within the jurisdiction of [the Sandiganbayan], said [petitioner], brother-in-law of Ferdinand E. Marcos, former President of the Philippines, and therefore, related to the latter by affinity within the third civil degree, did then and there wil[l]fully and unlawfully, and with evident bad faith, for the purpose of promoting his self-interested [sic] and/or that of others, intervene directly or indirectly, in a contract between the National Shipyard and Steel Corporation (NASSCO), a government-owned and controlled corporation and the Bataan Shipyard and Engineering Company (BASECO), a private corporation, the majority stocks of which is owned by former President Ferdinand E. Marcos, whereby the NASSCO sold, transferred and conveyed to the BASECO its ownership and all its titles and interests over all equipment and facilities including structures, buildings, shops, quarters, houses, plants and expendable and semi-expendable assets, located at the Engineer Island known as the Engineer Island Shops including some of its equipment and machineries from Jose Panganiban, Camarines Norte needed by BASECO in its shipbuilding and ship repair program for the amount ofP5,000,000.00. Contrary to law. On December 27, 1996, the accused filed his first MOTION TO DISMISS AND TO DEFER ARRAIGNMENT claiming that no valid preliminary investigation was conducted in the instant case. He asserts that if a preliminary investigation could be said to have been conducted, the same was null and void having been undertaken by a biased and partial investigative body. On January 9, 1997, [the Sandiganbayan], through the First Division, issued an order giving the accused fifteen days to file a Motion for Reinvestigation with the Office of the Special Prosecutor. [Petitioner] questioned said order before the Supreme Court via a petition for Certiorari and Prohibition with prayer for temporary restraining order. On January 21, 1998, the Supreme Court dismissed the petition for failure to show that [the Sandiganbayan] committed grave abuse of discretion in issuing the assailed order. On November 9, 1998, the [petitioner] filed with the Office of the Special Prosecutor a Motion to Quash. On September 22, 1999, x x x Special Prosecution Officer (SPO) III Victorio U. Tabanguil, manifested that the prosecution had already concluded the reinvestigation of the case. He recommended the dismissal of the instant case. Both the Deputy Special Prosecutor and the Special Prosecutor approved the recommendation.

However, Ombudsman Aniano A. Desierto disagreed and directed the prosecutors to let the [petitioner] present his evidence in Court. Subsequently, [petitioner] filed on October 8, 1999 his second MOTION TO QUASH AND TO DEFER ARRAIGNMENT. On February 9, 2000, the [Sandiganbayan] denied the motion for lack of merit. On June 19, 2001, [the] accused filed a MOTION FOR LEAVE TO FILE MOTION TO DISMISS. On June 29, 2001, the [Sandiganbayan] admitted the motion and admitted the attached (third) Motion to Dismiss. The [Motion to Dismiss] raise[d] the following grounds: I. THE CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW OF [PETITIONER] WAS VIOLATED DURING THE PRELIMINARY INVESTIGATION STAGE IN THE FOLLOWING WAYS: A. NO VALID PRELIMINARY INVESTIGATION WAS CONDUCTED IN THE INSTANT CASE; AND B. THE PRELIMINARY INVESTIGATION WAS CONDUCTED BY A BIASED AND PARTIAL INVESTIGATOR II. THE CONSTITUTIONAL RIGHT OF [PETITIONER] TO BE INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION AGAINST HIM WAS VIOLATED III. PURSUANT TO ARTICLE VII, SECTION 17 OF THE 1973 CONSTITUTION, [PETITIONER] IS IMMUNE FROM CRIMINAL PROSECUTION IV. THE CRIMINAL ACTION OR LIABILITY HAS BEEN EXTINGUISHED BY PRESCRIPTION
[6]

Ruling of the Sandiganbayan The Sandiganbayan explained that all the grounds invoked by petitioner, except the third one, had already been raised by him and passed upon in its previous Resolutions. In resolving the third ground, the anti-graft court pointed out that Section 17 of the 1973 Constitution became effective only in
[7]

1981 when the basic law was amended. Since his alleged illegal intervention had been committed on or about 1975, the amended provision was inapplicable to him.
[8]

In denying the Motion for Reconsideration filed by petitioner, the Sandiganbayan passed upon the other grounds he had raised. It ruled that his right to a preliminary investigation was not violated, because he had been granted a reinvestigation. It further held that his right to be informed of the nature and cause of the accusation was not trampled upon, either, inasmuch as the Information had set forth the essential elements of the offense charged.
[9] [10]

Hence, this Petition.

[11]

The Issues In his Memorandum, petitioner assigns the following errors for our consideration: Whether or not the Honorable Sandiganbayan erred and gravely abused its discretion amounting to lack of, or in excess of jurisdiction I. In not dismissing and/or quashing Criminal Case No. 13736 despite clear and incontrovertible evidence that: A. Section 5 of Republic Act No. 3019 is unconstitutional because its vagueness violates the due process right of an individual to be informed of the nature and the cause of the accusation against him; Section 5 of Republic Act No. 3019 is unconstitutional because it violates the due process right of an individual to be presumed innocent until the contrary is proved; The constitutional right of petitioner x x x to be informed of the nature and the cause of the accusation against him was violated; The constitutional right to due process of law of petitioner x x x was violated during the preliminary investigation stage in the following ways:

B.

C. D.

[i] [ii] E. F.

No valid preliminary investigation was con-ducted for Criminal Case No. 13736; and The preliminary investigation was conducted by a biased and partial investigator.

The criminal action or liability has been extinguished by prescription; and Pursuant to Article VII, Section 17 of the 1973 Constitution, petitioner x x x is immune from criminal prosecution. And

II.

In light of the foregoing, in denying petitioner[s] x x x right to equal protection of the laws.
[12]

Simply stated, the issues are as follows: (1) whether Section 5 of Republic Act 3019 is unconstitutional; (2) whether the Information is vague; (3) whether there was a valid preliminary investigation; (4) whether the criminal action or liability has been extinguished by prescription; and (5) whether petitioner is immune from criminal prosecution under then Section 17 of Article VII of the 1973 Constitution. The Courts Ruling The Petition has no merit. First Issue: Constitutionality of Section 5, Republic Act 3019 Petitioner challenged the constitutionality of Section 5 of RA 3019 for the first time in the Sandiganbayan through a Supplemental Motion to Dismiss. Attached to his December 7, 2001 Motion for Reconsideration of the Order denying his Motion to Dismiss was this Supplemental Motion which was, in effect, his third motion to quash. We note that the Petition for Certiorari
[13]

before us challenges the denial of his original, not his Supplemental, Motion to Dismiss. Upon the denial of his original Motion to Quash on February 9, 2000, petitioner could have filed a motion for reconsideration of the denial. Had reconsideration been turned down, the next proper remedy would have been either (1) a petition for certiorari -- if there was grave abuse of discretion -which should be filed within 60 days from notice of the assailed order; or (2) to proceed to trial without prejudice to his right, if final judgment is rendered against him, to raise the same questions before the proper appellate court. But instead of availing himself of these remedies, he filed a Motion to Dismiss on June 19, 2001.
[14] [15] [16]

Impropriety of Repetitive Motions There is no substantial distinction between a motion to quash and a motion to dismiss. Both pray for an identical relief, which is the dismissal of the case. Such motions are employed to raise preliminary objections, so as to avoid the necessity of proceeding to trial. A motion to quash is generally used in criminal proceedings to annul a defective indictment. A motion to dismiss, the nomenclature ordinarily used in civil proceedings, is aimed at summarily defeating a complaint. Thus, our Rules of Court use the term motion to quash in criminal, and motion to dismiss in civil, proceedings.
[17] [18]

In the present case, however, both the Motion to Quash and the Motion to Dismiss are anchored on basically the same grounds and pray for the same relief. The hairsplitting distinction posited by petitioner does not really make a difference. By filing a Motion to Dismiss, petitioner submitted in effect a prohibited second motion to quash. A party is not permitted to raise issues, whether similar or different, by installment. The Rules abhor repetitive motions. Otherwise, there would be no end to preliminary objections, and trial would never commence. A second motion to quash delays the administration of justice and unduly burdens the courts. Moreover, Rule 117 provides that grounds not raised in the first motion to quash are generally deemed waived. Petitioners Motion to Dismiss violates this rule.
[19]

Constitutionality of the Challenged Provision

If only for the foregoing procedural lapses, the Petition deserves to be dismissed outright. However, given the importance of this case in curtailing graft and corruption, the Court will nevertheless address the other issues on their merit. Petitioner challenges the validity of Section 5 of Republic Act 3019, a penal statute, on the ground that the act constituting the offense is allegedly vague and impermissibly broad. It is best to stress at the outset that the overbreadth and the vagueness doctrines have special application only to free-speech cases. They are not appropriate for testing the validity of penal statutes. Mr. Justice Vicente V. Mendoza explained the reason as follows:
[20] [21]

A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible chilling effect upon protected speech. The theory is that [w]hen statutes regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity. The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad statutes. This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from their very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take chances as in the area of free speech. xxx xxx xxx

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing on their faces statutes in free speech cases or, as they are called in American law, First Amendment cases. They cannot be made to do service when what is involved is a criminal statute. With respect to such statute, the established rule is that one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional. As has been pointed out, vagueness challenges in the First Amendment context, like overbreadth challenges typically produce facial invalidation,

while statutes found vague as a matter of due process typically are invalidated [only] as applied to a particular defendant. (underscoring supplied)
[22]

To this date, the Court has not declared any penal law unconstitutional on the ground of ambiguity. While mentioned in passing in some cases, the void-for-vagueness concept has yet to find direct application in our jurisdiction. In Yu Cong Eng v. Trinidad, the Bookkeeping Act was found unconstitutional because it violated the equal protection clause, not because it was vague. Adiong v. Comelec decreed as void a mere Comelec Resolution, not a statute. Finally, Santiago v. Comelec held that a portion of RA 6735 was unconstitutional because of undue delegation of legislative powers, not because of vagueness.
[23] [24] [25] [26]

Indeed, an on-its-face invalidation of criminal statutes would result in a mass acquittal of parties whose cases may not have even reached the courts. Such invalidation would constitute a departure from the usual requirement of actual case and controversy and permit decisions to be made in a sterile abstract context having no factual concreteness. In Younger v. Harris, this evil was aptly pointed out by the U.S. Supreme Court in these words:
[27]

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of detailed statutes, x x x ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided. For this reason, generally disfavored is an on-its-face invalidation of statutes, described as a manifestly strong medicine to be employed sparingly and only as a last resort. In determining the constitutionality of a statute, therefore, its provisions that have allegedly been violated must be examined in the light of the conduct with which the defendant has been charged.
[28]

As conduct -- not speech -- is its object, the challenged provision must be examined only as applied to the defendant, herein petitioner, and should not be declared unconstitutional for overbreadth or vagueness. The questioned provision reads as follows:

Section 5. Prohibition on certain relatives. It shall be unlawful for the spouse or for any relative, by consanguinity or affinity, within the third civil degree, of the President of the Philippines, the Vice-President of the Philippines, the President of the Senate, or the Speaker of the House of Representatives, to intervene, directly or indirectly, in any business, transaction, contract or application with the Government: Provided, That this section shall not apply to any person who, prior to the assumption of office of any of the above officials to whom he is related, has been already dealing with the Government along the same line of business, nor to any transaction, contract or application already existing or pending at the time of such assumption of public office, nor to any application filed by him the approval of which is not discretionary on the part of the official or officials concerned but depends upon compliance with requisites provided by law, or rules or regulations issued pursuant to law, nor to any act lawfully performed in an official capacity or in the exercise of a profession. Petitioner also claims that the phrase to intervene directly or indirectly, in any business, transaction, contract or application with the Government is vague and violates his right to be informed of the cause and nature of the accusation against him. He further complains that the provision does not specify what acts are punishable under the term intervene, and thus transgresses his right to be presumed innocent. We disagree.
[29] [30]

Every statute is presumed valid. On the party challenging its validity weighs heavily the onerous task of rebutting this presumption. Any reasonable doubt about the validity of the law should be resolved in favor of its constitutionality. To doubt is to sustain, as tersely put by Justice George Malcolm. In Garcia v. Executive Secretary, the rationale for the presumption of constitutionality was explained by this Court thus:
[31] [32] [33] [34]

The policy of the courts is to avoid ruling on constitutional questions and to presume that the acts of the political departments are valid in the absence of a clear and unmistakable showing to the contrary. To doubt is to sustain. This presumption is based on the doctrine of separation of powers which enjoins upon each department a becoming respect for the acts of the other departments. The theory is that as the joint act of Congress and the President of the Philippines, a law has been carefully studied and determined to be in accordance with the fundamental law before it was finally enacted.
[35]

In the instant case, petitioner has miserably failed to overcome such presumption. This Court has previously laid down the test for determining whether a statute is vague, as follows:

x x x [A] statute establishing a criminal offense must define the offense with sufficient definiteness that persons of ordinary intelligence can understand what conduct is prohibited by the statute. It can only be invoked against that species of legislation that is utterly vague on its face, i.e., that which cannot be clarified either by a saving clause or by construction. A statute or act may be said to be vague when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ in its application. In such instance, the statute is repugnant to the Constitution in two (2) respects - it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of what conduct to avoid; and, it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle. But the doctrine does not apply as against legislations that are merely couched in imprecise language but which nonetheless specify a standard though defectively phrased; or to those that are apparently ambiguous yet fairly applicable to certain types of activities. The first may be saved by proper construction, while no challenge may be mounted as against the second whenever directed against such activities. With more reason, the doctrine cannot be invoked where the assailed statute is clear and free from ambiguity, as in this case.
[36] [37]

The test in determining whether a criminal statute is void for uncertainty is whether the language conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice. It must be stressed, however, that the vagueness doctrine merely requires a reasonable degree of certainty for the statute to be upheld - not absolute precision or mathematical exactitude, as petitioner seems to suggest. Flexibility, rather than meticulous specificity, is permissible as long as the metes and bounds of the statute are clearly delineated. An act will not be held invalid merely because it might have been more explicit in its wordings or detailed in its provisions, especially where, because of the nature of the act, it would be impossible to provide all the details in advance as in all other statutes.
[38] [39]

A simpler test was decreed in Dans v. People, in which the Court said that there was nothing vague about a penal law that adequately answered the basic query What is the violation? Anything beyond -- the hows and the whys -- are evidentiary matters that the law itself cannot possibly disclose, in view of the uniqueness of every case.
[40] [41] [42]

The question What is the violation? is sufficiently answered by Section 5 of RA 3019, as follows:

1.

The offender is a spouse or any relative by consanguinity or affinity within the third civil degree of the President of the Philippines, the Vice-President of the Philippines, the President of the Senate, or the Speaker of the House of Representatives; and The offender intervened directly or indirectly in any business, transaction, contract or application with the government.

2.

Applicability of Statutory Construction As to petitioners claim that the term intervene is vague, this Court agrees with the Office of the Solicitor General that the word can easily be understood through simple statutory construction. The absence of a statutory definition of a term used in a statute will not render the law void for vagueness, if the meaning can be determined through the judicial function of construction. Elementary is the principle that words should be construed in their ordinary and usual meaning.
[43]

x x x. A statute is not rendered uncertain and void merely because general terms are used therein, or because of the employment of terms without defining them; much less do we have to define every word we use. Besides, there is no positive constitutional or statutory command requiring the legislature to define each and every word in an enactment. Congress is not restricted in the form of expression of its will, and its inability to so define the words employed in a statute will not necessarily result in the vagueness or ambiguity of the law so long as the legislative will is clear, or at least, can be gathered from the whole act x x x.
[44]

x x x [I]t is a well-settled principle of legal hermeneutics that words of a statute will be interpreted in their natural, plain and ordinary acceptation and signification, unless it is evident that the legislature intended a technical or special legal meaning to those words. The intention of the lawmakers - who are, ordinarily, untrained philologists and lexicographers - to use statutory phraseology in such a manner is always presumed.
[45] [46] [47]

The term intervene should therefore be understood in its ordinary acceptation, which is to to come between. Criminally liable is anyone covered in the enumeration of Section 5 of RA 3019 -- any person who intervenes in any manner in any business, transaction, contract or application with the government. As we have explained, it is impossible for the law to
[48]

provide in advance details of how such acts of intervention could be performed. But the courts may pass upon those details once trial is concluded. Thus, the alleged vagueness of intervene is not a ground to quash the information prior to the commencement of the trial. In sum, the Court holds that the challenged provision is not vague, and that in any event, the overbreath and void for vagueness doctrines are not applicable to this case. Second Issue: Allegedly Vague Information Other than arguing on the alleged intrinsic vagueness of intervene, petitioner further contends that the Information itself is also unconstitutionally vague, because it does not specify the acts of intervention that he supposedly performed. Again, we disagree.
[49]

When allegations in the information are vague or indefinite, the remedy of the accused is not a motion to quash, but a motion for a bill of particulars. The pertinent provision in the Rules of Court is Section 9 of Rule 116, which we quote:
[50]

Section 9. Bill of particulars. -- The accused may, before arraignment, move for a bill of particulars to enable him properly to plead and prepare for trial. The motion shall specify the alleged defects of the complaint or information and the details desired. The rule merely requires the information to describe the offense with sufficient particularity as to apprise the accused of what they are being charged with and to enable the court to pronounce judgment. The particularity must be such that persons of ordinary intelligence may immediately know what is meant by the information.
[51] [52]

While it is fundamental that every element of the offense must be alleged in the information, matters of evidence -- as distinguished from the facts essential to the nature of the offense -- need not be averred. Whatever facts and circumstances must necessarily be alleged are to be determined by reference to the definition and the essential elements of the specific crimes.
[53] [54] [55]

In the instant case, a cursory reading of the Information shows that the elements of a violation of Section 5 of RA 3019 have been stated sufficiently. Likewise, the allegations describe the offense committed by petitioner with

such particularity as to enable him to prepare an intelligent defense. Details of the acts he committed are evidentiary matters that need not be alleged in the Information. Third Issue: Preliminary Investigation Clearly, petitioner already brought the issue of lack of preliminary investigation when he questioned before this Court in GR No. 128317 the Sandiganbayans Order giving him 15 days to file a Motion for Reinvestigation with the Office of the Special Prosecutor. Citing Cojuangco v. Presidential Commission on Good Government, he undauntedly averred that he was deprived of his right to a preliminary investigation, because the PCGG acted both as complainant and as investigator.
[56] [57] [58]

In the case cited above, this Court declared that while PCGG had the power to conduct a preliminary investigation, the latter could not do so with the cold neutrality of an impartial judge in cases in which it was the agency that had gathered evidence and subsequently filed the complaint. On that basis, this Court nullified the preliminary investigation conducted by PCGG and directed the transmittal of the records to the Ombudsman for appropriate action.
[59]

It is readily apparent that Cojuangco does not support the quashal of the Information against herein petitioner. True, the PCGG initiated the present Complaint against him; hence, it could not properly conduct the preliminary investigation. However, he was accorded his rights -- the Sandiganbayan suspended the trial and afforded him a reinvestigation by the Ombudsman. The procedure outlined in Cojuangco was thus followed. The Sandiganbayans actions are in accord also with Raro v. Sandiganbayan, which held that the failure to conduct a valid preliminary investigation would not warrant the quashal of an information. If the information has already been filed, the proper procedure is for the Sandiganbayan to hold the trial in abeyance while the preliminary investigation is being conducted or completed.
[60] [61]

Fourth Issue: Prescription

The issue of prescription was the principal basis of the Motion to Quash filed by petitioner with the Sandiganbayan on October 8, 1999. Such issue should be disregarded at this stage, since he failed to challenge its ruling debunking his Motion within the 60-day period for the filing of a petition for certiorari. A party may not circumvent this rule by filing a subsequent motion that raises the same issue and the same arguments.
[62]

Furthermore, it is easy to see why this argument being raised by petitioner is utterly unmeritorious. He points out that according to the Information, the offense was committed during the period from July 16, 1975 to July 29, 1975. He argues that when the Information was filed on July 12, 1989, prescription had already set in, because the prescriptive period for a violation of Republic Act No. 3019 is only ten (10) years from the time the offense was allegedly committed. The increase of this prescriptive period to fifteen (15) years took effect only on March 16, 1982, upon the enactment of Batas Pambansa Blg. 195.
[63] [64]

Act No. 3326, as amended, governs the prescription of offenses penalized by special laws. Its pertinent provision reads:
[65]

Sec. 2. Prescription shall begin to run from the day of the commission of the violation of the law, and if the same not be known at the time, from the discovery thereof and the institution of judicial proceedings for its investigation and punishment. The prescription shall be interrupted when proceedings are instituted against the guilty person, and shall begin to run again if the proceedings are dismissed for reasons not constituting jeopardy. Consistent with the provision quoted above, this Court has previously reckoned the prescriptive period of cases involving RA 3019 (committed prior to the February 1986 EDSA Revolution) from the discovery of the violation. In Republic v. Desierto, the Court explained:
[66]

This issue confronted this Court anew, albeit in a larger scale, in Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto. In the said recent case, the Board of Directors of the Philippine Seeds, Inc. and Development Bank of the Philippines were charged with violation of paragraphs (e) and (g) of Section 3 of RA No. 3019, by the Presidential Ad Hoc Fact-Finding Committee on Behest Loans, created by then President Fidel V. Ramos to investigate and to recover the so-called Behest Loans, where the Philippine Government guaranteed several foreign loans to corporations and entities connected with the former President Marcos. x x x In holding that the case had not yet prescribed, this Court ruled that:

In the present case, it was well-nigh impossible for the State, the aggrieved party, to have known the violations of RA No. 3019 at the time the questioned transactions were made because, as alleged, the public officials concerned connived or conspired with the beneficiaries of the loans. Thus, we agree with the COMMITTEE that the prescriptive period for the offenses with which the respondents in OMB-0-96-0968 were chargedshould be computed from the discovery of the commission thereof and not from the day of such commission. xxx xxx xxx

People v. Duque is more in point, and what was stated there stands reiteration: In the nature of things, acts made criminal by special laws are frequently not immoral or obviously criminal in themselves; for this reason, the applicable statute requires that if the violation of the special law is not known at the time, the prescription begins to run only from the discovery thereof, i.e., discovery of the unlawful nature of the constitutive act or acts. (Italics supplied) There are striking parallelisms between the said Behest Loans Case and the present one which lead us to apply the ruling of the former to the latter. First, both cases arose out of seemingly innocent business transactions;second, both were discovered only after the government created bodies to investigate these anomalous transactions; third, both involve prosecutions for violations of RA No. 3019; and, fourth, in both cases, it was sufficiently raised in the pleadings that the respondents conspired and connived with one another in order to keep the alleged violations hidden from public scrutiny. This Courts pronouncement in the case of Domingo v. Sandiganbayan is quite relevant and instructive as to the date when the discovery of the offense should be reckoned, thus: In the present case, it was well-nigh impossible for the government, the aggrieved party, to have known the violations committed at the time the questioned transactions were made because both parties to the transactions were allegedly in conspiracy to perpetuate fraud against the government. The alleged anomalous transactions could only have been discovered after the February 1986 Revolution when one of the original respondents, then President Ferdinand Marcos, was ousted from office. Prior to said date, no person would have dared to question the legality or propriety of those transactions. Hence, the counting of the prescriptive period would commence from the date of discovery of the offense, which could have been between February 1986 after the EDSA Revolution and 26 May 1987 when the initiatory complaint was filed.
[67]

The above pronouncement is squarely applicable to the present case. The general rule that prescription shall begin to run from the day of the commission of the crime cannot apply to the present case. It is not legally prudent to charge the State, the aggrieved party, with knowledge of the violation of RA 3019 at the time the alleged intervention was made. The accused is the late President Ferdinand E. Marcos brother-in-law. He was charged with intervening in a sale involving a private corporation, the majority stocks of which was allegedly owned by President Marcos. Prior to February 1986, no person was expected to have seriously dared question the legality of the sale or would even have thought of investigating petitioners alleged involvement in the transaction. It was only after the creation of PCGG and its exhaustive investigations that the alleged crime was discovered. This led to the initiation on November 29, 1988 of a Complaint against former President Marcos and petitioner for violation of the Anti-Graft and Corrupt Practices Act. Consequently, the filing of the Information on July 12, 1989 was well within the prescriptive period of ten years from the discovery of the offense.
[68] [69]

Fifth Issue Immunity from Prosecution Petitioner argues that he enjoys derivative immunity, because he allegedly served as a high-ranking naval officer -- specifically, as naval aide-de-camp -of former President Marcos. He relies on Section 17 of Article VII of the 1973 Constitution, as amended, which we quote:
[70]

The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever shall lie for official acts done by him or by others pursuant to his specific orders during his tenure. x x x xxx x x x

As the Sandiganbayan aptly pointed out, the above provision is not applicable to petitioner because the immunity amendment became effective only in 1981 while the alleged crime happened in 1975. In Estrada v. Desierto, this Court exhaustively traced the origin of executive immunity in order to determine the extent of its applicability. We explained therein that executive immunity applied only during the incumbency of a President. It could not be used to shield a non-sitting President from
[71]

prosecution for alleged criminal acts done while sitting in office. The reasoning of petitioner must therefore fail, since he derives his immunity from one who is no longer sitting as President. Verily, the felonious acts of public officials and their close relatives are not acts of the State, and the officer who acts illegally is not acting as such but stands on the same footing as any other trespasser. In sum, petitioner utterly fails to show that the Sandiganbayan gravely abused its discretion in issuing the assailed Resolutions. On the contrary, it acted prudently, in accordance with law and jurisprudence.
[72]

WHEREFORE, the Petition is DISMISSED, and the questioned Resolutions of the Sandiganbayan AFFIRMED. Costs against petitioner. SO ORDERED. Davide, Jr., C.J., Quisumbing, Carpio, Austria-Martinez, Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur. Puno, Ynares-Santiago, and Sandoval-Gutierrez, JJ., in the result. Corona, J., on leave. Tinga, J., in the result. Please see separate opinion. Chico-Nazario, J., no part. Ponente of assailed SB Resolutions.

SECOND DIVISION

[G.R. No. 158407. January 17, 2005]

FILOMENA DOMAGAS, petitioner, JENSEN, respondent. DECISION

CALLEJO, SR., J.:

vs.

VIVIAN

LAYNO

This is a petition for review on certiorari, under Rule 45 of the Rules of Court, of the Decision[1] of the Court of Appeals (CA) in CA-G.R. CV No. 73995, which affirmed the Decision[2] of the Regional Trial Court (RTC) of Dagupan City, Branch 44, in Civil Case No. 2000-0244-D, which declared null and void the decision of the Municipal Trial Court (MTC) of Calasiao, Pangasinan in Civil Case No. 879.[3]

The antecedent facts follow. On February 19, 1999, petitioner Filomena Domagas filed a complaint for forcible entry against respondent Vivian Jensen before the MTC of Calasiao, Pangasinan. The petitioner alleged in her complaint that she was the registered owner of a parcel of land covered by Original Certificate of Title (OCT) No. P-30980, situated in Barangay Buenlag, Calasiao, Pangasinan, and with an area of 827 square meters. On January 9, 1999 the respondent, by means of force, strategy and stealth, gained entry into the petitioners property by excavating a portion thereof and thereafter constructing a fence thereon. As such, the petitioner was deprived of a 68-square meter portion of her property along the boundary line. The petitioner prayed that, after due proceedings, judgment be rendered in her favor, thus: 3. And, after trial, judgment be rendered: a) b) DECLARING the writ of Preliminary Mandatory Injunction and Writ of Preliminary Injunction permanent; ORDERING defendant, his representatives, agents and persons acting under her, to vacate the portion of the property of the plaintiff occupied by them and to desist from entering, excavating and constructing in the said property of the plaintiff described in paragraph 2 hereof and/or from disturbing the peaceful ownership and possession of the plaintiff over the said land, pending the final resolution of the instant action; ORDERING defendant to pay reasonable rental at FIVE THOUSAND (P5,000.00) PESOS per month from January 9, 1999 up to the time she finally vacates and removes all constructions made by her in the property of the plaintiff and up to the time she finally restores the said property in the condition before her illegal entry, excavation and construction in the property of the plaintiff; ORDERING defendant to pay actual damages in the amount of TWENTY THOUSAND (P20,000.00) PESOS; moral damages in the amount of TWENTY THOUSAND (P20,000.00) PESOS; attorneys fees of THIRTY THOUSAND (P30,000.00) PESOS in retainers fee and ONE THOUSAND FIVE HUNDRED (P1,500.00) PESOS per court appearance fee; exemplary damages in the amount of TWENTY THOUSAND (P20,000.00) PESOS, and, costs.

c)

d)

Plaintiff further prays for other reliefs and remedies just and equitable in the premises.
[4]

The case was docketed as Civil Case No. 879. The summons and the complaint were not served on the respondent because the latter was apparently out of the country. This was relayed to the Sheriff by her (the respondents) brother, Oscar Layno, who was then in the respondents house at No. 572 Barangay Buenlag, Calasiao, Pangasinan. The Sheriff left the summons and complaint with Oscar Layno, who received the same.[5] Nonetheless, on May 17, 1999, the court rendered judgment ordering the respondent and all persons occupying the property for and in the latters behalf to vacate the disputed area and to pay monthly rentals therefor, including actual damages, attorneys fees, and exemplary damages. The fallo of the decision reads: 1) Ordering the defendant, her representatives, agents and persons acting under her, to vacate the 68-square meters which she encroached upon; Ordering the defendant to pay a monthly rental of P1,000.00 to the plaintiff; To pay plaintiff actual damages of P20,000.00; attorneys fees of P15,000.00 and exemplary damages in the amount of P20,000.00 plus the costs.

2) 3)

SO ORDERED.[6] The respondent failed to appeal the decision. Consequently, a writ of execution was issued on September 27, 1999. On August 16, 2000, the respondent filed a complaint against the petitioner before the RTC of Dagupan City for the annulment of the decision of the MTC in Civil Case No. 879, on the ground that due to the Sheriffs failure to serve the complaint and summons on her because she was in Oslo, Norway, the MTC never acquired jurisdiction over her person. The respondent alleged therein that the service of the complaint and summons through substituted service on her brother, Oscar Layno, was improper because of the following: (a) when the complaint in Civil Case No. 879 was filed, she was not a resident of Barangay Buenlag, Calasiao, Pangasinan, but of Oslo, Norway, and although she owned the house where Oscar Layno received the summons and the complaint, she had then leased it to Eduardo Gonzales; (b)

she was in Oslo, Norway, at the time the summons and the complaint were served; (c) her brother, Oscar Layno, was merely visiting her house in Barangay Buenlag and was not a resident nor an occupant thereof when he received the complaint and summons; and (d) Oscar Layno was never authorized to receive the summons and the complaint for and in her behalf.[7] The respondent further alleged that the MTC had no jurisdiction over the subject matter of the complaint in Civil Case No. 879 because the petitioner, the plaintiff therein, failed to show prior possession of the property. She further claimed that the alleged forcible entry was simply based on the result of the survey conducted by Geodetic Engineer Leonardo de Vera showing that the property of the respondent encroached on that of the petitioner. The respondent filed a Manifestation dated August 31, 2000, and appended thereto the following: (a) a copy[8] of her passport showing that she left the country on February 17, 1999; (b) a copy[9] of the Contract of Lease dated November 24, 1997, executed by her and Eduardo D. Gonzales over her house for a period of three (3) years or until November 24, 2000; (c) her affidavit[10] stating, inter alia, that she owned the house at Barangay Buenlag, Calasiao, Pangasinan, which she leased to Eduardo Gonzales; that she was married to Jarl Jensen, a citizen of Norway, on August 23, 1987 and had resided in Norway with her husband since 1993; that she arrived in the Philippines on December 31, 1998, but left on February 17, 1999; she returned to the Philippines on July 30, 2000 and learned, only then, of the complaint against her and the decision of the MTC in Civil Case No. 879; her brother Oscar Layno was not a resident of the house at Barangay Buenlag; and that she never received the complaint and summons in said case; (d) the affidavit[11] of Oscar Layno declaring that sometime in April 1999, he was in the respondents house to collect rentals from Eduardo Gonzales; that the Sheriff arrived and served him with a copy of the summons and the complaint in Civil Case No. 879; and that he never informed the respondent of his receipt of the said summons and complaint; (e) an affidavit[12] of Eduardo Gonzales stating that he leased the house of the respondent and resided thereat; the respondent was not a resident of the said house although he (Gonzales) allowed the respondent to occupy a room therein whenever she returned to the Philippines as a balikbayan; and that Oscar Layno was not residing therein but only collected the rentals. In her answer to the complaint, the petitioner alleged that the respondent was a resident of Barangay Buenlag, Calasiao, Pangasinan and was the owner of the subject premises where Oscar Layno was when the Sheriff served the summons and complaint; that the service of the complaint and summons by substituted service on the respondent, the defendant in Civil

Case No. 879, was proper since her brother Oscar Layno, a resident and registered voter of Barangay. Buenlag, Calasiao, Pangasinan, received the complaint and summons for and in her behalf. The petitioner appended the following to her answer: (a) a copy[13] of the Deed of Absolute Sale executed by Jose Layno in her favor, dated August 26, 1992, showing that the respondent was a resident of Barangay Buenlag, Calasiao, Pangasinan; (b) a Real Estate Mortgage[14] executed by the respondent, dated February 9, 1999 showing that she was a resident of Barangay Buenlag, Calasiao, Pangasinan; (c) the Joint Affidavit[15] of Vicenta Peralta and Orlando Macalanda, both residents of Barangay Buenlag, Calasiao, Pangasinan, declaring that the respondent and her brother Oscar Layno were their neighbors; that the respondent and her brother had been residents of Barangay Buenlag since their childhood; that although the respondent left the country on several occasions, she returned to the Philippines and resided in her house at No. 572 located in the said barangay; and (d) the Voters Registration Record[16] of Oscar Layno, approved on June 15, 1997. After due proceedings, the trial court rendered a decision in favor of the respondent. The dispositive portion reads: WHEREFORE, judgment is rendered in favor of plaintiff Vivian Layno Jensen and against defendant Filomena Domagas, as follows: 1. The Decision of the Municipal Trial Court of Calasiao, Pangasinan in Civil Case No. 879, entitled Filomena Domagas versus Vivian Layno Jensen is declared null and void, for lack of jurisdiction over the person of the plaintiff and the subject matter. Defendant Filomena Domagas is ordered to pay plaintiff, the following: a.) b.) c.) d.) e.) Actual damages, representing litigation expenses in the amount of P50,000.00; Attorneys fees in the amount of P50,000.00; Moral Damages in the amount of P50,000.00; Exemplary Damages in the amount of P50,000.00; and Costs of suit.

2.

SO ORDERED.[17] The trial court declared that there was no valid service of the complaint and summons on the respondent, the defendant in Civil Case No. 879,

considering that she left the Philippines on February 17, 1999 for Oslo, Norway, and her brother Oscar Layno was never authorized to receive the said complaint and summons for and in her behalf. The petitioner appealed the decision to the CA which, on May 6, 2003, rendered judgment affirming the appealed decision with modifications. The CA ruled that the complaint in Civil Case No. 879 was one for ejectment, which is an action quasi in rem. The appellate court ruled that since the defendant therein was temporarily out of the country, the summons and the complaint should have been served via extraterritorial service under Section 15 in relation to Section 16, Rule 14 of the Rules of Court, which likewise requires prior leave of court. Considering that there was no prior leave of court and none of the modes of service prescribed by the Rules of Court was followed by the petitioner, the CA concluded that there was really no valid service of summons and complaint upon the respondent, the defendant in Civil Case No. 879. Hence, the present petition. The petitioner assails the decision of the CA, alleging that the appellate court erred in holding that the respondents complaint for ejectment is an action quasi in rem. The petitioner insists that the complaint for forcible entry is an action in personam; therefore, substituted service of the summons and complaint on the respondent, in accordance with Section 7, Rule 14 of the Rules of Court, is valid. The petitioner, likewise, asserts that Oscar Layno is a resident and a registered voter of Barangay Buenlag, Calasiao, Pangasinan; hence, the service of the complaint and summons on the respondent through him is valid. The respondent, on the other hand, asserts that the action for forcible entry filed against her was an action quasi in rem, and that the applicable provision of the Rules of Court is Section 15 of Rule 14, which calls for extraterritorial service of summons. The sole issue is whether or not there was a valid service of the summons and complaint in Civil Case No. 879 on the respondent herein who was the defendant in the said case. The resolution of the matter is anchored on the issue of whether or not the action of the petitioner in the MTC against the respondent herein is an action in personam or quasi in rem. The ruling of the CA that the petitioners complaint for forcible entry of the petitioner against the respondent in Civil Case No. 879 is an action quasi in rem, is erroneous. The action of the petitioner for forcible entry is a real action and one in personam.

The settled rule is that the aim and object of an action determine its character.[18] Whether a proceeding is in rem, or in personam, or quasi in rem for that matter, is determined by its nature and purpose, and by these only.[19] A proceeding in personam is a proceeding to enforce personal rights and obligations brought against the person and is based on the jurisdiction of the person, although it may involve his right to, or the exercise of ownership of, specific property, or seek to compel him to control or dispose of it in accordance with the mandate of the court.[20]The purpose of a proceeding in personam is to impose, through the judgment of a court, some responsibility or liability directly upon the person of the defendant.[21] Of this character are suits to compel a defendant to specifically perform some act or actions to fasten a pecuniary liability on him.[22] An action in personam is said to be one which has for its object a judgment against the person, as distinguished from a judgment against the propriety to determine its state. It has been held that an action in personam is a proceeding to enforce personal rights or obligations; such action is brought against the person. As far as suits for injunctive relief are concerned, it is well-settled that it is an injunctive act in personam.[23] In Combs v. Combs,[24] the appellate court held that proceedings to enforce personal rights and obligations and in which personal judgments are rendered adjusting the rights and obligations between the affected parties is in personam. Actions for recovery of real property are in personam.[25] On the other hand, a proceeding quasi in rem is one brought against persons seeking to subject the property of such persons to the discharge of the claims assailed.[26] In an action quasi in rem, an individual is named as defendant and the purpose of the proceeding is to subject his interests therein to the obligation or loan burdening the property.[27] Actions quasi in rem deal with the status, ownership or liability of a particular property but which are intended to operate on these questions only as between the particular parties to the proceedings and not to ascertain or cut off the rights or interests of all possible claimants. The judgments therein are binding only upon the parties who joined in the action.[28] Section 1, Rule 70 of the Rules of Court provides: Section 1. Who may institute proceedings, and when. - Subject to the provisions of the next succeeding section, a person deprived of the possession of any land or building in force, intimidation, threat, strategy, or stealth, or a lessor, vendor, vendee, or other person against whom the possession of any land or building is unlawfully withheld after the expiration or termination of the right to hold possession by virtue of any contract, express or implied, or the legal representatives or assigns of any such lessor, vendor, vendee, or other person, may, at any time within one (1) year after

such unlawful deprivation or withholding of possession, bring an action in the proper Municipal Trial Court against the person or persons unlawfully withholding or depriving of possession, or any person or persons claiming under them, for the restitution of such possession, together with damages and costs. Under Section 15, Rule 70 of the said Rule, the plaintiff may be granted a writ of preliminary prohibition or mandatory injunction: Sec. 15. Preliminary Injunction. The court may grant preliminary injunction, in accordance with the provisions of Rule 58 hereof, to prevent the defendant from committing further acts of dispossession against the plaintiff. A possessor deprived of his possession through forcible entry or unlawful detainer may, within five (5) days from the filing of the complaint, present a motion in the action for forcible entry or unlawful detainer for the issuance of a writ of preliminary mandatory injunction to restore him in his possession. The court shall decide the motion within thirty (30) days from the filing thereof. If, after due proceedings, the trial court finds for the plaintiff, it shall then render judgment in his or her favor, thus: Sec. 17. Judgment. If, after trial, the court finds that the allegations of the complaint are true, it shall render judgment in favor of the plaintiff for the restitution of the premises, the sum justly due as arrears of rent or as reasonable compensation for the use and occupation of the premises, attorneys fees and costs. If it finds that said allegations are not true, it shall render judgment for the defendant to recover his costs. If a counterclaim is established, the court shall render judgment for the sum found in arrears from either party and award costs as justice requires. From the aforementioned provisions of the Rules of Court and by its very nature and purpose, an action for unlawful detainer or forcible entry is a real action and in personam because the plaintiff seeks to enforce a personal obligation or liability on the defendant under Article 539 of the New Civil Code, [29] for the latter to vacate the property subject of the action, restore physical possession thereof to the plaintiff, and pay actual damages by way of reasonable compensation for his use or occupation of the property.[30] As gleaned from the averments of the petitioners complaint in the MTC, she sought a writ of a preliminary injunction from the MTC and prayed that the said writ be made permanent. Under its decision, the MTC ordered the defendant therein (the respondent in this case), to vacate the property and

pay a monthly rental of P1,000.00 to the plaintiff therein (the petitioner in this case). On the issue of whether the respondent was validly served with the summons and complaint by the Sheriff on April 5, 1999, the petitioner asserts that since her action of forcible entry against the respondent in Civil Case No. 879 was in personam, summons may be served on the respondent, by substituted service, through her brother, Oscar Layno, in accordance with Section 7, Rule 14 of the Rules of Court. The petitioner avers that Oscar Layno, a person of suitable age and discretion, was residing in the house of the respondent on April 5, 1999. She avers that the fact that the house was leased to and occupied by Eduardo Gonzales was of no moment. Moreover, the Sheriff is presumed to have performed his duty of properly serving the summons on the respondent by substituted service. The contention of the petitioner has no merit. In Asiavest Limited v. Court of Appeals,[31] the Court had the occasion to state: In an action in personam, jurisdiction over the person of the defendant is necessary for the court to validly try and decide the case. Jurisdiction over the person of a resident defendant who does not voluntarily appear in court can be acquired by personal service of summons as provided under Section 7, Rule 14 of the Rules of Court. If he cannot be personally served with summons within a reasonable time, substituted service may be made in accordance with Section 8 of said Rule. If he is temporarily out of the country, any of the following modes of service may be resorted to: (a) substituted service set forth in Section 8; (2) personal service outside the country, with leave of court; (3) service by publication, also with leave of court; or (4) any other manner the court may deem sufficient.[32] Thus, any judgment of the court which has no jurisdiction over the person of the defendant is null and void.[33] In the present case, the records show that the respondent, before and after his marriage to Jarl Jensen on August 23, 1987, remained a resident of Barangay Buenlag, Calasiao, Pangasinan. This can be gleaned from the Deed of Absolute Sale dated August 26, 1992 in which she declared that she was a resident of said barangay. Moreover, in the Real Estate Mortgage Contract dated February 9, 1999, ten days before the complaint in Civil Case No. 879 was filed, the petitioner categorically stated that she was a Filipino and a resident of Barangay Buenlag, Calasiao, Pangasinan. Considering that the respondent was in Oslo, Norway, having left the Philippines on February 17, 1999, the summons and complaint in Civil Case No. 879 may only be

validly served on her through substituted service under Section 7, Rule 14 of the Rules of Court, which reads: SEC. 7. Substituted service. If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendants residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at defendants office or regular place of business with some competent person in charge thereof. Strict compliance with the mode of service is required in order that the court may acquire jurisdiction over the person of the defendant.[34] The statutory requirement of substituted service must be followed faithfully and strictly and any substituted service other than that authorized by the statute is rendered ineffective.[35] As the Court held in Hamilton v. Levy:[36] The pertinent facts and circumstances attendant to the service of summons must be stated in the proof of service or Officers Return; otherwise, any substituted service made in lieu of personal service cannot be upheld. This is necessary because substituted service is in derogation of the usual method of service. It is a method extraordinary in character and hence may be used only as prescribed and in the circumstances authorized by statute. Here, no such explanation was made. Failure to faithfully, strictly, and fully comply with the requirements of substituted service renders said service ineffective.[37] In Keister v. Narcereo,[38] the Court held that the term dwelling house or residence are generally held to refer to the time of service; hence, it is not sufficient to leave the summons at the formers dwelling house, residence or place of abode, as the case may be. Dwelling house or residence refers to the place where the person named in the summons is living at the time when the service is made, even though he may be temporarily out of the country at the time. It is, thus, the service of the summons intended for the defendant that must be left with the person of suitable age and discretion residing in the house of the defendant. Compliance with the rules regarding the service of summons is as much important as the issue of due process as of jurisdiction.
[39]

The Return of Service filed by Sheriff Eduardo J. Abulencia on the service of summons reads: Respectfully returned to the court of origin the herein summons and enclosures in the above-entitled case, the undersigned caused the service on April 5, 1999.

Defendant Vivian Layno Jensen is out of the country as per information from her brother Oscar Layno, however, copy of summons and enclosures was received by her brother Oscar Layno on April 5, 1999 as evidenced by his signature appearing in the original summons. Calasiao, Pangasinan, April 6, 1999. (Sgd.) EDUARDO J. ABULENCIA Junior Process Server[40] As gleaned from the said return, there is no showing that as of April 5, 1999, the house where the Sheriff found Oscar Layno was the latters residence or that of the respondent herein. Neither is there any showing that the Sheriff tried to ascertain where the residence of the respondent was on the said date. It turned out that the occupant of the house was a lessor, Eduardo Gonzales, and that Oscar Layno was in the premises only to collect the rentals from him. The service of the summons on a person at a place where he was a visitor is not considered to have been left at the residence or place or abode, where he has another place at which he ordinarily stays and to which he intends to return.[41] The Voters Registration Record of Oscar Layno dated June 15, 1997 wherein he declared that he was a resident of No. 572 Barangay Buenlag, Calasiao, Pangasinan, as well as the Joint Affidavit of Vicenta Peralta and Orlando Macasalda cannot prevail over the Contract of Lease the respondent had executed in favor of Eduardo Gonzales showing that the latter had resided and occupied the house of the respondent as lessee since November 24, 1997, and the affidavit of Eduardo Gonzales that Oscar Layno was not residing in the said house on April 5, 1999. In sum, then, the respondent was not validly served with summons and the complaint in Civil Case No. 879 on April 5, 1999, by substituted service. Hence, the MTC failed to acquire jurisdiction over the person of the respondent; as such, the decision of the MTC in Civil Case No. 879 is null and void. IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. No costs. SO ORDERED. Puno, JJ., concur. (Chairman), Austria-Martinez, Tinga, and Chico-Nazario,

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-20928 March 31, 1966

NATIONAL WATERWORKS AND SEWERAGE AUTHORITY, plaintiff-appellee, vs. SECRETARY OF PUBLIC WORKS AND COMMUNICATIONS, defendant-appellant. Office of the Solicitor General for the respondent-appellant. Tomas P. Matic, Jr. for the plaintiff-appellee. REYES, J.B.L., J.: Direct appeal from a judgment of the Court of First Instance of Manila, Branch XII, rendered in its Civil Case No. 43729, annulling and setting aside an administrative decision of the Secretary of Public Works and Communications, appealed to said court pursuant to the provisions of the Irrigation Law (Act 2152). The controversy started from a letter complaint, dated January 7, 1959, of the Project Engineer of the Angat River Irrigation System to the Director of Public Works, asking that representations be made to the National Waterworks and Sewerage Authority (NAWASA for short) to secure the release of enough water from the Ipo Dam to avert a crop failure in the Province of Bulacan, and from the refusal of the NAWASA to grant the request because of the low water level in its reservoirs. After a series of indorsements, the Acting Undersecretary of Public Works and Communications, acting for the Secretary, rendered an administrative decision recognizing that Executive Proclamation Nos. 48 (dated November 10, 1922) and 72 (dated December 27, 1950) reserved 3600 and 40,000 liters per second of water from the Angat River for the Metropolitan Water District (predecessor of the NAWASA) and the Angat River Irrigation, System, respectively, but declaring that NAWASA is not entitled to priority in the use of the water of the Angat River, and ordering the said entity to apply for water rights with the Bureau of Public Works, pursuant to section 14 of Act 2152 (Irrigation Law). In effect, the Secretary's decision declares that the NAWASA has no right to use the waters of the Angat River. Its attempts to secure reconsideration of the Department's ruling having proved futile, NAWASA appealed to the court, as provided by section 4 of the Irrigation Act, that allows such appeal within 30 days from notice of the administrative decision. This was done by forwarding a complaint by registered mail on the last (or 30th) day of the period allowed by law. The defendant Secretary of Public Works and Communications answered, interposing the defenses that: (1) the complaint was filed out of time; (2) the plaintiff NAWASA had not exhausted all available administrative remedies; and (3) that plaintiff has not acquired the right to use and enjoy the water from the Angat River by administrative concession or prescription.
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The court below found the defenses interposed to be untenable, and reversed the Secretary's decision. Whereupon, this appeal was duly taken and the case elevated to this Court, where defendant-appellant assigns the following errors:

1. The trial court erred in holding that the appeal to the court made by plaintiff from the decision of the Secretary of Public Works was filed within the reglementary period. 2. The trial court erred in holding that plaintiff has acquired the right to use the waters of the Angat River by prescription. 3. The trial court erred in not dismissing the petition. In its first assignment of error, the defendant Secretary contends that, admitting that the NAWASA's complaint in appeal was sent by registered mail on the last of the 30 days allowed by the Irrigation Act for appealing the administrative decision to the court of competent jurisdiction, still the complaint may not be deemed to have been filed on the same day, for the reason that there is no showing that the filing fees were simultaneously paid. The appellant's argument, however, fails to take into account that, in appealed cases, failure to pay the docketing fees does not automatically result in the dismissal of the appeal; the dismissal is discretionary in the appellate court. Rule 141, section 3, speaking of the fees of the clerk of the Court of Appeals or of the Supreme Court, provides that: If the fees are not paid, the court may refuse to proceed with the action until they are paid and may dismiss the appeal or the action or proceeding. The rule quoted is applicable by analogy to the Court of First Instance of Manila in the instant case, since the Court was exercising appellate jurisdiction conferred upon it by law to review administrative decisions under the Irrigation Act. For the rest, it is well to remember that the discretion of inferior courts is not to be interferred with in the absence of plain abuse thereof. Considering that under the Rules of Court the date of mailing (by registered mail) is considered the date of filing of any petition, or pleading, the appellant's first assignment of error must be overruled. The appellant's second assignment of error goes to the merits of the case. It is undisputed that, by Proclamation No. 5 of July 10, 1913, as amended by Proclamation No. 48 of November 10, 1922, the then Governor-General of the Philippine Islands, General Leonard Wood, expressly declared that, pursuant to Act No. 2152 I hereby, for reasons of public policy designate as exempt from appropriation and reserve for the use of the Metropolitan Water District of Manila, Philippine Islands, 3500 liters per second of time, or so much thereof as may be needed for domestic purposes, of the water of the Angat River, Province of Bulacan, Philippine Islands . . . . The terms "exempt from appropriation and reserve for the use of the Metropolitan Water District" necessarily imply that the District was granted authority to withdraw and make exclusive use of the aforesaid amount of water; otherwise, the reservation and exemption from appropriation of such water would lose all significance. The proclamation, in effect, amount to an administrative concession in favor of the Metropolitan Water District (predecessor of the NAWASA), and is entitled to priority over the similar reservation in favor of the Angat River Irrigation System made by Proclamation No. 72, Series of 1950, since that of the Water District was made twenty-eight years earlier, at the very least; and in addition, the amount of water thus reserved was "excluded from appropriation", obviously by anyone else other than the grantee.

The stand taken by the respondent Secretary of Public Works is that while the Governor-General's Proclamations constituted valid reservations of water in favor of the Water District, yet to validly appropriate such water the District must first apply to the Director of Public Works. This ruling does not appear reasonable. As heretofore noted, the proclamation already "excluded from appropriation" the water reserved for the Metropolitan Water District. In view of the executive control that the American Governor-General exercised (under the Organic Laws in force in 1922) over the offices under him, it is difficult to conceive that the Secretary or the Director of Public Works could refuse the Metropolitan Water District the right to use the water reserved for its use by the Chief Executive, since it would, in effect, amend the latter's proclamations. And if the Director could not refuse, but had necessarily to confirm the grant, then an application to his office for such concession became a useless ceremony and a total superfluity. We are thus led to no other conclusion but that the Proclamations in favor of the Metropolitan Water District constituted valid and operative administrative concessions in favor of appellee's predecessor, and it admittedly made use of the water thus granted, without objection from any party until 1959. Actually, one of defendant's predecessors was even chairman of the plaintiff's Board of Directors when the Ipo Dam was built (Rec. on App., p. 41) to divert the water of the Angat River into the plaintiff's aqueducts. The incontestable fact is that from 1913 to 1959, i.e., for 46 years, the NAWASA and its predecessors in interest had openly, publicly, and exclusively appropriated water from the Angat River without protest from anyone; but appellant Secretary seeks to neutralize this long acquiescedin user by arguing that under the Irrigation Act, Act 2152 as amended, acquisition by prescription of the use of public waters is not recognized, because under section 14 of said Act, Any person hereafter desiring to appropriate any public water shall previously make an application to the Secretary of Public Works and Communications through the Director of Public Works. It is worthy of note that, as observed by the court a quo, both the Civil Code of 1889 (Art. 409) and the Law of Waters of 1866 (Art. 194) recognized two different ways of acquiring the right to the use of public waters: (1) by administrative concession and (2) by prescription for 20 years. Since the Irrigation law nowhere provides that the procedure provided in its section 14 shall be exclusive, and implied repeals are not favored, we see no reason to disturb the lower court's conclusion that even if the Irrigation law did modify the old legislation procedure in obtaining administrative concession of public waters, still it has not invalidated prescription of a mode of acquiring title thereto, specially considering that the Civil Code of 1950, Article 504, reiterates the dual juridical source of title to the use of public water, and even reduces the prescriptive period from twenty to ten years. In fact, the Attorney General of the Philippines had heretofore recognized that the Irrigation law (Art. 2152) has not affected either Article 409 of the Civil Code of 1889 or Articles 39 and 194 of the Law of Waters of 1866 (7 op. Atty. Gen. 570, 576-579; Francisco, Philippine Law of Waters and Water Rights, p. 147). More conclusive still is the pronouncement of this Supreme Court in Serrano vs. De la Cruz, 67 Phil. 348, wherein as late as 1939, twenty-seven years after the enactment of the original Irrigation Act No. 2152, this High Tribunal recognized the existence of title to the use of public water by prescription, saying (cas. cit. p. 350): Neither had the petitioner acquired a right of of public waters, through prescription, by continuous enjoyment thereof for only ten years. Prescription of twenty years is necessary to

that effect. (Art. 409, Civil, Code; Art. 39, Law of Waters of August 3, 1866; Magno vs. Castro, 30 Phil. 585; Sideco vs. Sareas and Sareas, 41 Phil. 80.) Appellant argues finally that the use of the waters of the Angat River by NAWASA and its predecessors could not ripen into a valid right because it was not exercised adversely against the Government. The answer to this contention was given since 1933 in our decision in Government of the Philippine Islands vs. Franco, 57 Phil. 780, 784, where this Court ruled: It is axiomatic that prescription can not be asserted against the sovereign, and it is therefore futile for any claimant of real property to claim adverse possession against the Government. It results that it is never necessary, in order to acquire title by adverse possession against an individual owner, that the person asserting adverse possession should have held adversely to the Government. The decisions bearing upon this point will be found collated in the note to Boe vs. Arnold (20 Am. & Eng. Ann. Cases, 533), as well as in 2 C.J., pp. 130, 131, and it is unnecessary to extend the discussion. Hence, that the Metropolitan Water District and the NAWASA did not hold adversely against the Government does not mean that their possession and use of the Angat River Waters was not adverse to that of the Angat River Irrigation System, which is its adversary in the present proceedings. The NAWASA and its predecessors had no need of holding adversely against the National Government since the latter had expressly granted it the prior use of the water in question by the two proclamations previously referred to. The defendant Secretary appears to have overlooked that in prosecuting the present case the NAWASA is not asserting a right against the Government itself but merely appealing from the Secretary's decision. Appellant's third assignment of error, being a mere consequence of the preceding ones, requires no separate discussion. We conclude that the court below correctly reversed the administrative decision of appellant Secretary of Public Works and Communications for not being in consonance with the applicable law. Wherefore, the decision appealed from is hereby affirmed. Without costs. Bengzon, C.J., Bautista Angelo, Concepcion, Barrera, Regala, Makalintal, Bengzon, J.P., Zaldivar and Sanchez, JJ., concur. Dizon, J., is on leave.