1.

[Ampong's] present status as a judicial employee is not a hindrance to her getting the penalty
she deserves

It is true that the CSC has administrative jurisdiction over the civil service. As defined under the
Constitution and the Administrative Code

But the Constitution provides that the Supreme Court is given exclusive administrative
supervision over all courts and judicial personnel

Administrative jurisdiction over a court employee belongs to the Supreme Court, regardless of
whether the offense was committed before or after employment in the judiciary

By virtue of this power, it is only the Supreme Court that can oversee the judges' and court
personnel's compliance with all laws, rules and regulations. It may take the proper
administrative action against them if they commit any violation. No other branch of government
may intrude into this power, without running afoul of the doctrine of separation of powers

Thus, this Court ruled that the Ombudsman cannot justify its investigation of a judge on the
powers granted to it by the Constitution. It violates the specific mandate of the Constitution
granting to the Supreme Court supervisory powers over all courts and their personnel; it
undermines the independence of the judiciary.

2. The essence of treachery is the sudden and unexpected attack on an unsuspecting victim
without the slightest provocation on his part. This is even more true if the assailant is an adult
and the victim is a minor. Minor children, who by reason of their tender years, cannot be
expected to put up a defense. Thus, when an adult person illegally attacks a minor, treachery
exists.

3. An accused cannot be convicted of an offense unless it is clearly charged in the complaint or

information.
4. Separate from the proscription against forum shopping[31] is the violation of the certification
requirement against forum shopping

Compliance with the certification against forum shopping is separate from and independent of
the avoidance of the act of forum shopping itself.

There is a difference in the treatment between failure to comply with the certification
requirement and violation of the prohibition against forum shopping not only in terms of
imposable sanctions but also in the manner of enforcing them

The former constitutes sufficient cause for the dismissal without prejudice to the filing of the
complaint or initiatory pleading upon motion and after hearing, while the latter is a ground for
summary dismissal thereof and for direct contempt

5. the submission of false entries in a certification against forum shopping constitutes indirect or
direct contempt of court, and subjects the erring counsel to the corresponding administrative
and criminal actions

6. Effect of failure to comply with the certification against forum shopping

Failure to comply with the foregoing requirements shall not be curable by mere amendment of
the complaint or other initiatory pleading but shall be cause for the dismissal of the case
without prejudice, unless otherwise provided, upon motion and after hearing.

The submission of a false certification or non-compliance with any of the undertakings therein
shall constitute indirect contempt of court, without prejudice to the corresponding
administrative and criminal actions

7. If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping,
the same shall be ground for summary dismissal with prejudice and shall constitute direct
contempt, as well as a cause for administrative sanctions.

8. In this case, it has been established that Atty. Nazareno made false declarations in the
certifications against forum shopping attached to Rudex's pleadings, for which he should be held
administratively liable.
 Records show that Atty. Nazareno, acting as Rudex's counsel, filed, in August 2003, petitions for
review assailing the judgments of default rendered in the first batch of rescission cases without
disclosing in the certifications against forum shopping the existence of the ejectment case it
filed against Sps. Sioting which involves an issue related to the complainants' rescission cases.
Further, on January 29, 2004, Rudex, represented by Atty. Nazareno, filed a complaint for
rescission and ejectment against Sps. Sioting without disclosing in the certifications against
forum shopping the existence of Sioting's May 24, 2002 rescission complaint against Rudex as
well as Rudex's own September 9, 2002 ejectment complaint also against Sps. Sioting. Finally, on
April 1, 2004, Atty. Nazareno, once more filed rescission and ejectment complaints against the
other complainants in this case without disclosing in the certifications against forum shopping
the existence of complainants' own complaints for rescission.

Owing to the evident similarity of the issues involved in each set of cases, Atty. Nazareno as
mandated by the Rules of Court and more pertinently, the canons of the Code should have
truthfully declared the existence of the pending related cases in the certifications against forum
shopping attached to the pertinent pleadings. Considering that Atty. Nazareno did not even
bother to refute the charges against him despite due notice, the Court finds no cogent reason to
deviate from the IBP's resolution on his administrative liability. However, as for the penalty to
be imposed, the Court deems it proper to modify the IBP's finding on this score.

Worse, Atty. Nazareno notarized the certifications against forum shopping attached to all the
aforementioned complaints, fully aware that they identically asserted a material falsehood, i.e.,
that Rudex had not commenced any actions or proceedings or was not aware of any pending
actions or proceedings involving the same issues in any other forum. The administrative liability
of an erring notary public in this respect was clearly delineated as a violation of Rule 1.01, Canon
1 of the Code in the case of Heirs of the Late Spouses Villanueva v. Atty. Beradio, [36] to wit:

Where admittedly the notary public has personal knowledge of a false statement or
information contained in the instrument to be notarized, yet proceeds to affix his or her
notarial seal on it, the Court must not hesitate to discipline the notary public accordingly
as the circumstances of the case may dictate. Otherwise, the integrity and sanctity of the
notarization process may be undermined and public confidence on notarial documents
diminished. In this case, respondent's conduct amounted to a breach of Canon 1 of the
Code of Professional Responsibility, which requires lawyers to obey the laws of the
land and promote respect for the law and legal processes. Respondent also violated
Rule 1.01 of the Code which proscribes lawyers from engaging in unlawful,
dishonest, immoral, or deceitful conduct.[37] (Emphasis supplied)

9. The rescission was proper. There was a substantial breach of the contract.
10. As a general rule, the power to rescind an obligation must be invoked judicially and cannot be
exercised solely on a party's own judgment that the other has committed a breach of the
obligation.[26]

This is so because rescission of a contract will not be permitted for a slight or casual breach, but
only for such substantial and fundamental violations as would defeat the very object of the
parties in making the agreement.[27]

11. As a well-established exception, however, an injured party need not resort to court action in
order to rescind a contract when the contract itself provides that it may be revoked or
cancelled upon violation of its terms and conditions

There is x x x nothing in the law that prohibits the parties from entering into agreement that
violation of the terms of the contract would cause cancellation thereof, even without court
intervention.

Judicial permission to rescind an obligation is not necessary if a contract contains a special

provision granting the power of cancellation to a party.[32]

12. By expressly stipulating in the OA that GVEI's non-payment of royalties would give PMC
sufficient cause to cancel or rescind the OA, the parties clearly had considered such violation to
be a substantial breach of their agreement.

Thus, PMC's extra-judicial rescission of the OA based on the said ground was valid.

13. Records reveal that when the OA was signed on October 30, 1987, 15 mining claims were
already covered by a perfected mining lease contract, i.e., MLC No. MRD-56, granting to the
holder thereof "the right to extract all mineral deposits found on or underneath the surface of
his mining claims x x x; to remove, process and otherwise utilize the mineral deposits for his own
benefit."[37] This meant that GVEI could have immediately extracted mineral deposits from the
covered mineral land and carried out commercial mining operations from the very start.
However, despite earlier demands made by PMC, no meaningful steps were taken by GVEI
towards the commercial production of the 15 perfected mining claims and the beneficial
exploration of those remaining. Consequently, seven years into the life of the OA, no royalties
were paid to PMC. Compounding its breach, GVEI not only failed to pay royalties to PMC but
also did not carry out its obligation to conduct operations on and/or commercialize the mining
claims already covered by MLC No. MRD-56. Truth be told, GVEI's non-performance of the latter
obligation under the OA actually made the payment of royalties to PMC virtually impossible.
 Hence, GVEI cannot blame anyone but itself for its breach of the OA, which, in turn, gave PMC
the right to unilaterally rescind the same.

14. the ground for non-payment of royalties was in itself sufficient for PMC to extra-judicially
rescind the OA, since it was provided in their agreement that it was one of the grounds to
rescind.

In any event, even discounting the ground of non-payment of royalties, PMC still had the right to
rescind the OA based on the other grounds it had invoked therefor, namely, (a) violation of
Section 2.03, Article II of the OA, or the failure of GVEI to advance the actual cost for the
perfection of the mining claims or for the acquisition of mining rights, cost of lease applications,
lease surveys and legal expenses incidental thereto, (b) GVEI's non-reimbursement of the
expenses incurred by PMC General Manager Benjamin Saguid in connection with the visit of a
financier to the mineral property in 1996, (c) its non-remittance of the US$300,000.00 received
from Excelsior Resources, Ltd., (d) its non-disclosure of contracts entered into with other mining
companies with respect to the mining claims, (e) its being a mere "promoter/broker" of PMC's
mining claims instead of being the operator thereof, and (f) its non-performance of the
necessary works on the mining claims, albeit the said grounds should have been invoked
judicially since the court would still need to determine if the same would constitute
substantial breach and not merely a slight or casual breach of the contract.

15. While Section 8.01, Article VIII of the OA as above-cited appears to expressly restrict the
availability of an extra-judicial rescission only to the grounds stated thereunder, the Court finds
that the said stipulation does not negate PMC's implied statutory right to judicially rescind the
contract for other unspecified acts that may actually amount to a substantial breach of the
contract.

This is based on Article 1191 of the Civil Code (also above-cited) which pertinently provides that
the "power to rescind obligations is implied in reciprocal ones, in case one of the obligors
should not comply with what is incumbent upon him" and that "[t]he court shall decree the
rescission claimed, unless there be just cause authorizing the fixing of a period."

16. While it remains apparent that PMC had not judicially invoked the other grounds to rescind in
this case, the only recognizable effect, however, is with respect to the reckoning point as to
 when the contract would be formally regarded as rescinded. Where parties agree to a
stipulation allowing extra-judicial rescission, no judicial decree is necessary for rescission to
take place; the extra-judicial rescission immediately releases the party from its obligation
under the contract, subject only to court reversal if found improper. On the other hand, without
a stipulation allowing extra-judicial rescission, it is the judicial decree that rescinds, and not
the will of the rescinding party. This may be gathered from previous Court rulings on the
matter.

17. For instance, in Ocejo, Perez & Co. v. International Banking Corporation,[38] where the seller,
without having reserved title to the thing sold, sought to re-possess the subject matter of the
sale through an action for replevin after the buyer failed to pay its purchase price, the Court
ruled that the action of replevin (which operates on the assumption that the plaintiff is the
owner of the thing subject of the suit) "will not lie upon the theory that the rescission has
already taken place and that the seller has recovered title to the thing sold."

It held that the title which had already passed by delivery to the buyer is not ipso facto re-
vested in the seller upon the latter's own determination to rescind the sale because it is the
judgment of the court that produces the rescission.

18. On the other hand, in De Luna v. Abrigo [39] (De Luna), the Court upheld the validity of a
stipulation providing for the automatic reversion of donated property to the donor upon non-
compliance of certain conditions therefor as the same was akin to an agreement granting a
party the right to extra-judicially rescind the contract in case of breach

The Court ruled, in effect, that a subsequent court judgment does not rescind the contract but
merely declares the fact that the same has been rescinded,

[J]udicial intervention is necessary not for purposes of obtaining a judicial declaration

rescinding a contract already deemed rescinded by virtue of an agreement providing for
rescission even without judicial intervention, but in order to determine whether or not the
rescission was proper.

19. A similar agreement in Roman Catholic Archbishop of Manila v. CA[41] allowing the ipso facto
reversion of the donated property upon non- compliance with the conditions was likewise
upheld, with the Court reiterating De Luna and declaring in unmistakable terms that
 Where [the propriety of the automatic rescission] is sustained, the decision of the court
will be merely declaratory of the revocation, but it is not in itself the revocatory act.
(Emphasis and underscoring supplied)

20. This notwithstanding, jurisprudence still indicates that an extra-judicial rescission based on
grounds not specified in the contract would not preclude a party to treat the same as
rescinded.

The rescinding party, however, by such course of action, subjects himself to the risk of being
held liable for damages when the extra-judicial rescission is questioned by the opposing party in
court.

This was made clear in the case of U.P. v. De Los Angeles,[43] wherein the Court held as follows:

Of course, it must be understood that the act of a party in treating a contract as cancelled or
resolved on account of infractions by the other contracting party must be made known to the
other and is always provisional, being ever subject to scrutiny and review by the proper court.
If the other party denies that rescission is justified, it is free to resort to judicial action in its
own behalf, and bring the matter to court. Then, should the court, after due hearing, decide
that the resolution of the contract was not warranted, the responsible party will be sentenced
to damages; in the contrary case, the resolution will be affirmed, and the consequent indemnity
awarded to the party prejudiced.

In other words, the party who deems the contract violated may consider it resolved or
rescinded, and act accordingly, without previous court action, but it proceeds at its own risk.

For it is only the final judgment of the corresponding court that will conclusively and finally
settle whether the action taken was or was not correct in law.

21. The pronouncement, which was also reiterated in the case of Angeles v. Calasanz, [45] sought to
explain various rulings that continued to require judicial confirmation even in cases when the
rescinding party has a proven contractual right to extra-judicially rescind the contract. The
observation then was mainly on the practical effect of a stipulation allowing extra-judicial
rescission being merely "to transfer to the defaulter the initiative on instituting suit, instead of
the rescinder.
22. Proceeding from the foregoing, the Court has determined that the other grounds raised by PMC
in its Letter dated June 8, 1999 to GVEI (the existence of which had not been convincingly
disputed herein) amounts to the latter's substantial breach of the OA. To the Court's mind, said
infractions, when taken together, ultimately resulted in GVEI's failure to faithfully perform its
primordial obligation under the OA to explore and develop PMC's mining claims as well as to put
the same into commercial operation

Accordingly, PMC's rescission of the OA on the foregoing grounds, in addition to the ground of
non-payment of royalties, is equally valid.

Finally, the Court cannot lend credence to GVEI's contention that when PMC entered into an
agreement with CVI covering the mining claims, it was committing a violation of the terms and
conditions of the OA. As above-explained, the invocation of a stipulation allowing extra-judicial
rescission effectively puts an end to the contract and, thus, releases the parties from the
obligations thereunder, notwithstanding the lack of a judicial decree for the purpose.

In the case at bar, PMC, through its Letter dated June 8, 1999 to GVEI, invoked Section 8.01,
Article VIII in relation to Section 5.01, Article V of the OA which allows it to extra-judicially
rescind the contract for GVEI's non-payment of royalties. Thus, at that point in time, PMC had
effectively rescinded the OA and was then considered to have been released from its legal
effects. Accordingly, there stood no legal impediment so as to hinder PMC from entering into a
contract with CVI covering the same mining claims subject of this case.

23. Taganito Mining Corp

As correctly pointed out by the CTA En Banc, the Court, in the 2010 Aichi case, ruled that the
observance of the 120-day period is a mandatory and jurisdictional requisite to the filing of a
judicial claim for refund before the CTA. Consequently, non-observance thereof would lead to
the dismissal of the judicial claim due to the CTA's lack of jurisdiction. The Court, in the same
case, also clarified that the two (2)-year prescriptive period applies only to administrative claims
and not to judicial claims. In other words, the Aichi case instructs that once the administrative
claim is filed within the prescriptive period, the claimant must wait for the 120-day period to
end and, thereafter, he is given a 30-day period to file his judicial claim before the CTA, even if
said 120-day and 30-day periods would exceed the aforementioned two (2)-year prescriptive
period.
 In the recent case of CIR v. San Roque Power Corporation (San Roque),[23] the Court, however,
recognized an exception to the mandatory and jurisdictional treatment of the 120-day period as
pronounced in Aichi. In San Roque, the Court ruled that BIR Ruling No. DA-489-03 dated
December 10, 2003 wherein the BIR stated that the "taxpayer-claimant need not wait for the
lapse of the 120-day period before it could seek judicial relief with the CTA by way of Petition for
Review" provided taxpayers-claimants the opportunity to raise a valid claim for equitable
estoppel under Section 246[24] of the NIRC, viz:

There is no dispute that the 120-day period is mandatory and jurisdictional, and that the CTA
does not acquire jurisdiction over a judicial claim that is filed before the expiration of the 120-
day period. There are, however, two exceptions to this rule. The first exception is if the
Commissioner, through a specific ruling, misleads a particular taxpayer to prematurely file a
judicial claim with the CTA. Such specific ruling is applicable only to such particular
taxpayer. The second exception is where the Commissioner, through a general interpretative
rule issued under Section 4 of the Tax Code, misleads all taxpayers into filing prematurely
judicial claims with the CTA. In these cases, the Commissioner cannot be allowed to later on
question the CTA's assumption of jurisdiction over such claim since equitable estoppel has set
in as expressly authorized under Section 246 of the Tax Code.[25]

Since the Commissioner has exclusive and original jurisdiction to interpret tax laws, taxpayers
acting in good faith should not be made to suffer for adhering to general interpretative rules
of the Commissioner interpreting tax laws, should such interpretation later turn out to be
erroneous and be reversed by the Commissioner or this Court.

Indeed, Section 246 of the Tax Code expressly provides that a reversal of a BIR regulation or
ruling cannot adversely prejudice a taxpayer who in good faith relied on the BIR regulation or
ruling prior to its reversal. x x x. (Emphases and underscoring supplied)

Reconciling the pronouncements in the Aichi and San Roque cases, the rule must therefore be
that during the period December 10, 2003 (when BIR Ruling No. DA-489-03 was issued) to
October 6, 2010 (when the Aichi case was promulgated), taxpayers-claimants need not observe
the 120-day period before it could file a judicial claim for refund of excess input VAT before the
CTA. Before and after the aforementioned period (i.e., December 10, 2003 to October 6, 2010),
the observance of the 120-day period is mandatory and jurisdictional to the filing of such claim.

24. In this case, records disclose that Taganito filed its administrative and judicial claims for refund
on December 28, 2005 and March 31, 2006, respectively or during the period when BIR Ruling
No. DA-489-03 was in place. As such, it need not have waited for the expiration of the 120-day
 period before filing its judicial claim for refund before the CTA. In view of the foregoing, the CTA
En Banc, thus, erred in dismissing Taganito's claim on the ground of prematurity.

However, as adverted to earlier, Taganito did not appeal the CTA Division's partial denial of its
claim for refund on the ground that it failed to provide sufficient evidence that its suppliers did
not avail of the benefits of zero-rating. It is well-settled that a party who does not appeal from a
judgment can no longer seek modification or reversal of the same.[26] For this reason, Taganito
may no longer question the propriety and correctness of the said partial disallowance as it had
lapsed into finality and may no longer be modified. In fine, Taganito is only entitled to the partial
refund of its unutilized input VAT in the amount of P537,645.43, as was originally granted to it
by the CTA Division and herein upheld.

25. Section 112. Refunds or Tax Credits of Input Tax.

(A) Zero-rated or Effectively Zero-rated Sales. any VAT-registered person, whose sales are zero-
rated or effectively zero-rated may, within two (2) years after the close of the taxable quarter
when the sales were made, apply for the issuance of a tax credit certificate or refund of
creditable input tax due or paid attributable to such sales, except transitional input tax, to the
extent that such input tax has not been applied against output tax: x x x.

xxxx

(D) Period within which Refund or Tax Credit of Input Taxes shall be Made. In proper cases, the
Commissioner shall grant a refund or issue the tax credit certificate for creditable input taxes
within one hundred twenty (120) days from the date of submission of complete documents in
support of the application filed in accordance with Subsections (A) and (B) hereof.

26. Under Article 694 of the Civil Code, a nuisance is defined as "any act, omission, establishment,
business, condition of property, or anything else which: (1) Injures or endangers the health or
safety of others; or (2) Annoys or offends the senses; or (3) Shocks, defies or disregards decency
or morality; or (4) Obstructs or interferes with the free passage of any public highway or street,
or any body of water; or (5) Hinders or impairs the use of property.

Article 695 of the Civil Code classifies nuisances with respect to the object or objects that they
affect. In this regard, a nuisance may either be: (a) a public nuisance (or one which "affects a
community or neighborhood or any considerable number of persons, although the extent of the
annoyance, danger or damage upon individuals may be unequal"); or (b) a private nuisance (or
 one "that is not included in the foregoing definition" [or, as case law puts it, one which "violates
only private rights and produces damages to but one or a few persons"

Jurisprudence further classifies nuisances in relation to their legal susceptibility to summary

abatement (that is, corrective action without prior judicial permission). In this regard, a nuisance
"may either be: (a) a nuisance per se (or one which "affects the immediate safety of persons and
property and may be summarily abated under the undefined law of necessity");[50] or (b) a
nuisance per accidens (or that which "depends upon certain conditions and circumstances, and
its existence being a question of fact, it cannot be abated without due hearing thereon in a
tribunal authorized to decide whether such a thing does in law constitute a nuisance.

It is a standing jurisprudential rule that unless a nuisance is a nuisance per se, it may not be
summarily abated.

There is a need for judicial intervention when the nuisance is not a nuisance per se

27. Respondents can not seek cover under the general welfare clause authorizing the abatement of
nuisances without judicial proceedings. That tenet applies to a nuisance per se, or one which
affects the immediate safety of persons and property and may be summarily abated under the
undefined law of necessity.

The storage of copra in the quonset building is a legitimate business. By its nature, it can not be
said to be injurious to rights of property, of health or of comfort of the community. If it be a
nuisance per accidens it may be so proven in a hearing conducted for that purpose. It is not per
se a nuisance warranting its summary abatement without judicial intervention

28. In the abatement of nuisances the provisions of the Civil Code-(Articles 694-707) must be
observed and followed. This appellant failed to do.

29. Aside from the remedy of summary abatement which should be taken under the parameters
stated in Articles 704.[54] (for public nuisances) and 706[55] (for private nuisances) of the Civil
Code, a private person whose property right was invaded or unreasonably interfered with by the
act, omission, establishment, business or condition of the property of another may file a civil
action to recover personal damages

30. Abatement may be judicially sought through a civil action therefor[57] if the pertinent
requirements under the Civil Code for summary abatement, or the requisite that the nuisance is
a nuisance per se, do not concur
 To note, the remedies of abatement and damages are cumulative-; hence, both may be
demanded.

31. In the present cases, Wong, et al. availed of the remedy of judicial abatement and damages
against Sps. Rana, claiming that both the elevated and cemented subject portion and the
subject backfilling are "nuisances" caused/created by the latter which curtailed their use and
enjoyment of their properties.

With respect to the elevated and cemented subject portion, the Court finds that the same is
not a nuisance per se.

By its nature, it is not injurious to the health or comfort of the community.

It was built primarily to facilitate the ingress and egress of Sps. Rana from their house which was
admittedly located on a higher elevation than the subject road and the adjoining Uy, and Wong-
Ong properties.

Since the subject portion is not a nuisance per se (but actually a nuisance per accidens as will be
later discussed) it cannot be summarily abated.

As such, Wong, et al. 's demolition of Sps. Rana's subject portion, which was not sanctioned
under the RTC's November 27, 1997 Order, remains unwarranted

Resultantly, damages ought to be awarded in favor of Sps. Rana particularly that of (a) nominal
damages[59] - for the vindication and recognition of Sps. Rana's right to be heard before the
court prior to Wong, et al. 's abatement of the subject portion (erroneously perceived as a
nuisance per se) - and (b) temperate damages[60] - for the pecuniary loss owing to the
demolition of the subject portion, which had been established albeit uncertain as to the actual
amount of loss.

32. Sps. Rana's entitlement to the above-mentioned damages, however, only stands in theory. This
is because the actual award thereof is precluded by the damage they themselves have caused
Wong, et al. in view of their construction of the subject portion
 As the records establish, Sps. Rana, without prior consultation with Wong, et al. and to their sole
advantage, elevated and cemented almost half[61] of the 10-meter wide subject road. As
homeowners of Peace Valley Subdivision, Wong, et al. maintain the rights to the unobstructed
use of and free passage over the subject road.

By constructing the subject portion, Sps. Rana introduced a nuisance per accidens that
particularly transgressed the aforesaid rights. Thus, for the vindication and recognition of
Wong, et al. 's rights, Sps. Rana should be similarly held liable for nominal damages.

33. Under Article 2216 of the Civil Code,[62] courts have the discretion to determine awards of
nominal and temperate damages without actual proof of pecuniary loss, as in this case.
Assessing the respective infractions of the parties herein, the Court finds it prudent to sustain
the CA's verdict offsetting the damage caused by said parties against each other.

34. The in pari delicto principle is inapplicable

The principle of in pari delicto provides that when two parties are equally at fault, the law leaves
them as they are and denies recovery by either one of them. However, this principle does not
apply with respect to inexistent and void contracts.

"The principle of in pari delicto non oritur 'actio denies all recovery to the guilty parties inter se.
It applies to cases where the nullity arises from the illegality of the consideration or the purpose
of the contract. When two persons are equally at fault, the law does not relieve them. The
exception to this general rule is when the principle is invoked with respect to inexistent
contracts.

Clearly, no void or inexistent contract is herein at issue,

35. As for the subject backfilling touching the perimeter fence of the Uy property, records show
that the said fence was not designed to act as a retaining wall[66] but merely to withhold
windload and its own load.[67] Both the RTC and the CA found the subject backfilling to have
added pressure on the fence,[68] consequently endangering the safety of the occupants of the Uy
property, especially considering the higher elevation of the Rana property. With these findings,
the Court thus agrees with the courts a quo that there is a need for Linda Rana to construct a
retaining wall[69] which would bear the weight and pressure of the filling materials introduced on
 their property. The Court, however, observed that neither the RTC nor the CA specified in their
respective decisions the backfilled areas which would require the retaining wall. Due to the
technicality of the matter, and considering that the due authenticity and genuineness of the
findings/recommendation[70] of the OBO and the accompanying sketch[71] thereto were not
specifically denied by Sps. Rana,[72] the required retaining wall shall be constructed in
accordance with the said sketch which showed the area backfilled.

36. Malicious prosecution, both in criminal and civil cases, requires the presence of two (2)
elements, namely: (a) malice; and (b) absence of probable cause.

Moreover, there must be proof that the prosecution was prompted by a sinister design to vex
and humiliate a person; and that it was initiated deliberately knowing that the charge was false
and baseless

Hence, the mere filing of a suit which subsequently turns out to be unsuccessful does not render
a person liable for malicious prosecution, for the law could not have meant to impose a penalty
on the right to litigate.

As the aforementioned elements were not duly proven, the claims for malicious prosecution are
hereby denied.

37. Here, it was not proven that the damage caused by (a) Sps. Rana against Wong, et al., arising
from the elevation and cementing of the subject portion and the subject backfilling, and (b) Sps.
Uy against Sps. Rana, by virtue of their 2 sq. m. encroachment, could be characterized as a form
of or had resulted in physical suffering, mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, social humiliation, or any other similar injury.
Neither was it convincingly shown that the present controversies fall within the class of cases
enumerated under Article 2219. Therefore, no moral damages should be awarded.

38. CFI of Manila had no authority to issue writs of injunction, certiorari, and prohibition affecting
persons outside its territorial boundaries.
39. The injunction issued by the CFI of Rizal purporting to restrain acts outside the province of Rizal
was null and void for want of jurisdiction.

40. Undoubtedly, applying the aforementioned precepts and pronouncements to the instant case,
the writ of prohibition issued by the Manila RTC in order to restrain acts beyond the bounds of
the territorial limits of its jurisdiction (i.e., in Iligan City) is null and void.

Also on a matter of procedure, the Court further discerns that the Manila RTC should have
dismissed the case outright for failure of Atlanta to exhaust administrative remedies.

Under RA 9184, the decisions of the BAC in all stages of procurement may be protested to the
head of the procuring entity through a verified position paper and upon payment of a protest
fee.[43] The necessity for the complaining bid participant to complete the protest process before
resorting to court action cannot be overemphasized. It is a condition precedent to the court's
taking cognizance of an action that assails a bid process.[44] When precipitately taken prior to the
completion of the protest process, such case shall be dismissed for lack of jurisdiction.[45] While
Atlanta may have written the BAC a letter objecting to some of the terms and conditions
contained in the bidding documents to be used for the re-bidding, its action fell short of the
required protest. It failed to follow through with its protest and opted instead to participate in
the re-bidding with full knowledge that the IBRD Procurement Guidelines were to be followed
throughout the conduct of the bid. Having failed to observe the protest procedure required by
law, Atlanta's case should not have prospered with the RTC altogether.

41. As the parties have correctly discerned, Loan Agreement No. 4833-PH is in the nature of an
executive agreement. In Bayan Muna v. Romulo[47] (Bayan Muna) the Court defined an
international agreement as one concluded between states in written form and governed by
international law, "whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation,"[48] and further expounded that it may be in
the form of either (a) treaties that require legislative concurrence after executive ratification; or
(b) executive agreements that are similar to treaties, except that they do not require
legislative concurrence and are usually less formal and deal with a narrower range of subject
matters than treaties

42. Loan Agreement No. 4833-PH between the IBRD and the Land Bank is an integral component of
the Guarantee Agreement executed by the Government of the Philippines as a subject of
international law possessed of a treaty-making capacity, and the IBRD, which, as an
international lending institution organized by world governments to provide loans conditioned
 upon the guarantee of repayment by the borrowing sovereign state, is likewise regarded a
subject of international law and possessed of the capacity to enter into executive agreements
with sovereign states. Being similar to a treaty but without requiring legislative concurrence,
Loan Agreement No. 4833-PH following the definition given in the Bayan Muna case is an
executive agreement and is, thus, governed by international law

43. SLA cannot be treated as an independent and unrelated contract but as a conjunct of, or having
a joint and simultaneous occurrence with, Loan Agreement No. 4833-PH. Its nature and
consideration, being a mere accessory contract of Loan Agreement No. 4833-PH, are thus the
same as that of its principal contract from which it receives life and without which it cannot
exist as an independent contract.

44. SLA has attained indivisibility with the Loan Agreement and the Guarantee Agreement through
the incorporation of each other's terms and conditions such that the character of one has
likewise become the character of the other.

45. Considering that Loan Agreement No. 4833-PH expressly provides that the procurement of the
goods to be financed from the loan proceeds shall be in accordance with the IBRD Guidelines
and the provisions of Schedule 4, and that the accessory SLA contract merely follows its
principal's terms and conditions, the procedure for competitive public bidding prescribed under
RA 9184 therefore finds no application to the procurement of goods for the Iligan City Water
Supply System Development and Expansion Project

46. Loan No. 7118-PH, partake of an executive or international agreement

47. the mere elevation of an interlocutory matter through a petition for certiorari does not by
itself merit a suspension of the proceedings before the trial court, unless a temporary
restraining order or a writ of preliminary injunction has been issued

48. Dismissal due to fault of plaintiff. If, for no justifiable cause, the plaintiff fails to appear on the
date of the presentation of his evidence in chief on the complaint, or to prosecute his action for
an unreasonable length of time, or to comply with these Rules or any order of the court, the
complaint may be dismissed upon motion of the defendant or upon the court's own motion,
without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a
 separate action. This dismissal shall have the effect of an adjudication upon the merits, unless
otherwise declared by the court. (Emphases supplied)

49. Ombudsman decision imposing the penalty of removal, among others, shall be executed as a
matter of course and shall not be stopped by an appeal thereto, viz.:

An appeal shall not stop the decision from being executory. In case the penalty is suspension
or removal and the respondent wins such appeal, he shall be considered as having been under
preventive suspension and shall be paid the salary and such other emoluments that he did not
receive by reason of the suspension or removal.

A decision of the Office of the Ombudsman in administrative cases shall be executed as a

matter of course. The Office of the Ombudsman shall ensure that the decision shall be strictly
enforced and properly implemented. The refusal or failure by any officer without just cause to
comply with an order of the Office of the Ombudsman to remove, suspend, demote, fine, or
censure shall be a ground for disciplinary action against said officer. (Emphases and
underscoring supplied)

Based on the afore-quoted provision, it is clear that the OMB'sJune 8, 2005 Order imposing the
penalty of removal on Valencerina was immediately executory, notwithstanding the pendency
of his appeal.

50. The general rule on appeals from quasi-judicial bodies stated under Section 12, Rule 43 of the
Rules which provides that "[t]he appeal shall not stay the award, judgment, final order or
resolution sought to be reviewed unless the Court of Appeals shall direct otherwise upon such
terms as it may deem just" would not apply in this case for the following reasons:

Section 7, Rule III of the Rules of Procedure of the Office of the Ombudsman supersedes
the discretion given to the CA in Section 12, Rule 43 of the Rules of Court when a
decision of the Ombudsman in an administrative case is appealed to the CA. The
provision in the Rules of Procedure of the Office of the Ombudsman that a decision is
immediately executory is a special rule that prevails over the provisions of the Rules of
Court. Specialis derogat generali. When two rules apply to a particular case, that which
was specially designed for the said case must prevail over the other.[54]

Specialis derogate generali

51. CA cannot stay the execution of decisions rendered by the said office when the rules the latter
so promulgates categorically and specifically warrant their enforcement, else the OMB's rule-
making authority be unduly encroached and the constitutional and statutory provisions
providing the same be disregarded

52. In Buencamino, the Court applied the current OMB Rules of Procedure, i.e., Administrative
Order No. 17 dated September 15, 2003, which were already in effect at the time the CA
assailed Resolutions dated June 15, 2006 and April 24, 2007 were issued, and, hence, governing.
The pertinent portions of the Buencamino ruling are hereunder quoted for ready reference

53. Sec. 7. Finality and execution of decision. - Where the respondent is absolved of the charge,
and in case of conviction where the penalty imposed is public censure or reprimand, suspension
of not more than one month, or a fine not equivalent to one month salary, the decision shall be
final, executory and unappealable. In all other cases, the decision may be appealed to the Court
of Appeals on a verified petition for review under the requirements and conditions set forth in
Rule 43 of the Rules of Court, within fifteen (15) days from receipt of the written Notice of the
Decision or Order denying the Motion for Reconsideration.

An appeal shall not stop the decision from being executory. In case the penalty is suspension
or removal and the respondent wins such appeal, he shall be considered as having been under
preventive suspension and shall be paid the salary and such other emoluments that he did not
receive by reason of the suspension or removal.

A decision of the Office of the Ombudsman in administrative cases shall be executed as a

matter of course. The Office of the Ombudsman shall ensure that the decision shall be strictly
enforced and properly implemented. The refusal or failure by any officer without just cause to
comply with an order of the Office of the Ombudsman to remove, suspend, demote, fine, or
censure shall be a ground for disciplinary action against said officer.

Clearly, considering that an appeal under Administrative Order No. 17, the amendatory rule,
shall not stop the Decision of the Office of the Ombudsman from being executory, we hold
that the Court of Appeals did not commit grave abuse of discretion in denying petitioner's
application for injunctive relief.[63] (Emphases and underscoring supplied, with those in the
original omitted)
 Lastly, it must be emphasized that the OMB Rules of Procedure are only procedural.
Hence,Valencerina had no vested right that would be violated with the execution of the OMB's
removal order pending appeal. In fact, the rules themselves obviate any substantial prejudice to
the employees he would merely be considered under preventive suspension, and entitled to
the salary and emoluments he did not receive in the event he wins his appeal. As aptly
pronounced in In the Matter to Declare in Contempt of Court Hon. Simeon A. Datumanong, in
the latter's capacity as Sec. of DPWH:[64]

[T]he Rules of Procedure of the Office of the Ombudsman are clearly procedural and no vested
right of the petitioner is violated as he is considered preventively suspended while his case is on
appeal. Moreover, in the event he wins on appeal, he shall be paid the salary and such other
emoluments that he did not receive by reason of the suspension or removal. Besides, there is no
such thing as a vested interest in an office, or even an absolute right to hold office. Excepting
constitutional offices which provide for special immunity as regards salary and tenure, no one
can be said to have any vested right in an office

Based on the foregoing reasons, the CA's Resolutions granting Valencerina's prayer for a writ of
preliminary injunction staying the execution of the Ombudsman's June 8, 2005 Order are
therefore patently erroneous and, thus, tainted with grave abuse of discretion.As jurisprudence
dictates, grave abuse of discretion arises when a lower court or tribunal patently violates the
Constitution, the law or existing jurisprudence,[66] as in this case.

54. An order of execution is not appealable, hence, an aggrieved party may resort to the special
civil action of certiorari under Rule 65 of the Rules of Court

This is because an order of execution is not a final order or resolution within the contemplation
of the rules, but is issued to carry out the enforcement of a final judgment or order against the
losing party, hence, generally not appealable.

** (assails the validity of the August 18, 2009 Order which granted the execution of the MeTC
Decision.)

While there are circumstances wherein appeal from an improper execution is allowed,[36] none
obtains in this case. Consequently, the Court finds that petitioner properly availed of the remedy
of certiorari before the RTC, contrary to the finding of the CA[37] that she should have appealed
therefrom.
55. Section 19, Rule 70 of the Rules of Court provides for the immediate execution of judgment in
favor of the plaintiff in ejectment cases, which can only be stayed if the defendant perfects an
appeal, files a supersedeas bond, and makes periodic deposit of rental or other reasonable
compensation for the use and occupancy of the subject premises during the pendency of the
appeal
 These requirements are mandatory and concurrent, without which execution will issue as a
matter of right.

In this case, it is evident that petitioner failed to interpose an appeal from the MeTC Decision
rendering the same final and executory. Hence, the August 18, 2009 Order granting its execution
was properly issued.

56. Resultantly, the implementation and execution of judgments that had attained finality are
already ministerial on the courts. Public policy also dictates that once a judgment becomes final,
executory, and unappealable, the prevailing party should not be denied the fruits of his victory
by some subterfuge devised by the losing party. Unjustified delay in the enforcement of a
judgment sets at naught the role of courts in disposing justiciable controversies with finality.
Hence, once a judgment becomes final, the prevailing party is entitled as a matter of right to a
writ of execution, the issuance of which is the trial court's ministerial duty.

57. The general rule is that a client is bound by the acts, even mistakes, of his counsel in the realm
of procedural technique. The exception to this rule is when the negligence of counsel is so gross,
reckless and inexcusable that the client is deprived of his day in court. In which case, the remedy
then is to reopen the case and allow the party who was denied his day in court to adduce his
evidence. However, a thorough review of the instant case reveals that appellant cannot seek
refuge or obtain reprieve under these principles.

A review of the records would disclose that appellant was not deprived of her day in court
before the MTC. After the filing of the complaint, appellant was able to file her Answer to the
complaint, hence, it cannot be successfully argued that she was deprived of her day in court. x x
x.

58. Hence, there is no justifiable reason to exempt petitioner from the general rule that clients
should suffer the consequences of the negligence, mistake or lack of competence of the counsel
whom they themselves hired and had the full authority to fire at any time and replace with
another even without any justifiable reason.
59. If the finding be that no agreement in writing providing for arbitration was made, or that
there is no default in the proceeding thereunder, the proceeding shall be dismissed. If the
finding be that a written provision for arbitration was made and there is a default in
proceeding thereunder, an order shall be made summarily directing the parties to proceed
with the arbitration in accordance with the terms thereof.

60. RA 876 explicitly confines the court's authority only to pass upon the issue of whether there is
or there is no agreement in writing providing for arbitration. If there is such agreement, the
court shall issue an order summarily directing the parties to proceed with the arbitration in
accordance with the terms thereof; otherwise, the proceeding shall be dismissed.[31] To stress,
such proceeding is merely a summary remedy to enforce the agreement to arbitrate and the
duty of the court is not to resolve the merits of the parties' claims but only to determine if they
should proceed to arbitration or not.[32]

In the present case, the records show that the primary relief sought for in CAGLI's complaint,
i.e., to compel the parties to submit to arbitration,[33] had already been granted by the RTC
through its Order[34] dated February 26, 2010. Undeniably, such Order partakes of a judgment on
the merits of the complaint for the enforcement of the arbitration agreement.

61. At this point, although no responsive pleading had been filed by ATSC,[35] it is the rules on
appeal, or other proceedings after rendition of a judgment or final order no longer those on
notice of dismissal that come into play. Verily, upon the rendition of a judgment or final
order,[36] the period "before service of the answer or of a motion for summary judgment,"
mentioned in Section 1[37] of Rule 17 of the Rules of Court when a notice of dismissal may be
filed by the plaintiff, no longer applies. As a consequence, a notice of dismissal filed by the
plaintiff at such judgment stage should no longer be entertained or confirmed.

62. In Gonzales, the Court explained that "[d]isputes do not go to arbitration unless and until the
parties have agreed to abide by the arbitrator's decision. Necessarily, a contract is required for
arbitration to take place and to be binding."

63. Only those parties who have agreed to submit a controversy to arbitration who, as against each
other, may be compelled to submit to arbitration.

The three parties to the Agreement and necessarily to the arbitration agreement embodied
therein are: (a) ASC, (b) CAGLI, and (c) WLI/WG&A/ATSC. Contracts, like the subject arbitration
agreement, take effect only between the parties, their assigns and heirs.[42] Respondent
Chiongbian, having merely physically signed the Agreement as a representative of WLI, is not a
party thereto and to the arbitration agreement contained therein. Neither is he an assignee or
 an heir of any of the parties to the arbitration agreement. Hence, respondent Chiongbian cannot
be included in the arbitration proceedings.

64. They, being mere private complainants, lacked the legal personality to appeal the dismissal of
Criminal Case No. 06-875 (resulting from the quashal of the information therein on the ground
of lack of jurisdiction).

To expound, it is well-settled that the authority to represent the State in appeals of criminal
cases before the Court and the CA is vested solely in the OSG[26] which is the law office of the
Government whose specific powers and functions include that of representing the Republic
and/or the people before any court in any action which affects the welfare of the people as the
ends of justice may require.[27] Explicitly, Section 35(1), Chapter 12, Title III, Book IV of the 1987
Administrative Code[28] provides that:

Accordingly, jurisprudence holds that if there is a dismissal of a criminal case by the trial court or
if there is an acquittal of the accused, it is only the OSG that may bring an appeal on the
criminal aspect representing the People

The rationale therefor is rooted in the principle that the party affected by the dismissal of the
criminal action is the People and not the petitioners who are mere complaining witnesses.

For this reason, the People are therefore deemed as the real parties in interest in the criminal
case and, therefore, only the OSG can represent them in criminal proceedings pending in the CA
or in this Court

In view of the corollary principle that every action must be prosecuted or defended in the name
of the real party-in-interest who stands to be benefited or injured by the judgment in the suit, or
by the party entitled to the avails of the suit,[31] an appeal of the criminal case not filed by the
People as represented by the OSG is perforce dismissible

The private complainant or the offended party may, however, file an appeal without the
intervention of the OSG but only insofar as the civil liability of the accused is concerned.[32] He
may also file a special civil action for certiorari even without the intervention of the OSG, but
only to the end of preserving his interest in the civil aspect of the case

Here, it is clear that petitioners did not file their appeal merely to preserve their interest in the
civil aspect of the case. Rather, by seeking the reversal of the RTC's quashal of the information in
Criminal Case No. 06-875 and thereby seeking that the said court be directed to set the case for
 arraignment and to proceed with trial,[34] it is sufficiently clear that they sought the
reinstatement of the criminal prosecution of respondents for libel.

Being an obvious attempt to meddle into the criminal aspect of the case without the conformity
of the OSG, their recourse, in view of the above-discussed principles, must necessarily fail.

To repeat, the right to prosecute criminal cases pertains exclusively to the People, which is
therefore the proper party to bring the appeal through the representation of the OSG.

Petitioners have no personality or legal standing to interpose an appeal in a criminal proceeding.

Since the OSG had expressly withheld its conformity and endorsement in the instant case, the
CA, therefore, correctly dismissed the appeal. It must, however, be clarified that the aforesaid
dismissal is without prejudice to their filing of the appropriate action to preserve their interests
but only with respect to the civil aspect of the libel case following the parameters of Rule 111 of
the Rules of Criminal Procedure.

65. Where the person kidnapped is killed in the course of the detention, regardless of whether
the killing was purposely sought or was merely an afterthought, the kidnapping and murder or
homicide can no longer be complexed under Art. 48, nor be treated as separate crimes, but
shall be punished as a special complex crime under the last paragraph of Art. 267, as amended
by RA No. 7659

66.
67.

68.
69.
70.
71.