UNIVERSAL RUBBER PRODUCTS, INC.

,
Petitioner,
G. R. No. L-30266
June 29, 1984
-versusHON. COURT OF APPEALS,
CONVERSE RUBBER CORPORATION,
EDWARDSON MANUFACTURING CO., INC.chanrobles virtual law
library
and HON. PEDRO C. NAVARRO,
Respondents.
RESOLU TION
GUERRERO, J.:
This Petition for Review concerns a "subpoena duces tecum" which
was issued by the trial court against the Treasurer of the herein
petitioner, the propriety of which was upheld by the defunct Court of
Appeals [now Intermediate Appellate Court].
The facts of this case as stated in the decision of the then Court of
Appeals are as follows:
Records disclose that the two respondent corporations herein sued
the present petitioner before the Court of First Instance of Rizal for
unfair competition with damages and attorney's fees. In due time,
herein petitioner, who was the defendant in that court suit, answered
the complaint and joined issues with the plaintiffs therein, forthwith
respondent Judge, to whom that lawsuit was assigned, proceeded
with the trial thereof. After they have presented about nine witnesses
and various pieces of documentary evidence, herein private
respondents made a request to the respondent Judge to issue
a subpoena duces tecum against the treasurer of herein petitioner.
Acting favorably on that request, said respondent Judge issued
a subpoena duces tecum on February 13, 1968, directing the
treasurer of the present petitioner to bring with him to the lower court
on February 26, 1968 and March 8, 1968 at 2:30 p.m. ", all sales
invoices, sales books and ledgers wherein are recorded the sales of

Plymouth Star Player rubber shoes from the time the corporation
started manufacturing and selling said shoes up to the present.cralaw
On March 4, 1968, petitioner filed a motion in the court below praying
that thesubpoena duces tecum dated February 13, 1968 be quashed
on the grounds that: [1] the said subpoena is both unreasonable and
oppressive as the books and documents called for are numerous and
voluminous; [2] there is no good cause shown for the issuance
thereof; and [3] the books and documents are not relevant to the case
pending below. The private respondents herein opposed that motion
of the petitioner. Acting on the said motion and on the opposition
thereto, respondent Judge issued the first controverted order on May
6, 1968, denying the motion to quash the subpoena duces tecum.
On May 15, 1968, herein petitioner filed in the court a quo a motion for
reconsideration seeking the said court to reconsider its order denying
the motion to quash the subpoena duces tecum. This, too, was
opposed by the private respondents. Acting on this motion, as well as
on the opposition thereto, respondent Judge issued the second
controverted order on June 28, 1968, denying the motion for
reconsideration. Consequently, on August 6, 1968, petitioner
Universal Rubber Products, Inc. filed its present petition for certiorari
with preliminary injunction, alleging that in so denying its motion to
quash the subpoena duces tecum and its subsequent motion for
reconsideration, respondent Judge acted with grave abuse of
discretion amounting to an excess of jurisdiction. [1]
Pending the resolution of the appealed case, the Court of Appeals
issued on September 25, 1968 a temporary restraining order directing
the respondent Judge of the trial court to refrain from implementing
his order dated May 6, 1968 in Civil Case No. 9686. [2]
On November 12, 1968, the respondent Court rendered its Decision
denying the petition for certiorari filed by petitioner for lack of merit.
The dispositive portion of the said Decision reads: [3]
WHEREFORE, for lack of merit, the present petition for certiorari with
preliminary injunction is hereby denied and the temporary restraining
order issued by this Court on September 25, 1968 is now lifted, with
costs against the petitioner.
SO ORDERED.
Petitioner argues three errors to support his Petition, to wit: [4]
I.chanrobles virtual law library

The respondent Court erred when it found the fact of the petition and
its annexes as not demonstrating clear abuse of discretion by
respondent Judge.chanrobles virtual law library
II.chanrobles virtual law library
The respondent Court erred when it refused to sustain the contention
of petitioner that the issuance by the respondent judge of
thesubpoena duces tecum was an arbitrary exercise of judicial
power.chanrobles virtual law library
III.chanrobles virtual law library
The respondent Court erred when it did not consider the subpoena
duces tecum issued by the respondent Judge as a fishing bill when it
refused to order its quashal.chanrobles virtual law library
The issues summarized, We are called upon to answer whether the
issuance of the "subpoena duces tecum" is proper in a suit for unfair
competition.cralaw
Private respondent claims the affirmative because [1] the subpoena
duces tecum in question specifically designates the books and
documents that should be produced in court and they are 4 sales
invoices, sales books and ledgers where are recorded the sales of
Plymouth Star Player Rubber Shoes from the time the corporation
started manufacturing and selling shoes [that is from April 1, 1963] up
to the present; and [2] the relevancy of the books subject to the
controverted subpoena duces tecum cannot be seriously denied
because if and when herein respondent corporations are ultimately
adjudged to be entitled to recover compensatory damages from the
petitioner, there would be no factual basis for the amount of such
damages unless those books and documents are laid open for the
court's scrutiny.cralaw
On the other hand, petitioner submits a contrary opinion and insists
that the question of liability of petitioner should be determined first
before discovery by means of a subpoena duces tecum is allowed;
that respondent Converse is a foreign corporation not licensed to do
business in the Philippines and that Edwardson is merely its licensee;
that respondent Converse has no goodwill to speak of and that it has
no registrable right over its own names; that the questioned subpoena
duces tecum issued by respondent judge was merely a "Fishing Bill."
In the meantime, while this present petition remains pending before
this Court, petitioner manifested on April 2, 1977 [5] that their
establishment was totally burned together with all the records which is
sought to be produced in court by the questioned "subpoena duces

tecum" on May 3, 1970. In effect, it renders the present petition moot

and academic. However, the legal principles arising from the issues
deserve Our discussion and resolution.cralaw
As a general rule, on obtaining an injunction for infringement of a
trademark, complainant is entitled to an accounting and recovery of
defendant's profits on the goods sold under that mark, as incident to,
and a part of, his property right, and this rule applies in cases of unfair
competition. In such case, the infringer or unfair trader is required in
equity to account for and yield up his gains on a principle analogous
to that which charges as trustee with the profits acquired by the
wrongful use of the property of the cestui que trust, and defendant's
profits are regarded as an equitable measure of the compensation
plaintiff should receive for the past harm suffered by him. [6]
Well-settled is Our jurisprudence that, in order to entitle a party to the
issuance of a "subpoena duces tecum ", it must appear, by clear and
unequivocal proof, that the book or document sought to be produced
contains evidence relevant and material to the issue before the court,
and that the precise book, paper or document containing such
evidence has been so designated or described that it may be
identified. [7] A "subpoena duces tecum" once issued by the court,
may be quashed upon motion if the issuance thereof is unreasonable
and oppressive or the relevancy of the books, documents or things
does not appear, or if the persons in whose behalf the subpoena is
issued fails to advance the reasonable cost of production thereof. [8]
In the instant case, in determining whether the books subject to
the subpoena duces tecum are relevant and reasonable in relation to
the complaint of private respondent for unfair competition, We have to
examine Republic Act No. 166, which provides:
Chapter V. Rights and Remedies
xxx xxx xxx
Sec. 23. Actions, and damages and injunction for infringement. - Any
person entitled to the exclusive use of a registered mark or trade
name may recover damages in a civil action from any person who
infringes his rights and the measure of the damages suffered shall be
either the reasonable profit which the complaining party would have
made, had the defendant not infringed his said rights, or the profit
which the defendant actually made out of the infringment
management, or in the event such measure of damages cannot be
readily ascertained with reasonable certainty, then the court may
award as damages a reasonable percentage based upon the amount
2

of gross sales of the defendant of the value of the services in

connection with which the mark or trade name was used in the
infringement of the rights of the complaining party. In cases where
actual intent to mislead the public or to defraud the complaining party
shall be shown in the discretion of the court, the damages may be
doubled.
The complaining party, upon proper showing may also be granted
injunction.
In recovering the loss suffered by the aggrieved party due to unfair
competition," Sec. 23 of R. A. 166 [9] grants the complainant three
options within which to ascertain the amount of damages recoverable,
either [1] the reasonable profit which the complaining party would
have made, had the defendant not infringed his said rights; or [2] the
profit which the defendant actually made out of the infringement; or [3]
the court may award as damages a reasonable percentage based
upon the amount of gross sales of the defendant or the value of the
services in connection with which the mark or tradename was issued
in the infringement of the rights of the complaining party.
In giving life to this remedial statute, We must uphold the order of the
court a quo denying the motion of the petitioner to quash
the "subpoena duces tecum" previously issued against the petitioner.
In a suit for unfair competition, it is only through the issuance of the
questioned "subpoena duces tecum" that the complaining party is
afforded his full rights of redress.cralaw
The argument that the petitioner should first be found guilty unfair
competition before an accounting for purposes of ascertaining the
amount of damages recoverable can proceed, stands without
meritThe complaint for unfair competition is basically a suit for
"injunction and damages." [10] Injunction, for the purpose of enjoining
the unlawful competitor from proceeding further with the unlawful
competition, and damages, in order to allow the aggrieved party to
recover the damage he has suffered by virtue of the said unlawful
competition. Hence, the election of the complainant [private
respondent herein] for the accounting of petitioner's [defendant below]
gross sales as damages per R. A. 166, appears most relevant. For
Us, to determine the amount of damages allowable after the final
determination of the unfair competition case would not only render
nugatory the rights of complainant under Sec. 23 of R. A. 166, but
would be a repetitious process causing only unnecessary delay.cralaw

The sufficiency in the description of the books sought to be produced

in court by the questioned "subpoena duces tecum" is not disputed in
this case, hence, We hold that the same has passed the test of
sufficient description.cralaw
Petitioner also assails that private respondent is a foreign corporation
not licensed to do business in the Philippines and that respondent
Edwardson is merely its licensee; that respondent Converse has no
goodwill to speak of and that it has no registrable right over its own
name. We have already answered this issue squarely in Our decision
of the case of Converse Rubber Corporation vs. Jacinto Rubber &
Plastic Co., Inc., [11] where We explained:
The disability of a foreign corporation from suing in the Philippines is
limited to suits to enforce any legal of contract rights arising from, or
growing out, of any business which it has transacted in the Philippine
Islands. On the other hand, where the purpose of the suit is "to protect
its reputation, its corporate name, its goodwill, whenever that
reputation, corporate name or goodwill have, through the natural
development of its trade, established themselves", an unlicensed
foreign corporation may sue in the Philippines. So interpreted by the
Supreme Court, it is clear that Section 29 of the Corporation Law does
not disqualify plaintiff-appellee Converse Rubber, which does not have
a branch office in any part of the Philippines and is not "doing
business" in the Philippines, from filing and prosecuting this action for
unfair competition.
As We said earlier, the establishment of the petitioner burned down
together with all the records sought to be produced by the
questioned "subpoena duces tecum," hence, this case has become
moot and academic. We have no recourse but to dismiss the same.
WHEREFORE, the instant petition is dismissed for becoming moot
and academic. No costs.cralaw
SO ORDERED.cralaw
[G.R. NO. 158275 : June 28, 2005]
DOMINGO ROCO, Petitioner, v. HON. EDWARD B. CONTRERAS,
PEOPLE OF THE PHILIPPINES and CAL'S POULTRY SUPPLY
CORPORATION, Respondents.
DECISION
GARCIA, J.:
3

Assailed and sought to be set aside in this appeal by way of a Petition

for Review on Certiorari under Rule 45 of the Rules of Court are the
following issuances of the Court of Appeals in CA-G.R. SP No. 66038,
to wit:
1. Decision dated 20 August 2002,1 dismissing the appeal filed by
herein petitioner Domingo Roco contra the 18 October 2000
resolution of the Regional Trial Court (RTC) at Roxas City, denying
due course to and dismissing his petition for certiorari in SP Case No.
7489; andcralawlibrary
2. Resolution dated 12 May 2003,2 denying petitioner's motion for
reconsideration.
The material facts are not at all disputed:
Petitioner Domingo Roco was engaged in the business of buying and
selling dressed chicken. Sometime in 1993, he purchased his supply
of dressed chicken from private respondent Cal's Poultry Supply
Corporation (Cal's Corporation, for short), a domestic corporation
controlled and managed by one Danilo Yap. As payment for his
purchases, petitioner drew five (5) checks payable to Cal's
Corporation against his account with the Philippine Commercial and
Industrial Bank (PCIB), which checks bear the following particulars:
Check No.

Date

Amount

004502

26 April 1993

P329,931.40

004503

4 May 1993

P319,314.40

004507

19 May 1993

P380,560.20

004511

26 May 1993

P258,660.20

004523

22 May 1993

P141,738.55.

Cal's Corporation deposited the above checks in its account with

PCIB but the bank dishonored them for having been drawn against a
closed account. Thereafter, Cal's Corporation filed criminal complaints
against petitioner for violation of Batas Pambasa Blg. 22 (BP 22),
otherwise known as the Bouncing Checks Law.
After preliminary investigation, five (5) informations for violation of BP
22 were filed against petitioner before the Municipal Trial Court in
Cities (MTCC), Roxas City, thereat docketed as Crim. Cases No. 942172-12 to 94-2176-12, all of which were raffled to Branch 2 of said
court.

Meanwhile, and even before trial could commence, petitioner filed

with the Bureau of Internal Revenue (BIR) at Iloilo City a denunciation
letter against Cal's Corporation for the latter's alleged violation of
Section 258 in relation to Section 263 of the National Internal
Revenue Code in that it failed to issue commercial invoices on its
sales of merchandise. Upon BIR's investigation, it was found that
Cal's Corporation's sales on account were unavoidable, hence, the
corporation had to defer the issuance of "Sales Invoices" until the
purchases of its customers were paid in full. With respect to the sales
invoices of petitioner, the investigation disclosed that the same could
not, as yet, be issued by the corporation precisely because the checks
drawn and issued by him in payment of his purchases were
dishonored by PCIB for the reason that the checks were drawn
against a closed account. Accordingly, the BIR found noprima
facia evidence of tax evasion against Cal's Corporation.3
Thereupon, trial of the criminal cases proceeded. After the
prosecution rested, the MTCC declared the cases submitted for
decision on account of petitioner's failure to adduce evidence in his
behalf. Later, the same court rendered a judgment of conviction
against petitioner.
Therefrom, petitioner went on appeal to the Regional Trial Court,
contending that he was unlawfully deprived of his right to due process
when the MTCC rendered judgment against him without affording him
of the right to present his evidence. Agreeing with the petitioner, the
RTC vacated the MTCC decision and remanded the cases to it for the
reception of petitioner's evidence.
On 11 March 1999, during the pendency of the remanded cases,
petitioner filed with the MTCC a"Request for Issuance of Subpoena
Ad Testificandum and Subpoena Duces Tecum", requiring Vivian
Deocampo or Danilo Yap, both of Cal's Corporation or their duly
authorized representatives, to appear and testify in court on 19 May
1999 and to bring with them certain documents, records and books of
accounts for the years 1993-1999, to wit:
a) Sales Journal for the year 1993;
b) Accounts Receivable Journal for the year 1993;
c) Sales Ledger for the year 1993;
d) Accounts Receivable Ledger for the year 1993 (in its absence,
Accounts Receivable Ledger for the years 1994, 1995, 1996, 1997,
1998 or 1999);
e) Audited Income Statement for the years 1993, 1994, 1995, 1996,
1997, 1998 and Income Statements as of February 1999;
4

f) Audited Balance Sheet for the years 1993, 1994, 1995, 1996, 1997,
1998 and Balance Sheet as of February 1999; andcralawlibrary
g) Income Tax Returns for the years 1993, 1994, 1995, 1996 and
1997.
The prosecution did not object to this request.
When the cases were called on 19 May 1999, the MTCC, then
presided by Acting Judge Geomer C. Delfin, issued an order granting
petitioner's aforementioned request and accordingly directed the
issuance of the desired subpoenas.
During the trial of 14 July 1999, the private prosecutor manifested that
it was improper for the trial court to have directed the issuance of the
requested subpoenas, to which the petitioner countered by saying that
Judge Delfin's order of 19 May 1999 had become final and hence,
immutable. Nonetheless, the trial court issued an order allowing the
prosecution to file its comment or opposition to petitioner's request for
the issuance of subpoenas.
The prosecution did file its opposition, thereunder arguing that:
a) Vivian Deocampo, who previously testified for Lota Briones-Roco in
Criminal Cases Nos. 94-2177-12 to 94-2182-12 before Branch 1 of
the MTC, had earlier attested to the fact that the following documents,
records and books of accounts for 1993 sought by petitioner were
already burned:
1. Audited Income Statement for the years 1993, 1994, 1995, 1996,
1997, 1998 and Income Statement as of February 1999;
2. Audited Balance Sheet for the years 1993, 1994, 1995, 1996, 1997,
1998 and Balance Sheet as of February 1999; andcralawlibrary
3. Income Tax Returns for the years 1993, 1994, 1995, 1996 and
1997.
b) the Sales Ledger for the year 1993 cannot be produced because
Cal's Corporation did not maintain such ledger; andcralawlibrary
c) the account Receivable Ledger for the periods from 1993, the
Income Statement for 1993 and the Balance Sheet as of February
1999, cannot also be produced because Cal's Corporation recently
computerized its accounting records and was still in the process of
completing the same.
For its part, the corporation itself maintained that the production of the
above-mentioned documents was inappropriate because they are
immaterial and irrelevant to the crimes for which the petitioner was
being prosecuted.
In a resolution dated 19 October 1999, the MTCC, this time thru its
regular Presiding Judge, Judge Edward B. Contreras, denied

petitioner's request on the following grounds: (a) the requested

documents, book ledgers and other records were immaterial in
resolving the issues posed before the court; and (b) the issuance of
the subpoenas will only unduly delay the hearing of the criminal
cases.
His motion for reconsideration of the denial resolution having been
similarly denied by Judge Contreras, petitioner then went to the RTC
on a petition for certiorari with plea for the issuance of a writ of
preliminary injunction and/or temporary restraining order, imputing
grave abuse of discretion on the part of Judge Contreras, which
petition was docketed in the RTC as SP Case No. V-7489.
In a resolution dated 18 October 2000, the RTC denied due course to
and dismissed the petition for petitioner's failure to show that Judge
Contreras committed grave abuse of discretion amounting to excess
or lack of jurisdiction. A motion for reconsideration was thereafter filed
by petitioner, but it, too, was likewise denied.
Undaunted, petitioner went on appeal via certiorari to the Court of
Appeals in CA-G.R. SP No. 66038.
As stated at the outset hereof, the Court of Appeals, in a decision
dated 20 August 2002,4 dismissed the petition and accordingly
affirmed the impugned resolutions of the RTC. With his motion for
reconsideration having been denied by the same court in its resolution
of 12 May 2003,5 petitioner is now with us via the present recourse on
his submissions that I.
XXX THE DENIAL OF THE REQUEST FOR THE ISSUANCE OF
SUBPOENA AD TESTIFICANDUM AND SUBPOENA DUCES
TECUM IS VIOLATIVE OF THE CONSTITUTIONAL RIGHT OF THE
ACCUSED AS ENSHRINED IN ART. III, SEC. 14 (2) OF THE
CONSTITUTION; and
II.
XXX THERE MUST BE A BALANCING OF INTEREST BETWEEN
THE RIGH [sic] OF AN ACCUSED TO PROVE HIS INNOCENCE
AND THE RIGHT OF A COMPLAINANT TO THE SPEEDY
DISPOSITION OF HIS CASE.
As we see it, the pivotal issue is whether or not the three (3) courts
below committed reversible error in denying petitioner's request for
the issuance of subpoena ad testificandum and subpoena duces
tecum in connection with the five (5) criminal cases for violation of BP
22 filed against him and now pending trial before the MTCC.
We rule in the negative.
5

A subpoena is a process directed to a person requiring him to attend

and to testify at the hearing or trial of an action or at any investigation
conducted under the laws of the Philippines, or for the taking of his
deposition.6
In this jurisdiction, there are two (2) kinds of subpoena, to wit:
subpoena ad testificandum and subpoena duces tecum. The first is
used to compel a person to testify, while the second is used to compel
the production of books, records, things or documents therein
specified. As characterized in H.C. Liebenow v. The Philippine
Vegetable Oil Company:7
The subpoena duces tecum is, in all respects, like the ordinary
subpoena ad testificandum with the exception that it concludes with
an injunction that the witness shall bring with him and produce at the
examination the books, documents, or things described in the
subpoena.
Well-settled is the rule that before a subpoena duces tecum may
issue, the court must first be satisfied that the following requisites are
present: (1) the books, documents or other things requested must
appear prima facie relevant to the issue subject of the controversy
(test of relevancy); and (2) such books must be reasonably described
by the parties to be readily identified (test of definiteness). Again, to
quote from H.C. Liebenow:8
In determining whether the production of the documents described in
a subpoena duces tecum should be enforced by the court, it is proper
to consider, first, whether the subpoena calls for the production of
specific documents, or rather for specific proof, and secondly, whether
that proof is prima facie sufficiently relevant to justify enforcing its
production. A general inquisitorial examination of all the books,
papers, and documents of an adversary, conducted with a view to
ascertain whether something of value may not show up, will not be
enforced. (Emphasis supplied)rllbrr
Further, in Universal Rubber Products, Inc. v. CA, et al.,9 we held:
Well-settled is Our jurisprudence that, in order to entitle a party to the
issuance of a 'subpoena duces tecum,' it must appear, by clear and
unequivocal proof, that the book or document sought to be produced
contains evidence relevant and material to the issue before the court,
and that the precise book, paper or document containing such
evidence has been so designated or described that it may be
identified. (Emphasis supplied)rllbrr
Going by established precedents, it thus behooves the petitioner to
first prove, to the satisfaction of the court, the relevancy and

the definiteness of the books and documents he seeks to be brought

before it.
Admittedly, the books and documents that petitioner requested to be
subpoenaed are designated and described in his request with
definiteness and readily identifiable. The test of definiteness,
therefore, is satisfied in this case.
It is, however, in the matter of relevancy of those books and
documents to the pending criminal cases that petitioner miserably
failed to discharge his burden.
In the recent case of Aguirre v. People of the Philippines,10 the Court
reiterated the following discussions regarding violations of BP 22:
xxx what the law punishes is the issuance of a bouncing check not the
purpose for which it was issued nor the terms and conditions relating
to its issuance. The mere act of issuing a worthless check is malum
prohibitum. (Cruz v. Court of Appeals, 233 SCRA 301). All the
elements, therefore, of the violation of Batas Pambansa Blg. 22 are all
present in the instant criminal cases and for which the accused is
solely liable, to wit: [a] the making, drawing and issuance of any check
to apply to account or for value; [2] the knowledge of the maker,
drawer or issuer that at the time of issue he does not have sufficient
funds in or credit with the drawee bank for the payment of such check
in full upon its presentment; and [3] subsequent dishonor of the check
by the drawee bank for insufficiency of funds or credit or dishonor for
the same reason had not the drawer, without any valid cause, ordered
the bank to stop payment.(Navarro v. Court of Appeals, 234 SCRA
639).
We stress that the gravamen of the offense under BP 22 is the act of
making or issuing a worthless check or a check that is dishonored
upon its presentment for payment.11 The offense is already
consummated from the very moment a person issues a worthless
check, albeit payment of the value of the check, either by the drawer
or by the drawee bank, within five (5) banking days from notice of
dishonor given to the drawer is a complete defense because
the prima faciepresumption that the drawer had knowledge of the
insufficiency of his funds or credit at the time of the issuance of the
check and on its presentment for payment is thereby rebutted by such
payment.12
Here, petitioner would want it appear that the books and documents
subject of his request for subpoenaduces tecum are indispensable, or,
at least, relevant to prove his innocence. The Court disagrees.
6

Based on the records below and as correctly pointed out by the Court
of Appeals, petitioner had been issued by Cal's Corporation with
temporary receipts in the form of yellow pad slips of paper evidencing
his payments, which pad slips had been validated by the corporation
itself. Clear it is, then, that the production of the books and documents
requested by petitioner are not indispensable to prove his defense of
payment. In the words of the appellate court:
The Petitioner admitted, when he testified in the Regional Trial Court,
that he had been issued temporary receipts in the form of yellow pad
slips of paper, by the Private Respondent, for his payments which
were all validated by the Private Respondent (Exhibits '8' and 'F' and
their submarkings). Even if the temporary receipts issued by the
Private Respondent may not have been the official receipts for
Petitioner's payments, the same are as efficacious and binding on the
Private Respondent as official receipts issued by the latter.
We do not find any justifiable reason, and petitioner has not shown
any, why this Court must have to disbelieve the factual findings of the
appellate court. In short, the issuance of a subpoena duces tecum or
ad testificandum to compel the attendance of Vivian Deocampo or
Danilo Yap of Cal's Corporation or their duly authorized
representatives, to testify and bring with them the records and
documents desired by the petitioner, would serve no purpose but to
further delay the proceedings in the pending criminal cases.
Besides, the irrelevancy of such books and documents would appear
on their very face thereof, what the fact that the requested Audited
Income Statements, Audited Balance Sheets, Income Tax Returns,
etc. pertained to the years 1994 to 1999 which could not have
reflected petitioner's alleged payment because the subject transaction
happened in 1993. Again, we quote from the assailed decision of the
Court of Appeals:
The checks subject of the criminal indictments against the Petitioner
were drawn and dated in 1993. The Petitioner has not demonstrated
the justification, for the production of the books/records for 1994, and
onwards, up to 1999. Especially so, when the "Informations" against
the Petitioner, for violations of BP 22, were filed, with the Trial Court,
as early as 1994.
We are inclined to believe, along with that court, that petitioner was
just embarking on a "fishing expedition" to derail "the placid flow of
trial".
With the above, it becomes evident to this Court that petitioner's
request for the production of books and documents referred to in his

request are nakedly calculated to merely lengthen the proceedings in

the subject criminal cases, if not to fish for evidence. The Court deeply
deplores petitioner's tactics and will never allow the same.
WHEREFORE, the instant petition is DENIED and the challenged
decision and resolution of the Court of Appeals AFFIRMED.
Costs against petitioner.
Nature of Trial
G.R. No. L-17427
July 31, 1962
RODRIGO ACOSTA, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
Rodrigo Acosta for and in his own behalf as petitioner.
Office of the Solicitor General for respondent.
CONCEPCION, J.:
Appeal by certiorari, taken by Rodrigo Acosta, from a decision of the
Court of Appeals remanding this case to the court of origin for retrial
and the rendition of judgment in accordance with the evidence that the
parties may then present.
It appears that on January 2, 1951, an information for malversation of
public funds thru reckless negligence was filed, with the Court of First
Instance of Bukidnon, against petitioner Rodrigo Acosta, for having
allegedly made, as Provincial Treasurer of Bukidnon, "irregular and
excessive purchases of supplies, materials, equipment and printed
forms from private dealers for the use of the province", and against
Leonardo Avila, for having, as Provincial Auditor of the same province,
"passed in audit the corresponding vouchers covering the payments
for such purchases." Subsequently, the information was amended to
include as defendants three (3) private dealers, namely, C. Silvestre,
E. M. Haravata and Victoriano C. Arias, who had allegedly been able
to collect payment upon said purchases. Still later, however, the
prosecution filed a second amended information excluding said
dealers from the charge.
The trial under this second amended information, in connection with
which Acosta and Avila had entered a plea of not guilty, began on
June 19, 1952 and ended on July 28, of the same year. However, the
trial Judge, Hon. Jose P. Veluz, retired from the service without having
decided the case. His successor in office, Hon. Vicente Abad Santos,
Judge, "found the transcript of 482 pages prepared by stenographer
Celestino Suarez" replete with "omissions and also inaccuracies
7

which had been indicated by means of marginal notes on the pages

mentioned in" an "order of September 25, 1957." Judge Abad Santos
directed, therefore, said stenographer "to re-transcribe his notes and
to submit the "new transcript as well as the first transcript" not later
than forty days after receipt of a copy of said order". But, "instead of
re-transcribing his notes . . ., Mr. Suarez merely made corrections in
handwriting and inserted some supplemental transcripts in the original
transcripts". Upon reading those supplemental typed transcripts,
particularly the portion covering the cross-examination of witness
Pedro Palafox by defense counsel Cipriano Asada, Judge Abad
Santos noticed, however, that it was still "full of inaccuracies".
Accordingly, he ordered the stenographer to read his notes in his
(Judge Abad Santos) chamber, in order that the necessary corrections
could be made on the transcript. Upon going over said notes, it
appeared that said portion "consisted of eleven pages although the
transcript thereof was spread to eight pages only". Hence, Suarez
was ordered to further transcribe what had thus been omitted. What is
more, in order that he could decide the case with a "clear conscience",
Judge Abad Santos bade Suarez to stay in his (Judge Abad Santos')
office in order to read his (Suarez) notes from the beginning, with
stenographer Montes checking the transcript already made. Although
he did not immediately reveal his objection thereto, Suarez later
refused to work in said office stating that "it made him dizzy to come
up and" that "besides he was going to resign or retire" and then asked
to be allowed to do his work in the first floor of the court house.
Instead of granting his request, Judge Abad Santos recommended to
the Department of Justice, in order to avoid further delay in the
disposition of the case, (a) that any application for retirement or
resignation that may be submitted by Suarez be denied; and (b) that
payment of his salary be suspended until otherwise recommended,
after compliance with the order that he should work in the office of the
Judge, provided that the result of his work is satisfactory. Eventually,
the transcript of the stenographic notes, certified to be "true and
correct", consisted of 658 pages as compared to only 482 pages
found by Judge Abad Santos on September 9, 1957.
Meanwhile, Judge Abad Santos had resigned leaving the case
undecided. He was succeeded in office by Hon. Abudio Arrieta, Judge,
who, on October 27, 1958, rendered a decision convicting the
defendants as charged and sentencing each to an indeterminate
penalty ranging from eleven (11) years, six (6) months and twenty (20)
days ofprision mayor to sixteen (16) years, five (5) months and eleven

(11) days of reclusion temporal, to pay a fine of P28,808.86,

representing one-half of the total sum allegedly misappropriated, as
well as to jointly and severally indemnify the province of Bukidnon in
the sum of P62,955.06, without subsidiary imprisonment in case of
insolvency, to perpetual disqualification and to pay the costs.
Both defendants appealed from this decision to the Court of Appeals
and urged the same to acquit them upon the ground, among others,
that said decision was based on incomplete and tampered transcript,
upon which a conviction beyond reasonable doubt could not be
predicated. Acosta, moreover, claimed that his constitutional right to a
speedy trial had been violated. On July 2, 1960, the Court of Appeals
rendered its decision, from which we quote:
. . . on the basis of available transcript, (which originally contains 482
pages and when retranscribed and corrected it consists of 658
pages), indicating that irregularities in taking the notes and in
transcription thereof were committed, we can not see our way clear to
pronounce either were conviction or acquittal in this case. Indeed, the
evidence in this case is not quite accurate or reliable for the reasons
already underscored earlier. Since the crime with which the accused
were charged carries a stiff penalty and that it is one that should be
fully prosecuted for being highly undesirable, if not immoral, we prefer
to subordinate acquittal or conviction to time. Stated otherwise, we are
of the opinion that the ends of justice, both to the government and to
the accused, would be better served if further proceedings will take
place in order that this case could be decided satisfactorily once and
for all.
From the "corrected" transcript, we gathered that counsel for accused
Leonardo Avila in the court below incurred certain inconsistencies, to
wit:
(1) Your Honor please, without renouncing or waiving our rights to
present evidence for the defense of the accused Leonardo Avila, . . .
we move for the dismissal of this case on two grounds:
xxx
xxx
xxx
(2) As regards the accused Avila, Your Honor, we waive our right to
present evidence on his defense and we submit the case for decision
with the evidence presented by the Fiscal, and we beg to allow us to
withdraw insofar as the accused Avila is concerned we beg to
leave the courtroom.
(3) We do not ask for a separate trial, Your Honor, in order to obviate
duplicity of questions, but now we will ask for a separate defense.
8

(4) And that is within the lookout of the defense, Your Honor, and we
reiterate our motion to leave this Honorable Court to allow us to leave
the courtroom, and consider our case closed. (t.s.n., pp. 545, 554, &
558.)
On appeal, counsel for appellant Leonardo Avila filed a motion for new
trial, because of the aforequoted statements and of the erroneous and
incomplete transcript of the trial stenographer. The motion was,
however, denied (Rec. 3rd Div., Feb. 12, 1959). Appellate Courts have
that broad power to order new trial without specifying the grounds
thereof in order to avoid a miscarriage of justice. The grounds upon
which courts of first instance may grant a new trial are limited (Pls.
see Sec. 5, Rule 117, Rules of Court), but appellate courts, under
Section 14, Rule 120 are authorized to remand a case to a court of
first instance for new trial or retrial, without specifying, and, hence,
without limiting, the grounds upon which the action may be
predicated. And pursuant to Section 11, Rule 120, of the Rules of
Court, an appellate court may . . . remand a case to a court of first
instance for new trial or retrial . . . .
WHEREFORE, the record of this case is ordered remanded to the
court of origin for retrial and another judgment be rendered in
accordance with the evidence that the parties concerned may desire
to present.
Acosta sought a reconsideration of this decision, which was denied.
Hence, his present appeal by certiorari.
Petitioner maintains that the Court of Appeals erred in ordering a
retrial, instead of acquitting him, not only because he had been
deprived of the constitutional right to a speedy trial, but, also, because
a retrial would be impractical, oppressive and expensive, apart from
amounting to a denial of justice, for a principal witness for the
defense, one Justiniano B. Castillo, had allegedly died on December
24, 1957, and his other witnesses may no longer be available.
It should be noted that the original information in this case was filed
on January 2, 1951 and that the trial of the reception of the evidence
for both parties commenced on June 19, 1952 and was finished on
July 18 of the same year. Petitioner does not contend that there has
been any undue delay in this part of the proceedings. His alleged
deprivation of the right to a speedy trial is anchored on the fact that
the decision of the lower court was rendered over six (6) years later.
In this connection, the Court of Appeals aptly observed:
. . . True enough that judgment was pronounced after almost six
years. But "the constitutional right to a public and speedy trial does

not extend to the act of pronouncement of sentenced" (Reed vs.

State, 147 Ind., N. E., 135, 136). It has been said that "trial and
judgment are two different stages of a judicial proceeding: the former
is provided for in Rule 115, and the latter is covered by Rule 116, of
the Rule of Court. (Talabon v. Iloilo Prov. Warden, 78 Phil., 600). And
"the period of the trial terminates when the judgment begins"
(Felismino vs. Gloria, 47 Phil., 967). Therefore, and since the accused
did not avail themselves of the writ of mandamus to compel the trial
judge or his successor to pronounce the corresponding judgement, it
may be said in the light of the ruling laid down in the case of Talabon
vs. Iloilo Prov. Warden, infra, that they had waived their right to a
speedy trial.
Indeed:
No general principle fixes the exact time within which a trial must be
had to satisfy the requirement of a speedy trial. The right to a speedy
trial is necessarily relative; it is consistent with delays, and whether
such a trial is afforded must be determined in the light of the
circumstances of each particular case as a matter of judicial
discretion. It is generally said that a speedy trial is one had as soon
after indictment as the prosecution can with reasonable diligence
prepare for it, regard being had to the terms of court, a trial conducted
according to fixed rules, regulations and proceedings of law, free from
vexations, capricious, and oppressive delays. One accused of crime is
not entitled to a trial immediately on his arrest or accusation, he must
wait a regular term of the court until an indictment is found and
presented if the case is one wherein the trial is on indictment, and
until the prosecution has had reasonable time to prepare for the trial.
(22 C.J.S., 715-716.)
Under constitutional provision securing to accused "the right to a
public trial", or a "speedy trial", is has been held that the formal
declaration of sentence is no part of the trial. (24 C.J.S., 16.)
Moreover, the delay in the rendition of the decision of the court of first
instance was due to circumstances beyond the control of the judges
who presided the same. Judge Veluz, who received the evidence, was
automatically retired owing to his age. Judge Abad Santos, who
succeeded him, could not decide the case because he found the
transcript to be inaccurate and he had to make disciplinary measures
in order to compel stenographer Suarez to retranscribe his notes. By
the time this was done, Judge Abad Santos was no longer in the
service. Hence, his successor Judge Arrieta was the one who
rendered the decision of the lower court.
9

Upon the other hand, we cannot, in the exercise of our jurisdiction on

appeal by certiorari, absolve the petitioner of the crime charged
against him, for there are no findings of fact in the decision of the
Court of Appeals upon which this Court could base a judgement of
acquittal. Moreover, the opinion of the Court of Appeals to the effect
that the transcript of the stenographic notes taken during the trial of
this case in the court of first instance does not reflect faithfully what
transpired during said trial is, apart from being shared by petitioner
herein, conclusive upon us. Under these circumstances, we should
not interfere in the exercise of discretion by the Court of Appeals. In
the language of Corpus Juris:
Under a statute which provides that a person restrained of his liberty
is entitled to certiorari to inquire into the cause of his
imprisonment, certiorari does not lie to review a determination in a
criminal case where relator was discharged from custody under a bail
bond. The reason for such a rule is that the relator, therefore, was not
restrained of his liberty. The imprisonment or restraint in his liberty
within the meaning of this section, is an actual physical restraint by
which the liberty of the individuals is in some way interferred with. A
person cannot be said to be restrained in his liberty when he can do
what and go where he pleases. The mere fact his bail has authority to
surrender him to custody at any time is not a restrained in his
liberty. . . . If the relation should be surrendered by his bail, and thus
be actually in custody, he would be entitled to have the cause of his
detention reviewed; but until there is an actual restraint of his liberty,
he is not entitled to either of these writs (certiorari or habeas
corpus) . . . . (17 Corpus Juris, pp. 18-19.)
We are not unaware of the possible disadvantages to which petitioner
might be placed in the event of a retrial, but we are not in a position
now to determine the facts of such disadvantages. In fact, the very
petitioner has not particularized the evidence which not be available to
him at a retrial, aside from the circumstances that the prosecution
may then be similarly handicapped. In any event, when the retrial
takes place, petitioner may point out what evidence he can no longer
present and why, and the Court should then considered the effect
thereof upon the question of guilt or innocence of petitioner herein.
WHEREFORE, the decision of the Court of Appeals is hereby
affirmed, and the case remanded to the Court of First Instance of
Bukidnon for further proceedings in compliance therewith. It is so
ordered.

Bengzon, C.J., Padilla, Paredes, Dizon, Regala and Makalintal, JJ.,

concur.
Bautista Angelo, J., took no part.
Reyes, J.B.L., J., is on leave.
Trial and hearing, distinguished.
G.R. No. L-35701 September 19, 1973
ARTURO H. TROCIO, petitioner-appellant, vs. JORGE LABAYO,
Undersecretary of Finance; SIXTO B. TADEO, Assistant Provincial
Treasurer of Misamis Oriental; and ABELARDO SUBIDO,
Commissioner of Civil Service, Respondents-Appellees.
Adaza, Along and Adaza for petitioner-appellant.
Office of the Solicitor General Antonio P. Barredo, Assistant Solicitor
General Pacifico P. de Castro and Solicitor Pedro A. Ramirez for
respondents-appellees.
FERNANDO, J.:
The novel question in this case certified to us by the Court of Appeals
is whether or not a party is denied his constitutional right to procedural
due process if in the notice of the hearing the suit filed by him, it was
not specified that the purpose thereof was for a pre-trial. There is no
instrinsic difficulty posed by such a query. The answer would appear
to be rather obvious. Such a purely formal objection is hardly
impressed with any element indicative of that absence of fairness
which is indispensable for an attack on a due process ground to
succeed. The failure of the lower court then to use language more
explicit in character does not lend itself to such a reproach. The order
of dismissal for failure of petitioner Arturo H. Trocio, now appellant, to
prosecute, is affirmed.chanroblesvirtualawlibrarychanrobles virtual law
library
There is no dispute as to what transpired. On August 11, 1964,
petitioner filed in the Court of First Instance of Misamis Oriental a
petition for certiorari and prohibition with preliminary injunction against
respondents' 1 to set aside decision of respondent Abelardo Subido
dismissing him from the position of Municipal Treasurer of Mambajao,
Camiguin, which is being enforced by the other respondents on the
ground of its nullity. It was his contention that the charges against him
for neglect of duty, grave misconduct and oppression in office were
not duly proved, there being a denial of a motion for postponement on
his part, thus infecting the proceedings with grave infirmity. There was,
on August 15, 1964, a written opposition to the issuance of a writ of
10

preliminary injunction, and on August 27, 1964, an answer to such

petition wherein it was stressed that petitioner had been granted by
the investigating officer six postponements of the hearing of the case
to afford him a chance to engage the services of counsel. Then came
on September 10, 1964, a notice to the parties that the case had been
set for hearing on October 14 of that year, a copy thereof being
served on petitioner's counsel. Upon that case being called on that
date, there was a motion on the part of petitioner's counsel to set the
case for pre-trial. The provincial fiscal who represented the
respondents informed the Court that he was ready for the pre-trial but,
if no amicable agreement was reached, the trial proper should be
conducted, as his witnesses had come all the way from Manila and
expenses in the amount of about P400.00 had been incurred by the
government. Counsel for petitioner was adamant, however, insisting
that the notice of hearing as such was null and void. When the Court
inquired as to where the petitioner was, counsel answered that he
was in Cebu City, upon his own advice, on the assumption that a
hearing on the merits could not be held. From the standpoint of the
court, this step taken by petitioner smacked of a dilatory tactic, as
evidenced by its being raised only on that morning, notwithstanding
the fact that notice was sent as far back as September 10, 1964 and
that at any rate, petitioner not being present, a pre-trial could not
anyway be held. Moreover, the notification as worded did not preclude
a pre-trial, which incidentally was not at all necessary as the question
posed was legal. Hence the order of dismissal, based on what for the
lower court, under the circumstances, was a lack of interest to
prosecute the case.chanroblesvirtualawlibrarychanrobles virtual law
library
The matter was elevated to the Court of Appeals on the ground that
there was a denial of procedural due process as the notice of the
hearing without the specification that it should be for pre-trial deprived
the accused of a procedural right and infected the proceedings with
unfairness. As the question raised was purely legal, the case, as
noted at the outset, was elevated to
us.chanroblesvirtualawlibrarychanrobles virtual law library
There is no legal justification then, as already made clear, for us to
give our seal of approval to the contention vigorously pressed by
petitioner that there was a denial of procedural due process. In
reaching such a conclusion, we were aided considerably by the
thorough brief submitted by the then Solicitor General, now Associate
Justice, Antonio P. Barredo and the then Assistant Solicitor General,

now judge, Pacifico de Castro, the persuasive quality of which was

enhanced not only by the plausibility of the assertions made with
support from authoritative doctrines, but also by the failure of
petitioner to file a reply brief.chanroblesvirtualawlibrarychanrobles
virtual law library
1. No merit attaches to the contention of petitioner that the notice as
to the hearing scheduled for October 14 should specify that it was for
a pre-trial. A hearing as known to the law is not confined to a trial but
embraces the several stages of litigation. It does not preclude pretrial. Outside of the American cases cited 2 by respondents, mention
can be made of authorities in this jurisdiction that speak to the same
effect. A hearing "does not necessarily mean presentation of
evidence." 3 It could cover the determination of whether an accused is
entitled to bail 4 or the submission for the court's determination of a
motion to dismiss, 5 or any motion for that matter. 6 It does not admit
of doubt then, considering furthermore what did transpire, that such a
purely technical objection on the part of petitioner raised at the last
moment should not be taken too seriously. Much less does it lay any
basis for an asserted denial of procedural due
process.chanroblesvirtualawlibrarychanrobles virtual law library
2. There is an additional reinforcement to the correctness of the
challenged order of dismissal, when the nature of a pre-trial is taken
into consideration. 7 As set forth in an opinion penned by Justice
Castro, speaking for the Court, in Permanent Concrete Products, Inc.
v. Teodoro: 8 " "One of the objectives of pre-trial procedure is to take
trial of cases out of the realm of surprise and maneuvering." Pre-trial
is primarily intended to make certain that all issues necessary to the
disposition of a cause are properly raised. Thus, to obviate the
element of surprise, parties are expected to disclose at a pre-trial
conference all issues of law and fact which they intend to raise at the
trial, except such as may involve privilege or impeaching
matter." 9 The lower court therefore acted in accordance with law and
sound reason when it noted that the facts being undisputed and the
legal issue likewise being clear, pre-trial, under the circumstances,
would not be a necessity even on the assumption that the belated
insistence of its observance by petitioner was motivated in entire good
faith.chanroblesvirtualawlibrarychanrobles virtual law library
The suspicion entertained by the lower court as to its being resorted
to as a dilatory tactic by petitioner was not without basis. He had more
than a month, from September 9 to October 14, 1966, to seek
clarification of the nature of the scheduled hearing. What was even
11

more revealing as to his lack of good faith was his absence on the day
of hearing. What was the lower court to make of such tell-tale
conduct? Did it not indicate lack of interest to prosecute? There was
nothing then, that did smack of arbitrariness in its ruling as it did.
There was no affront to the sense of justice and of fair play which is
essential for an assault on any actuation of governmental agency
predicated on a denial of due process succeed. Instead of this futile
insistence on a pre-trial, which would serve no useful purpose,
petitioner could have impressed on the court the legal support for his
stand that the order of dismissal by respondent Commissioner of Civil
Service was devoid of legality. He did nothing of the kind. Under the
undeniable facts of record, the lower court certainly could have
decreed the dismissal without any legitimate fear that its order suffers
from the constitutional infirmity of failure to accord respect to the due
process safeguard. 10chanrobles virtual law library
WHEREFORE, the order of the lower court of October 14, 1964
dismissing the petition is affirmed. With costs against petitioner.
Makalintal, Actg. C.J., Zaldivar, Castro, Teehankee, Antonio and
Esguerra, JJ., concur.chanroblesvirtualawlibrarychanrobles virtual law
library
Barredo, J., took no part.chanroblesvirtualawlibrarychanrobles virtual
law library
Makasiar, J., is on leave.
When case ready for trial
January 22, 1952
G.R. No. L-3788
MARCIANO PRINCIPE, plaintiff-appellee,
vs.
ANTONIO ERIA, defendant-appellant.
LEONCIO MANINGAS, third party defendant.
Pedro Ynsua and Cenon Arcaza for appellee.
Francisco O. Omaa for appellant.
Montemayor, J.:
This is an appeal from an order of the Court of First Instance of
Quezon denying appellant's petition for relief from an order declaring
him in default and denying his petition for new trial.
The facts involved in the appeal are not disputed. Plaintiff-appellee
Marciano Principe filed an action against Antonio Eria to collect a sum
of money plus interest based on a promissory note or document

signed by Eria and his son-in-law, Leoncio Maningas, supposed to

embody a joint and several obligation and in which the signers
undertook to pay a certain amount with interest and where the two
stated that anyone of them may be made to pay the whole amount.
On April 12, 1948, after service of summons, defendant Eria
petitioned the court to have his co-signer of the promissory note,
Leoncio Maningas, included as a party defendant. Upon objection of
the plaintiff, the trial court on April 15, 1948, denied said petition for
inclusion of Maningas as party defendant on the ground that
according to the promissory note on which the complaint is based,
defendant Eria may be sued alone, and that full relief to the plaintiff
could be obtained without inclusion of Maningas as party-defendant.
On May 27, l948, defendant Eria filed an amended answer which was
admitted by order of the court dated June 24, 1948.
On November 19, 1949, the Clerk of the Court issued a notice setting
the case for hearing on December 13, 1949. On December 3, 1949,
defendant Eria filed a petition for leave to file a third party complaint
against his co-signer of the promissory note, Leoncio Maningas, at the
same time filing said third party complaint against Maningas. On
December 7, 1949, and because plaintiff Principe did not object to the
petition, the trial court granted it and admitted the third party
complaint, at the same time giving third party defendant Maningas the
reglementary period within which to answer the same.
In spite of the admission of the third party complaint and the giving of
notice to third party defendant Maningas to answer within the time
prescribed by law, and before third party defendant could answer the
third party complaint, on December 13, 1949, the date on which the
case was originally set for trial, and in the absence of defendant Eria
and his counsel, the case was tried and the plaintiff was allowed to
present his evidence.
On December 16, 1949, defendant Eria's counsel filed a pleading
entitled "Manifestation" wherein he stated that on that date he learned
that he (Eria) had been declared in default, and that would petition the
court for relief from said order, and on December 29, 1949, he filed his
petition for relief and new trial accompanying the same with his
affidavits of merits. The basis of his petition for relief is that he
believed that with the admission of the third party complaint and the
giving to third party defendant Maningas the reglementary period
within which to answer, the said party complaint automatically
cancelled the original date of hearing on December 13, 1949, and so
neither he nor his client Eria appeared in Court on that date. Upon
12

objection of the plaintiff, this petition for relief and new trial was denied
by order of January 23, 1950. A petition for reconsideration of the
order of denial was likewise denied by order of February 20, l950. In
his appeal, appellant Eria claims that the trial court erred in
proceeding with the trial of the case on December 13, 1949, without
his presence and that of his counsel, and not granting the petition for
relief.
Appellee counters with the contention that contrary to the rules of
court, appellant in his petition for relief and affidavit accompanying the
same, did not specifically state the defense which he would put up
should he be granted a new trial. We believe, however, that the more
important question involved in the present appeal is the legality and
propriety of the act of the trial court in proceeding with the trial of the
case before third party defendant Maningas had filed his answer. As a
matter of fact, Maningas filed his answer to the third party complaint
only on January 9, 1950, almost a month after the case was tried.
That defendant Eria had a right to file his third party complaint against
Leoncio Maningas who signed the promissory note with him, cannot
be denied. Rule 12, Section 1 of the rules of court gives him that right.
Said section 1 reads as follows:
SECTION 1. Claim against one not a party to an action. When a
defendant claims to be entitled against a person not a party to the
action, hereinafter called the third-party defendant, to contribution,
indemnity, subrogation or any other relief, in respect of the plaintiff's
claim, he may file, with leave of court, against such person pleading
which shall state the nature of his claim and shall be called the thirdparty complaint.
As already stated, his third party complaint was admitted by the trial
court without objection on the part of the plaintiff. Now, was trial court
authorized to try the case before the third party defendant had filed his
answer? Evidently not. The reason is that the case was not yet ready
for trial. Rule 31, Section 1, of the Rules of Court, provides:
SECTION 1. When issue joined. Upon the filling of the last
pleading, the case shall be included in the trial calendar of the court.
Under said section, Chief Justice Moran makes the following
comment:
The case may be said to be ready for trial and, therefore, should be
included in the trial calendar when the issue is joined. And the issue is
joined when all the parties have pleaded their respective theories and
the terms of the dispute are plain before the court. (Moran's
Comments on the Rules of Court, Vol. I third edition, p. 573.)

As we have already stated, on December 13, 1949, the case was not
ready for trial for the simple reason that the third party defendant
Maningas had not yet filed his answer. True, a trial court may under
Rule 32, Section 2 of the Rules of Court, in furtherance of
convenience or to avoid prejudice, order a seperate trial of any claim,
cross-claim, counterclaim, or third-party claim, or of any seperate
issue or issues. But on December 13, 1949, when the case was tried,
the issues had not yet been joined; all possible claims, cross-claims or
counterclaims had not yet been filed. Consequently, the trial court
could not have validly ordered a seperate trial because it did not know
nor was it in a position to know if the third party defendant Maningas
had any claim, cross-claim or counterclaim against either the plaintiff
Principe or the defendant Eria, or both. In other words, the trial was
altogether premature. It is reasonable to suspect that the trial court
had forgotten or completely overlooked the third party complaint
against Maningas and the fact that his answer to it was still pending
submission.
In view of all the foregoing, we find and hold that the trial held on
December l3, l949, when the case was not yet ready for trial was
premature and unauthorized; that appellant Eria had a right to believe
that the admission of his third party complaint and the granting of the
reglementary period to third party defendant Maningas to answer,
automatically cancelled the hearing originally set on December 13,
1949, and that consequently, he (Eria) should not be penalized for not
attending said hearing. The orders denying his petition for relief, and
his petition for reconsideration are hereby set aside, and the case is
hereby ordered returned to the trial court for a re-hearing after all the
parties have been duly notified thereof. No pronouncements as to
costs. So ordered.
Adjournments and postponements (Sec. 2, Rule 30) . Limitation on
the authority to adjourn
[G.R. No. 123997. January 20, 1999.]
REPUBLIC OF THE PHILIPPINES, Petitioner, v. SANDIGANBAYAN
and BRIG. GEN. PEDRO R. BALBANERO, Respondents.
DECISION
BELLOSILLO, J.:
13

OSG in behalf of petitioner asked that a decision be rendered

forfeiting the amount in its favor.
This case emphasizes with great force the awesome responsibility of
counsel to represent a clients cause with due diligence and zeal
which necessarily excludes improvident and unreasonable requests
for postponement of hearings that only serve to impede the speedy
and inexpensive administration of justice.chanrobles law library
The Republic of the Philippines, in this special civil action
for certiorari, mandamus and prohibition, assails the Order of the
Sandiganbayan, First Division, dated 19 October 1995, in "Republic of
the Philippines v. Brig. Gen. Pedro Balbanero," Civil Case No. 0053,
denying petitioners oral motion for postponement of the 19 and 20
October 1995 hearings and requiring it instead to submit a written
offer of evidence, as well as the Resolution of 3 January 1996 denying
reconsideration thereof. Petitioner therefore prays that it be allowed to
present documentary and testimonial evidence in a formal trial and
that public respondent be prevented from conducting further
proceedings pursuant to its questioned Orders.
Civil Case No. 0053 is an action for forfeiture under RA No. 1379 1
instituted on 14 October 1988 by the Republic of the Philippines
against retired Brig. Gen. Pedro R. Balbanero alleging that the latter
acquired funds, real properties and other assets amounting to P10.5
million manifestly out of proportion to his total salary and emoluments
as an Army Officer and as income from business and other
legitimately acquired properties.
On 22 March 1989 private respondent filed his answer with
counterclaim to which the Republic filed a reply with motion to dismiss
counterclaim. After the submission by private respondent of
documentary evidence and in view of the manifestation of Solicitor
Felipe Magat, Colonel Ernesto Punzalan and Captain Samuel Padilla
of the AFP Anti-Graft Board representing the Government that P8.4
million of the alleged over P10 million unexplained wealth had been
clarified, the Sandiganbayan in its Order dated 19 February 1990
required private respondent to prove the legal source of the remaining
"P1.3 million." The parties were required to meet to resolve the matter
before trial. On the basis of a "Complete Report" dated 2 August 1990
submitted by Capt. Padilla, the amount of respondents wealth
deemed to be still unexplained dwindled to P165,043.00. Thus the

To prove the legal source of the remaining P165,043.00, private

respondent submitted a document titled "Real Estate Mortgage Loan"
purporting to show that the amount was the purchase price he
received for real estate sold to Ms. Iluminada S. Salvador Et. Al. when
he failed to pay his mortgage indebtedness. In his Manifestation and
Motion dated 7 December 1990 private respondent moved that the
complaint against him be dismissed on the ground that he had
explained to the governments satisfaction the legal source of all his
alleged unexplained wealth.chanroblesvirtuallawlibrary
In its answer to the foregoing Manifestation and Motion the
Presidential Commission on Good Government (PCGG) denied that
private respondent had satisfactorily explained the legitimate source
of his wealth and added that the "Complete Report" submitted by the
AFP Anti-Graft Board was without its approval, hence, did not bind the
Republic.
On 28 June 1991, without resolving private respondents
Manifestation and Motion of 7 December 1990, public respondent
Sandiganbayan allowed the Republic to present oral and
documentary evidence to support its complaint for forfeiture.
On 7 June 1994 private respondent moved that petitioner be bound by
the Solicitor Generals previous admission that only P165,043.00 had
not been satisfactorily explained, hence, the remaining issue to be
resolved by the Sandiganbayan should be limited to the amount. But
Sandiganbayan denied the motion. Hence, on 3 May 1995 private
respondent elevated the matter to this Court by way of a petition
forcertiorari, prohibition and mandamus in "Pedro R. Balbanero v. the
Hon. Sandiganbayan and the Republic of the Philippines," docketed
as G.R. No. 119633.
In view of the pendency of his petition, private respondent moved that
the hearings on 18, 19 and 20 October 1995 be canceled and that no
further schedule be set. Public respondent denied the cancellation
unless a restraining order was issued by this Court in G.R. No.
119633, citing petitioners readiness to present on the scheduled
hearings Major Samuel Padilla (earlier referred to as Captain Padilla)
14

who purportedly conducted the audit examination of the accounts of

private Respondent.
Upon urgent motion dated 5 October 1995 the Sandiganbayan
granted private respondents request for cancellation of the 18
October 1995 hearing on the allegation that his counsel was
scheduled to attend an election case before the RTC of Gapan,
Nueva Ecija, but stressing that the cancellation was without prejudice
to the settings on 19 and 20 October 1995.
2chanroblesvirtuallawlibrary
On 19 October 1995 Associate Solicitor Rodolfo Tagapan, Jr., and
Assistant Solicitor General Cesario del Rosario manifested during the
hearing that they had been relieved from the case and that ASG
Romeo C. de la Cruz and Solicitor Karl B. Miranda had been
designated in their stead. However, since the latter two were in the
United Arab Emirates attending to the case of convicted Filipina
overseas contract worker Sarah Balabagan, Associate Solicitor
Tagapan asked that the hearing be reset, to which the Sandiganbayan
reacted adversely with its now assailed Order of 19 October 1995
which we quote hereunder for a better appreciation of the factual
milieu
When this case was called for hearing respondent appeared while the
petitioner Republic appeared through Associate Solicitor Rodolfo
Tagapan together with Atty. Cresencio Jaso of the PCGG. Associate
Solicitor Tagapan informed the Court that he had been relieved from
this case and in his stead Solicitor Karl B. Miranda had been
designated but that Solicitor Miranda was in Abu Dhabi on official
mission, while Atty. Jaso informed this Court that this was his first
appearance and was, therefore, not ready to be of assistance.
Additionally, no witness had appeared allegedly upon advice of
Associate Solicitor Tagapan precisely because of this (sic) reassignments relying on the postponement to be granted by this Court.
Solicitor Rodolfo Reodica had been appearing until suddenly at the
hearing on May 10, 1995 Associate Solicitor Tagapan appeared and
had expressed his unreadiness to proceed at that time. The petition
for postponement was granted over the objection of the respondent,
notwithstanding the pendency of a petition for certiorari, prohibition
and mandamus already filed by the respondent to dispute a prior

denial of his motion to dismiss by reason of the petitioners earlier

repeated failure to proceed said petition now docketed as G.R. No.
119633. On September 22, 1995, Associate Solicitor Tagapan
informed the Court that he would be ready to present Major Samuel
Padilla on October 18, 19 and 20, 1995. Today, the Court is faced with
the situation as above stated.
This case had been pending not only for a very long time but despite
many false starts from the petitioner. While indeed the Court has
reacted negatively to the difficult situations created by the assignment
of young Solicitors such as Solicitor Reodica now Solicitor Tagapan on
short notice, the Court can not accept a rotation of young and
inexperienced Solicitors who are uninformed of the details of this case
by reason of their assignment on short notice as reasons for
postponing this case on top of their informal complaints of lack of
cooperation from or coordination with the PCGG much less can the
Court accept the last minute substitutions of Solicitors with others who
are not in this country.
In view hereof, the petitioner is given ten (10) days from today within
which to formally offer whatever evidence exist (sic) on record with the
respondent being given a like period to comment thereon and to state
his disposition on this matter with respect to the presentation of his
own evidence.
The setting for tomorrow is necessarily cancelled under the
circumstances.
Petitioner moved that this Order be reconsidered and that it be
allowed to present evidence in a formal trial. The motion was denied
by public respondent in its assailed Resolution of 3 January 1996 thus

The MOTION FOR RECONSIDERATION dated 7 December 1995 of

the Plaintiff is Denied.chanroblesvirtuallawlibrary
It is true that this Court expressed its impatience and disapproval over
the practice of the Office of the Solicitor General of passing on,
actually dumping of certain cases such as these to a succession of
young inexperienced lawyers on short notice. This, however, is not
cured by transferring a long standing case to probably experienced
15

lawyers who are not available and on short notice.

The point of this Courts impatience on the transferring of cases to
inexperienced lawyers on short notice is that cases are unduly
delayed and, perhaps, prejudiced by the inexperienced; in fact, more
than anything, the practice has demonstrated an apparent low regard
of Solicitors and Assistant Solicitors General for many PCGG cases.
Assigning this case, which has suffered long and innumerable
postponements attributable to plaintiff, to lawyers of the Office of the
Solicitor General who are not even in the country at the time of the
setting neither responds to the problem nor demonstrates appropriate
concern for the case.
The petitioner is given fifteen (15) days to submit its written offer of
evidence after which the case of the plaintiff will be deemed
submitted, with or without the offer.
Hence, this special civil action for certiorari, prohibition and
mandamus.
The OSG contends that the Sandiganbayan gravely abused its
discretion when it deprived the Republic of its right to present
evidence in a full-blown hearing amounting to a violation of its right to
due process. Counsel contends that the reasons given for the
requested resettings of the 19 and 20 October 1995 hearings were
meritorious grounds which were not intended to delay the case nor
violate private respondents right to a speedy trial. The OSG further
contends that public respondent should not have taken against the
Republic the fact that Major Samuel Padilla was indisposed on the
day of the hearing as it was a circumstance beyond its control while
the re-assignment of the case to Solicitor Miranda and Atty. Jaso was
effected only in response to public respondents plaintive about the
assignment of the case to young and untrained solicitors.chanrobles
virtualawlibrary chanrobles.com:chanrobles.com.ph
On 17 April 1996 we required respondents to file their respective
comments on the petition without granting the TRO sought by
petitioner. Private respondents Comment and petitioners Reply
thereto were noted on 8 July 1996 and 4 February 1998, respectively.
On 6 July 1998 we considered this case submitted for decision

without public respondents comment when it failed to file the required

pleading for more than two (2) years from the time it was first required
to do so and despite our Resolution of 4 February 1998 reiterating our
Resolution of 17 April 1996.
Plainly stated, the issue before us is whether public respondent
Sandiganbayan committed grave abuse of discretion in denying the
Republics oral motion for postponement of the 19 and 20 October
1995 hearings and in requiring it to just formally offer its evidence
within fifteen (15) days from notice.
It is well-settled that motions for continuance or deferment of hearings
are granted only upon meritorious grounds 3 and that the grant or
denial thereof is addressed to the sound discretion of the court 4 the
exercise of which will not be disturbed except on a showing of a
patent and grave abuse of discretion.
Petitioner failed to show such patent and grave abuse of discretion on
the part of public respondent in denying its oral motion for
postponement. Records show that the 18, 19 and 20 October
hearings were scheduled some five (5) months earlier, or on 10 May
1995, for several reasons among which was to give Associate
Solicitor Tagapan of the OSG, who appeared for the first time vice
Solicitor Reodica, an opportunity to study the case. 5 In addition, on
13 October 1995 when public respondent Sandiganbayan canceled
the 18 October hearing, it cautioned the parties that such cancellation
was without prejudice to the settings on 19 and 20 October 1995. 6
However, on 19 October 1995, Solicitor Tagapan appeared only to
manifest that he had just been relieved from the case and that other
solicitors were assigned to take over but unfortunately they were not
then available. The OSG explains that the re-assignment was effected
in response to public respondents complaint about the assignment of
many PCGG cases to young and inexperienced solicitors. But a
careful reading of the questioned Order of 19 October 1995 shows
that public respondent objected not so much on the assignment of the
case to young and inexperienced solicitors but that such reassignment was done on short notice and very close to the date of
scheduled hearings. The excuse given by the OSG completely failed
to justify why the re-assignment had to be done so near to the
scheduled hearing of 19 October 1995 and, worse, to solicitors who
16

were not even present.chanroblesvirtual|awlibrary

Furthermore, it has not been shown that some other urgent
circumstance prompted the re-assignment to justify the OSGs noncompliance with the requisites of motions in general set out in Rule 15
7 of the Rules of Court 8 Sec. 2 of which provides that" [a]ll motions
shall be in writing except motions for continuance made in the
presence of the adverse party, or those made in the course of a
hearing or trial." A motion for postponement should not be filed at the
last hour 9 and that judges are cautioned against granting improvident
postponements. 10 Thus when the reason adduced in support of a
motion for postponement was not unavoidable or could have been
foreseen but was presented only on the day of the trial although there
was no apparent reason why it could not have been presented earlier,
thus avoiding inconvenience to the adverse party, it is proper for the
court to deny postponement. 11
What exacerbates the case for the OSG is the fact that it appeared in
the 19 October 1995 hearing without its promised witness, apparently
expecting that public respondent would just benevolently grant its
precipitate oral motion for postponement. While the OSG now claims
that Major Padilla was "indisposed" for which reason he was not
presented, public respondents factual conclusion to which this Court
is bound in a certiorari proceeding is that no witness appeared
allegedly upon advice of Associate Solicitor Tagapan relying on the
postponement to be granted by public respondent precisely because
of the reassignment of solicitors. 12
The rule that a party asking for postponement has absolutely no right
to assume that its motion would be granted, especially on less than
three (3) days notice, and must be in court prepared on the day of the
hearing 13 applies with greater force in this case where the OSG had
in fact more reason not to presume a grant of its motion for
postponement considering that Major (formerly Captain) Samuel
Padilla had already been previously warned by public respondent thus

Capt. Samuel Padilla is given five (5) days from receipt hereof to
show why he should not be held disciplinarily accountable for his
failure to appear . . . when he knew as a matter of fact that this case
wherein he appears to be the principal government witness has been

pending since 1988 and that his testimony was suspended as far back
as February 15, 1990, precisely by reason of the unorganized state of
evidence of the petitioner at the time so that all of the proceedings
thereafter had been precisely to clarify and organize whatever
evidence the parties might have thereon. It is a cause of great wonder
to the Court what urgent meeting could have befallen Capt. Padilla
resulting to his failure to appear in Court today.
14chanroblesvirtuallawlibrary
Under the circumstances, it cannot rightly be said that the OSG was
not guilty of inexcusable carelessness, presumptuousness,
indifference to and neglect of duty in assuming that public respondent
would grant its oral motion for postponement, coming to court
unprepared and without a witness. Hence public respondent was well
within its authority to deny the Republics oral motion for
postponement of the hearings set on 19 and 20 October 1995 and
require it, instead, to just formally offer its evidence within fifteen (15)
days from notice. Petitioner is not guilty of abuse of discretion, much
less grave, nor can it be charged by petitioner with denial of due
process. 15
WHEREFORE, the instant petition for certiorari, prohibition and
mandamus is DENIED. The questioned Order of public respondent
Sandiganbayan dated 19 October 1995 denying the oral motion of
petitioner Republic of the Philippines for the postponement of the 19
and 20 October 1995 hearings as well as the Resolution dated 3
January 1996 denying petitioners motion for reconsideration, is
AFFIRMED.
Postponement on the grounds of absences of evidence; Requisites
(Sec. 3, Rule 30)
G.R. No. 173815 : November 24, 2010
MILWAUKEE INDUSTRIES CORPORATION, Petitioner, v. COURT
OF TAX APPEALS and COMMISSIONER OF INTERNAL
REVENUE, Respondents.
DECISION
MENDOZA, J.:
This resolves the petition for certiorari cralaw1 under Rule 65 of the
1997 Rules of Civil Procedure filed by petitioner Milwaukee Industries
17

Corporation (Milwaukee) assailing the February 27, 2006 Verbal

BIR examiners, who conducted the examination of Milwaukee's
Order and the June 1, 2006 Resolutioncralaw2 of the Court of Tax
books. She testified on the Final Report she prepared for the BIR and
Appeals (CTA), in CTA Case No. 6202 entitled 'Milwaukee Industries
explained the grounds for the disallowance of the deductions being
Corporation v. Commissioner of Internal Revenue.'
claimed by Milwaukee on the following: (1) foreign exchange losses
The Facts
classified as miscellaneous expenses; and (2) interest and bank
In a Letter of Authority,cralaw3 dated July 17, 1998, public respondent
charges paid in 1997.
Commissioner of Internal Revenue (CIR) notified Milwaukee of its
Subsequently, Milwaukee manifested its intention to present
intent to examine their books of account and other accounting records
documentary rebuttal evidence.cralaw8 By its Order of July 11, 2005,
for all internal revenue taxes for 1997 and other unverified prior years.
the CTA permitted Milwaukee to present rebuttal evidence starting
Milwaukee complied with the directive and submitted its documents to
September 5, 2005.cralaw9 Milwaukee, however, moved for resetting
CIR.
on the scheduled hearings, particularly on September 5, 2005 and
Thereafter, CIR issued three undated assessment
October 26, 2005.cralaw10
noticescralaw4 together with a demand letter and explanation of the
On January 16, 2006, Milwaukee was able to partially present its
deficiency tax assessments. Milwaukee allegedly owed a total
rebuttal evidence in a commissioner's hearing.cralaw11 The CTA
of P173,063,711.58 corresponding to the deficiencies on income tax,
scheduled another hearing on February 27, 2006.
expanded withholding and value-added taxes for the 1997 taxable
On February 27, 2006, during the scheduled hearing, the CIR waived
year. The table shows the supposed deficiency taxes due against
its right to cross-examine Milwaukee's witness.cralaw12 The CTA then
Milwaukee:cralaw5
asked Milwaukee to continue its presentation of rebuttal evidence. Not
prepared, Milwaukee moved for the postponement of the pre-marking
Basic Tax
Interest
Compromise
Total
and presentation of its rebuttal evidence relative to the deductibility of
Penalty
some interests and bank charges from its corporate income tax for the
e P43,114,980.66
P20,264,040.91
P25,000.00
P63,404,021.57
year 1997 amounting to P18,128,498.26.
Immediately, the CTA issued a verbal order denying Milwaukee's
motion to be allowed additional commissioner's hearing for further
19,438.95
9,284.23
1,000.00
29,723.18presentation of its rebuttal evidence. The CTA likewise gave
Milwaukee ten (10) days within which to submit its Formal Offer of
Rebuttal Evidence.cralaw13
Consequently, Milwaukee moved for reconsideration of the CTA's
verbal order. Milwaukee likewise moved to toll the running of the
72,108,530.81
37,496,436.02
25,000.00
109,629,966.83
period for filing its formal offer of rebuttal evidence.cralaw14
In its June 1, 2006 Resolution, the CTA denied Milwaukee's motion for
reconsideration but allowed its motion to suspend the period for filing
of formal offer of rebuttal evidence.cralaw15 Specifically, the CTA
stated:chanrobles virtual law library
P15,242,950.42
P57,796,761.16
P51,000.00
P173,063,711.58
This Court agrees with the respondent. The Court, upon motion,
In a lettercralaw6 dated February 21, 2000, Milwaukee protested the
allowed petitioner to present rebuttal evidence. However, it was
assessments.
petitioner who asked for several postponements of trial and
Due to CIR's inaction regarding its protest, on November 20, 2000,
commissioner's hearing, which lead the Court to issue final warnings
Milwaukee filed a petition for review before the CTA.cralaw7 This was
on October 26, 2005, January 16, 2006 and January 31, 2006.
docketed as CTA Case No. 6202.
It is worth stressing that the objective of the procedural rules is to
After Milwaukee had presented its evidence-in-chief, CIR offered the
secure a just, speedy and inexpensive disposition of every action to
testimony of Ms. Edralin Silario(Silario), the group supervisor of the
18

the benefit of all litigants. The Court will not countenance further delay
of the proceedings. Thus, the Court hereby RESOLVES to DENY
Petitioner's Motion for Reconsideration for lack of merit.
However, finding petitioner's Motion to Toll Running of the Period for
Filing Formal Offer of Rebuttal Evidence to be in order, the Court
hereby RESOLVES to GRANT the same.
WHEREFORE, petitioner is ordered to submit its Formal Offer of
Rebuttal Evidence within the remaining period prescribed by this
Court upon receipt of this Resolution. Respondent is given a period of
10 days to file his Comment thereto. Thereafter, petitioner's Formal
Offer of Rebuttal Evidence shall be deemed submitted for resolution.
SO ORDERED.cralaw16
On June 21, 2006, Milwaukee filed its Formal Offer of Rebuttal
Evidence (ex Abundanti ad Cautelam) before the CTA.cralaw17
Aggrieved by the denial of its motion for reconsideration of the verbal
order, Milwaukee filed this petition.
In its Memorandum,cralaw18 Milwaukee submits the following
ISSUES
WHETHER OR NOT RESPONDENT CTA COMMITTED GRAVE
ABUSE OF DISCRETION (AMOUNTING TO LACK OR EXCESS OF
JURISDICTION) IN DENYING PETITIONER'S MOTION TO BE
ALLOWED TO PRESENT REBUTTAL EVIDENCE, AND ITS
SUBSEQUENT MOTION FOR RECONSIDERATION THEREON:
A. Whether or not petitioner unduly delayed the case;
B. Whether or not petitioner was denied due process by not being
allowed to present its rebuttal evidence in relation to its disallowed
interest and bank charges for the year 1997; and chanrobles virtual
law library
C. Whether or not petitioner's proffered evidence, if allowed and
admitted, would have sufficiently substantiated its claims for
deductibility of the disallowed interest and bank charges.cralaw19
Milwaukee explained that it 'sought postponement of the 27 February
2006 hearing, but only because the same was originally scheduled for
respondent CIR's cross-examination of Milwaukee's witness.
Unexpectedly, on that very same hearing date, counsel for respondent
CIR suddenly manifested that he was waiving cross-examination.
Understandably, Milwaukee was constrained to request for
postponement of said hearing, not because it intended to delay the
proceedings, but because the evidence it intended to present, while
already available, was yet to be collated and sorted out for a more
orderly presentation.'cralaw20

Milwaukee claimed that the denial of its motions deprived it of its right
to have the case be decided on the merits. It wrote: 'Without said
countervailing evidence, the adjudication of the issue of deductibility
of certain interest and bank charges will [be] seriously impaired,
because it will not be based on substantial evidence or on the entire
facts.'cralaw21
The Court finds no merit in the petition.
In order for a petition for certiorari to succeed, the following requisites
must concur, namely: (a) that the writ is directed against a tribunal, a
board, or any officer exercising judicial or quasi-judicial functions; (b)
such tribunal, board, or officer has acted without or in excess of
jurisdiction, or with grave abuse of discretion amounting to lack or
excess of jurisdiction; and (c) there is no appeal, or any plain, speedy
and adequate remedy in the ordinary course of law.cralaw22 Without
jurisdiction denotes that the tribunal, board, or officer acted with
absolute lack of authority. There is excess of jurisdiction when the
public respondent exceeds its power or acts without any statutory
authority. Grave abuse of discretionconnotes such capricious and
whimsical exercise of judgment as to be equivalent to lack or excess
of jurisdiction; otherwise stated, power is exercised in an arbitrary or
despotic manner by reason of passion, prejudice, or personal hostility;
and such exercise is so patent or so gross as to amount to an evasion
of a positive duty or to a virtual refusal either to perform the duty
enjoined or to act at all in contemplation of law.cralaw23
'As a rule, the grant or denial of a motion for postponement is
addressed to the sound discretion of the court which should always be
predicated on the consideration that more than the mere convenience
of the courts or of the parties, the ends of justice and fairness should
be served thereby.'cralaw24 Furthermore, this discretion must be
exercised intelligently.cralaw25
In this case, the Court is of the view that the CTA gave enough
opportunity for Milwaukee to present its rebuttal evidence. Records
reveal that when Milwaukee requested for resetting on September 5,
2005 and October 26, 2005, its motions were granted by the CTA. As
a matter of fact, by January 16, 2006, Milwaukee was already able to
partially present its rebuttal evidence. Thus, when the CTA called on
Milwaukee to continue its presentation of rebuttal evidence on
February 27, 2006, it should have been prepared to do so. It cannot
be said that the CTA arbitrarily denied Milwaukee's supposed simple
request of resetting because it had already given the latter several
months to prepare and gather its rebuttal evidence.
19

Milwaukee tried to reason out that if only the CIR gave an advance
notice that it would be waiving its right to cross-examine its witness,
then it could have 'rushed the collation and sorting of its rebuttal
documentary exhibits.'cralaw26
The Court, however, is not persuaded.
As stated earlier, Milwaukee was given more than ample time to
collate and gather its evidence. It should have been prepared for the
continuance of the trial. True, the incident on said date was for the
cross-examination of Milwaukee's witness but it could be short; it
could be lengthy. Milwaukee should have prepared for any eventuality.
It is discretionary on the part of the court to allow a piece-meal
presentation of evidence. If it decides not to allow it, it cannot be
considered an abuse of discretion. 'As defined, discretion is a faculty
of a court or an official by which he may decide a question either way,
and still be right.'cralaw27
Accordingly, Milwaukee's right to due process was not transgressed.
The Court has consistently reminded litigants that due process is
simply an opportunity to be heard.cralaw28 The requirement of due
process is satisfactorily met as long as the parties are given the
opportunity to present their side. In the case at bar, Milwaukee was
precisely given the right and the opportunity to present its side. It was
able to present its evidence-in-chief and had its opportunity to present
rebuttal evidence. chan virtual library.
WHEREFORE, the petition is DENIED.
SO ORDERED.
Order of Trials maybe Changed

1. REMEDIAL LAW; DISMISSAL FOR FAILURE TO PROSECUTE;

NOT PROPER WHERE ALLEGATIONS IN COMPLAINT ADMITTED
IN ANSWER. Where the answer admits defendants obligation as
stated in the complaint, albeit special defenses are pleaded, plaintiff
has every right to insist that it is for defendant to come forward with
evidence in support of his special defenses. Defendant not having
supported his special defenses, the dismissal of the case for failure to
prosecute on the part of counsel for the plaintiff was manifestly
untenable and contrary to law.
2. ID.; ID.; ID.; SECTION 2 RULE 129, REVISED RULES OF COURT
SUPPORTS PLAINTIFFS REFUSAL TO PRESENT EVIDENCE.
Plaintiffs counsel refused to comply with the order of the trial court
requiring plaintiff to present his evidence. Instead of calling his
witnesses, he moved the court to present them after the defendant
had presented their evidence. Such a stand is supported by Section 2
of the Revised Rule of Court 129.
3. ID.; ID.; ID.; RULES OF JUDICIAL ETHICS VIOLATED BY JUDGE
IN CASE AT BAR. While this appeal is not a complaint against the
presiding judge, We cannot refrain from observing that the trial judges
despotic and outrageous insistence that plaintiff should present proof
in support of allegations that were not denied but admitted by the
adverse party was totally unwarranted, and was made worse by the
trial judges continual interrupting of the explanations of counsel, in
violation of the rules of judicial ethics.

[G.R. No. L-29742. March 29, 1972.]

DECISION
VICENTE YU, Plaintiff-Appellant, v. EMILIO MAPAYO, DefendantAppellee.
REYES, J.B.L., J.:
Leonor S. Lozano for plaintiff and appellant
Gregorio A. Palabrica for defendant and appellee.

Appeal from an order of the Court of First Instance of Davao City,

Branch II (Judge Alfredo I. Gonzalez presiding), rendered in its Civil
Case No. 4018, dismissing plaintiffs action for lack of prosecution.

SYLLABUS
The case originally started in the City Court of Davao, Branch II,
where appellant therein had filed suit to recover from defendant Emilio
Mapayo the sum of P2,800, representing the unpaid balance of the
20

purchase price of a Gray Marine Engine sold by the plaintiff to the

defendant, plus attorneys fees. The answer admitted the transaction
and the balance due but contended that by reason of hidden defects
of the article sold, the defendant had been forced to spend P2,800 for
repairs and labor, wherefore plaintiff had agreed to waive the balance
due on the price of the engine, and counterclaimed for damages and
attorneys fees. The City Court, after trial, disallowed the defenses and
ordered the defendant to pay plaintiff P2,500.00 and costs (Record on
Appeal, pages 9-16).
Defendant Mapayo appealed to the Court of First Instance, filing an
answer therein that was a virtual reproduction of his original defenses
in the City Court. When, after several continuances, the case was
called for hearing on 13 March 1968, the defendant, as well as his
counsel, failed to appear and the court scheduled the case for hearing
ex parte on the same day. The Court ordered plaintiff to present his
evidence, and from the unchallenged stenographic notes quoted in
appellants brief, pages 11-14 (Transcript, pages 4-7), the following
transpired:jgc:chanrobles.com.ph

COURT:chanrob1es virtual 1aw library

Wait a minute, are you going to present evidence or not?
ATTY. LOZANO:chanrob1es virtual 1aw library
Will you please give me a chance, if your Honor please, because my
purpose is, it will turn out that it will be the defendant to present
evidence to prove that there is hidden defect. He admitted the
allegation, he admitted that there is a balance of P2,800.00; it is not
paid by him but at the same time he said that there is a hidden defect.
In other words, if your Honor please, it should be the defendant to
present the evidence . . . (interrupted by court).
COURT:chanrob1es virtual 1aw library
Are you going to present evidence, substantial, oral, or not? Answer
the question of the Court.

"ATTY. LOZANO:chanrob1es virtual 1aw library

ATTY. LOZANO:chanrob1es virtual 1aw library
If your Honor please, before I present my witness I should like to
present the issue because all the allegations of the complaint are
admitted and I am going to specify by the answer, your Honor. (Italics
supplied)

If your Honor please, on the complaint, on the allegation of the

complaint, all are admitted by the defendant . . . (interrupted by court.
COURT:chanrob1es virtual 1aw library

COURT:chanrob1es virtual 1aw library

The attorney does not answer the question of the Court.
The issue is void on the hidden defect.
ATTY. LOZANO:chanrob1es virtual 1aw library
That is why, if your Honor please, the point if your Honor please, is I
do not have to prove that there is a gasoline engine that was taken by
the defendant from the plaintiff for an agreed amount of P6,800.00
because the allegation in paragraph 1, No. 2 and No. 3, is admitted in
the answer.

Answer the question, are you going to present evidence OR NOT

AND SUBMIT THE CASE ON THE PLEADINGS. (Capitals supplied)
ATTY. LOZANO:chanrob1es virtual 1aw library
Would you please allow me, your Honor, because in the answer of the
defendant . . . (interrupted by court)
COURT:chanrob1es virtual 1aw library

In other words, if your Honor please, the promissory note in the

amount of P2,800.00 . . . (interrupted by court).

I do not need discussion; I want you to answer the question of the

21

Court.

dismissed for lack of prosecution (Record on Appeal, pages 34-35),

the trial judge reasoning that

ATTY. LOZANO:chanrob1es virtual 1aw library

I am not going to present my evidence yet because at this moment I
am submitting my evidence on the pleading until after the defendant
will present evidence and I reserve my right to present rebuttal
evidence. (Italics supplied)
COURT:chanrob1es virtual 1aw library
Make it of record that the attorney refuses to present evidence either
oral or documentary when required by the Court.
ATTY. LOZANO:chanrob1es virtual 1aw library
Motion for reconsideration, if your Honor please, that is not what I
said, if your Honor please, I manifested that it should be the defendant
to prove first, to present evidence and we reserve our right to present
rebuttal evidence, if your Honor please (Italics supplied).
COURT:chanrob1es virtual 1aw library
All right, denied.
Submit the case for the consideration of the Court."
The court then issued an order on the same day in the following terms
(Record on Appeal, page 24):jgc:chanrobles.com.ph

"When the case is called for trial on 19 March 1968, defendants

counsel asked again for another postponement of the trial on the
ground that defendant and his witnesses were not able to come for
lack of transportation, notwithstanding a stern warning by the Court,
per its order of 9 March 1968 that it would not entertain further motion
for continuation of trial. Counsel for the plaintiff vehemently objected
to such motion and insisted in presenting his evidence which the
Court grants inspite of another civil case and one miscellaneous case
which were ready for hearing at the same time.
"Court ordered the plaintiff to present his evidence. Plaintiffs counsel
refused to comply with said order Instead of calling his witnesses, he
moved the Court to present them after the defendant had presented
their evidence. The court asked said counsel twice whether he would
present his evidence for the plaintiff, but said counsel refused to do so
and stacked to his demand that he would introduce his witnesses only
in rebuttal. This is dictation to the Court to disregard its lawful
command and a violation of the order of trial provided in the Rules of
Court.
"This is an appealed case from the Municipal Court elevated to this
Court on 18 May 1963 and from that time several postponement were
granted at the instance of the parties which cause delay and is
detrimental to the interest of justice.

"O R D E R

"IN VIEW WHEREOF, let this case be dismissed for failure to

prosecute on the part of counsel for the plaintiff without
pronouncement as to costs.

Make it of record that the attorney for the plaintiff refuses to present
evidence, either oral or documentary, when required by the Court.

"Finding defendants counterclaim not meritorious, same is also

dismissed.

Submit the case for the consideration of the Court.

"SO ORDERED."cralaw virtua1aw library

SO ORDERED."cralaw virtua1aw library

Further motions to reconsider having proved futile, the plaintiff

appealed.

A motion for reconsideration having been filed by counsel for plaintiff,

it was denied by the court by an order of 21 March, and the case was

We find, for Plaintiff-Appellant. Since the answer admitted defendants

22

obligation as stated in the complaint, albeit special defenses were

pleaded, plaintiff had every right to insist that it was for defendant to
come forward with evidence in support of his special defenses.
Section 2 of Revised Rule of Court 129 plainly supports
appellant:jgc:chanrobles.com.ph

[G.R. No. 45642. September 25, 1937.]

FRANCISCO SALAZAR, Petitioner, v. THE COURT OF FIRST
INSTANCE OF LAGUNA and SABINA RIVERA, Respondents.
Crispin Oben for Petitioner.

"Sec. 2. Judicial admissions. Admissions made by the parties in the

pleadings, or in the course of the trial or other proceedings do not
require proof and can not be contradicted unless previously shown to
have been made through palpable mistake."cralaw virtua1aw library
While this appeal is not a complaint against the presiding judge, We
can not refrain from observing that the trial judges despotic and
outrageous insistence that plaintiff should present proof in support of
allegations that were not denied but admitted by the adverse party
was totally unwarranted, and was made worse by the trial judges
continual interrupting of the explanations of counsel, in violation of the
rules of Judicial Ethics.
Defendant not having supported his special defenses, the dismissal of
the case was manifestly untenable and contrary to law.
WHEREFORE, the appealed order of dismissal is hereby revoked and
set aside, and the court below is directed to enter judgment in favor of
plaintiff and against the defendant for the sum of P2,800.00, plus
attorneys fees which this Court considers just and reasonable (Civil
Code, Article 2208, paragraph 11) . Costs against DefendantAppellee.
Let a copy of this decision be furnished the Honorable, the Secretary
of Justice, for his information and action.
Concepcion, C.J., Makalintal, Castro, Fernando, Teehankee, Barredo,
Villamor and Makasiar, JJ., concur.
Zaldivar, J., did not take part.
Three ways of Consolidation

Estanislao A. Fernandez for respondent Rivera.

No appearance for other Respondent.
SYLLABUS
1. WILLS; PROBATE; JURISDICTION. A Court of First Instance
acquires jurisdiction to probate a will when it is shown by evidence
before it: (1) That a person has died leaving a will; (2) in the case of a
resident of this country, that he died in the province where the court
exercises territorial jurisdiction; (3) in the case of a nonresident, that
he has left a estate in the province where the court is situated and (4)
that the testament or last will of the deceased has been delivered to
the court and is in the possession thereof.
2. ID.; ID.; ID.; SECOND WILL; FEES OF CLERK OF COURT.
According to the facts alleged and admitted by the parties, it is evident
that the court has acquired jurisdiction to probate the second will,
presented by the respondent, in view of the presence of all the
jurisdictional facts above-stated. The respondents counter-petition
should, in this case, be considered as a petition for the probate of the
second will, the original of which was filed by her on July 20, 1937.
The payment of the fees of e clerk of court for all services to be
rendered by him in connection with the probate of the second will and
for the successive proceedings to be conducted and orders to be
issued, in accordance with section 788, as amended, is not
jurisdictional in the sense that its omission does not deprive the court
of its authority to proceed with the probate of a will, as expressly
provided for by section 630. It is the inevitable duty of the court, when
a will is presented to it, to appoint hearing for its allowance and to
cause notices thereof to be given by publication. The duty imposed by
said section is imperative and noncompliance therewith would be a
mockery at the law and at the last will of the testator.
3. ID.; ID.; ID.; ID. Section 785 (a) of the Code of the Civil
23

Procedure, as amended recently by Act No. 3250, permits the

remission or postponement of the payment of the clerks fees in cases
of poverty, at the discretion of the court, and if this were done in one
case and the payment of the fees for filing the application were
jurisdictional, as claimed, then the court, in admitting the will to
probate and in allowing it, would have acted entirely without
jurisdiction. Finally, it should be taken into consideration that the court,
in this case, did not exempt the respondent from paying the fees in
question but merely failed to make provision therefor.
4. ID.; ID.; ID.; CONSOLIDATION OF SPECIAL PROCEEDINGS.
When the court ordered that the second will be set for hearing, that
publication be made thereof and that said will be heard in the same
proceeding jointly with the first will, it merely ordered the consolidation
of the two applications and the two hearings on the probate of both
wills, instead of conducting separate hearings, undoubtedly because it
understood that the form so chosen was the most convenient for the
parties and their attorneys. There are three ways of consolidating
actions or special proceedings where the questions at issue and the
parties in interest are the same. The first consists in recasting the
cases already instituted, conducting only one hearing and rendering
only one decision; the second takes place when the existing cases
are consolidated, only one hearing held and only one decision
rendered; and the third takes place when, without recasting or
consolidating the cases, the principal one is hear, the hearing on the
others being suspended until judgment has been rendered in the first
case.
5. ID.; ID.; ID.; ID. The court, in the exercise of its sound discretion,
may adopt any of these three forms of consolidation whenever in its
opinion the proceeding is beneficial to and convenient for the parties.
The power so exercised is discretionary. In the case under
consideration, the court acquired jurisdiction from the moment the
counter-petition was presented and the second will came to its
possession and under its control and, consequently, it likewise had full
discretion to order, as it did, the probate thereof in the proceeding
already instituted for the purpose of rendering later only one decision.
The consolidation so ordered was the form most convenient for and
beneficial to the parties as well as to the court, because if the first will
were opposed on the ground that it was revoked by the second will,
the best evidence of revocation would be the second will, and once

the publications are made, if the second will was executed with the
formalities prescribed by law, the court could order the probate
thereof, without the necessity of multiplying the proceedings.
DECISION
IMPERIAL, J.:
The petitioner instituted special proceeding No. 3109 in the Court of
First Instance of Laguna and, in the petition filed by him, prayed for
the probate of the will allegedly made on May 13, 1924, by his
deceased mother Damiana Capistrano, who died in the municipality of
Pagsanjan, Laguna, on December 21, 1936. The petition was
opposed by the respondent Sabina Rivera, who filed a pleading
entitled "Opposition and Counter-Petition." In her pleading the
respondent, after opposing the probate of said will for the reasons
stated therein, prayed for the probate of the will of the deceased
allegedly made on May 11, 1930, copy of which was attached thereto,
and for the issuance, to that effect, of the order setting the hearing
thereof and directing such publications as required by law. The court
denied the motion for publication and ordered the respondent to
institute another proceeding and apply separately for the probate of
the alleged will. The respondent filed a motion for reconsideration and
the court, on March 31, 1937, issued an order setting aside the former
one and directing that the will presented by the respondent be set for
hearing, that the publications required by law be made and that said
will be heard jointly will the will presented by the petitioner in the same
proceeding instituted by the latter. Sometime later, the court ordered
that the expenses for the publications made in the newspapers be
defrayed by the Respondent. The petitioner filed two motions for
reconsideration which were denied and, finally, instituted
thiscertiorari proceeding. In order that the hearing and publications
ordered by the court may be carried out, the respondent, on July 20,
1937, deposited P24 and filed the original of the will the probate of
which had been sought by her.
I. The petitioner raises only one question of law, to wit: that the court
acquired no jurisdiction to take cognizance of the counter- petition for
24

the probate of the second will, or to set the same for hearing and to
order, as it did, the publications to be made and the hearing of said
will to be held in the same proceeding jointly with the first will, on the
ground that the respondent had not previously filed her pleading nor
paid the fees of the clerk of court fixed by section 788 of the Code of
Civil Procedure, as amended by Act No. 3395. The pertinent part of
said section, as amended, reads as follows:jgc:chanrobles.com.ph
"SEC. 788. Fees of clerks of Court of First Instance. Fees shall be
assessed in accordance with the following schedule:chanrob1es
virtual 1aw library
x
x
x
"(g) For all clerical services in the allowance of wills, granting letters of
administration, appointment of guardians, trustees, settlement of the
accounts of executors, administrators, guardians, trustees, and
recording final and interlocutory orders, judgments, and decrees
therein, filing all inventories and appraisements, and for all other work
as clerk pertaining to any one estate, fees payable out of the estate
shall be collected in accordance with the value of the property
involved in each proceeding, as follows:"
x
x
x
The jurisdiction of the Courts of First Instance in probate matters is
determined in the following sections of the above-cited
Code:jgc:chanrobles.com.ph
"SEC. 599. Jurisdiction. Courts of First Instance shall have
jurisdiction in all matters relating to the settlement of estates and
probate of wills of deceased persons, the appointment and removal of
guardians and trustees, and the powers, duties, and rights of
guardians and wards, trustees, and cestuis que trust. This jurisdiction
shall be called probate jurisdiction.
"SEC. 600. Where residents estate settled. If an inhabitant of the
Philippine Islands dies, whether a citizen or alien, his will shall be
proved, or letters of administration granted, and his estate settled, in
the Court of First Instance in the province in which he resided at the
time of his death.

"SEC. 601. Where nonresidents estate settled. If a person resided

out of the Philippine Islands at the time of his death, his will shall be
allowed and recorded, and letters testamentary or of administration
shall be granted in the Court of First Instance of any province in which
he had estate."cralaw virtua1aw library
x
x
x
"SEC. 626. Custodian of will to deliver. The person who has the
custody of a will shall, within thirty days after he knows of the death of
the testator, deliver the will into the court which has jurisdiction, or to
the executor named in the will.
"SEC. 627. Executor to present will and accept or refuse trust. A
person named as executor in a will, shall within thirty days after he
knows of the death of the testator, or within thirty days after he knows
that he is named executor, if he obtained such knowledge after
knowing of the death of the testator, present such will to the court
which has jurisdiction, unless the will has been otherwise returned to
said court, and shall, within such period, signify to the court his
acceptance of the trust, or make known in writing his refusal to accept
it."cralaw virtua1aw library
x
x
x
"SEC. 630. Court to appoint hearing on will. When a will is
delivered to a court having jurisdiction of the same, the court shall
appoint a time and place when all concerned may appear to contest
the allowance of the will, and shall cause public notice thereof to be
given by publication in such newspaper or newspapers as the court
directs of general circulation in the province, three weeks
successively, previous to the time appointed, and no will shall be
allowed until such notice has been given. At the hearing all testimony
shall be taken under oath, reduced to writing and signed by the
witnesses."cralaw virtua1aw library
Under the foregoing provisions, a Court of First Instance acquires
jurisdiction to probate a will when it is shown by evidence before it: (1)
That a person has died leaving a will; (2) in the case of a resident of
this country, that he died in the province where the court exercises
25

territorial jurisdiction; (3) in the case of a nonresident, that he has left

a estate in the province where the court is situated, and (4) that the
testament or last will of the deceased has been delivered to the court
and is in the possession thereof.
The law is silent as to the specific manner of bringing the jurisdictional
allegations before the court, but practice and jurisprudence have
established that they should be made in the form of an application and
filed with the original of the will attached thereto. It has been the
practice in some courts to permit attachment of a mere copy of the will
to the application, without prejudice to producing the original thereof at
the hearing or when the court so requires. This precaution has been
adopted by some attorneys to forestall its disappearance, which has
taken place in certain cases.
According to the facts alleged and admitted by the parties, it is evident
that the court has acquired jurisdiction to probate the second will, in
view of the presence of all the jurisdictional facts above- stated. The
respondents counter-petition should, in this case, be considered as a
petition for the probate of the second will, the original of which was
filed by her on July 20, 1937.
II. The payment of the fees of the clerk of court for all services to be
rendered by him in connection with the probate of the second will and
for the successive proceedings to be conducted and orders to be
issued, in accordance with section 788, as amended, is not
jurisdictional in the sense that its omission does not deprive the court
of its authority to proceed with the probate of a will, as expressly
provided for by section 630. It is the inevitable duty of the court, when
a will is presented to it, to appoint hearing for its allowance and to
cause notices thereof to be given by publication. The duty imposed by
said section is imperative and noncompliance therewith would be a
mockery at the law and at the last will of the testator. Section 785 (a)
of the Code of Civil Procedure, as amended recently by Act No. 3250,
permits the remission or postponement of the payment of the clerks
fees in cases of poverty, at the discretion of the court, and if this were
done in one case and the payment of the fees for filing the application
were jurisdictional, as claimed, then the court, in admitting the will to
probate and in allowing it, would have acted entirely without
jurisdiction. Finally, it should be taken into consideration that the court,
in this case, did not exempt the respondents from paying the fees in

question but merely failed to make provision thereof.

III. When the court ordered that the second will be set for hearing, that
publication be made thereof and that said will be heard in the same
proceeding jointly with the first will, it merely ordered the consolidation
of the two applications and the two hearings on the probate of both
wills, instead of conduction separate hearings, undoubtedly because it
understood that the form so chosen was the most convenient for the
parties and their attorneys.
There are three ways of consolidating actions or special proceedings
where the questions at issue and the parties in interest are the same.
The first consists in recasting the cases already instituted, conducting
only one hearing and rendering only one decision; the second takes
place when the existing cases are consolidated, only one hearing held
and only one decisions rendered: and the third takes place when,
without recasting or consolidating the cases, the principal one is
heard, the hearing on the others being suspended until judgment has
been rendered in the first case. The court, in the exercise of its sound
discretion, may adopt any of these three forms of consolidation
whenever in its opinion the proceeding is beneficial to and convenient
for the parties. The power so exercised is discretionary. In the case
under consideration, the court acquired jurisdiction from the moment
the counter-petition was presented and the second will came to its
possession and under its control and, consequently, it likewise had full
discretion to order, as it did, the probate thereof in the proceeding
already instituted for the purpose of rendering later only one decision.
It should furthermore be taken into consideration that the
consolidation so ordered was the form most convenient for the
beneficial to the parties as well as to the court, because if the first will
were opposed on the ground that it was revoked by the second will,
the best evidence of the revocation would be said second will and
once the publications are made, f the second will was executed with
the formalities prescribed by law, the court could order the probate
thereof, without the necessity of multiplying the proceedings.
The decisions inserted hereinbelow are in support of the consolidation
of special proceedings in the cases where more than one will of a
deceased person has been presented:jgc:chanrobles.com.ph
"The question involved in the two cases is, which, if either, of the
26

instruments presented for probate is the last will of Margaret Roulett.

The trial of one case would not necessarily determine the other, as a
verdict in one for the caveat would not establish the instrument
propounded in the other, and a verdict in Rouletts case, finding that
the paper offered by him was the last will of Margaret Roulett, would
not be binding upon Mulherin, because he is not a party to Rouletts
proceeding. We are, therefore, of the opinion, in view of the
complications that might arise from separate trials and the facility with
which the whole matter may be determined by consolidating the
cases, that the trial judge might, in his discretion, pass an order
directing that the two cases be consolidated and heard together, and
in this manner have all the issues disposed of by a judgment binding
and conclusive upon all the parties before the court. In such trial the
person who filed the first application in the court of ordinary would be
entitled to open and conclude." (Roulett v. Mulherin, 100 Ga., 594.)
"In probate proceedings it was a proper course to try the validity of
two alleged wills, the latest of which had been lost or destroyed at the
same time, and evidence as to the revoking clause in the lost will was
admissible, but its effect on the earlier will must be determined in view
of the admissibility of the latter will to probate as a will." (In re
Thompsons Estate, 198 Pac., 795.)
"Where two wills are offered for probate and applications
consolidated, submission of both for determination as to whether one,
or if not that the other, is true will, held not erroneous." (Lillard v.
Tolliver, 285 S. W., 576.)
"Where two will are offered for probate and applications consolidated,
submission of both for determination as to whether one, or if not that
the other, is true will, held not erroneous." (Lillard v. Tolliver, 285 S. W.,
576.)
"Where two instruments are propounded by different parties as wills,
and several applications are made for probate, they will be
consolidated and tried together as one proceeding." (In re Potters
Will, 155 N. Y. S., 939.)
"The question of consolidation is discretionary with the court. In both
of the above-entitled proceedings, the parties are identical. No issues
have been tried in either proceeding. It therefore would be an

unnecessary expense to both the parties in interest and the county,

and an unnecessary delay in the determination of both proceedings,
not to consolidate them. I am therefore of the opinion that a
seasonable demand was made for a jury trial of the issues raised by
the objections filed to the probate of the will dated May 8, 1912, and
that the proceedings should be consolidated, and also that the issues
raised in said proceedings can be more speedily and conveniently
tried before the acting surrogate and a jury." (In re Potters Will, 158 N.
Y. S., 1001.)
"Where separate scripts are propounded for probate as the last will
and testament of an alleged testator, the probate proceedings in a
proper case may be consolidated for trial." (In re Martins Will, 141 N.
Y. S., 784.)
"Consolidation of proceedings. At common law the court could
order all testamentary papers to be produced in court in a proceeding
to probate any one of them, and now, under the statutory procedure in
effect in the various jurisdictions, the validity of two or more papers
claimed to be the last will and testament of deceased may be tried at
the same time, or a consolidation of separate proceedings to probate
or contest various testamentary papers purported to be by the same
testator may be made. A motion for such a consolidation, however, is
addressed t the surrogate presiding at the trial and should be made
when the trial of the probate proceeding comes on for the hearing and
not prior thereto, or before the surrogate sitting for the dispatch of
chambers business." (68 C. J., 1038, 1039, sec. 830.)
"The court may, in its discretion, consolidate proceedings instituted by
different persons for the purpose of having different instruments each
probated as the last will and testament of decedent. Separate
contests of a will and codicil, or of two will, each claimed to be the last
will of testator, may be consolidated by the court and heard together."
(Page on Wills, page 375, paragraph 323.)
It is the conclusion of this court, therefore, that the respondent court
did not act in excess of its sound discretion in issuing the order of
March 31, 1937, and for the foregoing reasons, the remedy applied for
is hereby denied, with costs to the petitioner. So ordered.
Avancea, C.J., Villa-Real, Abad Santos, Diaz, Laurel and
27

Concepcion, JJ., concur.

RESOLUTION
October 13, 1937.
IMPERIAL, J.:
The attorney for the petitioner seeks permission to file a second
motion for reconsideration already attached to his petition. With the
motion for reconsideration before it, this court will now take up the
same for decision on its merits.
It is alleged that the interpretation of paragraph (g) of section 788 of
the Code of Civil Procedure, as amended by section 1 of Act No.
3395, was one of the questions raised by the petition for certiorari, but
that both in the decision and in the resolution of the motion for
reconsideration this court has neither given nor interpreted the
meaning and scope of the phrase "in each proceeding" appearing at
the end of the legal provision in question.
On page 2 of the decision, this court stated that the only question of
law raised by the petition was whether or not the court had acquired
jurisdiction when it provided in its orders that the counter-petition and
the second will be heard in the proceeding already instituted at the
initiative of the petitioner and that the expenses of publication of the
hearing be defrayed by the Respondent. This court then said: "The
petitioner raises only one question of law, to wit: that the court
acquired no jurisdiction to take cognizance of the counter-petition for
the probate of the second will, or to set the same for hearing and to
order, as it did, the publications to be made and the hearing of said
will to be held in the same proceeding jointly with the first will, on the
ground that the respondent had not previously filed her pleading nor
paid the fees of the clerk of court fixed by section 788 of the Code of
Civil Procedure, as amended by Act No. 3395."cralaw virtua1aw
library
In connection with the fees of the clerk of court prescribed by section
788 (g) of the Code of Civil Procedure, as amended, the court, on
pages 6 and 7 of the decision, said: "The payment of the fees of the

clerk of curt for all services to be rendered by him in connection with

the probate of the second will and for the successive proceedings to
be conducted and orders to be issued, in accordance with section
788, as amended, is not jurisdictional in the sense that its omission
does not deprive the court of its authority to proceed with the probate
of a will, as expressly provided for by section 630. It is the inevitable
duty of the court, when a will is presented to it, to appoint hearing for
its allowance and to cause notices thereof to be given by publication.
The duty imposed by said section is imperative and noncompliance
therewith would be a mockery at the law and at the last will of the
testator. Section 785 (a) of the Code of Civil Procedure, as amended
recently by Act No. 3250, permits the remission or postponement of
the payment of the clerks fees in cases of poverty, at the discretion of
the court, and if this were done in one case and the payment of the
fees for filing the application were jurisdictional, as claimed, then the
court, in admitting the will to probate and in allowing it, would have
acted entirely without jurisdiction. Finally, it should be taken into
consideration that the court, in this case, did not exempt the
respondents from paying the fees in question but merely failed to
make provision therefor."cralaw virtua1aw library
It having been decided that the payment of said fees is not
jurisdictional, this court, in fact, determined the principal and only
question of law raised by the petition and there was no necessity of
interpreting said legal provision for the purpose of laying down
another unnecessary conclusion.
In the second motion for reconsideration, however, the attorney for the
petitioner asks this court to interpret expressly the phrase "in each
proceeding" to determine whether or not the respondent was and is
obliged to pay said clerks fees. If the interpretation asked for is to
determine whether or not the respondent was and is obliged to pay
said clerks fees. If the interpretation asked for is to determine the
question of jurisdiction, that is, whether or not the court acquired
jurisdiction in issuing its orders appealed from, it has already been
done and it was said that the payment of said fees is not jurisdictional.
If the interpretation sought to be obtained is for the purpose of having
this court decide now whether the respondent should, or should not,
pay the clerks fees, then this court holds that such pronouncement is
unnecessary and improper for the following reasons: (1) Because to
decide whether or not the petition is meritorious, there is no necessity
28

of determining whether or not the respondent is obliged to pay the

clerks fees, and (2) because it behooves the lower court to decided
this question in the first instance and it is improper for this appellate
court to exercise the functions belonging to the former.
In view of the foregoing, the second motion for reconsideration is
denied.
Avancea, C.J., Villa-Real, Abad Santos, Diaz, Laurel and
Concepcion, JJ., concur.
G.R. No. 45642
September 25, 1937
FRANCISCO SALAZAR, petitioner,
vs.
THE COURT OF FIRST INSTANCE OF LAGUNA and SABINA
RIVERA, respondents.
Crispin Oben for petitioner.
Estanislao A. Fernandez for respondent Rivera.
IMPERIAL, J.:
The petitioner instituted special proceeding No. 3109 in the court of
First Instance of Laguna and, in the petition filed by him, prayed for
the probate of the will allegedly made on May 13, 1924, by his
deceased mother Damiana Capistrano, who died in the municipality of
Pagsanjan, Laguna, on December 21, 1936. The petition was
opposed by the respondent Sabina Rivera, who filed a pleading
entitled "Opposition and Counter-Petition." In her pleading the
respondent, after opposing the probate of said will for the reasons
stated therein, prayed for the probate of the will of the deceased
alleged made on May 11, 1930, copy of which was attached thereto,
and for the issuance, to that effect, of the order setting the hearing
thereof and directing such publications as required by law. The court
denied the motion for publication and ordered the respondent to
institute another proceeding and apply separately for the probate of
the alleged will. The respondent filed a motion for reconsideration and
the court, on March 31, 19937, issued an order setting aside the
former one and directing that the will presented by the respondent be
set for hearing, that the publications required by law be made and that
said will be heard jointly with the will presented by the petitioner in the
same proceeding instituted by the latter. Sometime later, the court
ordered that the expenses for the publications made in the

newspapers be defrayed by the respondent. The petitioner filed two

motions for reconsideration which were denied and, finally, instituted
this certiorari proceeding. In order that the hearing and publications
ordered by the court may be carried out, the respondent, on July 20,
1937, deposited P24 and filed the original of the will the probate of
which had been sought by her.
I. The petitioner raises only one question of law, to wit: that the court
acquired no jurisdiction to take cognizance of the counter-petition for
the probate of the second will, or to set the same for hearing of said
will to be held in the same proceeding jointly with the first will, on the
ground that the respondent had not previously filed her pleading nor
paid the fees of the clerk of court fixed by section 788 of the Code of
Civil Procedure, as amended by Act No. 3395. The pertinent part of
said section, as amended, reads as follows:
SEC. 788. Fees of clerks of Court of First Instance. Fees shall
assessed in accordance with the following schedule:
xxx
xxx
xxx
(g) For all clerical services in the allowance of wills, granting letters of
administration, appointment of guardians, trustees, settlement of the
accounts of executors, administrators, guardians, trustees, and
recording final and interlocutory orders, judgment, and decrees
therein, filing all inventories and appraisements, and for all other work
as clerk pertaining to any one estate, fees payable out of the estate
shall be collected in accordance with the value of the property
involved in each proceeding, as follows:
xxx
xxx
xxx
The jurisdiction of the Courts of First Instance in probate matters is
determined in the following sections of the above-cited Code:
SEC. 599. Jurisdiction. Courts of First Instance shall have
jurisdiction in all matters relating to the settlement of estate and
probate of wills of deceased persons, the appointment and removal of
guardians and trustees, and the powers, duties, and rights of
guardians and wards, trustees, and cestuis que trust. This jurisdiction
shall be called probate jurisdicton.
SEC. 600. Where resident's estate settled. If an inhabitant of the
Philippine Islands dies, whether a citizen or alien, his will shall be
proved, or letters of administration granted, and his estate settled, in
the Court of First Instance in the province in which he resided at the
time of his death.
SEC. 601. Where nonresident's estate settled. If a person resided
out of the Philippine Islands at the time of his death, his will shall be
29

allowed and recorded, and letters testamentary or of administration

shall be granted in the Court of First Instance of any province in which
he had estate.
xxx
xxx
xxx
SEC. 626. Custodian of will to deliver. The person who has the
custody of a will shall, within thirty days after he knows of the death of
the testator, deliver the will into the court which has jurisdiction, or to
the executor named in the will.
SEC. 627. Executor to present will and accept or refuse trust. A
person named as executor in a will, shall within thirty days after he
knows of the death of the testator, or within thirty days after he knows
that he is named executor, if he obtained such knowledge after
knowing of the death of the testator, present such will to the court
which has jurisdiction, unless the will has been otherwise returned to
said court, and shall, within such period, signify to the court his
acceptance of the trust, or make known in writing his refusal to accept
it.
xxx
xxx
xxx
SEC. 630. Court to appoint hearing on will. When a will is delivered
to a court having jurisdiction of the same, the court shall appoint a
time and place when all concerned may appear to contest the
allowance of the will, and shall cause public notice thereof to be given
by publication in such newspapers as the court directs general
circulation in the province, three weeks successively, previous to the
time appointed, and no will shall be allowed until such notice has been
given. At the hearing all testimony shall be taken under oath, reduced
to writing and signed by the witnesses.
Under the foregoing provisions, a Court of First Instance acquires
jurisdiction to probate a will when it is shown by evidence before it: (1)
That a person has died leaving a will; (2) in the case of a resident of
this country, that he died in the province where the court exercises
territorial jurisdiction; (3) in the case of a nonresident, that he has left
a estate in the province where the court is situated, and (4) that the
testament or last will of the deceased has been delivered to the court
and is in the possession thereof.
The law is silent as to the specific manner of bringing the jurisdictional
allegations before the court but practice and jurisprudence have
established that they should be made in the form of an application and
filed with the original of the will attached thereto. It has been the
practice in some courts to permit attachment of a mere copy of the will
to the application, without prejudice to producing the original thereof at

the hearing or when the court so requires. This precaution has been
adapted by some attorneys to forestall its disappearance, which has
taken place in certain cases.
According to the facts alleged and admitted by the parties, it is evident
that the court has acquired jurisdiction to probate the second will, in
view of the presence of all the jurisdictional facts above-stated. The
respondent's counter-petition should, in this case, be considered as a
petition for the probate of the second will, the original of which was
filed by her on July 20, 1937.
II. The payment of the fees of the clerk of court for all services to be
rendered by him in connection with the probate of the second will and
for the successive proceedings to be conducted and others to be
issued, in accordance with section 788, as amended, is not
jurisdiction in the sense that its omission does not deprive the court of
its authority to proceed with the probate of a will, as expressly
provided for by section 630. It is the inevitable duty of the court, when
a will is presented to it, to appoint hearing for its allowance and to
cause notice thereof to be given by publication. The duty imposed by
said section is imperative and noncompliance therewith would be a
mockery at the law and at last will of the testator. Section 785 (a) of
the Code of Civil Procedure, as amended recently by Act No. 3250,
permits the remission or postponement of the payment of the clerk's
fees in cases of poverty, at the discretion of the court, and if this were
done in one case and the payment of the fees for filing the application
were jurisdictional, is claimed, then the court, in admitting the will to
probate and in allowing it, would have acted entirely without
jurisdiction. Finally, it should be taken into consideration that the court,
in this case, did not exempt the respondents from paying the fees in
question but merely failed to make provision therefor.
III. When the court ordered that the second will be set for hearing that
publication be made thereof and that said will be heard in the same
proceeding jointly with the first will, it merely ordered the consolidation
of the two applications and the two hearing on the probate of both
wills, instead of conducting separate hearing, undoubtedly because it
understood that the form so chosen was the most convenient for the
parties and their attorneys.
There are three ways of consolidation action or special proceedings
where the questions at issue and the parties in interest are the same.
The first consists in recasting the cases already instituted, conducting
only one hearing and rendering only one decision; the second takes
place when the existing cases are consolidated, only one hearing held
30

and only one decision rendered; and the third takes place when,
without recasting or consolidating the cases, the principal one is
heard, the hearing on the others being suspended until judgment has
been rendered in the first case. The court, in the exercise of its sound
discretion, may adopt any of these three forms of consolidation
whenever in its opinion the proceeding is beneficial to and convenient
for the parties. The power so exercised is discretionary. In the case
under consideration, the court acquired jurisdiction from the moment
the counter-petition was presented and the second will came to its
possession and under its control and, consequently, it likewise had full
discretion to order, as it did, the probate thereof in the proceeding
already instituted for the purpose of rendering later only one decision.
It should furthermore be taken into consideration that the
consolidation so ordered was the form most convenient for and
beneficial to the parties as well as to the court because if the first will
were opposed on the ground that it was revoked by the second will,
the best evidence of the revocation would be said second will and
once the publications are made, if the second will was executed with
the formalities prescribed by law, the court could order the probate
thereof, without the necessity of multiplying the proceedings.
The decisions inserted hereinbelow are in support of the consolidation
of special proceedings in the cases where more than one will of a
deceased person has been presented:
The question involved in the two cases is, which, if either, of the
instruments presented for probate is the last will of Margaret Roulett.
The trial of one case would not necessarily determine the other, as a
verdict in one for the caveat would not establish the instrument
propounded in the other, and a verdict in Roulett's case, finding that
the paper offered by him was the last will of Margaret Roulett, would
not be binding upon Mulherin, because he is not a party to Roulett's
proceeding. We are, therefore, of the opinion, in view of the
complications that might arise from separate trials and the facility with
which the whole matter may be determined by consolidating the
cases, that the trial judge might, in his discretion, pass an order
directing that the two cases be consolidated and heard together, and
in this manner have all the issues disposed of by a judgment binding
and conclusive upon all the parties before the court. In such trial the
person who filed the first application in the court of ordinary would be
entitled to open and conclude. (Roulett vs Mulherin, 100 Ga., 594.)
In probate proceeding it was a proper course to try the validity of two
alleged wills, the latest of which had been lost or destroyed at the

same time, and evidence as to the revoking clause in the lost will was
admissible, but its effect on the earlier will must be determined in view
of the admissibility of the latter will to probate as a will. (In
re Thompson's Estate, 1987 Pac., 795.).
Where two wills are offered for probate and applications consolidated,
submission of both for determination as to whether one, or if not that
the other, is true will, held not erroneous. (Lillard vs Tolliver, 285 S. W.,
576.).
Where two instruments are propounded by different parties as wills,
and several application are made for probate, they will be
consolidated and tried together as one proceeding. (In re Potter's Will,
155 N. Y. S., 939.).
The question of consolidation is discretionary with the court. In both of
the above-entitled proceedings, the parties are identical. No issues
have been tried in either proceeding. It therefore would be an
unnecessary expense to both the parties in interest and the country,
and an unnecessary delay in the determination of both proceedings,
not to consolidate them. I am therefore of the opinion that a
seasonable demand was made for a jury trial of the issues raised by
the objections filed to the probate of the will dated May 8, 1912, and
that the proceedings should be consolidated, and also that the issues
raised in said proceedings can be more speedily and conveniently
tried before the acting surrogate and a jury. (In re Potter's Will, 158
N.Y., 1001.)
Where separate scripts are propounded for probate as the last will
and testament of an alleged testator, the probate proceedings in a
proper case may be consolidated for trial. (In re Martin's Will, 141 N.
Y. S., 784.)
Consolidation of proceedings. At common law the court could order
all testamentary papers to be produced in court in a proceeding to
probate any one of them, and now, under the statutory procedure in
effect in the various jurisdiction, the validity of two or more papers
claimed to be the last will and testament of deceased may be tried at
the same time, or a consolidation of separate proceedings to probate
or contest various testamentary papers purported to be by the same
testator may be made. A motion for such a consolidation, however, is
addressed to the surrogate presiding at the trial and should be made
when the trial of the probate proceeding comes on for the hearing and
not prior thereto, or before the surrogate sitting for the dispatch of
chambers business. (68 C. J., 1038. 1039, sec. 830.).
31

The court may, in its discretion, consolidate proceedings instituted by

different persons for the purpose of having different instrument each
probated as the last will and testament of decedent. Separate
contests of a will and a codicil, or of two wills, each claimed to be the
last will of testator, may be consolidated by the court and heard
together. (Page on Wills, Page 375, paragraph 323.)
It is the conclusion of this court, therefore, that the respondent court
did not act in excess of its sound discretion in issuing the other of
March 31, 1937, and for the foregoing reasons, the remedy applied for
is hereby denied, with costs to the petitioner. So ordered.
Avancea, C.J., Villa-Real, Abad Santos, Diaz, Laurel and
Concepcion, JJ., concur.
RESOLUTION
October 13, 1937
IMPERIAL, J.:
The attorney for the petitioner seeks permission to file a second
motion for reconsideration already attached to his petition. With the
motion for reconsideration before it this court will now take up the
same for decision on its merits.
It is alleged that the interpretation of paragraph (g) of section 788 of
the Code of Civil Procedure, as amended by section 1 of Act No.
3395, was one of the questions raised by the petition for certiorari, but
that both in the decision and in the resolution of the motion for
reconsideration this court has neither given nor interpreted the
meaning and scope of the phrase "in each proceeding" appearing at
the end of the legal provision in question.
On page 2 of the decision, this court stated that the only question of
law raised by the petition was whether or not the court had acquired
jurisdiction when it provided in its orders that the counter-petition and
the second will be heard in the proceeding already instituted at the
initiative of the petitioner and that the expenses of publication of the
hearing be defrayed by the respondent. This court then said: "The
petitioner raises only one question of law, to writ: that the court
acquired no jurisdiction to take cognizance of the counter-petition for
the probate of the second will, or to set the same for hearing and to
order, as it did, the publications to be made and the hearing of said
will to be held in the same proceeding jointly with the first will, on the
ground that the respondent had not previously filed her pleading nor
paid the fees of the clerk of court amended by Act No. 3395."

In connection with the fees of the clerk of court prescribed by section

788 (g) of the Code of Civil Procedure, as amended, this court, on
pages 6 and 7 of the decision, said: "The payment of the fees of the
clerk of court for all services to be rendered by him in connection with
the probate of the second will and for the successive proceedings to
be conducted and orders to be issued, in accordance with section
788, as amended, is not jurisdictional in the sense that its omission
does not deprive the court of its authority to proceed with the probate
of a will, as expressly provided for by section 630. It is the inevitable
duty of the court, when a will is presented to it, to appoint hearing for
its allowance and to cause notices the to, be given by publication. The
duty imposed said section is imperative and noncompliance therewith
would be a mockery at the law and at the last will of the Section 785
(a) of the Code of Civil Procedure, as amended recently by Act No.
3250, permits the remission or postponement of the payment of the
clerk's fees in case of poverty, at the discretion of the court, and if this
were done in one case and the payment of the fees for filing the
application were jurisdiction, as claimed, then the court, in admitting
the will to probate and in allowing it, would have acted entirely without
jurisdiction. Finally, it should be taken into consideration that the court,
in this case, did not exempt the respondents from paying the fees in
question but merely failed to make provision therefor."
It having been decided that the payment of said fees is not
jurisdictional, this court, in fact, determined the principal and only
question of law raised by the petition and there was no necessity of
interpreting said legal provision for the purpose of laying another
unnecessary conclusion.
In the second motion for reconsideration, however, the attorney for the
petitioner asks this court to interpret expressly the phrase "in each
proceeding" to determine whether or not the respondent was and is
obtained to pay said clerk's fees. If the interpretation asked for is to
determine the question of jurisdiction, that is, whether or not the court
acquired jurisdiction in issuing its orders appealed from, it has already
been done and it was said that the payment of said fees is not
jurisdictional. If the interpretation sought to be obtained is for the
purpose of having this court decide now whether the respondent
should, or should not, pay the clerk's fees, then this court holds that
such pronouncement is unnecessary and improper for the following
reasons: (1) Because to decide whether or not the petition is
meritorious, there is no necessity of determining whether or not the
respondent is obliged to pay the clerk's fees, and (2) because it
32

behooves the lower court to decide this question in the first instance
and it is improper for this appellate court to exercise the function
belonging to the former.
In view of the foregoing the second motion for reconsideration is
denied.
Avancea, C.J., Villa-Real, Abad Santos, Diaz, Laurel and
Concepcion, JJ., concur.
[G.R. No. L-41667. April 30, 1976.]
DELTA MOTOR SALES CORPORATION, Petitioner, v. HON. JUDGE
IGNACIO MANGOSING, Branch XXIV, Court of First Instance of
Manila, THE CITY SHERIFF OF MANILA, and JOSE LUIS
PAMINTUAN, Respondents.
Bonoan, Santos, Lazo & Associates for Petitioner.
Villareal, Matic & Associates for respondent Jose Luis Pamintuan.
SYNOPSIS
For failure to file its answer, petitioner was declared in default and a
default judgment was rendered a petition to lift the order of default, to
set aside the judgment and for new trial, alleging that they employee
who accepted the service summons, was not the corporate secretary
but a secretary in the Corporations personnel department and that
service upon her was a mistake. The Supreme Court held that the trial
court did not acquire jurisdiction over petitioner because it was not
properly served with summons. The service of summons on the
secretary of the personnel department who is not among the persons
mentioned in Section 13, of Rule 14, was sufficient.
SYLLABUS
1. CIVIL PROCEDURE; JURISDICTION; SUMMONS; SERVICE
UPON PRIVATE DOMESTIC CORPORATION. For the purpose of
receiving service of summons and being bound by it, a corporation is
identified with its agent or officer who under the rule is designated to
accept service of process. The corporate power to receive and act on
such service so far as to make it known to the corporation, is thus
vested in such officer or agent; and where a particular method of
serving process is pointed out by a statute, that method must be

followed, and the rule is especially exacting in reference to

corporations.
2. ID.; ID.; ID.; DESIGNATION OF OFFICER UPON WHOM
SERVICE MAY BE MADE EXCLUDES OTHERS. When the statute
designates a particular officer to whom the process may be delivered
and with whom it may be left, as service upon the corporation, no
other officer or person can be substituted in his place. The designation
of one officer upon whom service may be made excludes all others.
3. ID.; ID.; ID.; STRICT COMPLIANCE WITH MODE OF SERVICE
NECESSARY TO CONFER JURISDICTION OF COURT OVER A
CORPORATION. A strict compliance with the mode of service is
necessary to confer jurisdiction of the court over a corporation. The
officer upon whom service is made must be the one who is named in
they statute; otherwise the service is insufficient. The purpose is to
render it reasonably certain that the corporation will receive prompt
and proper notice in an action against it or to insure that the summons
be served on a representative so integrated with the corporation that
such person will know what to do with the legal papers served on him.
4. ID.; ID.; ID.; CONSTRUCTION AND INTERPRETATION. The
liberal construction rule cannot be invoked and utilized as substitute
for the plain legal requirements as to the manner in which summons
should be served on a domestic corporation.
5. ID.; ID.; ID.; SERVICE SUMMONS ON PERSONS NOT
MENTIONED IN THE RULES IS INSUFFICIENT. The court does
not acquire jurisdiction over defendant corporation where it is not
properly served with summons. Service of summons on a secretary of
the corporations personnel department, who is not among the
persons mentioned in Section 13 of Rule 14, is insufficient. It does not
bind the corporation.
6. ID.; ID.; ID.; JURISDICTION, HOW ACQUIRED. Court acquires
jurisdiction over the person of a party defendant and of the subject
matter of the action of the virtue of the service summons in the
manner required by law. Where there is no service of summons or a
voluntary general appearance by the defendant the court acquires no
jurisdiction to pronounce a judgment in the cause.
33

DECISION
AQUINO, J.:
Delta Motor Sales Corporation (Delta Motor for short) in this special
civil action of certiorari seeks to annul certain orders of the Court of
First Instance of Manila denying its motion to set aside the order of
default and the judgment by default in Civil Case No. 97373 and
granting the motion for execution of Jose Luis Pamintuan. The facts
are as follows:chanrob1es virtual 1aw library
On April 16, 1975 Pamintuan sued Delta Motor for the recovery of the
sum of P58,000 as damages and attorneys fees. The basis of the
action was that Delta Motor, as the seller of an allegedly defective
Toyota car to Pamintuan for the sum of P33,950, failed to fulfill its
warranty obligation by not properly repairing the car.
The summons for Delta Motor was served on April 9 on its employee,
Dionisia G. Miranda, who acknowledged its receipt by signing on the
lower portion of the original summons.
Delta Motor did not answer the complaint within the reglementary
period which expired on May 4. On May 27 Pamintuan filed a motion
to declare Delta Motor in default. A copy of the motion was furnished
Delta Motor. The Manila court granted the motion in its order of June
3.

corporate secretary but the secretary of Alberto Ramos of the

personnel department who was on sick leave and that service upon
her was a mistake; that Pamintuan is still indebted to Delta Motor for
the unpaid balance of the price in the sum of P25,000; that the entity
liable for breach of warranty was Toyota Motor Sales Company, and
that Delta Motor has good defenses to the action.
The motion was supported by the affidavit of Dionisia G. Miranda who
alleged that, as there was no instruction from the sheriff that the
summons and complaint should be delivered to the officers of Delta
Motor, she just kept the same "for reference" to her immediate
superior, Ramos, who, however, seldom went to office. Geldino S.
Santos, the administrative officer of Delta Motor, in his affidavit, also
attached to the motion, confirmed that Dionisia G. Miranda was
Ramos secretary.
The lower court denied the motion in its order of July 29 on the ground
that Dionisia G. Miranda was a person of suitable age and discretion
who could receive summons for another person, as contemplated in
section 8, Rule 14 of the Revised Rules of Court, and that although
Delta Motors legal department was served on May 27 with a copy of
the motion to declare it in default, it did not oppose the motion.
The order of denial was received by Delta Motors counsel on August
4. It filed a motion for reconsideration at ten minutes before five
oclock in the afternoon of the thirtieth day, August 8. The lower court
denied it in its order of August 25. That order of denial was received
by Delta Motors counsel on September 4.
On the following day, September 5, Delta Motor deposited P120 as
appeal bond and filed a notice of appeal and record on appeal.

In its decision dated June 16, 1975 the lower court found that
Pamintuan bought from Delta Motor on June 20, 1974 a Toyota car;
that the leaks emanating from its windshield, doors and windows were
not stopped by Delta Motor, and that in consequence of its breach of
warranty Delta Motor should pay Pamintuan P45,000 as damages.

Pamintuan countered with a motion for execution. He contended that

the judgment was already final because Delta Motors motion for
reconsideration was filed after four-thirty in the afternoon of the
thirtieth day or after the close of office hours.

That decision was served on Delta Motor on June 27. On July 21, its
lawyers filed a petition to lift the order of default, to set aside the
judgment and for new trial. Delta Motor alleged that Dionisia G.
Miranda, who accepted the service of summons, was not the

The Manila court in its order of October 13 refused to give due course
to Delta Motors appeal and granted Pamintuans motion for
execution. The instant petition was filed on October 20, 1975. The
sheriff levied upon a Toyota mini-bus and a car to satisfy the judgment
34

for damages against Delta Motor.

Pamintuan in his comment on the petition revealed that on May 27,
1975, when Delta Motor was furnished with a copy of the motion to
declare it in default, it sued Pamintuan in the Court of First Instance of
Rizal, Pasig Branch XIII for the rescission of the sale and the recovery
of the car (Civil Case No. 21303). A writ of replevin was issued in that
case. A deputy sheriff of Rizal seized from Pamintuan the Toyota car
on June 6, 1975.
Pamintuan filed a motion to dismiss Delta Motors complaint in the
Pasig court on the ground of the pendency in the Manila court of Civil
Case No. 97373 involving the same Toyota car. Delta Motor opposed
it. It was denied.
Pamintuan filed in the Court of Appeals a petition for certiorari in order
to set aside the Pasig courts order denying his motion to dismiss
(Pamintuan v. Revilla, CA-G.R No. SP-04743). The Court of Appeals
in its decision dated February 16, 1976 denied the petition. It held that
the Rizal court did not commit any grave abuse of discretion in not
dismissing Delta Motors action.
The issue in this case is whether Delta Motor was properly served
with summons or whether the Manila court had jurisdiction to render
the judgment by default against it and to execute that judgment.
Rule 14 of the Revised Rules of Court
provides:jgc:chanrobles.com.ph
"SEC. 13. Service upon private domestic corporation or partnership.
If the defendant is a corporation organized under the laws of the
Philippines or a partnership duly registered, service may be made on
the president, manager, secretary, cashier, agent, or any of its
directors."cralaw virtua1aw library
For the purpose of receiving service of summons and being bound by
it, a corporation is identified with its agent or officer who under the rule
is designated to accept service of process. "The corporate power to
receive and act on such service, so far as to make it known to the
corporation, is thus vested in such officer or agent." (Lafayette
Insurance Co. v. French, 15 L. Ed. 451, 453).

As noted by the Federal Supreme Court, "the cases are numerous

which decide that where a particular method of serving process is
pointed out by statute, that method must be followed, and the rule is
especially exacting in reference to corporations" (Amy v. City of
Watertown, 32 L. Ed. 946). .
The Amy case cited the ruling in Watertown v. Robinson, 69 Wis. 230
that the particular mode of service indicated in the statute should be
followed because ita lex scripta est. "There is no chance to speculate
whether some other mode will not answer as well. This has been too
often held by this court to require further citations. When the statute
designates a particular officer to whom the process may be delivered
and with whom it may be left, as service upon the corporation, no
other officer or person can be substituted in his place. The designation
of one particular officer upon whom service may be made excludes all
others." (Page 952).
A strict compliance with the mode of service is necessary to confer
jurisdiction of the court over a corporation. The officer upon whom
service is made must be one who is named in the statute; otherwise
the service is insufficient. So, where the statute requires that in the
case of a domestic corporation summons should be served on "the
president or head of the corporation, secretary, treasurer, cashier or
managing agent thereof", service of summons on the secretarys wife
did not confer jurisdiction over the corporation in the foreclosure
proceeding against it. Hence, the decree of foreclosure and the
deficiency judgment were void and should be vacated. (Reader v.
District Court, 94 Pacific 2nd 858).
The purpose is to render it reasonably certain that the corporation will
receive prompt and proper notice in an action against it or to insure
that the summons be served on a representative so integrated with
the corporation that such person will know what to do with the legal
papers served on him. In other words, "to bring home to the
corporation notice of the filing of the action." (35A C.J.S. 288 citing
Jenkins v. Lykes Bros. S.S. Co., 48 F. Supp. 848; McCarthy v.
Langston, D.C. Fla., 23 F.R.D. 249).
The liberal construction rule cannot be invoked and utilized as a
substitute for the plain legal requirements as to the manner in which
35

summons should be served on a domestic corporation (U.S. v.

Mollenhauer Laboratories, Inc., 267 Fed. Rep. 2nd 260).
In the instant case the Manila court did not acquire jurisdiction over
Delta Motor because it was not properly served with summons. The
service of summons on Dionisia G. Miranda, who is not among the
persons mentioned in section 13 of Rule 14, was insufficient. It did not
bind the Delta Motor.

If the parties do not come to any amicable settlement during the pretrial of the two cases, then further proceedings may be had for the
adjudication of the said cases. No costs.
SO ORDERED.
Concepcion, Jr., concur.
Fernando, C.J., in the result.

"Courts acquire jurisdiction over the person of a party defendant and

of the subject-matter of the action by virtue of the service of summons
in the manner required by law. Where there is no service of summons
or a voluntary general appearance by the defendant, the court
acquires no jurisdiction to pronounce a judgment in the cause."
(Syllabi, Salmon and Pacific Commercial Co. v. Tan Cueco, 36 Phil.
556).
Consequently, the order of default, the judgment by default and the
execution in Civil Case No. 97373 are void and should be set aside.

[G.R. No. L-64250. September 30, 1983.]

SUPERLINES TRANSPORTATION CO., INC. and ERLITO
LORCA, Petitioners, v. HON. LUIS L. VICTOR, Judge Presiding over
Branch XVI of the Regional Trial Court of Cavite, TIMOTEA T.
MORALDE, CAYETANO T. MORALDE, JR., ALEXANDER T.
MORALDE, EMMANUEL T. MORALDE, and JOCELYN MORALDE
ABELLANA, Respondents.
Benito P. Fabio for Plaintiff-Appellee.

It appears that Civil Case No. 21303 filed by Delta Motor against
Pamintuan in the Pasig court, which is in effect a counter-claim to the
Manila case, deals with the same sale of the Toyota car which is
involved in Civil Case No. 97373 of the Manila court.

Michael Moralde for Private Respondents.

SYLLABUS

In the interest of justice and to avoid conflicting decisions, the trial of

the two cases should be consolidated. The Pasig case should be
transferred to Branch XXIV of the Court of First Instance of Manila
where Civil Case No. 97373 is assigned. Apparently, Delta Motor filed
its replevin case in Pasig because it was stipulated in the invoice
covering the sale that any action thereunder may be instituted in any
competent court of Rizal.
WHEREFORE, the order of default, judgment by default and the other
proceedings in Civil Case No. 97373 are set aside. The lower court is
directed to admit the answer of Delta Motor.
Respondent Pamintuan may likewise file his answer in Civil Case No.
21303. The record of that case should be transferred to the Court of
First Instance of Manila as indicated above.

1. REMEDIAL LAW; ACTIONS; JUDICIAL ECONOMY AND

ADMINISTRATION AS WELL AS CONVENIENCE OF THE PARTIES;
CONSIDERATIONS FOR CONSOLIDATION OF CASES IN THE
CASE AT BAR. There is, however, a more pragmatic solution to the
cotroversy at bar; and that is to consolidate the Gumaca case with the
Cavite case. Considerations of judicial economy and administration,
as well as the convenience of the parties for which the rules on
procedure and venue were formulated, dictate that it is the Cavite
court, rather than the Gumaca court, which serves as the more
suitable forum for the determination of the rights and obligations of the
parties concerned. As observed by both the trial and appellate courts,
to require private respondents who are all residents of Kawit, Cavite,
to litigate their claims in the Quezon Court would unnecessarily
expose them to considerable expenses. On the other hand, no like
36

prejudice would befall the defendants transportation companies if they

were required to plead their causes in Cavite, for such change of
venue would not expose them to expenses which are not already
liable to incur in connection with the Gumaca case.
2. ID.; PURPOSE AND OBJECT OF PROCEDURE. The whole
purpose and object of procedure is to make the powers of the court
fully and completely available for justice. The most perfect procedure
that can be devised is that which gives opportunity for the most
complete and perfect exercise of the powers of the court within the
limitations set by natural justice. It is that one which, in other words,
gives the most perfect opportunity for the powers of the count to
transmute themselves into concrete acts of justice between the
parties before it. The purpose of such a procedure is not to restrict the
jurisdiction of the court over the subject matter, but to give it effective
facility in righteous action. The purpose of procedure is not to thwart
justice. Its proper aim is to facilitate the application of justice to the
rival claims of contending parties. It was created not to hinder and
delay but to facilitate and promote the administration of justice. It does
not constitute the thing itself which courts are always striving to
secure to litigants. It is designed as the means best adapted to obtain
that thing. In other words, it is a means to an end. It is the means by
which the powers of the court are made effective in just judgments.
When it loses the character of the one and takes on that of the other
the administration of justice becomes incomplete and unsatisfactory
and lays itself open to grave criticism." (Manila Railroad Co. v.
Attorney-General, 20 Phil. 523)
DECISION
ESCOLIN, J.:
A petition for certiorari to set aside the decision of the Intermediate
Appellate Court in CA-G.R. No. SP-00708 entitled "Superlines
Transportation Co., Inc., Et. Al. versus Hon. Luis L. Victor, Et Al.,"
which affirmed the orders dated March 28 and April 27, 1983 of herein
respondent Judge Luis L. Victor in Civil Case No. N-4338 of the
Regional Trial Court of Cavite, entitled "Timotea T. Moralde, Et. Al.

versus Pantranco South Express, Inc., Et. Al."cralaw virtua1aw library

On December 19, 1982, Bus No. 3008 of the Pantranco South
Express, Inc., Pantranco for short, driven by Rogelio Dillomas,
collided with Bus No. 331 of the Superlines Transportation Co., Inc.,
Superlines for short, then driven by Erlito Lorca along the highway at
Lumilang, Calauag, Quezon, resulting in the instantaneous death of
Cayetano P. Moralde, Sr., a passenger in the Pantranco
bus.cralawnad
On January 4, 1983, Superlines instituted an action for damages
before the then Court of First Instance of Quezon, Gumaca Branch,
against Pantranco and Rogelio Dillomas, driver of said Pantranco Bus
No. 3008. In its complaint, docketed as Civil Case No. 1671-G,
Superlines alleged that the recklessness and negligence of the
Pantranco bus driver was the proximate cause of the accident and
that there was want of diligence on the part of Pantranco in the
selection and supervision of its driver.
On February 11, 1983, private respondents Timotea T. Moralde,
widow of the deceased Cayetano P. Moralde, Sr., and her children,
Cayetano, Jr., Alexander, Ramon, Emmanuel, all surnamed Moralde,
and Jocelyn M. Abellana, filed a complaint for damages, docketed as
Civil Case No. N-4338 of the Regional Trial Court of Cavite City,
against Superlines and its driver, Erlito Lorca, as well as Pantranco
and its driver, Rogelio Dillomas. The cause of action pleaded against
Superlines was based on quasi-delict, while that against Pantranco,
on culpa-contractual.
On February 28, 1983, herein petitioners Superlines and its driver
Erlito Lorca filed a motion to dismiss in Civil Case No. N-4338 on the
ground of pendency of another action, obviously referring to Civil
Case No. 1671-G pending before the Regional Trial Court of Quezon,
Gumaca Branch.
Finding that the two cases (Civil Cases No. 1671-G and No. N-4338)
involved different parties as well as different causes of action,
respondent Judge Luis Victor denied the motion to dismiss in the
challenged order of March 28, 1983. Superlines moved for a
reconsideration, but the same was denied on April 27, 1983.
37

Dissatisfied, Superlines filed with the Intermediate Appellate Court a

petition for certiorari and prohibition with preliminary injunction, which
petition, however, was denied due course. Hence, this present
recourse.
It is suggested by petitioners that private respondents Moraldes
should pursue their claim for damages by intervening in the Gumaca
action, pursuant to Sec. 2, Rule 12 of the Rules of Court and in the
light of Municipality of Hagonoy v. Secretary of Agriculture and Natural
Resources [73 SCRA 507] and Orellano v. Alvestir [76 SCRA 536]. It
is contended that since the right of private respondents to claim
damages is founded on the same facts involved in the Gumaca
action, any judgment rendered therein will amount to res judicata in
the Cavite case, for whatever adjudication is made in the former case
between Pantranco and Superlines as regards either of the parties
culpability would set said issue at rest. Furthermore, such intervention
would prevent multiplicity of suits and avoid confusion that may arise
should the trial courts render conflicting
decisions.chanroblesvirtualawlibrary
Petitioners stand is consistent with our ruling in the case of Marapao
v. Mendoza, 119 SCRA 97, where We held that:jgc:chanrobles.com.ph
"While respondent Castillo has not been impleaded in the Bohol case,
she has similar interests as Hotel de Mercedes, the defendant therein
which is her employer. Petitioner and private respondent both claim
damages based on the same incident. A decision, whether in favor of
petitioner or private respondent in the Bohol case would amount to res
judicata in the Cebu case. Damages in favor of one party would
preclude damages in favor of the other.
"There is an additional reason for dismissal and that is, to avoid
multiplicity of suits. (Ago Timber Co. v. Hon. Ruiz, Et Al., 21 SCRA 138
(1967); Erlanger v. Villamor, 98 Phil. 1003 (1956); Teodoro, Jr. v.
Mirasol, 99 Phil. 150 (1956).
"To protect the interests of respondent employee, she may intervene
as a party in the Bohol case and file a counterclaim for damages
against petitioner."cralaw virtua1aw library
There is, however, a more pragmatic solution to the controversy at

bar; and that is to consolidate the Gumaca case with the Cavite case.
Considerations of judicial economy and administration, as well as the
convenience of the parties for which the rules on procedure and
venue were formulated, dictate that it is the Cavite court, rather than
the Gumaca court, which serves as the more suitable forum for the
determination of the rights and obligations of the parties concerned.
As observed by both the trial and appellate courts, to require private
respondents who are all residents of Kawit, Cavite, to litigate their
claims in the Quezon Court would unnecessarily expose them to
considerable expenses. On the other hand, no like prejudice would
befall the defendants transportation companies if they were required
to plead their causes in Cavite, for such change of venue would not
expose them to expenses which they are not already liable to incur in
connection with the Gumaca case. The objection interposed by
Superlines that it has its offices in Atimonan, Quezon, should not
detract from the overall convenience afforded by the consolidation of
cases in the Cavite Court. For apart from the fact that petitioner and
its driver are represented by the same counsel with offices located in
Manila, defendants transportation companies can readily avail of their
facilities for conveying their witnesses to the place of trial.chanrobles
virtual lawlibrary
The ordered consolidation of cases, to our mind, crystallizes into
reality the thinking of our predecessors that:jgc:chanrobles.com.ph
". . . The whole purpose and object of procedure is to make the
powers of the court fully and completely available for justice. The most
perfect procedure that can be devised is that which gives opportunity
for the most complete and perfect exercise of the powers of the court
within the limitations set by natural justice. It is that one which, in other
words, gives the most perfect opportunity for the powers of the court
to transmute themselves into concrete acts of justice between the
parties before it. The purpose of such a procedure is not to restrict the
jurisdiction of the court over the subject matter, but to give it effective
facility in righteous action. It may be said in passing that the most
salient objection which can be urged against procedure today is that it
so restricts the exercise of the courts powers by technicalities that
part of its authority effective for justice between the parties is many
times an inconsiderable portion of the whole. The purpose of
procedure is not to thwart justice. Its proper aim is to facilitate the
38

application of justice to the rival claims of contending parties. It was

created not to hinder and delay but to facilitate and promote the
administration of justice. It does not constitute the thing itself which
courts are always striving to secure to litigants. It is designed as the
means best adapted to obtain that thing. In other words, it is a means
to an end. It is the means by which the powers of the court are made
effective in just judgments. When it loses the character of the one and
takes on that of the other the administration of justice becomes
incomplete and unsatisfactory and lays itself open to grave criticism."
(Manila Railroad Co. v. Attorney-General, 20 Phil. 523)
WHEREFORE, the instant petition is hereby denied. Civil Case No.
1671-G of the Regional Trial Court of Quezon is hereby ordered
consolidated with Civil Case No. N-4338 pending before the Regional
Trial Court of Cavite. The Regional Trial Court of Quezon, Gumaca
Branch, is directed to transfer, without unnecessary delay, the records
of Civil Case No. 1671-G to the Regional Court of Cavite, Branch XVI.
SO ORDERED.
Makasiar (Chairman), Aquino, Guerrero, Abad Santos and
Relova, JJ., concur.
G.R. No. 190462 : November 17, 2010
STEEL CORPORATION OF THE PHILIPPINES, Petitioner,
v. EQUITABLE PCI BANK, INC., (now known as BDO UNIBANK,
INC.), Respondent.
G.R. No. 190538 : November 17, 2010
DEG DEUTSCHE INVESTITIONS-UND
ENTWICKLUNGSGESELLSCHAFT MBH,Petitioner, v. EQUITABLE
PCI BANK, INC., (now known as BDO UNIBANK, INC.) and STEEL
CORPORATION OF THE PHILIPPINES, Respondents.
DECISION
VELASCO, JR., J.:
Before us are two Petitions for Review on Certiorari under Rule 45,
docketed as G.R. Nos. 190462 and 190538, assailing the July 3, 2008
Decision[1] and December 3, 2009 Resolution[2] of the Court of
Appeals (CA) in CA-G.R. SP No. 101881, entitled Equitable PCI Bank,
Inc. (now known as Banco de Oro-EPCI, Inc.) v. Steel Corporation of

the Philippines. The CA set aside the Decision[3] dated December 3,

2007 of the Regional Trial Court (RTC) acting as a Rehabilitation
Court, and, in effect, the CA (1) set aside the Rehabilitation Courts
Decision approving the Rehabilitation Plan; and (2) terminated the
corporate rehabilitation of Steel Corporation of the Philippines
(SCP). cra
We consolidated G.R. No. 190462 with G.R. No. 190538 as they
involve identical parties, arose from the same facts, and assail the
same CA Decision dated July 3, 2008.[4]cralaw
The Facts
SCP is a domestic corporation incorporated and registered with the
Securities and Exchange Commission on October 3, 1994. It is
engaged in the manufacturing and distribution of cold-rolled and
galvanized steel sheets and coils.
During its operations, SCP encountered and suffered from financial
difficulties and temporary illiquidity, aggravated by the 1997 Asian
Financial Crisis. And shortage in working capital and reduced
operating capacity compounded its problem. As a result, SCP was
unable to service its principal payments for its liabilities.
In its Interim Financial Statement as of December 31, 2005, SCPs
total assets amounted to PhP 10,996,551,123, while its liabilities
amounted to PhP 8,365,079,864.
Accordingly, on September 11, 2006, Equitable PCI Bank, Inc., now
known as Banco de Oro-EPCI, Inc. (BDO-EPCIB), which accounted
for 27.45% of the total liabilities of SCP, filed a creditor-initiated
petitionto place the SCP under corporate rehabilitation pursuant to
the provisions of Section 1, Rule 4 of the Interim Rules of Procedure
on Corporate Rehabilitationentitled In the Matter of the Petition to
have Steel Corporation of the Philippines Placed under Corporate
Rehabilitation with Prayer for the Approval of the Proposed
Rehabilitation Plan. BDO-EPCIB included its proposed rehabilitation
plan in the said petition.
Finding the petition to be sufficient in form and substance, the
Rehabilitation Court issued an Order dated September 12, 2006,
directing, among others, the stay of enforcement of all claims, whether
for money or otherwise and whether such enforcement is by court
action or otherwise, against SCP, its guarantors, and sureties not
solidarily liable with it. The Rehabilitation Court likewise appointed
Atty. Santiago T. Gabionza, Jr. as the Rehabilitation Receiver for SCP.
SCP did not oppose the petition but instead filed its own counter
rehabilitation plan and submitted it for the consideration of the
39

Rehabilitation Court. Other creditors filed their respective comments

on the petition.
On November 23, 2006, the Rehabilitation Court issued an Order,
giving due course to the petition and directing Atty. Gabionza to
evaluate the rehabilitation plan proposed by BDO-EPCIB and the
proposals of the other participating creditors, and to submit his
recommendations. The Rehabilitation Court also directed Atty.
Gabionza to consider SCPs counter rehabilitation plan in drafting his
recommended rehabilitation plan.
In a Compliance dated March 6, 2007, Atty. Gabionza submitted his
recommended rehabilitation plan. The said plan contained the salient
features of the rehabilitation plans separately submitted by SCP and
BDO-EPCIB, as well as his own comments. The plan was
summarized by the Rehabilitation Court as
follows:chanroblesvirtuallawlibrary
Thus, after considering the comments of the other participating
creditors and evaluating the proposals of SCP and the Petitioner, Atty.
Gabionza recommended the following terms and conditions for
rehabilitation plan, to wit:chanroblesvirtuallawlibrary
1. Fresh equity infusion of P3.5 Billion, out of which P3 Billion shall be
used for debt reduction, and the balance of P500 Million as additional
working capital.
2. The P3 Billion allocated for debt repayment shall first service the
secured credits and excess thereafter will be applied to clean
creditors and suppliers.
3. The remaining short term and long term debt balances after debt
reduction will be restructured over a period of 12 years inclusive of a 2
year grace period on principal payments. There shall be 20 equal
semi-annual payments of principal to commence at the end of the
grace period.
4. Interest rates for the restructure debt shall be 8% per annum fixed
for the duration of the loan and shall be payable quarterly in arrears.
No grace period on interest payments.
5. To protect existing clean creditors, SCP may not secure additional
secured credits which will utilize the excess assets values after the
P3.0 Billion debt reduction.
6. Any excess cash after the annual (normal) CAPEX and debt service
requirements shall be distributed as follows: 70% debt repayment and
30% to be retained by the Company.
7. All existing suppliers credits (subject to final validation) shall have 2
options:chanroblesvirtuallawlibrary

a. To be paid quarterly over a period of 5 years without interest, or

b. To continuously supply the company on the pay-re-avail (Deliver
same amount paid) basis.
8. All loans, suppliers credit and other SCP liabilities are subject to
final verification once the recommended rehabilitation plan is
approved.
The rehabilitation plan recommended by Atty. Gabionza has three (3)
phases in the implementation of the proposed P3.5 Billion fresh equity
infusion, thus:chanroblesvirtuallawlibrary
Phase 1
SCPs articles of incorporation and by laws shall be amended to
accommodate the additional equity of P3.5 Billion. The present
stockholders of SCP shall be given sixty (60) days from approval of
the plan to keep their stockholdings SCP by raising/sourcing the P3.5
Billion fresh equity required.
Phase 2
In the event the present stockholders fail to raise the P3.5 Billion fresh
equity needed to keep their stockholdings and save their company,
Atty. Gabionza shall offer to acceptable investors, through negotiated
sale or bidding, 67% of SCP for the P3.5 Billion fresh equity required.
Phase 3
Should Phase 1 and 2 fail, there shall be a debt to equity conversion
in the required amount of P3.5 Billion.[5]cralaw
Although not required by the rules, several consultative meetings
were thereafter conducted by the Rehabilitation Court between and
among the parties to discuss a viable rehabilitation plan for SCP that
is acceptable to all.
In compliance with the directives of the Rehabilitation Court to
consider all the inputs and observations made by the parties during
the consultative meetings and to make the necessary modification in
his recommendations on the submitted rehabilitation plans, Atty.
Gabionza submitted a Modified Rehabilitation Plan as incorporated in
his compliance dated June 27, 2007. The modifications made
were:chanroblesvirtuallawlibrary
Phase 1 of the Recommended Rehabilitation Plan is retained under
the Modified Rehabilitation Plan. Phase 2, however, is amended to the
effect that in the event the present stockholders fail to raise the P3.5
Billion fresh equity needed to keep their stockholdings and save their
company, the same existing stockholders of SCP shall be afforded a
period of 60 days from the expiration of the period provided in Phase
40

1 to offer for sale to an acceptable investor at least 67% stockholdings

in SCP for an amount not less than P3.5 Billion.
Under Phase 3 thereof, there shall be a debt to equity conversion in
the required amount of P3.5 Billion should Phase 1 and 2 fail. The
adjusted book value of SCP under its 2005 Audited Financial
Statements is pegged at P1.129 Billion. Accordingly, P1.1.29 Billion of
the existing debt will initially be converted into common shares
achieving an ownership structure where both existing stockholders
and the bank creditors will equally own SCP at 50% each. The
balance of P2.371 Billion will then be converted into non-interest
bearing convertible notes.[6]cralaw
On June 21, 2007, BDO-EPCIB, joined by creditors DEG, Planters
Development Bank, China Banking Corporation, Asiatrust
Development Bank and GE Money Bank, Inc., altogether holding
more than 50% of SCPs total liabilities, filed their Joint Manifestation
and Motion declaring their conformity with and support to Atty.
Gabionzas Recommended Rehabilitation Plan.
On July 30, 2007, SCP submitted its 2006 Audited Financial
Statements in a Compliance with Motion. Atty. Gabionza was ordered
by the Rehabilitation Court to study the financial statements and to
submit a report on their effects on the Modified Rehabilitation Plan.
The parties then submitted their respective comments on the Modified
Rehabilitation Plan and Atty. Gabionzas report on the effects of the
2006 Audited Financial Statements. Likewise, SCP submitted its
Updated Counter Rehabilitation Plan, attached to its Ad Abundante
Cautelam Motion to Admit Debtor SCPs Updated Counter
Rehabilitation Plan, which was subsequently admitted by the
Rehabilitation Court.
On December 3, 2007, the RTC promulgated a Decision approving
the Modified Rehabilitation Plan. The dispositive portion
reads:chanroblesvirtuallawlibrary
WHEREFORE, premises considered, the present petition is given due
course. The parties are mandated to comply strictly with the
provisions of the approved rehabilitation plan.
The Rehabilitation Receiver is hereby directed to provide this Court
with periodic reports on the implementation of the approved
Rehabilitation Plan.
The provisions of the approved Rehabilitation Plan shall be binding on
all persons and parties affected by it, whether or not such persons or
parties have participated in the present proceedings.

The concerned parties are further directed to submit to this Court their
respective nominees for the Management Committee not later than 60
days before the expiration of the period for the application of Phases 1
and 2 of the foregoing rehabilitation plan. In case no nominee is
submitted by any party, this Court shall directly designate the
corresponding members thereof.
SO ORDERED.[7]cralaw
Therefrom, several creditors went to the CA via separate Petitions for
Review onCertiorari, to wit: (1) SCPs petition dated January 9, 2008,
docketed as CA-G.R. SP No. 101732 and entitled Steel Corporation of
the Philippines v. Equitable PCI Bank, Inc.; (2) DEGs petition dated
January 6, 2008, docketed as CA-G.R. SP No. 101880 and entitled
DEG Deutsche Investitions-und Entwicklungsgesselschaft mbH v.
Steel Corporation of the Philippines; (3) BDO-EPCIBs petition dated
January 8, 2008, docketed as CA-G.R. SP No. 101881 and entitled
Equitable PCI Bank, Inc. v. Steel Corporation of the Philippines; and
(4) Investments 2234 Philippines Fund I, Inc.s (IPFIs) petition dated
January 10, 2008, docketed as CA-G.R. SP No. 101913 and entitled
Investments 2234 Philippines Fund I (SPV-AMC), Inc. v. Equitable PCI
Bank, Inc.
The petitions of SCP and IPFI were eventually consolidated under
CA-G.R. SP No. 101732. However, the CA denied BDO-EPCIBs
motion to consolidate with CA-G.R. SP No. 101732.[8] As to CA-G.R.
SP No. 101881, the Court takes judicial notice of the fact that it has
also been consolidated with CA-G.R. SP No. 101732 in a Resolution
issued by the CA dated March 22, 2010.
On July 3, 2008, the CA issued the assailed decision in CA-G.R. SP
No. 101881, ordering the termination of the rehabilitation proceedings.
The dispositive portion reads:chanroblesvirtuallawlibrary
WHEREFORE, premises considered, the Decision dated December
3, 2007 of the RTC, Branch II, Batangas City, in SP No. 06-7993 is
hereby SET ASIDE, and another one is hereby entered declaring the
rehabilitation proceedings TERMINATED, pursuant to Section 27,
Rule 4 of the Interim Rules of Procedure on Corporate Rehabilitation.
SO ORDERED.[9]cralaw
SCP then filed a Supplemental Petition for Review dated July 21,
2008 in CA-G.R. SP No. 101732, praying, among others, for the
approval of its Revised Updated Counter Rehabilitation Plan.
From the July 3, 2008 CA Decision, DEG, SCP, Landmark Glory
Limited, and Liquigaz Philippines Corporation interposed separate
41

motions for reconsideration. However, on December 3, 2009, the CA

denied all motions for reconsiderations.
Hence, these separate recourses are before us.
The Issues
In G.R. No. 190462, SCP raised the following arguments in support of
its amended petition:chanroblesvirtuallawlibrary
I.
The [CA] erred when it did, it denied the petitioner its rights to both
procedural and substantive due process when
(a) It did not follow its own internal rules of procedure and thereafter
justified its error on the bases of misleading and false statements;
(b) It granted a relief which none of the parties sought for, nor were
heard, nor given the opportunity to be heard, thereon, and
(c) It substituted its judgment for that of the rehabilitation court,
usurping in the process the exclusive authority reposed in the said
court.
II.
The [CA] erred and when it did, it acted in a manner at war with
orderly procedure when it declared the termination of the
proceedings without passing upon nor giving the petitioner a chance
to be heard on the updated alternative rehabilitation plan submitted by
it.
III.
The [CA] erred and when it did, it failed to perform its duties and
obligations as a court when it found, and thereafter declared
termination of the rehabilitation proceedings because the case had
become litigious and did not try to allow the parties to adjust their
differences so that rehabilitation of the petitioner could go on.
[10]cralaw
In G.R. No. 190538, DEG submits as
follows:chanroblesvirtuallawlibrary
I.
The [CA] had no jurisdiction or authority to terminate the rehabilitation
proceedings.
II.
Assuming, arguendo, that the [CA] had the authority to terminate the
rehabilitation proceedings, such termination was premature.[11]cralaw
The issues raised before the Court can be summarized into
two:chanroblesvirtuallawlibrary
(1) Whether or not the CA erred in refusing to consolidate the cases
pending before it; and

(2) Whether or not the CA erred in granting a relief that was not
prayed for by the parties, i.e., the termination of the rehabilitation
proceedings.
Consolidation of Cases is Proper
Petitioner SCP argues that the CA deviated from its own Internal
Rules when it failed to consolidate the four (4) appeals arising from
the same decision of the rehabilitation court. In fact, it points out to the
fact that CA-G.R. SP No. 101913 had already been consolidated with
its own appeal in CA-G.R. SP No. 101732. However, SCP says that
the failure by the CA to consolidate the remaining two appeals,
namely CA-G.R. SP Nos. 101880 and 101881, with its own appeal
indicates not only a deviation from the rules but also a disobedience
to their plain language and obvious intent.
On the other hand, BDO-EPCIB refutes SCPs arguments by saying
that the consolidation of cases is only discretionary, not mandatory,
upon the court.
The Court agrees with SCP.
Consolidation of actions is expressly authorized under Sec. 1, Rule 31
of the Rules of Court:chanroblesvirtuallawlibrary
Section 1. Consolidation. When actions involving a common
question of law or fact are pending before the court, it may order a
joint hearing or trial of any or all the matters in issue in the actions; it
may order all the actions consolidated; and it may make such orders
concerning proceedings therein as may tend to avoid unnecessary
costs or delay.
Likewise, Rule 3, Sec. 3 of the 2002 Internal Rules of the CA[12]
adopts the same rule:chanroblesvirtuallawlibrary
Sec. 3. Consolidation of Cases. When related cases are assigned to
different Justices, they may be consolidated and assigned to one
Justice.
(a) At the instance of a party with notice to the other party; or at the
instance of the Justice to whom the case is assigned, and with the
conformity of the Justice to whom the cases shall be consolidated,
upon notice to the parties, consolidation may be allowed when the
cases involve the same parties and/or related questions of fact and/or
law.
(b) Consolidated cases shall pertain to the Justice
(1) To whom the case with the lowest docket number is assigned, if
they are of the same kind;

42

(2) To whom the criminal case with the lowest number is assigned, if
two or more of the cases are criminal and the others are civil or
special;
(3) To whom the criminal case is assigned and the other are civil or
special; and
(4) To whom the civil case is assigned, or to whom the civil case with
the lowest docket number is assigned, if the cases involved are civil
and special.
(c) Notice of the consolidation and replacement shall be given to the
Raffle Staff and the Judicial Records Division.
It is a time-honored principle that when two or more cases involve the
same parties and affect closely related subject matters, they must be
consolidated and jointly tried, in order to serve the best interests of the
parties and to settle expeditiously the issues involved.[13] In other
words, consolidation is proper wherever the subject matter involved
and relief demanded in the different suits make it expedient for the
court to determine all of the issues involved and adjudicate the rights
of the parties by hearing the suits together.[14]cralaw
The purpose of this rule is to avoid multiplicity of suits, guard against
oppression and abuse, prevent delays, clear congested dockets, and
simplify the work of the trial court. In short, consolidation aims to attain
justice with the least expense and vexation to the parties-litigants.[15]
It contributes to the swift dispensation of justice, and is in accord with
the aim of affording the parties a just, speedy, and inexpensive
determination of their cases before the courts. Further, it results in the
avoidance of the possibility of conflicting decisions being rendered by
the courts in two or more cases, which would otherwise require a
single judgment.[16]cralaw
In the instant case, all four (4) cases involve identical parties, subject
matter, and issues. In fact, all four (4) arose from the same decision
rendered by the Rehabilitation Court. As such, it became imperative
upon the CA to consolidate the cases. Even though consolidation of
actions is addressed to the sound discretion of the court and normally,
its action in consolidating will not be disturbed in the absence of
manifest abuse of discretion,[17] in this instance, we find that the CA
gravely erred in failing to order the consolidation of the cases.
By refusing to consolidate the cases, the CA, in effect, dispensed a
form of piecemeal judgment that has veritably resulted in the
multiplicity of suits. Such action is not regarded with favor, because
consolidation should always be ordered whenever it is possible.
Relief Is Limited Only to Issues Raised

SCP further contends that the CA denied it its right to procedural and
substantive due process, because it granted a relief entirely different
from those sought for by the parties and on which they were neither
heard nor given the opportunity to be heard.
Respondent BDO-EPCIB, on the other hand, maintains that the CA
has the power to grant such other appropriate relief as may be
consistent with the allegations and proofs when a prayer for general
relief is added to the demand of specific relief.[18]cralaw
SCPs contention deserves merit.
Sec. 8, Rule 51 of the 1997 Rules of Civil Procedure expressly
provides:chanroblesvirtuallawlibrary
SEC. 8. Questions that may be decided. No error which does not
affect the jurisdiction over the subject matter or the validity of the
judgment appealed from or the proceedings therein will be considered
unless stated in the assignment of errors, or closely related to or
dependent on an assigned error and properly argued in the brief, save
as the court pass upon plain errors and clerical errors.
Essentially, the general rule provides that an assignment of error is
essential to appellate review and only those assigned will be
considered,[19] save for the following exceptions: (1) grounds not
assigned as errors but affecting jurisdiction over the subject matter;
(2) matters not assigned as errors on appeal but are evidently plain or
clerical errors within the contemplation of the law; (3) matters not
assigned as errors on appeal but consideration of which is necessary
in arriving at a just decision and complete resolution of the case or to
serve the interest of justice or to avoid dispensing piecemeal justice;
(4) matters not specifically assigned as errors on appeal but raised in
the trial court and are matters of record having some bearing on the
issue submitted which the parties failed to raise or which the lower
court ignored; (5) matters not assigned as errors on appeal but closely
related to an error assigned; and (6) matters not assigned as errors
on appeal but which the determination of a question properly assigned
is dependent.[20] None of these exceptions exists in this case.
Notably, the prayer portion of the BDO-EPCIB petition in CA-G.R. SP
No. 101881 only sought for the following
reliefs:chanroblesvirtuallawlibrary
WHEREFORE, it is respectfully prayed of the Honorable Court that
the Decision dated 03 December 2007 of the Court a quo, or the
approved Rehabilitation Plan, be MODIFIED accordingly,
thus:chanroblesvirtuallawlibrary
43

1. Under its Phase 1, the articles of incorporation and by laws of SCP

be accordingly amended to accommodate the additional equity of
Php3.0 Billion.
2. Under Phase 2, the present stockholders and/or the Rehabilitation
Receiver shall offer for sale to acceptable investors SCPs stocks,
through negotiated sale or bidding for an amount not less than Php3.0
Billion, which is equivalent to approximately 64% of SCP; and
3. Under Phase 3, there shall be an immediate conversion of debt to
common shares in the required amount of Php3.0 Billion, which is
equivalent to approximately 64% of SCP, pursuant to the terms and
conditions of the Recommended Rehabilitation Plan.
Other reliefs, just and equitable under the premises, are likewise
prayed for.[21]cralaw
It is very plain in the language of the prayers of BDO-EPCIB that it
only requested the CA to modify the existing rehabilitation plan. It
never sought the termination of the rehabilitation proceedings. Thus,
given the factual backdrop of the case, it was inappropriate for the
CA, motu proprio, to terminate the proceedings. The appellate court
should have proceeded to resolve BDO-EPCIBs appeal on its merits
instead of terminating the proceedings, a result that has no ground in
its pleadings in the CA.
In Abedes v. Court of Appeals, this Court emphasized the difference of
appeals in criminal cases and in civil cases by saying, Issues not
raised in the pleadings, as opposed to ordinary appeal of criminal
cases where the whole case is opened for review, are deemed waived
or abandoned.[22] Essentially, to warrant consideration on appeal,
there must be discussion of the error assigned, else, the error will be
deemed abandoned or waived.[23]cralaw
This Court even went further in Development Bank of the Philippines
v. Teston, in which it held that it is improper to enter an order which
exceeds the scope of the relief sought by the pleadings, to
wit:chanroblesvirtuallawlibrary
The Court of Appeals erred in ordering DBP to return to respondent
the P1,000,000.00 alleged down payment, a matter not raised in
respondents Petition for Review before it. In Jose Clavano, Inc. v.
Housing and Land Use Regulatory Board, this Court
held:chanroblesvirtuallawlibrary
x x x It is elementary that a judgment must conform to, and be
supported by, both the pleadings and the evidence, and must be in
accordance with the theory of the action on which the pleadings are

framed and the case was tried. The judgment must be secundum
allegata et probate. (Italics in original.)
Due process considerations justify this requirement. It is improper to
enter an order which exceeds the scope of relief sought by the
pleadings, absent notice which affords the opportunity to be heard
with respect to the proposed relief. The fundamental purpose of the
requirement that allegations of a complaint must provide the measure
of recovery is to prevent surprise to the defendant.[24] (Emphasis
supplied.)
Thus, this Court cannot sustain the ruling of the CA insofar as it
granted a relief not prayed for by the BDO-EPCIB.
WHEREFORE, the petition in G.R. No. 190462 is PARTIALLY
GRANTED and the petition in G.R. No. 190538 is GRANTED. The
July 3, 2008 Decision and December 3, 2009 Resolution of the CA in
CA-G.R. SP No. 101881 are REVERSED and SET ASIDE.
Further, the Court hereby REMANDS these cases to the CA for
consolidation with CA-G.R. SP No. 101732. Likewise, CA-G.R. SP
No. 101880 is also ordered to be consolidated with CA-G.R. SP No.
101732.
Consolidation of Civil and Criminal cases; allowed (Sec. 2 (a) Rule
111 of 1985 Criminal Procedure)
[G.R. No. L-41115. September 11, 1982.]
REPUBLIC OF THE PHILIPPINES and CITY OF CAGAYAN DE
ORO, Petitioners, v. THE COURT OF APPEALS, BENEDICTA
MACABALE SALCEDO, ISIDRO S. BACULIO, EMMANUEL AKUT,
IRENEO ORLINO, LUCY P. GASTON, ROSARIO JAVIER, HONESTO
N. SALCEDO, RUPERTA AGUILOR, GORGONIA BRIONES,
FRANCISCO Q. BELTRAN, ERIBERTO CAMBA, GENOVEVA C.
SAN JUAN, FEDERICO P. PICAR, EUGENIA GARCIA, THE LAND
REGISTRATION COMMISSION, and THE REGISTER OF DEEDS
OF MISAMIS ORIENTAL, Respondents.
[G.R. No. L-41116. September 11, 1982.]
PEOPLE OF THE PHILIPPINES, Petitioner, v. THE COURT OF
APPEALS, ISIDRO S. BACULIO and JOSEFINA W.
BACARRISAS, Respondents.
44

The Solicitor General, for Petitioners.

A. R. Montemayor and Anthony Santos for Respondents.
SYNOPSIS
Based mainly on an alleged three-page cadastral court decision
declaring Lot No. 1982 as a private land and adjudicating the same to
Benedicta Macabale Salcedo, the Court of First Instance Of Misamis
oriental, Branch I, sitting as a land registration court, issued an order
for the issuance of a decree of registration in favor of said person,
Subsequently, however, Branch IV of the same court, exercising its
general jurisdiction, nullified the order of Branch I; declared the
subject lot a public land; held the three-page decision a forgery; and
ordered the cancellation of all titles arising from Lot 1982.
Consequently, a criminal information for falsification of public
document was filed against several persons, including Benedicta
Salcedo who died before arraignment, and respondents Isidro Baculio
and Josefina Bacarrisas who were later found guilty and sentenced
accordingly. Appeals on both civil and criminal cases were elevated to
the Court of Appeals which rendered a consolidated decision
dismissing the civil case for nullification of all titles arising from
Cadastral Lot No. 1982 and acquitting Baculio and Bacarrisas in the
criminal case. Hence, these two petitions, L-41115 and L-41116,
assailing: (1) the alleged violation by respondent Appellate Court of
the due process clause and Section 9, Article X of the Constitution
when it disposed of the civil and criminal cases in a consolidated
decision; (2) the reliance of respondent Court on extraneous matters
not introduced nor formally offered in evidence in deciding said cases;
(3) the authenticity of the three-page cadastral court decision; and (4)
the jurisdiction of Branch Iv of the Court of first Instance, exercising
general jurisdiction, to annul the judgment or order rendered by
branch I of the same court sitting in a limited capacity as a cadastral
court.
On review, the Supreme Court, granting the petition in L-41115,
reversed and set aside the Appellate Courts dismissal of the petition
for declaration of nullity of the decree of registration of Lot 1982 and
reinstated the decision of CFI Branch IV; and dismissed the petition
for certiorari in L-41116. The Court held that: (a) the decision of
respondent Appellate Court disposing of the civil and criminal cases in

a single decision substantially conforms with the due process clause

and Section 9, Article X of the Constitution, as well as the norm set in
Jose v. Santos, 35 SCRA 538, as to the language to be employed to
satisfy the requirement of clarity and distinctness, aside from the fact
that the High Tribunal has consolidated cases tried separately by
different courts where the factual and/or legal issues involved are
similar or the same as in the cases at bar; (b) evidence not introduced
nor formally offered in evidence is inadmissible, hence respondent
Court erred in considering and relying on extraneous matters in the
disposition of the instant cases; (c) the principle of double jeopardy
bars an appeal by the prosecution or any further inquiry, whether in
a certiorari proceeding or in a petition for review, of the judgment
acquitting respondent Josefina Bacarrisas, but the criminal
prosecution of respondent Isidro Baculio, who died pending
disposition of these petitions, had terminated upon his death on
February 28, 1978, pursuant to Article 89(1) of the Revised Penal
Code; (d) the falsity of the three-page decision had been proven by
preponderance of evidence, hence respondent Court committed grave
abuse of discretion in reversing the trial courts finding that said lot is
public land and in declaring the same as private property of Benedicta
Salcedo; and (e) as enunciated SCRA 755), a branch of a Court of
First Instance has jurisdiction to annul the judgment or order rendered
by another branch of the same court, hence, Branch IV of the CFI of
Misamis Oriental, exercising general jurisdiction, correctly annulled
the order of Branch O of the same court sitting as cadastral court for
issuance of a decree of registration of Lot 1982.
Petition in L-41115 granted and assailed decision reversed and set
aside. petition in L-41116 dismissed.
SYLLABUS
1. CONSTITUTIONAL LAW; DUE PROCESS; NOT VIOLATED
WHERE A COURT DISPOSES OF RELATED OR SIMILAR ISSUES
OF CIVIL AND CRIMINAL CASES IN A CONSOLIDATED DECISION.
We do not find any violation by the respondent Court of Appeals of
the due process clause of the Constitution and of Section 9, Article X
thereof in finally disposing of the civil and criminal cases in a single
decision. For one thing, the civil case was actually decided by the
Special Division of Five on June 6, 1974. Only the motions of the
Solicitor General and the City Fiscal of Cagayan de Oro City for
45

reconsideration of the said decision in the civil case were resolved

together with the criminal case in the decision dated July 22, 1975.
Hence, the reversal of the trial courts decision in Civil Case No. 2560
is based solely on the records then on hand without considering the
records of the criminal case, for respondent court was not even aware
of the pendency of the latter case. This Court has consolidated cases
tried separately by different courts as long as the factual and/or legal
issues involved are similar or the same. The petitioners themselves
admitted the community of issues in their petition. Thus, they stated in
the petition for certiorari in L-41116: ". . . the criminal case involved the
falsification of the document which was also the principal issue in the
aforesaid civil case, . . ."cralaw virtua1aw library
2. REMEDIAL LAW; EVIDENCE; ONLY THOSE FORMALLY
OFFERED MAY BE CONSIDERED IN THE DISPOSITION OF A
CASE. The rule is that any evidence which a party desires to
submit for the consideration of the court must formally be offered by
him. (De Castro v. The Court of Appeals of Manila, Et Al., 75 Phil. 834;
Ayala v. Valencia, 56 Phil. 182.) Such a formal offer is necessary
because it is the duty of the judge to rest his findings of facts and his
judgment only and strictly upon the evidence offered by the parties at
the trial and no finding of fact can be sustained which is not supported
by such evidence, (U.S. v. Solaa, 33 Phil. 582.) Thus documents not
regularly received in evidence on the trial will not be considered in
disposing of the issue of an action. (Dayrit v. Gonzales, 7 Phil. 182).
3. ID.; ID.; ID.; THOSE PRESENTED FOR THE FIRST TIME ON
APPEAL CANNOT BE VALIDLY CONSIDERED; CASE AT BAR.
The narrative statement of Guillermo Bolohan, executed on December
3, 1968, cannot partake of the nature of a validly adduced, offered and
admitted piece of evidence because it was merely appended as an
annex to the motion for new trial. Much less can the undated question
and answer statement of Bolohan, which is the one relied upon by
respondent Court, not the narrative statement, be considered as such
because it was brought out, in the criminal case, only in their appeal
briefs and in the civil case, only in their opposition to the motion for
reconsideration of herein petitioners. Hence, the same was presented
for the first time o appeal, at which stage, no additional factual
evidence could be introduced for the reason that its presentation
would, as in fact it did, deprive petitioners of their right to be heard
with regard to said statement. Neither can the use of the question and

answer statement of Bolohan be justified by the doctrine that an

appeal in a criminal case throws the whole case open for review.
Although part of the physical records of the case, it does not
constitute a valid part thereof because it was incorporated therein in
violation of our rules on evidence.
4. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST
DOUBLE JEOPARDY; BARS AN APPEAL BY THE PROSECUTION
IN A JUDGMENT OF ACQUITTAL. We agree with private
respondents argument that this "appeal" by the Solicitor General
would place them in double jeopardy contrary to Section 2, Rule 122
of the Revised Rules of Court which provides: "Sec. 2. Who may
appeal, The people of the Philippines cannot appeal if the
defendant would be placed thereby in double jeopardy . . . . "There is
the further protection that the Constitution (Article IV, Sec. 22) affords
to an accused in ordaining that; "No person shall be twice put in
jeopardy of punishment for the same offense. If an act is punished by
a law and an ordinance, conviction or acquittal under either shall
constitute a bar to another prosecution for the same act." This
Constitutional mandate prohibits not only a subsequent prosecution in
a new and independent cause. It also extends to an appeal in the
same case by the prosecution after jeopardy had attached, thereby in
effect viewing such appeal as presenting a new and separate
jeopardy, repugnant to the fundamental laws provision against double
jeopardy. (Kepner v. United States, 195 U.S. 100; 11 Phil. 669; Trono
v. U.S., 11 Phil. 725; People v. Bringas, 70 Phil. 528; People v.
Hernandez, 94 Phil. 49; People v. Ang Cho Kio, 95 Phil. 475; People
v. Pomeroy, 97 Phil. 927; People v. Montemayor, 26 SCRA 687.)
5. ID.; ID.; ID.; BARS ANY OTHER FORM OF INQUIRY INTO A
JUDGMENT OF ACQUITTAL EITHER THROUGH A CERTIORARI
PROCEEDING OR A PETITION FOR REVIEW. Equally wellsettled is the rule that the protection against double jeopardy bars any
other form of inquiry into a judgment of acquittal either through
a certiorari proceeding (City Fiscal of Cebu v. Kintanar, 32 SCRA 601;
People v. Donesa, 49 SCRA 281) or a petition for review (People v.
Inting, 70 SCRA 289). Perforce, the present special civil action
for certiorari of petitioners, which seeks to nullify the judgment of
acquittal for having been allegedly rendered with grave abuse of
discretion tantamount to lack of jurisdiction, must fail.
46

6. ID.; ID.; RIGHT TO DUE PROCESS; FAILURE OF PROSECUTION

TO OFFER OR SUBMIT EVIDENCE DESPITE REPEATED
REQUESTS OF THE ACCUSED CONSTITUTES BLATANT DENIAL
THEREOF THAT MERITS REVERSAL OF JUDGMENT OF
CONVICTION; CASE AT BAR. The failure of petitioners to offer or
to submit the carbon copy of the three-page and seven-page
decisions, despite the repeated requests of private respondents was
likewise considered by respondent Court, to which We fully agree, as
a blatant denial of due process that merits the reversal of a judgment
of conviction.

Spaniard in order to speak grammatically correct Spanish. Hence, the

only question here is whether or not Judge Ricardo Summers was
proficient in Spanish. Inasmuch as Jose Montalban, a professor in
Spanish, gave testimony to the effect that he knew Judge Summers
personally, that he conversed with him in Spanish and that he heard
him speak Spanish "divinamente" or fluently, in the absence of
contrary proof from respondents, such testimony stands. It is,
therefore, an error to say that "the records of the case does not show
whether Judge Summers . . . was proficient in Spanish."cralaw
virtua1aw library

7. REMEDIAL LAW; EVIDENCE; DOCUMENTARY EVIDENCE;

REPORT OF NBI AGENT SHOWS PHYSICAL AND
UNCONTROVERTED FACTS THAT EITHER INDICATE ARTIFICIAL
AGING OR PUT IN DOUBT THE AUTHENTICITY OF THE SUBJECT
DECISION. We hold that the report of NBI Agent Hermenegildo C.
Mil, upon which he testified during the trial of the case below, should
be taken in its whole context. It may not have established with definite
certainty the age and authenticity of the three-page decision but it
categorically pointed out some physical and uncontroverted facts that
either indicate artificial aging or put in doubt the authenticity of the
said decision, namely: (1) the spreading of spluttered ink in unusual
places; (2) the uneven discoloration of the page which is not in
consonance with the natural aging of documents; (3) suspicious
presence of rust in certain portions of the three-page decision; (4) the
use of a different typewriter for the second page; and (5) the use of a
different kind of paper also for page two. Hence, viewed in its totality,
the report is more than an expression or opinion as to age and
authenticity of the three-page decision because it speaks of facts duly
perceived by the reporter.

10. ID.; ID.; ID.; TESTIMONY BASED NOT ON THE ORIGINAL

COPY OF A DOCUMENT NOR ON THE CARBON DUPLICATE
THEREOF BUT ONLY ON A "TRUE COPY" TO BE DISREGARDED
IN DISPOSITION OF A CASE. It is, indeed, probable that whoever
typed Judge Summers decision might have erred in copying from the
original considering that the basis of the testimony of Jose Montalban
was a mere "true copy. This is bolstered by the fact that there are
typographical and grammatical errors not only on page two but also
on pages one and three of the said decision. Thus, for the reason that
the testimony of Jose Montalban was based not on the original copy
of the three-page decision, nor on the carbon duplicate thereof, but
only on a "true copy", We have no choice but to disregard the
testimony of Jose Montalban in deciding these cases.

8. ID.; ID.; ID.; A REPORT NOT NORMALLY OFFERED IN

EVIDENCE IS INADMISSIBLE. Anent the use of petitioner of the
report of Pedro Elvas, Jr., which was not introduced in evidence, We
rule that said report is inadmissible because the justification of
petitioners of the use thereof cannot alter its character as an evidence
that has not been formally offered.
9. ID.; ID.; TESTIMONY OF WITNESSES; UNREBUTTED
TESTIMONY STANDS. Anent the first factor that allegedly diminish
the value of Jose Montalbans opinion, We hold that one need to be a

11. ID.; ID.; ID.; A RECANTING TESTIMONY IS DISREGARD AS

UNRELIABLE. We hold that it would be unsound practice for the
court to disregard a report which has been the subject of testimony of
a witness simply because said witness makes an inconsistent
statement in order report later on. Inasmuch as the first report of
Agent Hermenegildo C. Mil duly established the fact that the
typewritten entries on page two of the three-page decision reveal that
a different typewriter was used from the one used in the first and third
pages, his apparent change of heart when he stated "that no opinion
can be rendered as far as the typewriting query is concerned," cannot
alter the previously proved fact of its character as such. A recanting
testimony is oftentimes regarded as unreliable. Besides, in the cases
involved herein, the later testimony of Agent Mil is unworthy of
credence. The smudges of ink and rust on the three-page decision
could not have precluded an effective and clear examination because
the dissimilarity in the typewritten entries was immediately noticed and
47

in fact, pointed out categorically in the first report made.

12. CIVIL LAW; EVIDENCE REQUIRED; MERE PREPONDERANCE
OF EVIDENCE. We hold that as far as the civil case is concerned,
mere preponderance of evidence showing that the three-page
decision is falsified is enough to declare null and void Original
Certificates of Title No. 0-257 and all the transfer certificates of title
issued as a result of subsequent dealings over Cadastral Lot. No.
1982. The testimony of Agent Hermenegildo C. Mil to the effect that a
different kind of paper was used for page two, in the absence of
countervailing evidence from the private respondents, is sufficient to
establish that point.
13. CONSTITUTIONAL LAW; DUE PROCESS; TRIAL COURTS
DENIAL OF ACCUSEDS DEMAND FOR PRODUCTION OF
CARBON DUPLICATE OF DOCUMENTARY EVIDENCE
CONSTITUTES VIOLATION THEREOF. In the criminal case,
however, We cannot rule similarly in the face of the demands of the
accused to see for themselves the carbon duplicate of the document
object of the crime of falsification. All accused are recorded certain
rights under the law to the end that only those whose guilt is proven
beyond reasonable doubt are punished. They should be given all the
necessary data as to why they are being proceeded against so that
they would be in a position to defend themselves properly. If these
were not done, there is an element of unfairness. Due process is in
fact denied them.
14. CRIMINAL LAW; CRIMES AGAINST PUBLIC INTEREST;
FALSIFICATION; ELEMENTS OF. The elements of the crime of
falsification in Paragraph 6, Article 171 of the revised Penal Code are:
(1) that there be an alteration (change) or intercalation (insertion) on a
document; (2) that it was made on a genuine document; (3) that the
alteration or intercalation has changed the meaning of the document;
and (4) that the change made the document speak something false,
(Reyes, Luis B., The Revised Penal Code, Book Two, 1971, p. 197,
(Emphasis supplied).
15. ID.; ID.; ID.; INTERCALATION ASSAILED IN CASES AT BAR
HELD PURPOSELESS AND MEANINGLESS. Inasmuch as with or
without the insertion, the Commissioner of land Registration was
bound to issue the decree of registration pursuant to the order of

Judge Gorospe, We hold that the said intercalation was purposeless

and meaningless. The Commissioner was called upon to exercise a
ministerial act, not a discretionary act.
16. REMEDIAL LAW; EVIDENCE; DOCUMENTARY EVIDENCE;
AUTHENTICITY DETERMINED BY EXAMINATION OF THE
DOCUMENT ITSELF NOT BY COMPARISON WITH ANOTHER.
We hold that there certainly is no necessity for comparing the threepage decision with the seven-page decision to determine which is
more genuine. It should be remembered that the civil case was
instituted by the petitioners herein for the nullification of the order of
Judge Benjamin K. Gorospe for the issuance of the decree in
Cadastral Case No. 18, GLRO Rec. No. 1562, dated July 8, 1964 on
the main premise that the three-page decision dated December 19,
1940 which formed the basis of Judge Gorospes order is a forgery.
What must of necessity be resolved therefore, is the authenticity of
the three-page decision. The answer to that question can be arrived at
only after the examination of said three-page decision itself, not any
other. Hence, the respondent court gravely erred when it concluded
that the three-page decision is authentic after discrediting the sevenpage decision because what was actually put to test was the said
seven-page decision.
17. CIVIL LAW; LAND REGISTRATION; LAND TITLES; CLAIMANT
MUST RELY ON THE STRENGTH OF HIS TITLE, NOT ON THE
WEAKNESS OF THE TITLE OF HIS OPPONENT. While We may
agree with respondents that there are indeed some "disturbing"
factors about the seven-page decision, there are far more glaring
indications of falsity in the three-page decision. For how are We to
regard the following established facts: the spreading of spluttered ink
in unusual places, the uneven discoloration of the pages, the
suspicious presence of rust, the use of a different typewriter and
different kind of paper for page two of the three-page decision, other
than exercise extreme caution before believing its contents? How
should the fact that immediately after the issuance of Original
Certificate of Title No. 0-257 in the name of Benedicta Macabale
Salcedo, transfers were made to different persons for practically to
consideration at all? If anything, this act was an apparent aberration
on the part of private respondents that invited a second look,
suspicion and investigation. As suspected, the trial court found that
some of these transfers were fictitious, as no receipts of payment,
48

except for one, was presented in evidence. Respondent, therefore,

could not expect to gain anything through their obdurate capitalization
on the flaws of the seven-page decision because the three-page
decision, of itself, could not withstand the test of scrutiny. The legal
maxim to the effect that one must rely on the strength of his title, not
on the weakness of the title of his opponent holds true in this case.
We rule that the respondent Court of Appeals erred in declaring the
three-page decision as genuine and in considering the seven-page
decision as spurious.
18. ID.; ID.; PUBLIC LANDS, MERE FILING OF CLAIM DOES NOT
CHANGE CLASSIFICATION OF A NON-DISPOSABLE PUBLIC
LAND TO ONE THAT IS DISPOSABLE. Mere filing a claim does
not convert a non-disposable public land into one that is disposable.
Neither is the number of persons laying a claim on the land proof of
the classification of the said land as disposable public land. For the
same reason, the existence of a miscellaneous sales application for
Lot 1982; as testified to by Jose Ampeloquio, does not thereby make
the land subject of the application fall under the administration and
supervision of the Bureau of lands. More importantly, the initiation by
the government of the cadastral proceeding with respect to said lot,
likewise, does not mean that the government was representing said
lot as alienable and disposable public agricultural land.
19. ID.; ID.; CADASTRAL PROCEEDING; EMBRACE ALL CLASSES
OF LANDS. The error of respondents lies in their misconception
that only alienable and disposable public land may be the subject of a
cadastral proceeding. The truth is that all classes of lands are
included in such proceedings: private lands, public agricultural lands
and lands of public ownership. The public lands are, of course
declared public lands in the hearing. (Noblejas, Antonio H., Land Titles
and deeds, 1968 ed., p. 38). All classes of lands may thus be the
subject of cadastral proceedings. In fact, President Ferdinand E.
Marcos place the entire country under a five-year cadastral program
starting 1978 to facilitate the registration of all lands.
20. REMEDIAL LAW; JURISDICTION; GENERAL AND LIMITED
JURISDICTION OF THE COURT OF FIRST INSTANCE; AN ISSUE
PROPERLY LITIGABLE IN AN ORDINARY CIVIL ACTION SHOULD
NOT BE RESOLVED IN A LAND REGISTRATION PROCEEDING AS
A RULE. As a general rule an issue properly litigable in an ordinary

civil action under the general jurisdiction of the Court of First Instance
should not be resolved in a land registration proceeding. From the
provisions of Section 2 of Act 496, as amended, as well as those of
the Cadastral Act or Act 2259, the special and limited character of the
jurisdiction of the Court of Land Registration is apparent. Hence, while
it is true, as private respondents insists, that the jurisdiction of a land
registration court or a cadastral court even after the issuance of the
final decree of registration in a land registration or cadastral case
subsists, this applies only to matters specifically provided by law to be
within its special jurisdiction. Section 6 of Act 2259 and Section 112 of
Act 496 provide some of those instances. But, as correctly contended
by petitioners, the proceedings under Section 112 of Act 496 are
summary in nature and are allowed only when a scrutiny of the
allegations discloses that the issues are so patently insubstantial as
not to be genuine issues. (Sagalang, Sr. v. Caingat. L-25531,
September 26, 1968, 25 SCRA 180).
21. ID.; ID.; ID.; AN ACTION FOR ANNULMENT FALLS UNDER THE
COURTS GENERAL JURISDICTION. Hence, an action for
annulment being contentious falls within the general jurisdiction of the
Court of First Instance pursuant to the Revised Judiciary Act.
22. ID.; ID.; ID.; ID.; EXCEPTION TO THE RULE; WHERE THE
PARTIES ACQUIESCE TO SUBMIT THE ISSUE FOR
DETERMINATION IN A CADASTRAL COURT. Inasmuch as in this
jurisdiction, the Court of First Instance also functions as a land
registration court, an exception to the general rule (that an issue
properly litigable in an ordinary civil action should not be resolved in a
land registration proceeding) has been established, that is, if the
parties acquiesce in submitting the issue for determination in the land
registration proceeding and they were given full opportunity to present
their respective sides and their evidence, the land registration court
would have jurisdiction to pass upon that issue. (Franco v. Monte de
Piedad and Savings Bank, L-17610, April 22, 1963, 7 SCRA 660; City
of Manila v. Tarlac Development Corporation, L-24557, July 31, 1968,
24 SCRA 446; City of Manila v. Manila Lodge No. 761, L-24469, July
31, 1968, 24 SCRA 466; City of Manila v. Army and Navy Club of
Manila, L-24481, July 31, 1968, 24 SCRA 466.)
23. ID.; ID.; ID.; ID.; ID.; ID.; CASE AT BAR DOES NOT FALL UNDER
THE EXCEPTION. In this case, however, there is no acquiescence
49

of the parties to submit the issue of forgery and falsification to the

cadastral court.
24. ID.; ID.; ID.; WHETHER A PARTICULAR MATTER SHOULD BE
RESOLVED IN ITS GENERAL OR LIMITED JURISDICTION IS NOT
A JURISDICTIONAL QUESTION BUT A PROCEDURAL QUESTION
WHICH MAY BE WAIVED. Whether a particular matter should be
resolved by the Court of First Instance in the exercise of its general
jurisdiction or of its limited jurisdiction as a special court (probate, land
registration, etc.) is in reality not a jurisdictional question. It is in
essence a procedural question involving a mode of practice "which
may be waived." (Cunanan v. Amparo, 80 Phil. 227, 232; Manalo v.
Mariano, L-33850, January 22, 1976, 69 SCRA 80)
25. ID.; ID.; ID.; A COURT OR BRANCH THEREOF HAS
AUTHORITY OR JURISDICTION TO ANNUL A JUDGMENT
RENDERED BY ANOTHER COURT OF CONCURRENT
JURISDICTION OR BY ANOTHER BRANCH OF THE SAME COURT.
Besides, the question of whether a court or a branch thereof has
authority or jurisdiction to annul a judgment rendered by another court
of concurrent jurisdiction or by another branch has been resolved
affirmatively in the cases of Dulap v. Court of Appeals, L-28306,
December 18, 1971, 42 SCRA 537 and Gianan v. Imperial, L-37963,
February 28, 1974, 55 SCRA 755. While it is true that this Court
pointed out in Gianan v. Imperial that "as a matter of comity it is well
that the same branch of court that decided a case should hear the
case if it is still presided by the same judge who rendered the alleged
questioned decision," petitioners correctly countered that such policy
does not divest the court concerned of its jurisdiction over the
pertinent case.
DECISION
GUERRERO, J.:
From the consolidated decision dated July 22, 1975 of a Special
Division of Five 1 of the Court of Appeals disposing of the separate
motions for reconsideration of the Solicitor General and the City Fiscal

of Cagayan de Oro in CA-G.R. No. 46566-R entitled "Republic of the

Philippines and City of Cagayan de Oro v. Benedicta Macabale
Salcedo, Et. Al." and resolving the appeal of the two accused in CAG.R. No. L-15289-CR entitled "People of the Philippines v. Isidro S.
Baculio and Josefina W. Bacarrisas," these two separate petitions
were filed with this Court, to wit:chanrob1es virtual 1aw library
(1) Case G.R. No. L-41115 a petition for review
on certiorari assailing the dismissal of the civil case for declaration of
nullity of Original Certificate of Title No. 0-257 and all transfer
certificates of title issued as a result of subsequent dealings over
Cadastral Lot No. 1982, situated in the barrio of Macabalen, Cagayan
de Oro City, Misamis Oriental, with an area of 22.4554 hectares; and
(2) Case G.R. No. L-41116 a special civil action
for certiorari contesting the validity of the acquittal of respondents
Isidro S. Baculio and Josefina W. Bacarrisas in the criminal case
falsification of public documents relating to Cadastral Lot No.
1982.chanrobles law library : red
However, while these cases were pending decision, counsel for
private respondents filed a manifestation dated March 10, 1978
stating that on February 28, 1978, the principal accused in case G.R.
No. L-41116, Isidro S. Baculio, died at the Doctors General Hospital at
Cagayan de Oro City due to congestive heart failure, among other
causes.
Commenting on the aforesaid manifestation, the Solicitor General
stated that the death of the said accused having occurred before final
judgment, not only is his criminal liability extinguished but his civil and
pecuniary liabilities as well. Cited as authority was Article 89(1) of the
Revised Penal Code and Torrijos v. Court of Appeals, 67 SCRA 394.
But the fact that there is another accused, namely, Josefina W.
Bacarrisas, against whom the criminal action should proceed, was
duly pointed out. By reason thereof, We still find necessity in
disposing of the assigned errors in G.R. No. L-41116 for the purpose
of determining the validity of her acquittal.
As briefly as possible, the permanent facts that led to the institution of
the aforesaid civil and criminal cases are as follows:chanrob1es
virtual 1aw library
50

On July 8, 1964, Isidro S. Baculio, for and on behalf of his mother,

Benedicta Macabale Salcedo, filed a verified petition for issuance of a
decree of registration over Lot 1982. The petition, which was assigned
to Branch I of the Court of First Instance of Misamis Oriental with
Judge Benjamin K. Gorospe presiding and sitting as a cadastral court,
was accompanied by a certified true copy of a three-page decision
dated December 19, 1940 allegedly rendered by Judge Ricardo
Summers of the Court of First Instance of Misamis Oriental in
Cadastral Case No. 18, GLRO Cadastral Record No. 1562. On page
two of the said decision, Lot 1982 was declared a private land and
adjudicated to Benedicta Macabale Salcedo as
follows:jgc:chanrobles.com.ph
"Lote 1982. A favor de Benedicta Macabale Salcedo, Filipino, mayor
de edad, casado con Casiano Baculio, de Muricipio de Cagayan,
Provincia de Oriental Misamis. Benedicta Macabale Salcedo compre
este parcela a sus hermanos y hermanas, cuyos, con el reclamente,
son herideros forsosos del defuncto esposas Pablo Salcedo y
Rosales Macabale, para consideracion de la suma de cien piesos,
monida Filipina, segun del documentos en contestacion como Annex
A. El Annex A es fechada de Abril, 1907." 2

Thereafter, Isidro S. Baculio secured from the Assessors Office the

reconstituted tax declarations of his mother showing payment of the
realty taxes for Lot 1982 from the year 1948 to 1964. Then on July 24,
1964, the decree issued by the Land Registration Commission was
transcribed in the registration book of the Register of Deeds of
Misamis Oriental and pursuant thereto Original Certificate of Title No.
0-257 was issued by the Register of Deeds of Misamis Oriental in the
name of Benedicta Macabale Salcedo.
On the very same date, July 24, 1964, this original title was cancelled
upon the sale of the lot to Isidro S. Baculio and Transfer Certificate of
Title No. T-1224 was issued in his name. However, Isidro S. Baculio
subdivided the lot into two parcels, i.e., Lot 1982-A and Lot 1982-B
and sold them to Emmanuel A. Akut and Irineo Orlino, respectively.
Akut later acquired lot 1982-B from Orlino and afterwards, subdivided
the same and sold them to several persons within the remaining
months of 1964. These transactions resulted in the issuance of the
following certificates of title by the Register of Deeds of Misamis
Oriental, namely:jgc:chanrobles.com.ph

The certified true copy was prepared by Josefina W. Bacarrisas, the

Docket Clerk of the Court of First Instance of Misamis Oriental, who
was also the custodian of preward salvaged cadastral records, on the
basis of an unsigned carbon copy thereof allegedly found among the
file of documents under her custody. At the bottom of the last page of
the said carbon copy was a notation: "Es copia verdadera de que
certifico" which was signed by Vicente Roa as "Escribano Delegado"

"(1) Isidro S. Baculio T.C.T. Nos. T-1224 and 4524; (2) Emmanuel
A. Akut T.C.T. Nos. 4528, 4625, 4626, 4756, 4757, 4758, 4759,
4760, and 4768; (3) Ireneo Orlino T.C.T. Nos. 4525, 4602, 4603,
4604, 4611, 4612, 4613, and 4614; (4) Lucy P. Gaston T.C.T. No.
4605; (5) Rosario Javier T.C.T. No. 4606; (6) Honesto N. Salcedo
T.C.T. No. 4607; (7) Ruperta Aguilor T.C.T. No. 4651; (8)
Gorgonio Briones T.C.T. No. 4652; (9) Francisco Q. Beltran
T.C.T. No. 4653; (10) Eriberto Camba T.C.T. No. 4654; (11)
Genoveva C. San Juan T.C.T. No. 4655; (12) Federico D. Picar
T.C.T. No. 4658; (13) Eufemia Garcia T.C.T. No. 4946." 3

Upon receipt of the petition, the Clerk of Court, Pedro G. Perez,

prepared an order for the issuance of the decree and certified that the
three-page decision of Judge Summers has not been amended,
modified, rectified or otherwise supplemented by any other decision,
order or process of the Court. The said petition together with the
supporting papers were then presented to Judge Gorospe, who
signed the order for issuance of the decree and directed the
transmittal of the records to the Land Registration Commission, which
issued Decree No. N-99411 on July 17, 1964.

As a result of the issuance of the decree of registration of Lot 1982

and entry thereof by the Land Registration Commission as well as
subsequent dealings over the aforesaid lot, the Solicitor General and
the City Fiscal of Cagayan de Oro filed a petition to declare null and
void Original Certificate of Title No. 0-257 and all transfer certificates
of title issued therefrom. The proceedings in the trial court on the
aforesaid civil case are succinctly stated in the decision dated June 6,
1974 of the Court of Appeals in CA-G.R. No. 46566-R, as
follows:jgc:chanrobles.com.ph
51

"On July 7, 1965, the Republic of the Philippines, through the Solicitor
General, and the City of Cagayan de Oro, through the City Fiscal, filed
in the Court of First Instance of Misamis Oriental, a petition, which
was amended on August 2, 1965, against Benedicta Macabale
Salcedo, the succeeding transferees, the Land Registration
Commissioner, and the Register of Deeds of Misamis Oriental. The
petition was assigned to Branch IV of the lower court, with Judge
Bernardo S. Teves presiding and sitting as an ordinary court. The
petition alleged, among others, the following: (1) that the lower court,
through Judge Gorospe had acted without jurisdiction and/or with
grave abuse of discretion amounting to lack of jurisdiction and/or in
violation of due process of law, in issuing the order for the issuance of
the decree and in ordering Lot No. 1982 to be registered in the name
of Benedicta Macabale Salcedo, (2) that the 3-page decision of Judge
Ricardo Summers, which was annexed to the petition of Isidro S.
Baculio, is a forgery and was fraudulently procured, (3) that Lot No.
1982 was declared public land in a 7-page decision rendered by
Judge Summers on December 19, 1940, and (4) that the registration
of the order of Judge Gorospe for the issuance of the decree was
fraudulent, as well as the subsequent transcription of said decree in
the books of the Register of Deeds and the issuance of the original
and succeeding transfer certificates of title.
Upon the foregoing allegations, the plaintiffs prayed for a declaration
of nullity of: (1) the order of Judge Gorospe for the issuance of a
decree covering Lot 1982, (2) the 3-page decision of Judge Summers,
(3) the Decree No. N-99411 and O.C.T. 0-257, (4) the transfer
certificates of title issued to the defendants, and (5) all the documents,
papers, acts, and transactions executed, committed and performed in
connection with, and necessarily incidental to, the issuance of said
decree and titles. The petition further prayed for the surrender and
cancellation of the decree and certificates of title, and for damages.
In their answer, defendants Benedicta Macabale Salcedo, Isidro S.
Baculio, Emmanuel A. Akut and Irineo Orlino averred that all the
proceedings, orders and processes that led to the issuance of title in
favor of Benedicta Macabale Salcedo were lawful and regular. As
special and affirmative defense, they alleged that the lower court,
through Judge Teves, had no jurisdiction over the action initiated by
the plaintiffs.

Defendants Lucy P. Gaston, Rosario Javier, and Honesto N. Salcedo

averred in their motion to dismiss and answer that they are innocent
purchasers and transferees for value, and that under Section 38 of the
Land Registration Act a decree cannot be reopened where an
innocent purchaser for value has acquired an interest in the subject
property.
Defendants Commissioner of Land Registration and Register of
Deeds averred in their respective answers that Decree No. N-99411 is
valid and effective, having been issued on the basis of the order of
Judge Gorospe for the issuance of the decree dated July 8, 1964, and
on the strength of the 3-page decision of Judge Summers dated
December 19, 1940, a true copy of which was duly certified by the
Clerk of Court and furnished the Commissioner.
Eufemia Garcia filed an answer alleging that she was an innocent
purchaser for value.
Ruperta Aguilor, Gorgonia Briones, Federico Picar, Eriberto Camba,
Genoveva San Juan, and Francisco Q. Beltran averred in their
motions to dismiss that they were innocent purchasers for value; that
Branch IV of the lower court, with Judge Teves presiding and sitting as
an ordinary court, had no jurisdiction over the plaintiffs action, and is
without authority or power to annul the decision of Judge Summers,
the order of Judge Gorospe and the decree of the Land Registration
Commission, or to cancel the original and transfer certificates of title
issued thereunder; that plaintiffs have no legal capacity to sue since
the proper party plaintiff is the Director of Lands.
The case was tried after the issues were joined.
Testifying for the plaintiffs, Pedro Pimentel declared that on June 4,
1936 he was granted a nipa and bakhao permit on a portion of Lot
1982 by the Bureau of Forestry. Even before 1950, under a permit
issued by the same bureau, he had his house built on an area of
1,600 square meters on Lot No. 1982, and that ever since he has
been living in said area, paying realty taxes to the City as well as the
required fees to the Bureau of Forestry. He has never been disturbed
in his possession of such portion of Lot No. 1982.
Henry R. Canoy testified as a witness for the plaintiffs that in 1956, he
52

constructed a radio transmitter station on a portion of Lot No. 1982

pursuant to an ordinary permit issued by the Bureau of Forestry. On
November 3, 1958, after the completion of his radio tower, transmitter
building and other facilities which, in his estimate, are worth
P150,000.00, he applied for a long-term lease with the District
Forester. When the Bureau of Forestry released Lot No. 1982 to the
Bureau of Lands, he changed his lease application to a miscellaneous
sales application. The Director of Lands denied his application on the
ground that Lot No. 1982 was already covered by Decree No. N99411 (Exhibit 1).
The plaintiffs also presented evidence to show that in the course of an
investigation conducted by the National Bureau of Investigation in
1964, the investigating agent found a carbon copy of two decisions
both purportedly by Judge Ricardo Summers, both bearing the same
date December 19, 1940, and both without the signature of the
judge. One of the copies was the 3-page decision on the basis of
which Lot No. 1982 was registered as the private land of Benedicta
Salcedo. The other copy, consisting of seven pages, was without
caption, and declares, among others, as follows: "Lote No. 1982.
Declarado terreno publico por haber sido reclamado unicamente por
los Directores de terrenos y montes."cralaw virtua1aw library
Atty. Jose Ampeloquio of the Investigating and Action Unit of the
Bureau of Lands, another witness of the plaintiffs, testified that in his
examination of the list of claimants on file with the Bureau of Lands,
which he conducted after the different parts of Lot No. 1982 had been
titled in the names of the defendant buyers, he found the words
"public land" opposite "Lot 1982." However, the plaintiffs did not
present in evidence the records allegedly examined by Atty.
Ampeloquio.
After trial, the Court of First Instance of Misamis Oriental, Branch IV,
rendered a decision the dispositive part of which is as
follows:chanrob1es virtual 1aw library
WHEREFORE, judgment is hereby rendered in favor of plaintiffs and
against defendants:chanrob1es virtual 1aw library
1) Declaring Cadastral Lot No. 1982 a public land pursuant to the 7page decision of Judge Ricardo Summers, dated December 19, 1940

in Cadastral Case No. 18 GLRO Cad. Rec. No. 1562, entitled

"Commonwealth de Filipinas, Solicitante; Antonio Abaday, Et Al.,
reclamentes" of this Court:chanrob1es virtual 1aw library
2) Declaring the alleged 3-page decision allegedly promulgated by
Judge Ricardo Summers on December 19, 1940 declaring Lot 1982 a
private land belonging to defendant Benedicta Macabale Salcedo, as
forged, fabricated, false and fraudulent;
3) Declaring null and void the Order for the issuance of a decree,
dated July 8, 1964, issued by the Honorable, Judge Benjamin K.
Gorospe, of this Court;
4) Declaring null and void the decree No. N-99411, Original
Certificate of Title No. 0-257, and Transfer Certificate of Title Nos. T1224, 4524, 4525, 4528, 4602, 4603, 4604, 4605, 4606, 4607, 4611,
4612, 4613, 4614, 4625, 4626, 4651, 4652, 4653, 4654, 4655, 4656,
4658, 4757, 4758, 4759, 4760, 4678, and 4946, as well as all
documents, papers, acts and transactions executed, committed and
performed in connection with, and necessarily incident to, the
issuance of said decree and certificates of title;
5) Ordering defendants Isidro S. Baculio, for himself, and as heir and
representative of his late mother, defendant Benedicta Macabale
Salcedo, Emmanuel Akut, Ireneo Orlino, Lucy P. Gaston, Rosario
Javier, Honesto N. Salcedo, Ruperta Aguilor, Gorgonia Briones,
Francisco Q. Beltran, Eriberto Camba, Genoveva C. San Juan,
Federico P. Picar and Eufemia Garcia, to surrender to, and directing
the Register of Deeds to cancel, all the above-mentioned certificates
of title;
6) Ordering the Land Registration Commissioner to cancel Decree
No. 99411 and to restore its records declaring Lot No. 1982 a public
land; and]
7) Ordering defendants to pay jointly and severally the costs." 4
(November 13, 1968)
On the other hand, the essential facts of the criminal case are stated
in the consolidated decision dated July 22, 1975 of the Court of
Appeals, as follows:jgc:chanrobles.com.ph
53

"The criminal information for falsification of public documents was filed

on September 5, 1966 in the Court of First Instance of Misamis
Oriental, against Isidro S. Baculio (practicing lawyer), Benedicta
Macabale Salcedo (private person), Pedro G. Perez (former clerk of
court), Josefina W. Bacarrisas (docket clerk of the Court of First
Instance of Misamis Oriental), Godofredo Doe, Eulogio Doe, Juana
Doe, Richard Doe (government employees), Lucy Doe, and Honesto
Doe (private persons), alleging as follows:chanrob1es virtual 1aw
library
That on or about and between the period from May 20, 1964 to July
17, 1964, in the City of Cagayan de Oro, Philippines, a place within
the jurisdiction of this Honorable Court, the above-named accused
persons, conspiring, confederating and mutually helping one another,
did then and there wilfully, unlawfully and feloniously falsify a decision
of the Court of First Instance of Misamis Oriental by making or
causing it to appear that the then presiding Judge RICARDO
SUMMERS rendered a decision declaring Lot No. 1982 of the
Cagayan de Oro Cadastre as a private land and awarding the same to
BENEDICTA MACABALE DE SALCEDO, when actually Judge
RICARDO SUMMERS did not in fact render the said decision
because the said property (Lot No. 1982 Cagayan de Oro Cadastre)
was in fact declared public land by the same court.
That accused BENEDICTA MACABALE SALCEDO, thru her coaccused ISIDRO BACULIO, the latter being her son and counsel,
knowing fully well that the said decision is falsified and in pursuit of
their conspiracy filed a written petition before the Court of First
Instance of Misamis Oriental attaching therewith a copy of the said
falsified decision, praying among other things, that an order for the
issuance of a decree (OID) be issued over the said land which petition
was granted on the same day by Judge BENJAMIN GOROSPE of the
said court; that to successfully obtain an Original Certificate of Title on
said Lot No. 1982, as they did obtain Original Certificate of Title No. 0257 in favor of BENEDICTA MACABALE SALCEDO, Accused ISIDRO
BACULIO with the mutual aid and help of his co-accused did then and
there falsify the said Order for the Issuance of a Decree dated July 8,
1964 by adding and/or inserting the following words, to
wit:jgc:chanrobles.com.ph

"All other decisions, orders, processes issued by this Court pertaining

to Lot No. 1982 are hereby amended and/or set aside so as to give
due course to the abovementioned decision."cralaw virtua1aw library
thereby facilitating the adjudication of Lot No. 1982 to BENEDICTA
MACABALE SALCEDO, when in truth and in fact Judge BENJAMIN
K. GOROSPE of the Court of First Instance of Misamis Oriental, in his
order dated July 8, 1964 did not include the aforementioned words in
his order; and that as a result of the falsified order to issue the decree
and the falsified decision of the Court; the Land Registration
Commission issued Original Certificate of Title No. 0-257 in favor of
BENEDICTA MACABALE SALCEDO. (Vol. 1, CFI Record, pp. 1-3).
Benedicta Macabale Salcedo died before she could be arraigned. An
amended information excluding her from the complaint was filed by
the prosecution and admitted by the lower court (Ibid., pp. 47-49, 50).
On arraignment, Isidro S. Baculio, Pedro G. Perez (Ibid., p. 50) and
Josefina W. Bacarrisas (Ibid., p. 132) pleaded not guilty.
Subsequently, the trial court ordered the dismissal of the case against
Pedro G. Perez for failure of the Government to prosecute (Ibid., pp.
95, 131).
The criminal case was continued against Isidro S. Baculio and
Josefina W. Bacarrisas, after which a decision was rendered by Judge
Eduardo de G. Montenegro, the dispositive portion of which is as
follows:chanrob1es virtual 1aw library
WHEREFORE, judgment is hereby rendered:chanrob1es virtual 1aw
library
(1) Finding accused Isidro Baculio guilty beyond reasonable doubt of
the crime of falsification of public document as defined and penalized
in paragraph 1 of Article 172 of the Revised Penal Code, and
sentencing him to a penalty of ONE (1) YEAR and EIGHT (8)
MONTHS OF Prision Correccional, as minimum, to FOUR (4) YEARS,
NINE (9) MONTHS and TEN (10) DAYS OF Prision Correccional, as
maximum, with all the accessory penalties provided for by law; and to
pay a fine of FOUR THOUSAND (P4,000.00) PESOS:chanrob1es
virtual 1aw library
(2) Finding accused Josefina Bacarrisas guilty beyond reasonable
54

doubt of the crime of falsification as defined and penalized in Article

171 of the Revised Penal Code and sentencing her to a penalty of
FOUR (4) YEARS and TWO (2) MONTHS of Prision Correccional, as
minimum, to EIGHT (8) YEARS and ONE (1) DAY of Prision Mayor, as
maximum, with all the accessory penalties provided for by law; and to
pay a fine of FOUR THOUSAND (P4,000.00) PESOS; and

On July 22, 1975, the Special Division of Five, with Justice Francisco
M. Chanco again dissenting, rendered a consolidated decision, the
dispositive portion of which is hereby quoted as
follows:jgc:chanrobles.com.ph

(3) Sentencing the accused Isidro Baculio and Josefina Bacarrisas,

jointly and severally to pay the costs. (Vol. II, CFI Record, pp. 93117)." 5

"WHEREFORE, the appealed judgment in CA-G.R. No. 15289-CR is

hereby reversed. Isidro S. Baculio and Josefina W. Bacarrisas are
hereby acquitted of the crime charged on the ground that the
prosecution has not established the guilt of the accused persons
beyond reasonable doubt. Costs de oficio.

Aggrieved by the decisions of the trial courts, the defendants in the

civil case and the accused in the criminal case filed separate appeals
to the Court of Appeals, where they were docketed as CA-G.R. No.
46566-R, and CA-G.R. No. 15289-CR, respectively. At first, the appeal
in the civil case was assigned to the Sixth Division. In view, however,
of the dissent of Justice Francisco M. Chanco, two other Justices from
among the other members of the court were designated to sit
temporarily with them, pursuant to Section 33 of the Judiciary Act of
1948, as amended. A Special Division of Five was thus formed which
promulgated a decision on June 6, 1974 in favor of Benedicta
Macabale Salcedo, Et Al., defendants-appellants therein, the
dispositive portion of which is as follows:jgc:chanrobles.com.ph
"WHEREFORE, the decision appealed from is hereby reversed and
set aside and another rendered dismissing the petition, without
pronouncement as to costs." 6
Within the reglementary period, the Solicitor General and the City
Fiscal of Cagayan de Oro filed separate motions for reconsideration
and in the course of the hearing of the said motions, the Solicitor
General called the attention of the Special Division of Five to the
appealed criminal case for falsification of public documents relating to
Lot 1982 pending before the Eighth Division 7 of the Court of Appeals.
Finding the civil and criminal cases related, Justice Chanco suggested
that they be consolidated for decision by the Special Division of Five.
To this suggestion, the parties assented. Thus, after the necessary
arrangement was made to effect the assignment of the criminal case
to the Special Division of Five and after due hearing on both the
motions for reconsideration in the civil case and the merits of the
criminal case, the two cases were submitted for decision.

The motions for reconsideration in CA-G.R. No. 46566-R are hereby

denied." 8
As heretofore stated at the outset, the Republic of the Philippines and
the City of Cagayan de Oro filed two separate petitions with this Court
in the civil and criminal cases assailing the rendition of a single
decision resolving them jointly. More specifically, the errors alleged in
G.R. No. L-41115 to have been committed by respondent Court of
Appeals in the appealed civil case are as
follows:jgc:chanrobles.com.ph
"I. The respondent Court of Appeals erred in rendering a single
decision in two distinct and separate cases, one of which is criminal
(CA-G.R. No. 15289-CR, entitled "People of the Philippines v. Isidro
Baculio, Et. Al.) and the other civil (CA-G.R. No. 46566-R, entitled
"Republic of the Philippines, Et. Al. v. Benedicta Macabale Salcedo
Vda. de Baculio, Et. Al.) which is violative of the due process clause of
the Constitution insofar as the respondent Courts reliance on
extraneous matters is concerned and Section 9, Article X thereof,
when the same Court rendered a single decision for the two cases.
"II. The respondent Court of Appeals erred in relying heavily on
extraneous matters which were not even brought up, adduced, offered
much less admitted in evidence both in the criminal (CA-G.R. No.
15289-CR) and civil (CA-G.R. No. 46566-R) aspects of the case at
bar. This is contrary to basic and fundamental rules of procedure and
violative of the due process clause of the Constitution.
"III. The respondent Court of Appeals erred in basing its decision
55

upon, and not declaring the falsity of the three-paged decision

(Exhibits "L", "L-1" and "L-2") which on its face and on the basis of
physical and incontrovertible facts is clearly a forgery.
"IV. The respondent Court of Appeals erred in considering the sevenpaged decision as spurious (Exhibits K, K-1, K-2, K-3, K-4, K-5
and K-6), when its authenticity was not contested and brought in
issue before the lower court in Civil Case No. 2560.

"II. The respondent Court gravely erred in rendering the decision by

relying on matters not presented, nor offered, much less admitted, in
evidence. Such a decision is in violation of the due process clause of
the Constitution." 10
We shall now proceed with the discussion of these assignments of
errors.
FIRST ASSIGNMENT OF ERROR

"V. The respondent Court of Appeals erred in declaring Lot No. 1982
of the Cagayan de Oro Cadastre originally classified as forestal land
as private property of Benedicta Macabale Salcedo Vda. de Baculio,
on the basis of self-serving testimonies of the defendants-appellants
Macabale Et. Al. instead of confirming its character as a declared
public land.
"VI The respondent Court of Appeals erred in declaring that Judge
Benjamin K. Gorospes assumption of jurisdiction over the Cadastral
Proceedings No. 18, GLRO Rec. No. 1562 (Lot No. 1982) when he
took cognizance of the motion for the issuance of a decree was to the
exclusion of Judge Bernardo Teves and in ruling that the latter should
not have taken jurisdiction over, tried and decided Civil Case 2560.

IN L-41115
"The respondent Court erred in rendering a single decision in two
distinct and separate cases, one of which is criminal (CA-G.R. No.
15289-CR, entitled "People of the Philippines v. Isidro Baculio, Et. Al.")
and the other civil (CA-G.R. No. 46566-R, entitled "Republic of the
Philippines, Et. Al. v. Benedicta Macabale Salcedo Vda. de Baculio,
Et. Al.") which is violative of the due process clause of the Constitution
insofar as the respondent Courts reliance on extraneous matters is
concerned and Section 9, Article X thereof, when the same court
rendered a single decision for the two cases."cralaw virtua1aw library
IN L-41116

"VII. The respondent Court of Appeals erred in concluding that the

petitioners action in Civil Case No. 2560 should have been a petition
for review of the decree, and not one for the nullity of judgment,
orders and titles." 9
On the other hand, the assigned errors in G.R. No. L-41116, the
petition insofar as the criminal case is concerned, are merely a
reiteration of the first two assignments of error stated above,
namely:jgc:chanrobles.com.ph
"I. The respondent Court gravely erred in rendering a single decision
for two cases, one civil (CA-G.R. No. 46566-R) and the other criminal
(CA-G.R. No. 15289-CR), tried separately, with distinct evidence
presented, and heard by two different judges, and without indicating
upon what particular evidence its decision in the criminal or the civil
case is based, which is contrary to Section 9, Article X of the
Constitution.

"The respondent Court gravely erred in rendering a single decision for

two cases, one civil (CA-G.R. No. 46566-R) and the other criminal
(CA-G.R. No. 15289-CR), tried separately, with distinct evidence
presented, and heard by two different judges, and without indicating
upon what particular evidence its decision in the criminal or the civil
case is based, which is contrary to Section 9, Article X of the
Constitution."cralaw virtua1aw library
We do not find any violation by the respondent Court of Appeals of the
due process clause of the Constitution and of Section 9, Article X
thereof in finally disposing of the civil and criminal cases in a single
decision. For one thing, the civil case was actually decided by the
Special Division of Five on June 6, 1974. Only the motions of the
Solicitor General and the City Fiscal of Cagayan de Oro City for
reconsideration of the said decision in the civil case were resolved
together with the criminal case in the decision dated July 22, 1975.
Hence, the reversal of the trial courts decision in Civil Case No. 2560
56

is based solely on the records then on hand without considering the

records of the criminal case, for respondent court was not even aware
of the pendency of the latter case. What remains to be seen,
therefore, is whether or not the evidence in the civil case was used to
arrive at the judgment of acquittal and whether or not the evidence in
the criminal case was considered in the denial of the two motions for
reconsideration in the civil case.
We have noted that despite the vigorous protest raised by petitioners
against the rendition of a single decision, their arguments consisted
merely of generalities. They failed to point out specifically where
respondent court took and considered evidence in the civil case in
deciding the criminal case. Actually, the assailed decision dated July
22, 1975 was mainly a review or a recital of the evidence presented in
the trial of the criminal case and reference to the civil case was only
by way of stressing certain matters extant in both cases. For instance,
respondent court noticed that in the criminal case, appellants prefaced
their brief with the statement that it "sprung from the "filth of politics,"
so it pointed out a similar statement in the civil case and even quoted
the judgment of the trial court in the civil case to the effect that Lot
1982 was "subject of a petition for release by the vociferous and noisy
Cagayan de Oro City Landless Residents Association and capitalized
by certain local politicians for election purposes." 11 Respondent court
also pointed to the testimony of witness, Hilarion Maagad, Sr. in the
civil case to the effect that a carbon copy of the three-page decision
was found by him in the custody of the Chief of the Cadastral Section
of the Land Registration Commission, to emphasize said witness
testimony in the criminal case that he saw an old "original copy of the
three-page decision, adjudicating Lot 1982 of the Cagayan Cadastre
to Benedicta Macabale Salcedo." 12 To this extent, respondent court
made reference to the evidence in the civil case. However, these
insignificant occasions do not warrant the annulment of the decision in
the criminal case. While it is true, as petitioners pointed out, that the
evidence necessary to decide the civil case is not only markedly
different in various aspects from the evidence needed to resolve the
criminal case but that the quantum of proof required is also different,
they erroneously conclude that respondent court evaluated the
evidence offered and admitted in both cases together and
indiscriminately. As a matter of fact, when respondent court referred to
the civil case, it duly indicated therein that it was doing so. Hence,
there was no error and confusion as petitioners claim.chanrobles law

library : red
Petitioners further argue that respondent court cannot resolve the two
cases in a single decision because they were heard, tried and decided
by two different judges and evidence was offered and admitted
separately in the civil as well as criminal case. It is contended that
Civil Case No. 2560 was decided by the Hon. Bernardo Teves,
Presiding Judge of Branch IV, Court of First Instance of Misamis
Oriental, while Criminal Case No. 4683 was decided by the Hon.
Eduardo de G. Montenegro, Presiding Judge of Branch III of the same
court. We do not find any merit in this argument as this Court has
consolidated cases tried separately by different courts as long as the
factual and/or legal issues involved are similar or the same. The
petitioners themselves admitted the community of issues in their
petition. Thus, they stated in their petition for certiorari in L-41116: ". . .
the criminal case involved the falsification of the document which was
also the principal issue in the aforesaid civil case, . . ." 13
As to the extent of the use by respondent court of the evidence in the
criminal case in disposing of the motions for reconsideration in the
civil case, We find that respondent Court only made reference to the
evidence in the criminal case to strengthen or bolster the judgment it
had rendered. Thus, the respondent Court said:jgc:chanrobles.com.ph
"After a careful study of the evidence in the criminal case in relation to
the evidence in the civil case, this Court is all the more convinced that
Judge Benjamin K. Gorospe had acted properly in issuing the order
for the issuance of the decree of registration of Lot 1982." 14
Finally, it was the Solicitor General himself who called the attention of
the Special Division of Five on the pendency of the criminal case
before the Eighth Division of the Court of Appeals. By this disclosure
alone, it could be inferred that the Solicitor General realized the
interconnection of the two cases and the possible effect or influence of
one on the other. In fact, when Justice Francisco Ma. Chanco, the
lone dissenter in the dismissal of the civil case as well as in the
acquittal of the accused in the criminal case, suggested that the two
cases be consolidated for decision, the Solicitor General readily
agreed. The consent given by the Solicitor General is clearly indicated
in the resolution dated October 1, 1975, the pertinent portion of which
is quoted herein as follows:jgc:chanrobles.com.ph
57

"Considering that the subject argued by the Solicitor General deals

with the authenticity and genuineness of a certain document
submitted as an exhibit in the present civil case, Mr. Justice Francisco
Ma. Chanco suggested, to which the other Justices concurred, that
the criminal case and the civil case be consolidated for decision by
the present Division of Five Justices. Both the Solicitor General and
Attorney A. R. Montemayor readily agreed. It was further agreed to
suspend the hearing on appellees motions for reconsideration until
such time when the Justices of the Division have studied both the civil
and criminal cases involved herein." 15
In the light of the presumption that official duty has been regularly
performed, it is fair to assume that a copy of the said resolution was
sent to the Solicitor General. Thus, the Solicitor General cannot now
claim that they "merely agreed to the suggestion for the consolidation
of the two cases under one division of respondent Court, but never to
the rendition of a single decision on the two cases by said division."
16
We, therefore, find no merit to the assigned errors under discussion,
to wit, The First Assignment of Error in L-41115 and the First
Assignment of Error in L-41116.

In the civil case, the alleged extraneous matters injected by

respondent court are: (1) the statements of Guillermo Bolohan,
namely: the question and answer statement allegedly given before the
NBI, whose date of execution does not appear anywhere in the
records and the December 3, 1968 affidavit or narrative statement
before a notary public; (2) the alleged political motive as the guiding
factor behind the institution of the action; (3) the insinuation that
respondent Benedicta Macabale Salcedo had a house in the subject
premises (Lot 1982) and that the area is covered by a tax declaration
which was allegedly used as a security for the bail bond of a Chinese
named Paulino Lamber; and (4) the unfounded conclusion that
respondent Macabale Salcedo and her son, Isidro Baculio, paid the
realty taxes on Lot 1982 as early as before the last global war up to
the year 1948 when the tax declaration covering the lot came into
being only on June 17, 1964.
Petitioners contend that respondent Court relied heavily on the
Bolohan statements although neither statement was introduced in
evidence. The question and answer statement was merely cited in the
opposition of private respondents to the motion for reconsideration
filed by herein petitioners relative to the June 6, 1974 decision of the
respondent Court of Appeals in CA-G.R. No. 46566-R. This was how
the said statement got into the civil case.

SECOND ASSIGNMENT OF ERROR

IN L-41115
"The respondent Court of Appeals erred in relying heavily on
extraneous matters which were not even brought up, adduced, offered
much less admitted in evidence both in the criminal (CA-G.R. No.
15289-CR) and civil (CA-G.R. No. 46566-R) aspects of the case at
bar. This is contrary to basic and fundamental rules of procedure and
violative of the due process clause of the Constitution.
IN L-41116
"The respondent Court gravely erred in rendering the decision by
relying on matters not presented, nor offered, much less admitted in
evidence. Such a decision is in violation of the due process clause of
the Constitution."cralaw virtua1aw library

In the criminal case, where the extraneous matters referred to the

Bolohan statements alone, the December 3, 1968 affidavit or narrative
statement was appended as an annex to the motion for new trial in
the court below, which motion was, however, denied for lack of merit.
A portion of the question and answer statement was quoted in two of
the three separate briefs filed by private respondents as appellants in
the criminal case. These were the means whereby the Bolohan
statements somehow became part of the records of the criminal case.
Private respondents claim that Guillermo Bolohan is the only surviving
member of the staff of Judge Ricardo Summers, who issued the
decision subject of these cases. They never introduced him as a
witness. But they attempted to take his deposition in the criminal case.
Their motion to that effect was however denied by the trial court.
In answer to this assigned error, private respondents maintain that the
58

statements of Bolohan were merely cumulative evidence bolstering

their claim that it is the three-page decision that is genuine and not the
seven-page decision. They argue that respondent court considered
the sworn statement of Bolohan corroborative of the fact that the
seven-page decision was without caption, title, and signature, for even
without Bolohans statement the fact that the seven-page decision is
really captionless and without title and signature cannot be altered nor
change the admission made by petitioners witness, Vicente G.
Corrales, "that he only supplied the caption and title, where there was
alone, in the preparation of the certified copy." Private respondents
further explain that when Bolohan stated that where a claimant failed
to appear on time after the opening session in the morning, Judge
Summers would summarily declare the lot public land, but when the
claimant later appeared the judge would reconsider and adjudicate
the lot in favor of claimant, such statement merely affirmed the
testimony of Jose Ampeloquio to the effect that "when there is no
claimant (to a lot cadastrally surveyed) the land is identified as public
land at the time of the survey." Private respondents conclude that
even if the statement of Bolohan were to be discarded, the testimony
of petitioners witness, Ampeloquio, would still remain and explain why
a seven-page decision was drafted although left unpromulgated by
Judge Summers.

formal offer is necessary because it is the duty of the judge to rest his
findings of facts and his judgment only and strictly upon the evidence
offered by the parties at the trial and no finding of fact can be
sustained which is not supported by such evidence. 18 Thus,
documents not regularly received in evidence on the trial will not be
considered in disposing of the issues of action. 19 Without a limit on
the kind of documents and other evidence which may be considered
by the courts, all our rules on evidence will be rendered nugatory.

In the criminal case, private respondents justified the use of the

Bolohan statements in the light of the doctrine that "an appeal throws
the whole case open to review and it becomes the duty of the
appellate court to correct such errors as may be found in the judgment
appealed from and that the appellate court in a criminal case may
explore the whole records for the purpose of arriving at the correct
conclusion."cralaw virtua1aw library

Neither can the use of the question and answer statement of Bolohan
be justified by the doctrine that an appeal in a criminal case throws
the whole case open for review. Although part of the physical records
of the case, it does not constitute a valid part thereof because it was
incorporated therein in violation of our rules on evidence.

No matter how respondent Court used the Bolohan statement,

whether as principal evidence, cumulative evidence or corroborative
evidence, We hold that such use is not sanctioned by our procedural
rules. Section 35, Rule 132 of the Revised Rules of Court explicitly
provides: "The court shall consider no evidence that has not been
formally offered. The purpose for which the evidence is offered must
be specified."cralaw virtua1aw library
The rule is that any evidence which a party desires to submit for the
consideration of the court must formally be offered by him. 17 Such a

The narrative statement of Guillermo Bolohan, executed on December

3, 1968, cannot partake of the nature of a validly adduced, offered and
admitted piece of evidence because it was merely appended as an
annex to the motion for new trial. Much less can the undated question
and answer statement of Bolohan, which is the one relied upon by
respondent Court, not the narrative statement, be considered as such
because it was brought out, in the criminal case, only in their appeal
briefs and in the civil case, only in their opposition to the motion for
reconsideration of herein petitioners. Hence, the same was presented
for the first time on appeal, at which stage, no additional factual
evidence could be introduced for the reason that its presentation
would, as in fact it did, deprive petitioners of their right to be heard
with regard to said statement.

Having thus found that it was an error for respondent Court for having
considered the said question and answer statement of Bolohan in
disposing of the civil and criminal cases, the next question that has to
be resolved is whether or not such error warrants the reversal of the
decision dated July 22, 1975 of respondent Court insofar as it denied
the motion for reconsideration of petitioners in the civil case and the
annulment of the same decision insofar as it acquitted private
respondents of the crime charged.
We shall resolve the issue first in relation to the judgment of acquittal
which petitioners seek to annul in the petition at bar.
59

Private respondents argue that this "appeal" by the Solicitor General

would place them in double jeopardy contrary to Section 2, Rule 122
of the Revised Rules of Court which provides:jgc:chanrobles.com.ph
"Sec. 2. Who may appeal. The People of the Philippines cannot
appeal if the defendant would be placed thereby in double jeopardy . .
."cralaw virtua1aw library
We agree. There is the further protection that the Constitution affords
to an accused in ordaining that: "No person shall be twice put in
jeopardy of punishment for the same offense. If an act is punished by
a law and an ordinance, conviction or acquittal under either shall
constitute a bar to another prosecution for the same act." 20
This Constitutional mandate prohibits not only a subsequent
prosecution in a new and independent cause. It also extends to an
appeal in the same case by the prosecution after jeopardy had
attached, thereby in effect viewing such appeal as presenting a new
and separate jeopardy, repugnant to the fundamental laws provision
against double jeopardy. 21
Equally well-settled is the rule that the protection against double
jeopardy bars any other form of inquiry into a judgment of acquittal
either through a certiorari proceeding 22 or a petition for review. 23
Perforce, the present special civil action for certiorari of petitioners,
which seeks to nullify the judgment of acquittal for having been
allegedly rendered with grave abuse of discretion tantamount to lack
of jurisdiction, must fail.
That this must be Our conclusion is further supported by Our finding
that the use of the Bolohan statement constitutes merely an error of
judgment and not an error of jurisdiction as there was no clear
showing that respondent Court exercised its power in the arbitrary or
despotic manner by reason of passion or personal hostility or that its
act was so patent and gross as to amount to an evasion or a virtual
refusal to perform the duty enjoined or to act in contemplation of law.
24 For one thing, the Bolohan statement was not the sole basis of
respondent Court for the acquittal of private respondents. The entire
evidence presented by petitioners, both oral or documentary, from the
NBI witnesses to the Spanish grammarian, Jose Montalban, were
impugned and discredited one by one to the end that respondent

Court was convinced that the guilt of the accused persons was not
proved beyond reasonable doubt. The failure of petitioners to offer or
to submit the carbon copy of the three-page and seven-page
decisions, despite the repeated requests of private respondents was
likewise considered by respondent Court, to which We fully agree, as
a blatant denial of due process that merits the reversal of a judgment
of conviction. Certainly, these considerations taken all together cannot
be a valid basis to indict respondent Court as having acted
whimsically and capriciously in decreeing a judgment of
acquittal.chanrobles virtual lawlibrary
Anent the other alleged extraneous matters used by respondent Court
in the civil case, We do not find any necessity in discussing them,
referring as they do to insignificant matters that do not have any legal
bearing on the final disposition of the case.
THIRD ASSIGNMENT OF ERROR
(G.R. L-41115)
"The respondent Court erred in basing its decision upon, and not
declaring the falsity of the three-paged decision (Exhibits "L", "L-1",
and "L-2") which on its face and the basis of physical and
incontrovertible facts is clearly a forgery."cralaw virtua1aw library
FOURTH ASSIGNMENT OF ERROR
(G.R. L-41115)
"The respondent Court erred in considering the seven-paged decision
as spurious (Exhibits "K", "K-1", "K-2", "K-3", "K-4", "K-5" and "K-6"),
when its authenticity was not contested and brought in issue before
the lower court in Civil Case No. 2560."cralaw virtua1aw library
These assignment of errors are the more important ones. Stated
differently, the third assignment of error raises the main question in
this petition for review, that is, whether or not the three-page decision
is falsified. On the other hand, the fourth assignment of error simply
raises the question of whether or not there is necessity of ruling on the
authenticity of the seven-page decision.
60

Several arguments are advanced by petitioners to support their view

that the three-page decision is falsified. First, they claim that the falsity
of the questioned three-page decision is attested by experts on
documents. They presented the report of Senior Document Examiner
Hermenegildo C. Mil of the National Bureau of Investigation, (Report
No. 174-1264, June 17, 1965) who, according to them, more than
sufficiently established their stand. A material portion of the said report
on which Mil testified before the lower court is herein
quoted:jgc:chanrobles.com.ph
"1. As far as the age of the documents is concerned, no opinion can
be rendered for lack of basis. Nevertheless, in the case of the threepaged decision, declaring the lot in question a `private land, artificial
aging is seemingly indicated by
(a) The spreading of spluttered ink in unusual places;
(b) The uneven discoloration of the pages which is not in consonance
with the natural aging of documents; and
(c) The suspicious presence of rust in certain portion of the threepages of the decision, indicating negligence on the part of the alleged
owner in taking care of a very valuable or important document like a
favorable court order.
"2. As to authenticity, the same findings obtain as in the `age of
documents. However, it is imperative to state here certain facts
observed in the course of the examination.
"In the three-page decision declaring the lot in question a `private
land, the typewriter used in the second page is different from the one
used in the first and third pages. And a different kind of paper, too,
was used in the second page from the paper used in the first and third
pages.
"Incident to this case, pertinent documents in the files of the Land
Registration Commission have been examined, among which are the
`Order for the issuance of the decree declaring the lot in question a
`private land, and the Record Book of Cadastral lots numbered 63.
"With regards to the first document, it was observed with surprise that

the Notation in said order setting aside previous decisions involving

Lot No. 1982 was typed from a typewriter different from the one used
in typing the rest of the entries, and yet there are very few typewritten
entries therein.
"In the case of the second or later document, it is indicated therein
that the Decision declaring Lot No. 1982 (Cad. Rec. No. 1562) as
public land was promulgated first, or ahead of the `Decision
declaring it a private land. This is evidenced by the fact that in the
said Record Book of Cadastral Lots, the entry declaring it a public
land was written on the lime provided therefor in the usual or natural
course, whereas the entry declaring it a `private land was written or
superimposed above this entry, giving rise to the conclusive
presumption that it was written or entered later."25cralaw:red
Petitioners further cited a portion of the report of another expert,
Captain Pedro Elvas, Jr., who examined the document at the behest
of private respondents. His findings were, however, withheld and not
presented as evidence. A portion of Elvas report was quoted by
petitioners, "not as proof of the truth of the report itself because the
same was suppressed, but as ready reference for this Honorable
Court in the exercise of its plenary judicial powers to better appraise
the gravity of the fraud perpetrated against public interest and to
spotlight the weight that must be given to the report of NBI Senior
Document Examiner Hermenegildo Mil," which portion
reads:jgc:chanrobles.com.ph
"Based from the above findings, it is concluded that, of the alleged
three-page Court decision, dated 19 Dec. 1940, rendered by the CFI
Misamis Oriental, Ninth Judicial District, marked Q-1, Q-2 and Q-3,
PAGE TWO (2), Marked Q-2 IS NOT THE ORIGINAL SECOND
PAGE OF THESE SET OF DOCUMENTS BUT AN INSERTION,
made at a later date, prepared on a different typewriter, aged
artificially, done in a sheet of paper of postwar manufacture and finally,
the contents made to appear the subject of the court decision by
altering a portion of the title on the first page, marked Q-1, to reflect
the desired lot numbers as entered in the inserted page (marked Q2)." 26
Secondly, petitioners show the falsity of the three-page decision
through the analysis conducted on the contents of the three-page
61

decision by an expert in the Spanish language, Mr. Jose Montalban,

who found that the decision relied upon by private respondents and
upon which their entire case rests is full of grammatical barbarities.
They claimed that an honorable judge of the old school, like Judge
Summers, would not have dared write poor Spanish and consequently
expose himself, as the decision fraudulently passed off as his own has
now exposed him, to public ridicule.
Thirdly, petitioners claim that page two of the three-page decision was
typed with a different typewriter. They point out that Atty. Hilarion
Maagad, Sr., a noted lawyer in the place, could not likewise have
subjected himself to possible ridicule in testifying falsely that his
typewriter was borrowed by respondent Baculio in the 1960s to
prepare a document dated 1940. While he may not be certain as to
the exact date when the typewriter was borrowed by respondent
Baculio, the stark reality remains that after the examination of the
specimen taken from the same typewriter, the NBI expert concluded
that the additions made on the three-page decision were made on the
very same typewriter borrowed from Atty. Hilarion Maagad, Sr. In other
words, the very typewriter belonging to Atty. Maagad, Sr. was
positively established as the machine used to prepare page two of the
supposed 1940 document.
Fourthly, petitioners contend that the paper used for page two is of
postwar vintage, not existing before the war and on the date the three
page decision was allegedly typed and fifth, they argued that there
was deliberate aging of the document, as shown by the uneven
discoloration and splattering of ink and rust.
Finally, petitioners claim that Lot 1135 adjudicated in favor of Jacinto
Estrada was already registered in the name of Faustino Neri by virtue
of the Order issued by Judge Felix Martinez on October 24, 1935.

follows:jgc:chanrobles.com.ph
"TO WHOM IT MAY CONCERN:chanrob1es virtual 1aw library
This is to certify that according to the verified petition under date of
July 8, 1964, filed by Atty. Isidro S. Baculio, counsel for the claimantpetitioner, relative to Cad. Case No. 18, LRC Rec. No. 1562, Lot No.
1982, Cagayan Cadastre, entitled Commonwealth of the Philippines,
Solicitante versus Antonio Abaday, Reclamantes, Benedicta Macabale
Salcedo, Claimant-Petitioner, the file copy of the `Order for the
Issuance of Decrees in Cadastral Cases (Judicial Form No. 115Revised February, 1940) under date of July 8, 1964 attached to the
records of said petition does not show the following notations which
appear on the phostatic copy of the same in the possession of the
NBI, Eastern Mindanao Region, Cagayan de Oro City, viz:chanrob1es
virtual 1aw library
All other decisions, orders or processes issued by this Court
pertaining to Lot No. 1982 only, are hereby amended and/or set aside
so as to give due course to the above mentioned decision
adjudicating said lot to Benedicta Macabale Salcedo.
It is further certified that the undersigned does not remember nor
could he have authorized any person or persons to make any
alteration or addition to the original order as it appears now in our
files.
This certificate is issued upon request of Atty. Abdul Aguam of the
National Bureau of Investigation, Eastern Mindanao Region, Cagayan
de Oro City, in connection with his investigation on the matter.
Cagayan de Oro City, February 8, 1966.

In addition thereto, petitioners call attention to the corroborative

evidence of falsity of the three-page decision, namely:chanrob1es
virtual 1aw library

s/ Benjamin K. Gorospe

(1) The falsification of the Order of Judge Benjamin Gorospe by the

addition of a paragraph not found in the original at the time it was
signed by him. Judge Gorospe was very emphatic about this forgery
when he testified, that he issued a certification, which states as

Judge" 27

t/ BENJAMIN K. GOROSPE

(2) The fact that immediately after the issuance of OCT No. 0-257 in
the name of Benedicta Macabale Salcedo transfers were made to
62

different persons, mostly the relatives of the Macabales and for

practically no considerations at all.
(3) The fact of the prior recording of Lot 1982 with the Land
Registration Commission and the Bureau of Lands as declared public
lands, and that the name of Benedicta Macabale Salcedo is not
among the list of cadastral lot claimants.
(4) The fact of the motion for issuance of decree having been filed
after the lapse of almost 24 solid years from the date (December 19,
1940) which is undisputedly the date of the three-page decision.
(5) The fact that lot 1982 was released totally only on July 28, 1961 by
the Bureau of Forestry which is undisputed.
In refutation of the above arguments, private respondents submit the
following answers:chanrob1es virtual 1aw library
First, Agent Hermenegildo C. Mil merely ventured an opinion on the
artificial aging of the three-page decision since he had stated that no
opinion could be rendered as far as the age and authenticity of the
carbon copy of the three-page decision because of lack of basis.
Although Mil stated that "there was suspicious presence of rust in
certain portion of the three-page decision, indicating some sort of the
negligence on the part of the alleged owner in taking care of a very
valuable or important document like a favorable court order," this
suspicion was based on the presumption that the said document was
in the custody of the person who was to be benefitted by it and by
this, is meant the accused Isidro S. Baculio. Since Agent Mil admitted
in his cross-examination that "we have not found any direct evidence
to show that this three-page decision has been in the possession of
(the accused) Atty. Isidro S. Baculio at any time," then the testimony of
Agent Mil is also valueless.
We hold that the report of Agent Hermenegildo C. Mil, upon which he
testified during the trial of the case below, should be taken in its whole
context. It may not have established with definite certainty the age
and authenticity of the three-page decision but it categorically pointed
out some physical and uncontroverted facts that either indicate
artificial aging or put in doubt the authenticity of the said decision,
namely: (1) the spreading of spluttered ink in unusual places; (2) the

uneven discoloration of the page which is not in consonance with the

natural aging of documents; (3) the suspicious presence of rust in
certain portions of the three-page decision; (4) the use of a different
typewriter for the second page and (5) the use of a different kind of
paper also for page two. Hence, viewed in its totality, the report is
more than an expression of opinion as to the age and authenticity of
the three-page decision because it speaks of facts duly perceived by
the reporter.
Anent the use of petitioners of the report of Pedro Elvas, Jr., which
was not introduced in evidence, We rule that said report is
inadmissible because the justification of petitioners of the use thereof
cannot alter its character as an evidence that has not been formally
offered. Nevertheless, even without considering said report, Agent
Hermenegildo C. Mils report is sufficient to create a doubt on the
validity of the title of private respondents over Lot 1982. The Elvas
report does not say anything new. It merely corroborates the findings
of Agent Mil.
On the testimony of Jose Montalban regarding the alleged
grammatical "barbarities" in the three-page decision, We agree with
the respondent Court that the opinion of Jose Montalban is worthless
considering that the NBI itself has admitted that pages 1 and 3 of the
three-page decision are genuine, despite the typographical and
grammatical errors therein contained.
Anent the first factor that allegedly diminish the value of Jose
Montalbans opinion, We hold that one need not be a Spaniard in
order to speak grammatically correct Spanish. Hence, the only
question here is whether or not Judge Ricardo Summers was
proficient in Spanish. Inasmuch as Jose Montalban, a professor in
Spanish, gave a testimony to the effect that he knew Judge Summers
personally, that he conversed with him in Spanish and that he heard
him speak Spanish "divinamente" or fluently, in the absence of
contrary proof from respondents, such testimony stands. It is,
therefore, an error to say that "the records of the case does not show
whether Judge Summers . . . was proficient in Spanish."cralaw
virtua1aw library
However, We find that the second and third considerations, pointed
out by respondent Court, that allegedly diminish the value of Jose
63

Montalbans opinion, are quite plausible. It is, indeed, probable that

whoever typed Judge Summers decision might have erred in copying
from the original considering that the basis of the testimony of Jose
Montalban was a mere "true copy." This is bolstered by the fact that
there are typographical and grammatical errors not only on page two
but also on pages one and three of the said decision. Thus, for the
reason that the testimony of Jose Montalban was based not on the
original copy of the three-page decision, nor on the carbon duplicate
thereof, but only on a "true copy", We have no choice but to disregard
the testimony of Jose Montalban in deciding these cases.
Regarding the use of a different typewriter for the second page of the
three-page decision, private respondents argue that a later finding of
Agent Hermenegildo C. Mil, Report No. 20764, dated October 29,
1965 (Exh. 11-Baculio, Vol. II, CFI Record, p. 84), which was elicited
from him on cross-examination is that "no opinion can be rendered as
far as the typewriting query is concerned because aside from being a
blurred copy, the questioned typewriting is also smeared with ink and
rust, hence precluding an effective and clear examination."cralaw
virtua1aw library
Private respondents contend that prosecution witness Hilarion K.
Maagad, Sr. was sure and emphatic when he testified that it was only
in May of 1965 when accused Isidro S. Baculio went to his house for
the first time to borrow his typewriter. Thus, if the accused really
borrowed the typewriter of Hilarion Maagad, Sr., it could not have
been for the purpose of typing the second page of the three-page
decision, because the petition for the issuance of decree, to which a
certified true copy of the carbon copy of the three-page decision was
already attached, was filed on July 8, 1964.
We hold that it would be unsound practice for the court to disregard a
report which has been the subject of testimony of a witness simply
because said witness makes an inconsistent statement if another
report later on. Inasmuch as the first report of Agent Hermenegildo C.
Mil duly established the fact that the typewritten entries on page two
of the three-page decision reveal that a different typewriter was used
from the one used in the first and third pages, his apparent change of
heart when he stated "that no opinion can be rendered as far as the
typewriting query is concerned," cannot alter the previously proved
fact of its character as such.

A recanting testimony is oftentimes regarded as unreliable. Besides,

in the cases involved herein, the later testimony of Agent Mil is
unworthy of credence. The smudges of ink and rust on the threepage decision could not have precluded an effective and clear
examination because the dissimilarity in the typewritten entries was
immediately noticed and in fact, pointed out categorically in the first
report made.
The fact that page two of the three-page decision was typed with a
different typewriter is further bolstered by the testimony of Atty.
Hilarion K. Maagad, Sr. who established that his typewriter was
borrowed by the accused. Linking this testimony with the findings of
the National Bureau of Investigation as testified to by Agent Mil that
after comparing specimens from Atty. Maagads typewriter with the
typewritten entries on page two of the three-page decision, they found
that it was said typewriter of Atty. Maagad that was used to prepare
page two of the three-page decision, the date when said typewriter
was borrowed becomes immaterial. The defense of private
respondents capitalizing on the statement of Atty. Maagad that he was
sure that the accused borrowed his typewriter only in 1965 and not in
1964 when the petition for issuance of decree was filed, need not,
therefore, be discussed.
We dwell next on the alleged use of paper of postwar manufacture for
page two of the three-page decision. Private respondents maintain
that petitioners argument on this score is refuted in the appealed
decision as follows:jgc:chanrobles.com.ph
"Regarding page 2 of the 3-page decision, the prosecution contends
that the paper used in its preparation is different from the paper used
for pages 1 and 3. The prosecution claims that the paper used for
page 2 contains optical bleach which could only be found on paper of
postwar manufacture. The only evidence on this comes from an agent
of the NBI who was not qualified by the prosecution as an expert on
chemical dyes used on paper for its flourescent and brightening
effect. Nevertheless, on the assumption that the second page of the 3page decision contains optical bleach, the prosecution concludes that
the second page of the 3-page decision is falsified.

64

To defend themselves against this charge, the accused persons

wanted to see and confront the ca
n copy of the 3-page decision. . . . But the trial court arbitrarily
dismissed the manifestation and objections by directing the defense
to:jgc:chanrobles.com.ph
"COURT: (To the defense)
Proceed with your evidence."cralaw virtua1aw library
One of the constitutional rights of an accused person is to be duly
informed of the nature and cause of the accusation against him. The
demand of the accused persons to have the carbon copy of the 3page decision produced in court was, obviously, an assertion of their
constitutional right. The peremptory denial by the trial court of that
demand was a deprivation of the constitutional right of the accused to
both substantive and procedural due process, which "is not to be
lightly glossed over." In the ascertainment of the question as to
whether or not the accused really committed the crime charged, the
prosecution and the trial court had unfairly limited the accused to a
mere photostatic copy of the carbon copy of the 3-page decision.
Needless to state, the photostatic copies were incapable of showing
the alleged indications of artificial aging of the documents such as
brittleness, splattering of ink, presence of rusts, and uneven
discoloration of the paper. Neither are the NBI reports safe guides in
determining whether the charge that a different kind of paper was
used for page 2 of the carbon copy of the 3-page decision is true or
not. Indeed, the NBIs reversal of itself on the typewriter query and on
the alleged artificial aging of the second page of the certified true copy
has rendered its reports and opinions very unreliable. The trial court
should have required the prosecution in the face of the demands of
the defense, to produce the carbon copies of the 3-page and 7-page
decisions. Thus, "what is indispensable in law was rendered nugatory
in fact" by what the trial judge did, or more appropriately, by what he
failed to do." 28
We note that private respondents defense on this score relates to the
criminal case. Nothing is mentioned about a similar demand having
been made during the trial of the civil case for the production of the
carbon duplicate of the three-page decision. We hold that as far as the
civil case is concerned, mere preponderance of evidence showing

that the three-page decision is falsified is enough to declare null and

void Original Certificate of Title No. 0-257 and all the transfer
certificates of title issued as a result of subsequent dealings over
Cadastral Lot No. 1982. The testimony of Agent Hermenegildo C. Mil
to the effect that a different kind of paper was used for page two, in
the absence of countervailing evidence from the
private, Respondents, is sufficient to establish the point. In the
criminal case, however, We cannot rule similarly in the face of the
demands of the accused to see for themselves the carbon duplicate of
the document object of the crime of falsification. All accused are
accorded certain rights under the law to the end that only those whose
guilt is proven beyond reasonable doubt are punished. They should
be given all the necessary data as to why they are being proceeded
against so that they would be in a position to defend themselves
properly. If these were not done, there is an element of unfairness.
Due process is in fact denied them.
Finally, on the various corroborative evidence presented by petitioners
showing the falsity of page two of the three-page decision, private
respondents merely attack the allegation on the falsification of the
order of Judge Benjamin Gorospe for the issuance of the decree of
registration. They contend that the alleged insertion in the order does
not constitute falsification under the law, citing the ruling in People v.
Pacana, 47 Phil. 48 at 56, to the effect that in falsification "the change
in the public document must be such as to affect the integrity of the
same or to change the effects which it could otherwise produce; for
unless that happens, there could not exist the essential element of the
intention to commit the crime." Moreover, they assert that there is
absolutely no evidence to show that Isidro S. Baculio or his mother
made the falsification.
We agree with private respondents. The elements of the crime of
falsification in paragraph 6, article 171 of the Revised Penal Code are:
(1) that there be an alteration (change) or intercalation (insertion) on a
document; (2) that it was made on a genuine document; (3) that the
alteration or intercalation has changed the meaning of the document;
and (4) that the change made the document speak something false.
29
Inasmuch as with or without the insertion, the Commissioner of Land
Registration was bound to issue the decree of registration pursuant to
65

the order of Judge Gorospe, We hold that the said intercalation was
purposeless and meaningless. The Commissioner was called upon to
exercise only a ministerial act, not a discretionary act.
One last point. Petitioners contend that for purposes of determining
the falsity of the three-page decision, the petitioners need not prove
that the seven-page decision is authentic. They claim that the
respondent courts act of comparing the three-page decision with the
seven-page decision to determine which is more genuine is not
relevant in deciding the issues involved and that to find the sevenpage decision false cannot by any rule of law or evidence result in the
finding that the three-page decision is authentic.
On the other hand, private respondents maintain that "the matter with
petitioners is that they presumed the forgery of the three-page
decision by presuming the genuineness of the seven-page decision.
They wanted a judgment of conviction for falsification on the basis of a
mere presumption. Therefore, it became necessary for the appellate
court to examine the seven-page decision and to compare it with the
three-page decision." The fact that the seven-page decision is
captionless, without title or signature of Judge Summers, that it does
not bear the authentic signature of any court personnel, whereas the
three-page decision contain the abbreviation "FDO", which stands for
"Firmado", written immediately before the typewritten name of Judge
Summers, and that the following notation appears at the lower left
hand corner of the three-page decision: "Es copia verdadera de que
certifico, Firmado Vicente Roa Escribano Delegado," are apparent
in the comparison of the two decisions. The authenticity of the
notation has not been challenged, let alone impugned by the
prosecution. Vicente Roa was admittedly a member of the staff of
Judge Summers, who at various times acted as deputy clerk of court.
The NBI examined the signature "Vicente Roa" appearing at the
bottom of the last page of the three-page decision, and compared it
with the genuine signature of Vicente Roa as it appears in the latters
notarial register and admitted during trial that the said signature is
genuine.chanroblesvirtualawlibrary
Private respondents quote other "disturbing points" enumerated by
the respondent court about the so-called seven-page
decision:jgc:chanrobles.com.ph

"First, the certification issued by Atty. Vicente G. Corrales is dated

October 7, 1952. But the defense correctly claims that the certified
copy of the so-called 7-page decision was received in Manila only on
February 16, 1963, as shown on the face of the first page of the
certified true copy of the 7-page decision. (Vol. II, t.s.n., p. 97). Upon
examination of Exhibit A (Vol. I, Folder of Exhibits, p. 1) there is no
question that the certified copy was received on February 16, 1963.
The prosecution also failed to explain this discrepancy of more than
eleven years.
"Second, the date on which the 7-page decision was presumably
rendered by Judge Ricardo Summers, as originally typed on the 1st
page was "November 23 (or 25, the date is not even clear) 1940." But
as it appears from the photostatic copy of the carbon copy of the so
called 7-page decision, both the month and the day have been
cancelled by a horizontal line and in lieu thereof the word "December"
and the figure "19" were written immediately above it. (Exhibit K-6,
Vol. II, Folder of Exhibits, p. 100). The prosecution also failed to
disclose the author of the alteration and the reason for it.
"Third, in the 7-page decision, Lot No. 411 of the Cadastral Survey of
Cagayan de Oro appears to have been adjudicated to the conjugal
partnership of Juan Roa Valdeconcha and Sinforosa Acero (Exhibit K1; Ibid., p. 96). However, the defense presented evidence to show that
the aforesaid lot was actually titled in the name of Felicitas Vda. de
Sabal, under Original Certificate of Title No. 0-192 issued by the
Register of Deeds of Cagayan de Oro City on October 3, 1958,
pursuant to Decree No. N-65439 issued on September 12, 1959. The
decree was issued by virtue of the order for issuance of decree
promulgated by Judge Benjamin K. Gorospe in Registration Case No.
N-40, L.R.C. Record No. N-4357 (Exhibit 8-Baculio, dorsal side; Vol.
II, CFI Record, p. 75)." 30
We hold that there certainly is no necessity for comparing the threepage decision with the seven-page decision to determine which is
more genuine. It should be remembered that the civil case was
instituted by the petitioners herein for the nullification of the order of
Judge Benjamin K. Gorospe for the issuance of the decree in
Cadastral Case No. 18, GLRO Rec. No. 1562, dated July 8, 1964 on
the main premise that the three-page decision dated December 19,
1940 which formed the basis of Judge Gorospes order is a forgery.
66

What must of necessity be resolved therefore, is the authenticity of

the three-page decision. The answer to that question can be arrived at
only after the examination of said three-page decision itself, not any
other. Hence, the respondent court gravely erred when it concluded
that the three-page decision is authentic after discrediting the sevenpage decision because what was actually put to test was the said
seven-page decision. While We may agree with respondents that
there are indeed some "disturbing" factors about the seven-page
decision, there are far more glaring indications of falsity in the threepage decision. For how are We to regard the following established
facts: the spreading of spluttered ink in unusual places, the uneven
discoloration of the pages, the suspicious presence of rust, the use of
a different typewriter and a different kind of paper for page two of the
three-page decision, other than exercise extreme caution before
believing its contents? How should the fact that immediately after the
issuance of Original Certificate of Title No. 0-257 in the name of
Benedicta Macabale Salcedo, transfers were made to different
persons for practically no consideration at all? If anything, this act was
an apparent aberration on the part of private respondents that invited
a second look, suspicion and investigation. As suspected, the trial
court found that some of these transfers were fictitious, as no receipts
of payment, except for one, was presented in evidence. Respondents,
therefore, could not expect to gain anything through their obdurate
capitalization on the flaws of the seven-page decision because the
three-page decision, of itself, could not withstand the test of scrutiny.
The legal maxim to the effect that one must rely on the strength of his
title, not on the weakness of the title of his opponent holds true in this
case.
We rule that the respondent Court of Appeals erred in declaring the
three-page decision as genuine and in considering the seven-page
decision as spurious.
FIFTH ASSIGNMENT OF ERROR
"The respondent Court erred in declaring Lot No. 1982 of the
Cagayan de Oro Cadastre originally classified as forestal land as
private property of Benedicta Macabale Salcedo Vda. de Baculio, on
the basis of self-serving testimonies of the defendants-appellants
Macabale, Et. Al. instead of confirming its character as a declared
public land."cralaw virtua1aw library

In support of this assignment of error, petitioners contend that prior to

the institution of the action in Cadastral Case No. 18, GLRO Rec. No.
1562, before the Court of First Instance of Misamis Oriental, Lot No.
1982 was an integral part of timberland known and identified as Block
F, LC Project No. 8, BF Map, LC 585 of the Bureau of Forestry. It was
only on September 4, 1956, acting on Resolution No. 293, series of
1955 of the City Council of Cagayan de Oro when the Bureau of
Forestry released a portion of Block F, LC Project No. 8 with an area
of 12.82 hectares as alienable and disposable. And it was only on July
28, 1961 when again, two parcels of the land embraced within Block
F, LC Project No. 8, containing an area of 1.0 and 2.4 hectares were
released by the Bureau of Forestry as alienable and disposable at the
request of Henry Canoy and M.B. Cabaraban who were in possession
thereof by virtue of a permit issued by the Bureau of Forestry over
portions of this particular lot.
Petitioners claim that the Court, therefore, erred in not properly
appreciating the testimony of Atty. Jose Ampeloquio, legal officer of
the Lands Division of Misamis Oriental and a member of the action
unit of the Bureau of lands which investigated the matter sometime in
1964. Said testimony was to the effect that he, together with other
investigators found that in the record of cadastral lots in the Land
Registration Commission, Lot No. 1982 was recorded as public Land
on the line where such an entry properly and regularly pertains.
However, they found another entry declaring it a private land that was
irregularly written later above or superimposed over the previous entry
declaring the lot a public land.
Moreover, this witness testified that they found that the lot was
swampland with bacauan or mangroves growing therein as late as
1964. So petitioners argued that arcas with such growth are classified
as forest lands. Section 1820 of the Revised Administrative Code
clearly defines public forests, to wit:jgc:chanrobles.com.ph
"Sec. 1820. Words and Phrases Defined.
For purposes of this chapter, `public forest includes, except as
otherwise indicated, all unreserved public land including nipa and
mangrove swamps and all forest of whatever character."cralaw
virtua1aw library
67

Petitioners also point out that land areas of this nature, being
considered forest, are under the exclusive control and management of
the Director of Forestry, now Director of Forest Development, quoting
Section 1838 of the Revised Administrative Code which provides as
follows:jgc:chanrobles.com.ph
"The Director of Forestry, with the approval of the Secretary of
Agriculture and Natural Resources, may, upon such terms as may be
deemed reasonable, lease or grant to any Filipino citizen or
association of persons duly incorporated and authorized by the
Constitution to acquire lands of the public domain, permits for the use
of forest lands or vacant public lands not declared agricultural, for a
period not exceeding twenty-five years, for the establishment of
sawmills, lumber yards, timber depots, logging camps, right of way,
and plantations for the raising of nipa and/or other palms, bacauan,
medical plants or trees of economic value, and for the construction of
hotels, sanitaria, fishing establishment, residences or camps,
fishpond, saltworks, pastures for a large or small cattle or for other
lawful purposes for an area not exceeding twenty-four hectares;
Provided, that the maximum area shall not exceed two thousand
hectares for fishponds, saltworks, nipa and/or other palms or bacauan
plantations and right of way."cralaw virtua1aw library
Pursuant to this provision, petitioners continue, a certain Henry Canoy
and Pedro Pimentel occupied certain portions of the questioned lot by
virtue of government leases.
On the other hand, petitioners insist that the only muniment of title to
show that the said land belonged to Benedicta Macabale Salcedo was
a tax declaration, which document was, however, secured only after
she and her son, respondent Baculio, were successful in registering
said lot under their names. A tax declaration secured over a parcel of
land classified as forest does not vest ownership in favor of the said
declarant or taxpayer. This was the pronouncement of the Supreme
Court in the case of the Province of Camarines Sur v. Director of
Lands, 36 O.G. 2194; and J.M. Tuazon and Co., Inc. v. Villanueva, 55
O.G. 3658.
Private respondents answer the foregoing arguments by stating,
among other things, that long before the war, other persons than

Benedicta Macabale Salcedo had claimed Lot 1982 as private

property. They quote the following facts found by respondent
Court:jgc:chanrobles.com.ph
"Hilarion Maagad, Sr., one of the prosecution witnesses, himself
lodged a complaint in behalf of his client against Benedicta Macabale
Salcedo and her son, Isidro S. Baculio, one of the accused persons in
the present criminal case, for the annulment of Benedicta Salcedos
title. This case was docketed as Civil Case No. 2565 of the Court of
First Instance of Misamis Oriental (Exhibit 9-Baculio, Vol. II, CFI
Records, pp. 73, 76-80). In the said complaint, Hilarion Maagad, Sr.
alleged for his clients that they are the grandchildren and great
grandchildren of the late Cosme Macabale and Elena Allansa who, in
their lifetime, acquired a parcel of land in the barrio of Macabalan . . .
Cagayan de Oro City to wit: Lot 1982 of the Cadastral Survey of
Cagayan, L.R.C. Cad. Record No. 1562. (Exhibit Q-Baculio, par. 3,
Ibid., p. 77); that `the plaintiffs can prove that the late Cosme
Macabale was an applicant-claimant and for whom Lot No. 1982 was
cadastrally surveyed." (Exh. 9-Baculio, par. 8, Ibid., p. 79). This shows
that Lot 1982 has been claimed as private land by other parties long
before 1964." 31
We do not argue with private respondents with respect to the said
finding of fact of respondent Court. However, We do not consider the
same to be a good and valid argument to prove that the land in
question is not a forest land. Mere filing of a claim does not convert a
non-disposable public land into one that is disposable. Neither is the
number of persons laying a claim on the land proof of the
classification of the said land as disposable public land.
For the same reason, the existence of a miscellaneous sales
application for Lot 1982, as testified to by Jose Ampeloquio, does not
thereby make the land subject of the application fall under the
administration and supervision of the Bureau of Lands. More
importantly, the initiation by the government of the cadastral
proceeding with respect to said lot, likewise, does not mean that the
government was representing said lot as alienable and disposable
public agricultural land. The error of respondents lies in their
misconception that only alienable and disposable public land may be
the subject of a cadastral proceeding. The truth is that all classes of
lands are included in such proceedings: private lands, public
68

agricultural lands and lands of public ownership. The public lands are,
of course, declared public lands in the hearing. 32 In one of the early
cases decided by this Court on land registration, 33 the objective of
the cadastral system and the classes of land to which it applies were
discussed therein as follows:jgc:chanrobles.com.ph
"Now, what was the occasion for the enactment of the Cadastral Act
(No. 2259)? The inference sought to be drawn is that the necessity of
providing a method for requiring the compulsory registration of private
lands is what induced its passage. But there is no language in the Act
that can make it apply exclusively to private property. The first Section
begins with language almost identical with the first line of Section 61
of Act 926, quoted supra: `Whenever, in the opinion of the GovernorGeneral, the public interests require that titles to any lands be settled
and adjudicated, upon the order of the Governor-General, the Director
of Lands or the private surveyor named by the landowners, if the
Director of Lands approves, shall make a survey plan of such
lands."cralaw virtua1aw library
All classes of lands may thus be the subject of cadastral proceedings.
In fact, President Ferdinand E. Marcos placed the entire country
under a five-year cadastral program starting 1978 to facilitate the
registration of all lands.
The attempts of private respondents to discredit the testimony of Jose
Ampeloquio do not convince Us to adopt the holding of respondent
Court with respect to the character of land involved in these cases.
We rule that respondent Court erred in reversing the finding of the trial
court and in declaring the land as the private property of Benedicta
Macabale Salcedo.

SEVENTH ASSIGNMENT OF ERROR

"The respondent Court erred in concluding that the petitioners action
in Civil Case No. 2560 should have been a petition for review of
decree, and not one for nullity of judgment, orders and titles."cralaw
virtua1aw library
In relation to the above assignments of error, the pertinent portions of
the assailed decision state the following:chanrob1es virtual 1aw
library
A judgment in a cadastral case to the effect that a lot is declared and
decreed public land is not a final decree within the meaning of
Sections 38 and 40 of Act No. 496, and therefore, it may be set aside.
The same is true with a judgment declaring a piece of land private.
For, a decision in a cadastral case, wherein the proceedings are the
same as those which are followed in an ordinary registration case, is
merely the commencement of the final decree which confers an
irrevocable title. As long as the final decree is not issued by the
Commissioner of Land Registration, and the period of one year fixed
for the review thereof has not yet elapsed, the title is not finally
adjudicated and the decision therein rendered continues to be under
the control and sound discretion of the court rendering it. (Afalla and
Pinarac v. Rosauro, 60 Phil. 622 at p. 625; Roman Catholic Bishop of
Cebu v. Philippine Railway Co. and Reyno, 49 Phil. 546; De los Reyes
v. De Villa, 48 Phil. 227; Capio v. Capio, 50 O.G. 137 at p. 139).
Before the title is finally adjudicated, the court rendering the decision
or decree may set aside and adjudicate the land to another. (Director
of Lands v. Busuego, 12 SCRA 678 at p. 681; Capio v. Capio, 50 O.G.
p. 137 at p. 139).
x
x
x

SIXTH ASSIGNMENT OF ERROR

"The respondent Court erred in declaring that Judge Benjamin K.
Gorospes assumption of jurisdiction over the Cadastral Proceedings
No. 18, GLRO Rec. No. 1562 (Lot No. 1982) when he took
cognizance of the Motion for the Issuance of a Decree was to the
exclusion of Judge Bernardo Teves and in ruling that the latter should
not have taken jurisdiction over, tried and decided Civil Case No.
2560."cralaw virtua1aw library

"The issuance of Judge Gorospes order and decree was the

continuation of a single proceeding the registration of title to Lot
No. 1982. Such proceeding began with the initiation of the cadastral
case, and would terminate only when the title to the lot has been
finally and irrevocably adjudicated. At the stage of the proceeding
when the decree is still reviewable, as in the present case, the
cadastral processing is not a terminated case. Therefore, appellees
action to annul Judge Gorospes order and decree is still part of the
69

single and continuing cadastral proceeding. Such being the case,

there should be but one responsible court which should have
exclusive control of every part of the proceeding. Obviously, it cannot
be entrusted to two or more courts, independent from one another.
Otherwise, there would be confusion and delay and, possibly injustice
to the parties (Macias v. Uy Kim, 45 SCRA 251). The court which
should have exclusive control of every part of the present cadastral
proceeding is, legally and logically, the branch in which Judge
Gorospe is seated. It was the court in which the cadastral case was
commenced; it should be the court to write finis to the case. The
action to review and annul a decree of registration is properly
cognizable by the court which rendered the decision and granted the
decree (Director of Lands v. Busuego, 12 SCRA at p. 681)"
"x

the Cadastral Act or Act 2259, the special and limited character of the
jurisdiction of the Court of Land Registration is apparent. Hence while
it is true, as private respondents insist, that the jurisdiction of a land
registration court or a cadastral court even after the issuance of the
final decree of registration in a land registration or cadastral case
subsists, this applies only to matters specifically provided by law to be
within its special jurisdiction. Section 6 of Act 2259 and Section 112 of
Act 496 provide some of those instances. But, as correctly contended
by petitioners, the proceedings under Section 112 of Act 496 are
summary in nature and are allowed only when a scrutiny of the
allegations discloses that the issues are so patently insubstantial as
not to be genuine issues. 36 Hence, an action for annulment being
contentious falls within the general jurisdiction of the Court of First
Instance pursuant to the Revised Judiciary Act.

In Gianan v. Imperial G.R. No. L-37963, February 28, 1974, it was

held that as a matter of comity it is well that the same branch of court
that decided a case should hear the case if it is still presided by the
same judge who rendered the alleged questioned decision. . . ." 34
In assailing the above portions of the decision, petitioners argue that
the cadastral jurisdiction of Judge Benjamin Gorospe cannot exclude
the general jurisdiction of Judge Bernardo Teves. The issues of
falsification and forgery which gave rise to the issuance of the titles
involved in the case at bar are certainly contentious and complicated.
Hence, said issues could not be validly resolved in the same cadastral
proceedings. They cannot be ventilated in a cadastral court of limited
jurisdiction. Section 112 of Act 496, while providing for a summary
procedure in cases regarding erasures, alteration or amendment of a
certificate of title, entry of a new certificate or entry or cancellation of a
memorandum upon a certificate, is inefficacious, however, in an action
for cancellation of title involving contentious issues. Said provision
affords relief only when there is unanimity among the parties or when
there is no adverse claim or serious objection on the part of any party
in interest. 35
Indeed, as a general rule, an issue properly litigable in an ordinary
civil action under the general jurisdiction of the Court of First Instance
should not be resolved in a land registration proceeding. From the
provisions of Section 2 of Act 496, as amended, as well as those of

Inasmuch as in this jurisdiction, the Court of First Instance also

functions as a land registration court, an exception to the general rule
(that an issue properly litigable in an ordinary civil action should not be
resolved in a land registration proceeding) has been established, that
is, if the parties acquiesce in submitting that issue for determination in
the land registration proceeding and they were given full opportunity
to present their respective sides and their evidence, the land
registration court would have jurisdiction to pass upon that issue. 37
Whether a particular matter should be resolved by the Court of First
Instance in the exercise of its general jurisdiction or its limited
jurisdiction as a special court (probate, land registration, etc.) is in
reality not a jurisdictional question. It is in essence a procedural
question involving a mode of practice "which may be waived." 38 In
this case, however, there is no acquiescence of the parties to submit
the issue of forgery and falsification to the cadastral court.
Besides, the question of whether a court or a branch thereof has
authority or jurisdiction to annul a judgment rendered by another court
of concurrent jurisdiction or by another branch has been resolved
affirmatively in the cases of Dulap v. Court of Appeals, L-28306,
December 18, 1971, 42 SCRA 537 and Gianan v. Imperial, L-37963,
February 28, 1974, 55 SCRA 755, where this Court similarly
held:jgc:chanrobles.com.ph
"To hold that a court of a branch thereof has no authority or jurisdiction
to annul a judgment simply because that judgment was rendered by
70

another branch would, therefore, practically amount to judicial

legislation, affecting as it will, the provisions of the Revised Judiciary
Act. In an action to annul a final judgment or order, the choice of
which court the action should be filed with is not left to the parties; by
legal mandate the action should be filed with the court of first
instance. The question is in what place (with what particular court of
first instance) the action should be commenced and tried. The
question, as discussed above, is actually one of venue . . .
x
x
x
Our conclusion must therefore be that a court of first instance or a
branch thereof has the authority and jurisdiction to take cognizance of,
and act in, a suit to annul a final and executory judgment or order
rendered by another court of first instance or by another branch of the
same court. The policy of judicial stability, which underlies the doctrine
laid down in the cases of Dumara-og, J. M. Tuason & Co., Inc. and
Sterling Investment Corporation, Et Al., supra, should be held
subordinate to an orderly administration of justice based on the
existing rules of procedure and the law . . ."cralaw virtua1aw library
While it is true that this Court pointed out in Gianan v. Imperial that "as
a matter of comity it is well that the same branch of court that decided
a case should hear the case if it is still presided by the same judge
who rendered the alleged questioned decision," petitioners correctly
countered that such policy does not divest the court concerned of its
jurisdiction over the pertinent case.
Petitioners manifested to this Court that Judge Bernardo Teves
assumption of jurisdiction over the case for nullification of the order of
Judge Benjamin Gorospe was questioned before this Court in G.R.
No. L-26671 but to no avail since the Court denied the petition
summarily in a resolution dated October 17, 1966. They further
mention the filing of a substantially and almost similarly worded
petition by private respondents with the Court of Appeals, docketed as
CA-G.R. No. 38489-R also questioning the jurisdiction assumed by
Judge Bernardo Teves. And respondent Court, finding the move on
the part of the private respondents a clear case of misrepresentation
and suppression, dismissed the petition in a decision dated May 17,
1967.

Parenthetically, no word was said in refutation by private respondents

about the filing of similar petitions in the Supreme Court and the Court
of Appeals questioning the assumption of jurisdiction of Judge
Bernardo Teves. Of course, it is understandable that such fact be
suppressed because the denial of both petitions shows the obvious
lack of merit of the arguments of private respondents on that issue.
In fact, the only argument presented by private respondents in
confutation of the assigned error is the ruling of respondent Court. In
effect, what private respondents did was to cite as authority for their
argument the very same decisions being assailed now. They merely
added a recent decision, i.e., Manalo v. Mariano, (supra) supposedly
in support of the decision of respondent Court on the question at bar.
The question presented therein was: whether the Pasig Branch X of
the Court of First Instance of Rizal can entertain an action for
annulment of a partition agreement on the ground of fraud although its
validity had already been upheld by Branch VIII of the same court in a
land registration case.
Private respondents cite the following statements of this Court in the
said case.
"Moreover, the action to annul the 1960 partition agreement would be
an unwarranted collateral attack on the judgment in the land
registration case which was rendered by another branch of the lower
court. Such an action would reopen the issue as to the validity of the
partition agreement, an issue which was already resolved and set at
rest in the land registration case. The rule of non quieta movere
applies. (See Dulap v. Court of Appeals, L-28306, December 18,
1971, 42 SCRA 537)."cralaw virtua1aw library
It appears, however, that the main reason why this Court ruled
negatively on the question presented in that case was the applicability
of the doctrine on bar by prior judgment since the issue raised therein
was the validity of the partition agreement which has already been
adjudicated by another branch of the same court and therefore, it
would be highly improper to relitigate the same issue. This situation is
unlike in Dulap v. Court of Appeals and Gianan v. Imperial where the
cause of action is entirely different from that in the action which gave
rise to the judgment sought to be annulled, for a direct attack against
a final and executory judgment is not incidental to, but is the main
71

object of the proceeding.

In resume, We hold that the decision dated July 22, 1975 of
respondent Court substantially conforms with the due process clause
and Section 9, Article X of the Constitution, as well as with the norm
set by this Court in Jose v. Santos, 35 SCRA 538, where it was
held:jgc:chanrobles.com.ph
"Nor is there any rigid formula as to the language to be employed to
satisfy the requirement of clarity and distinctness. The discretion of
the particular judge in this respect, while not unlimited, is necessarily
broad. There is no sacramental form of words which he must use
upon pain of being considered as having failed to abide by what the
Constitution directs. This is a realm where his individuality is not
stifled, his habitual mode of giving expression to his thoughts
respected. It suffices that his decision is not tainted with that degree of
ambiguity that open vistas of doubt both as to what the facts really
were and the significance attached to them by the law."cralaw
virtua1aw library
But as far as the use of extraneous matters are concerned,
particularly the question and answer statement of Guillermo Bolohan,
which was not presented, nor offered, much less admitted in
evidence, We hold that respondent Court gravely erred in so doing as
it was violative of Section 35, Rule 132 of the Revised Rules of Court.
The acquittal that ensued thereafter has, however, been rendered
beyond scrutiny due to the operation of the double jeopardy clause.
Of course, the acquittal mentioned herein refers to that of respondent
Josefina W. Bacarrisas as the criminal prosecution of respondent
Isidro S, Baculio had terminated upon his death on February 28,
1978, pursuant to Article 89(1) of the Revised Penal Code.
With respect to the dismissal of the civil case for declaration of nullity
of Original Certificate of Title No. 0-257 and all transfer certificates of
title issued as a result of subsequent dealings over Cadastral Lot No.
1982, We hold such dismissal a reversible error. The falsity of the
three-page decision had been sufficiently proved in the trial court.
Despite all the arguments of respondents negating each and every
proof of its falsity, We find that the preponderance of evidence still
points towards the falsity of the three-page decision. The attempts to
discredit the testimony of Agent Hermenegildo C. Mil had been

rendered futile in the light of these physical and incontrovertible facts

proven during the trial, to wit: (1) the spreading of ink in unusual
places, (2) the uneven discoloration of the pages, (3) the suspicous
presence of rust, and (4) the use of a different typewriter and the use
of a different kind of paper or page two of the three-page decision.
Neither can the flaws of the seven-page decision which was relied
upon by petitioners as the genuine decision obliterate these physical
and incontrovertible facts. Even without the said seven-page decision
declaring Lot 1982 as public land, there is a presumption that all lands
are considered public lands unless overcome by clear and convincing
evidence. Inevitably, the three-page decision cannot pass the
category of a clear and convincing evidence. Respondent Court
committed grave abuse of discretion in reversing the trial courts
finding that said lot is public land and in declaring the same as private
property of Benedicta Macabale Salcedo.
Finally, We uphold the jurisdiction of Judge Bernardo Teves to annul
the judgment or order rendered by another court of concurrent
jurisdiction, which in this case is the order of Judge Benjamin K.
Gorospe for issuance of decree of registration over Lot 1982,
pursuant to the rulings in Dulap v. Court of Appeals (supra) and
Gianan v. Imperial (supra).
IN VIEW OF ALL THE FOREGOING CONSIDERATIONS, (a) the
petition for review on certiorari in G.R. No. L-41115 should be, as it is
hereby GRANTED; the decision dated June 6, 1974 of respondent
Court dismissing the petition of the Republic of the Philippines and the
City of Cagayan de Oro for declaration of nullity of the decree of
registration of Lot 1982 and the decision dated July 22, 1975 denying
the motions for reconsideration of petitioners are hereby SET ASIDE
and REVERSED; and the decision dated November 13, 1968 of the
Court of First Instance of Misamis Oriental, Branch IV in Civil Case
No. 2560 is hereby REINSTATED; and (b) the petition for certiorari in
G.R. No. L-41116 should be, as it is hereby DISMISSED.
SO ORDERED.
Barredo, Concepcion, Jr. and Escolin, JJ., concur.
Aquino, J., in the result.
72

Abad Santos, J., in the result.

De Castro, J., took no part.
When consolidation mandatory and Consent of all parties necessary.
Reference without consent void. (Sec. 1, Rule 32)
[G.R. No. 145441. April 26, 2005]
PHILIPPINE SAVINGS BANK, petitioner, vs. SPS. RODOLFO C.
MAALAC, JR. and ROSITA P. MAALAC,respondents.
DECISION
YNARES-SANTIAGO, J.:
This appeal by certiorari[1] assails the decision of the Court of
Appeals dated October 12, 2000 in CA-G.R. CV No. 50292[2] which
affirmed with modifications the decision of the Regional Trial Court of
Pasig, Branch 161[3] dated April 27, 1993 in Civil Case No. 53967
which ordered the annulment of the Certificate of Sale involving TCT
Nos. N-1347, N-1348 and N-3267 issued in favor of petitioner
Philippine Savings Bank (PSBank) and dismissing Land Registration
Case No. R-3951.
The facts as culled from the records are as follows:
On October 8, 1976, respondent-spouses Rodolfo and Rosita Maalac
(Maalac) obtained a P1,300,000.00 loan from PSBank covered by
promissory note L.C. No. 76-269. As security for the loan, Maalac
executed a Real Estate Mortgage in favor of the bank over 8 parcels
of land covered by TCT Nos. 417012, N-1348, N-1347, N-3267, N8552, N-6162, 469843 and 343593.
In view of Maalacs inability to pay the loan installments as they fell
due, their loan obligation was restructured on October 13, 1977.
Accordingly, Maalac signed another promissory note denominated as
LC No. 77-232 for P1,550,000.00 payable to the order of PSBank with
interest rate of 19% annum.[4] To secure the payment of the
restructured loan, Maalac executed a Real Estate Mortgage dated
October 13, 1977 in favor of PSBank over the same aforementioned 8
real properties.
On March 5, 1979, Maalac and spouses Igmidio and Dolores Galicia,
with the prior consent of PSBank,[5] entered into a Deed of Sale with
Assumption of Mortgage involving 3 of the mortgaged properties
covered by TCT Nos. N-6162 (now N-36192), N-8552 (now TCT No.

N-36193), and 469843 (now TCT No. N-36194). The Deed of Sale
with Assumption of Mortgage contained the following stipulations:
1. The VENDEES shall assume as they hereby assume as part of the
purchase price, the amount of P550,000.00, representing the portion
of the mortgaged obligation of the VENDORS in favor of the Philippine
Savings Bank, which is secured by that Real Estate Mortgage
contract mentioned in the Second Whereas Clause hereof covering
among others the above-described parcels of land under the same
terms and conditions as originally constituted.
2. The VENDORS hereby warrant valid title to, and peaceful
possession of the property herein sold subject to the encumbrance
hereinbefore mentioned.
3. This instrument shall be subject to the Consent of the Philippine
Savings Bank.
4. All expenses relative to this instrument including documentary
stamps, registration fees, transfer taxes and other charges shall be for
the account of the VENDEES.[6]
Thereafter, the 3 parcels of land purchased by the Galicias, together
with another property, were in turn mortgaged by them to secure a
P2,600,000.00 loan which they obtained from PSBank. Specifically,
the mortgaged properties include TCT Nos. N-36192, N-36193, N36194, (formerly TCT Nos. N-6162, N-8552 and 469843, respectively)
and 75584.[7] This loan is evidenced by Promissory Note LC-79-36.
[8]
On March 12, 1979, Maalac paid PSBank P919,698.11 which
corresponds to the value of the parcels of land covered by TCT Nos.
N-36192, N-36193, and N-36194, now registered in the name of the
spouses Galicia. Accordingly, PSBank executed a partial release of
the real estate mortgage covered by the aforesaid properties.[9]
On August 25, 1981, the spouses Galicia obtained a second loan from
PSBank in the amount of P3,250,000.00 for which they executed
Promissory Note LC No. 81-108. They also executed a Real Estate
Mortgage in favor of the bank covering TCT Nos. N-36192, N-36193,
N-36194, 75584 and 87690.[10]
Since Maalac defaulted again in the payment of their loan installments
and despite repeated demands still failed to pay their past due
obligation which now amounted to P1,804,241.76, PSBank filed with
the Office of the Provincial Sheriff of Rizal a petition for extrajudicial
foreclosure of their 5 remaining mortgaged properties, specifically
those covered by TCT Nos. 417012, N-1347, N-1348, N-3267, and
343593.
73

Despite several postponements of the public auction sale, Maalac still

failed to pay their mortgage obligation. Thus, on May 3, 1982, the
foreclosure sale of the subject real properties proceeded with PSBank
as the highest bidder in the amount of P2,185,225.76.[11] On the
same date, the Certificate of Sale was issued by the Acting ExOficio Provincial Sheriff for Rizal province.[12]
Maalac failed to redeem the properties hence titles thereto were
consolidated in the name of PSBank and new certificates of title were
issued in favor of the bank, namely, TCT No. N-79995 in lieu of TCT
No. 343593; TCT No. 79996 in lieu of TCT No. 417012; TCT No.
79997 in lieu of TCT No. N-3267; TCT No. N-79998 in lieu of TCT No.
N-1347; and TCT No. N-79999 in lieu of TCT No. N-1348.
On December 16, 1983, Maalac wrote the Chairman of the Board of
PSBank asking information on their request for the partial release of
the mortgage covered by TCT Nos. N-36192, N-36193, N-36194, and
417012 (now TCT No. 79996). TCT Nos. 36192, 36193, and 36194
were registered in the name of the Galicias, and mortgaged to
partially secure their outstanding loan from the bank. Enclosed in the
same letter is a Cashiers Check for P1,200,000.00 with a notation
which reads:
Re: Payment to effect release of TCT Nos. N-36192, 36193, and
36194 under loan account of Spouses Igmedio and Dolores Galicia;
and TCT No. 417012 under Loan Account of Spouses Rodolfo and
Rosita Maalac.
Upon receipt of the check, PSBanks Acting Manager Lino L.
Macasaet issued a typewritten receipt with the inscription:[13]
Received from Sps. Rodolfo and Rosita Maalac and Sps. Igmidio and
Dolores Galicia PCIB Check No. 002133 in the amount of One Million
Two Hundred Thousand Pesos Only (P1,200,000.00).
It is understood however, that receipt of said check is not a
commitment on the part of the Bank to release the Four (4) TCTs
requested to be released on your letter dated 19 December 1983.
On December 19, 1983, the bank applied P1,000,000.00 of the
P1,200,000.00 to the loan account of the Galicias as payment for the
arrearages in interest and the remaining P200,000.00 thereof was
applied to the expenses relative to the account of Maalac.[14]
On May 23, 1985, the bank sold the property covered by TCT No.
79996 (previously TCT No. 343593) to Ester Villanueva who
thereafter sold it to Maalac. On October 30, 1985, the land covered by
TCT No. 79995 was sold by the bank to Teresita Jalbuena.

Thereafter, or on October 20, 1986, Maalac instituted an action for

damages, docketed as Civil Case No. 53967, before the Regional
Trial Court of Pasig, Branch 161, against PSBank and its officers
namely Cezar Valenzuela, Alfredo Barretto and Antonio Viray, and
spouses Alejandro and Teresita Jalbuena.
The bank also filed a petition, docketed as LRC Case No. R-3951,
before the Regional Trial Court of Pasig, Branch 159, for the issuance
of a writ of possession against the properties covered by TCT Nos. N79997, N-79998, and N-79999 (formerly TCT Nos. N-3267, N-1347,
and N-1348) and the ejectment of the respondents.
In an order dated January 2, 1989, the trial court consolidated LRC
Case No. R-3951 with Civil Case No. 53967. On April 27, 1993, a
judgment was rendered the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered ordering:
For Civil Case No. 53967
1. The annulment of the Certificate of Sale issued by the acting ExOficio Provincial Sheriff of Rizal on May 3, 1982 involving Transfer
Certificate of Title Nos. N-1347-Rizal, N-1348-Rizal and N-3267-Rizal
and the Contract to Sell executed by defendant PSB in favor of
defendants spouses Alejandro Jalbuena and Teresita Jalbuena
involving the real property covered by Transfer Certificate of Title No.
N-79995; and,
2. The dismissal of counterclaims for lack of merit.
For Land Registration Case No. R-3951
3. The dismissal of the petition for lack of merit.
No costs.
SO ORDERED.[15]
The Court of Appeals affirmed with modification the decision of the
trial court, the decretal portion of which reads:
WHEREFORE, the decision appealed from is AFFIRMED with the
modification that the defendant-appellant Philippine Savings Bank is
directed to indemnify the plaintiffs-appellants in the amount of Two
Hundred Thousand Pesos (200,000.00) each as moral damages.
Costs against the defendant-appellant bank.
SO ORDERED.[16]
Hence the instant petition which raises the following issues:
THE APPELLATE COURT HAS DECIDED QUESTIONS OF
SUBSTANCE IN A WAY PROBABLY NOT IN ACCORD WITH LAW
AND WITH APPLICABLE DECISIONS OF THIS HONORABLE
COURT WHEN IT:
74

a.] HELD THAT THE GENERAL RULE WITH RESPECT TO THE

ISSUANCE OF WRITS OF POSSESSION SHOULD NOT BE
APPLIED IN THIS CASE, AND WHAT SHOULD INSTEAD BE
APPLIED IS THE EXCEPTION ENUNCIATED IN VACA VS. COURT
OF APPEALS, 234 SCRA 146;
b.] UPHELD THE CONSOLIDATION OF CIVIL CASE NO. 53967
WITH LRC CASE NO. 3951 WHEN PROCEDURALLY THOSE TWO
PROCEEDINGS COULD SCARCELY BE CONSOLIDATED;
c.] HELD THAT SUPPOSEDLY THERE WAS A NOVATION OF THE
PREVIOUS MORTGAGE OF THE PROPERTIES WHEN IN TRUTH
AND IN FACT THE MORTGAGE HAD ALREADY CEASED TO
EXIST, THAT IS, THE MORTGAGE HAD BECOME NULL AND VOID
AS THE SAME HAD BEEN FORECLOSED BY PETITIONER;
d.] AWARDED MORAL DAMAGES IN FAVOR OF RESPONDENTS.
[17]
Petitioner claims that the Court of Appeals erred in sustaining the trial
courts order consolidating Civil Case No. 53967 with LRC Case No.
R-3951, arguing that consolidation is proper only when it involves
actions, which means an ordinary suit in a court of justice by which
one party prosecutes another for the enforcement or protection of a
right, or a prevention of a wrong. Citing A.G. Development Corp. v.
Court of Appeals,[18] petitioner posits that LRC Case No. R-3951,
being summary in nature and not being an action within the
contemplation of the Rules of Court, should not have been
consolidated with Civil Case No. 53967.
We do not agree. In Active Wood Products Co., Inc. v. Court of
Appeals,[19] this Court also deemed it proper to consolidate Civil
Case No. 6518-M, which was an ordinary civil action, with LRC Case
No. P-39-84, which was a petition for the issuance of a writ of
possession. The Court held that while a petition for a writ of
possession is an ex parte proceeding, being made on a presumed
right of ownership, when such presumed right of ownership is
contested and is made the basis of another action, then the
proceedings for writ of possession would also become groundless.
The entire case must be litigated and if need be must be consolidated
with a related case so as to thresh out thoroughly all related issues.
In the same case, the Court likewise rejected the contention that
under the Rules of Court only actions can be consolidated. The Court
held that the technical difference between an action and a proceeding,
which involve the same parties and subject matter, becomes
insignificant and consolidation becomes a logical conclusion in order

to avoid confusion and unnecessary expenses with the multiplicity of

suits.
In the instant case, the consolidation of Civil Case No. 53967 with
LRC Case No. R-3951 is more in consonance with the rationale
behind the consolidation of cases which is to promote a more
expeditious and less expensive resolution of the controversy than if
they were heard independently by separate branches of the trial court.
Hence, the technical difference between Civil Case No. 53967 and
LRC Case No. R-3951 must be disregarded in order to promote the
ends of justice.
Petitioner also contends that the Court of Appeals committed
reversible error in applying the doctrine laid down in Barican v.
Intermediate Appellate Court.[20] It insists on the application of the
general rule that it is ministerial upon the court to issue a writ of
possession on the part of the purchaser in a foreclosure sale. It
argues that the Barican doctrine is inapplicable because the sale with
assumption of mortgage in the present case involves properties
different from those which are the subject of the writ of possession
while in Barican, the assumption of mortgage refers to the same
property subject of the writ of possession. We recall that the Court of
Appeals applied the Barican doctrine based on the following factual
similarities between the two cases, thus:[21]
In Civil Case No. C-11232, the petitioner-spouses claim ownership of
the foreclosed property against the respondent bank and Nicanor
Reyes to whom the former sold the property by negotiated sale; the
complaint alleged that the DBP knew the assumption of mortgage
between the mortgagors and the petitioner-spouses and the latter
have paid to the respondent bank certain amounts to update the loan
balances of the mortgagors and transfer and restructuring fees which
payments are duly receipted; the petitioner-spouses were already in
possession of the property since September 28, 1979 and long before
the respondent bank sold the same property to respondent Nicanor
Reyes on October 28, 1984; and the respondent bank never took
physical possession of the property. In a similar manner, the following
facts were duly established in the case at bench: 1. The petition for
issuance of the writ of possession was only filed sometime in May
1988 although the right of redemption lapsed as early as May 7, 1983;
2. Appellant bank neither obtained physical possession of the
properties nor did they file any action for ejectment against the
plaintiffs-appellants; 3. On December 16, 1983, the plaintiffsappellants issued a check in favor of the appellant bank to effect the
75

release of TCT Nos. 36192, 36193, 36194 and 417012 which was
applied by appellant bank to the plaintiffs-appellants account and that
of the Galicias and; 4. Appellant bank executed a Deed of Absolute
Sale over TCT No. 79996 (formerly TCT No. 417012) on May 23,
1985 in favor of a certain Elsa Calusa Villanueva who thereafter sold it
back to the plaintiffs-appellants. Hence, the same ruling in the Barican
case should be applied, that is, the obligation of a court to issue a writ
of possession in favor of the purchaser in a foreclosure of mortgage
case ceases to be ministerial.
We agree with the petitioner. While indeed the two cases demonstrate
palpable similarities, the Court of Appeals overlooked essential
differences that would render the Barican doctrine inapplicable to the
instant case. In Barican, the issuance of the writ of possession was
deferred because a pending action for the declaration of ownership
over the foreclosed property was made by an adverse claimant who
was in possession of the subject property. Clearly, the rights of the
third parties, who are plaintiffs in the pending civil case, would be
adversely affected with the implementation of the writ.
In the instant case, the petitioner bank became the absolute owner of
the properties subject of the writ of possession, after they were
foreclosed, and titles thereto were consolidated in the name of the
bank. It sufficiently established its ownership over the parcels of land
subject of the writ of possession, by presenting in evidence the
Certificate of Sale,[22] Affidavit of Consolidation of Ownership,
[23] and copies of new TCTs of the foreclosed properties in the name
of the petitioner.[24] Unlike in Barican, the ownership of the foreclosed
properties are not open to question the ownership thereof being
established by competent evidence.
Moreover, as earlier pointed out by the petitioner, the parcels of land
subject of the writ of possession are different from those sold by the
petitioner bank to Jalbuena and Villanueva. Hence, unlike in the
Barican case, the implementation of the writ will not affect the rights of
innocent third persons.
On the issue of novation, the Court of Appeals held that novation
occurred when PSBank applied P1,000,000.00 of the P1,200,000.00
PCIB Check No. 002133 tendered by Maalac to the loan account of
the Galicias and the remaining P200,000.00 thereof to Maalacs
account. It held that when the bank applied the amount of the check in
accordance with the instructions contained therein, there was
novation of the previous mortgage of the properties. It further
observed that the bank was fully aware that the issuance of the check

was conditional hence, when it made the application thereof, it agreed

to be bound by the conditions imposed by Maalac.[25]
Novation is the extinguishment of an obligation by the substitution or
change of the obligation by a subsequent one which extinguishes or
modifies the first, either by changing the object or principal conditions,
or, by substituting another in place of the debtor, or by subrogating a
third person in the rights of the creditor. In order for novation to take
place, the concurrence of the following requisites is indispensable:
1. There must be a previous valid obligation,
2. There must be an agreement of the parties concerned to a new
contract,
3. There must be the extinguishment of the old contract, and
4. There must be the validity of the new contract.[26]
The elements of novation are patently lacking in the instant case.
Maalac tendered a check for P1,200,000.00 to PSBank for the release
of 4 parcels of land covered by TCT Nos. N-36192, 36193, and
36194, under the loan account of the Galicias and 417012 (now TCT
No. 79996) under the loan account of Maalac. However, while the
bank applied the tendered amount to the accounts as specified by
Maalac, it nevertheless refused to release the subject properties.
Instead, it issued a receipt with a notation that the acceptance of the
check is not a commitment on the part of the bank to release the 4
TCTs as requested by Maalac.
From the foregoing, it is obvious that there was no agreement to form
a new contract by novating the mortgage contracts of the Maalacs
and the Galicias. In accepting the check, the bank only acceded to
Maalacs instruction on whose loan accounts the proceeds shall be
applied but rejected the other condition that the 4 parcels of land be
released from mortgage. Clearly, there is no mutual consent to
replace the old mortgage contract with a new obligation. The
conflicting intention and acts of the parties underscore the absence of
any express disclosure or circumstances with which to deduce a clear
and unequivocal intent by the parties to novate the old agreement.
Novation is never presumed, and the animus novandi, whether totally
or partially, must appear by express agreement of the parties, or by
their acts that are too clear and unmistakable. The extinguishment of
the old obligation by the new one is a necessary element of novation,
which may be effected either expressly or impliedly. The term
"expressly" means that the contracting parties incontrovertibly
disclose that their object in executing the new contract is to extinguish
the old one. Upon the other hand, no specific form is required for an
76

implied novation, and all that is prescribed by law would be an

incompatibility between the two contracts. While there is really no
hard and fast rule to determine what might constitute to be a sufficient
change that can bring about novation, the touchstone for contrariety,
however, would be an irreconcilable incompatibility between the old
and the new obligations.[27]
A fortiori, 3 of the 4 properties sought to be released from mortgage,
namely, TCT Nos. N-36192, N-36193, and N-36194, have already
been sold by Maalac to Galicia and are now registered in the name of
the latter who thereafter mortgaged the same as security to a
separate loan they obtained from the bank. Thus, without the consent
of PSBank as the mortgagee bank, Maalac, not being a party to the
mortgage contract between the Galicias and the bank, cannot
demand much less impose upon the bank the release of the subject
properties. Unless there is a stipulation to the contrary, the release of
the mortgaged property can only be made upon the full satisfaction of
the loan obligation upon which the mortgage attaches. Unfortunately,
Maalac has not shown that the P1,000,000.00 was sufficient to cover
not only the accrued interests but also the entire indebtedness of the
Galicias to the bank.
Neither can Maalac be deemed substitute debtor within the
contemplation of Article 1293 of the Civil Code, which states that:
Art. 1293. Novation which consists in substituting a new debtor in the
place of the original one, may be made without the knowledge or
against the will of the latter, but not without the consent of the creditor.
Payment by the new debtor gives him the rights mentioned in articles
1236 and 1237.[28]
In order to change the person of the debtor, the old one must be
expressly released from the obligation, and the third person or new
debtor must assume the formers place in the relation. Novation is
never presumed. Consequently, that which arises from a purported
change in the person of the debtor must be clear and express. It is
thus incumbent on Maalac to show clearly and unequivocally that
novation has indeed taken place.[29] In Magdalena Estates Inc. v.
Rodriguez,[30] we held that the mere fact that the creditor receives a
guaranty or accepts payments from a third person who has agreed to
assume the obligation, when there is no agreement that the first
debtor shall be released from responsibility, does not constitute a
novation, and the creditor can still enforce the obligation against the
original debtor.

Maalac has not shown by competent evidence that they were

expressly taking the place of Galicia as debtor, or that the latter were
being released from their solidary obligation. Nor was it shown that
the obligation of the Galicias was being extinguished and replaced by
a new one. The existence of novation must be shown in clear and
unmistakable terms.
Likewise, we hold that Maalac cannot demand to repurchase the
foreclosed piece of land covered by TCT No. 417012 (now TCT No.
79996) from the bank. Its foreclosure and the consolidation of
ownership in favor of the bank and the resultant cancellation of
mortgage effectively cancelled the mortgage contract between Maalac
and the bank. Insofar as TCT No. 417012 is concerned, there is no
more existing mortgage to speak of. As the absolute owner of the
foreclosed property, the petitioner has the discretion to reject or
accept any offer to repurchase.
Granting arguendo that a new obligation was established with the
acceptance by the bank of the PCIB Check and its application to the
loan account of Maalac on the condition that TCT No. 417012 would
be released, this new obligation however could not supplant the
October 13, 1977 real estate mortgage executed by Maalac, which, by
all intents and purposes, is now a defunct and non-existent contract.
As mentioned earlier, novation cannot be presumed.
We however sustain the award of moral damages. While the bank had
the legal basis to withhold the release of the mortgaged properties,
nevertheless, it was not forthright and was lacking in candor in dealing
with Maalac. In accepting the PCIB Check, the bank knew fully well
that the payment was conditioned on its commitment to release the
specified properties. At the first instance, the bank should not have
accepted the check or returned the same had it intended beforehand
not to honor the request of Maalac. In accepting the check and
applying the proceeds thereof to the loan accounts of Maalac and
Galicia, the former were led to believe that the bank was favorably
acting on their request. In justifying the award of moral damages, the
Court of Appeals correctly observed that there is the unjustified refusal
of the appellant bank to make a definite commitment while profiting
from the proceeds of the check by applying it to the principal and the
interest of the Galicias and plaintiff-appellants.[31]
Moral damages are meant to compensate the claimant for any
physical suffering, mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, social humiliation and
similar injuries unjustly caused. Although incapable of pecuniary
77

estimation, the amount must somehow be proportional to and in

approximation of the suffering inflicted. Moral damages are not
punitive in nature and were never intended to enrich the claimant at
the expense of the defendant. There is no hard-and-fast rule in
determining what would be a fair and reasonable amount of moral
damages, since each case must be governed by its own peculiar
facts. Trial courts are given discretion in determining the amount, with
the limitation that it should not be palpably and scandalously
excessive. Indeed, it must be commensurate to the loss or injury
suffered.[32]
Respondent Rosita Maalac has adequately established the factual
basis for the award of moral damages when she testified that she
suffered mental anguish and social humiliation as a result of the
failure of the bank to release the subject properties or its failure to
return the check despite its refusal to make a definite commitment to
comply with the clearly-stated object of the payment.
Respondent Rodolfo Maalac however is not similarly entitled to moral
damages. The award of moral damages must be anchored on a clear
showing that he actually experienced mental anguish, besmirched
reputation, sleepless nights, wounded feelings or similar injury. There
was no better witness to this experience than respondent himself.
Since respondent Rodolfo Maalac failed to testify on the witness
stand, the trial court did not have any factual basis to award moral
damages to him.[33] Indeed, respondent Rodolfo Maalac should have
taken the witness stand and should have testified on the mental
anguish, serious anxiety, wounded feelings and other emotional and
mental suffering he purportedly suffered to sustain his claim for moral
damages. Mere allegations do not suffice; they must be substantiated
by clear and convincing proof.
Nevertheless, we find the award of P200,000.00 excessive and
unconscionable. As we said, moral damages are not intended to
enrich the complainant at the expense of the defendant. Rather, these
are awarded only to enable the injured party to obtain means,
diversions or amusements that will serve to alleviate the moral
suffering that resulted by reason of the defendants culpable action.
The purpose of such damages is essentially indemnity or reparation,
not punishment or correction. In other words, the award thereof is
aimed at a restoration within the limits of the possible, of the
spiritual status quo ante; therefore, it must always reasonably
approximate the extent of injury and be proportional to the wrong

committed.[34] The award of P50,000.00 as moral damages is

reasonable under the circumstances.[35]
WHEREFORE, the petition is GRANTED. The decision of the Court of
Appeals dated October 12, 2000 in CA-G.R. CV No. 50292 is
REVERSED and SET ASIDE. The petitioner Philippine Savings Bank
is DIRECTED to indemnify respondent Rosita P. Maalac in the amount
of P50,000.00 as moral damages. The Regional Trial Court of the City
of Pasig, Branch 161 is ORDERED to issue a writ of possession in
favor of Philippine Savings Bank. No costs.
Practice of Delegation to Clerk of Court
[G.R. No. L-23683. July 30, 1969.]
JUAN APURILLO, Petitioner, v. THE HONORABLE JUDGE
HONORATO GARCIANO, COURT OF FIRST INSTANCE OF LEYTE,
BRANCH VI, THE CLERK OF COURT, ANASTACIO AZCARRAGA,
and THE SHERIFF OF LEYTE, Respondents.
Zotico A. Tolete for Petitioner.
Solicitor General Arturo A . Alafriz & Solicitor Rosalio A. de Leon
for Respondents.
Anastacio G. Azcarraga for and in his own behalf as Respondent.
SYLLABUS
1. REMEDIAL. LAW; SPECIAL CIVIL ACTION; PROHIBITION, WHEN
AVAILABLE. Well settled is the rule that a writ of prohibition will not
issue, unless it appears that the party against whom it is sought has
acted without or in excess of jurisdiction or with grave abuse of
discretion, and that there is no appeal or any other plain, speedy and
adequate remedy in the ordinary course of law.
2. ID.; ID.; ID.; BASIS FOR CLAIM OF ABUSE OF DISCRETION.
The claim of abuse of discretion in order to be entertained, must show
that there was such a capricious and whimsical exercise of judgment,
78

equivalent to lack of jurisdiction. In other words, prohibition must be

issued only after the reviewing tribunal is convinced that the lower
court exercised its power in an arbitrary or despotic manner, by
reason of passion or personal hostility, which is so patent and gross
as would amount to an evasion, or to a virtual refusal to perform the
duty enjoined by law.
3. ID.; ID.; ID.; TRIAL BY COMMISSIONER; FAILURE TO MOVE TO
REVOKE REFERENCE TO COMMISSIONER CONSTITUTES
ACQUIESCENCE. Petitioners objection to the qualification of the
commissioner that he is not a handwriting expert cannot be
entertained now. For a party who desires to controvert the propriety of
a reference should move before the trial court for a revocation of the
reference, and failure to make such a motion is tantamount to
acquiescence, and the point cannot be initially raised before the
reviewing court on appeal.

6. ID.; ID.; REQUIREMENTS OF DUE PROCESS, COMPLIED.

"When the Court of Industrial Relations refers a case to a
commissioner for investigation, report and recommendation, and a
such investigation the parties are duly represented by counsel, heard
or at least given an opportunity to be heard, the requirements of due
process has been satisfied, even if the Court failed to set the report
for hearing. The decision on the basis of such report, with the other
evidence of the case, is a decision which meets the requirements of a
fair and open hearing." (Manila Trading and Supply Co. v. Phil. Labor
Union, 71 Phil. 539)
DECISION
ZALDIVAR, J.:

4. ID.; ID.; PROHIBITION; ESSENTIAL CONDITION FOR PETITION

FOR PROHIBITION; CASE AT BAR. The general rule applicable to
actions for prohibition, as in the special civil action for certiorari,
against a tribunal, board or officer, is that the aggrieved party must
first seek a reconsideration of the decision or order complained of, so
that the tribunal, board or officer will have an opportunity to correct the
error or mistake in the decision or order. An action for prohibition
would lie only in the absence of appeal, or any other plain, speedy
and adequate remedy in the ordinary course of law. Petitioner had still
the remedy of a motion for reconsideration which he did not avail of.
The circumstances of this case are such that the petitioner cannot be
exempted from the general rule that he should first seek a
reconsideration, as a plain and adequate remedy, available to him,
before he resorts to the special civil action of prohibition.
5. POLITICAL LAW; CONSTITUTIONAL LAW; DUE PROCESS OF
LAW, REQUISITES. "Due process is satisfied if the following
conditions are present: (1) there must be a court or tribunal clothed
with judicial power to hear and determine the matter before it; (2)
jurisdiction must be lawfully acquired over the person of the defendant
or over the property which is the subject of the proceeding; (3) the
defendant must be given an opportunity to be heard; and (4) judgment
must be rendered upon lawful hearing." (Macabingkil v. Yatco, L23174, Sept. 18, 1967)

Original action for prohibition.

In Criminal Case No. 1030 of the Court of First Instance of Leyte,
Branch VI, entitled "People of the Philippines, versus Conrado
Lawaan @ Dadoy Justisa, Et Al., Accused," respondent Judge issued
an order, dated April 20, 1964, confiscating the bond of accused
Conrado Lawaan because of the repeated failure of his bondsmen to
produce his person before the Court for the promulgation of the
judgment. 1 Petitioner appears to be one of said accuseds bondsmen
in fact, he admits that he was notified of the promulgation of
judgment. 2 Neither he nor the other bondsmen of accused Conrado
Lawaan challenged the order of confiscation. Execution on the bond
followed, and notice of attachment of the properties offered as bond
was furnished the petitioner and the other bondsmen. 3
Thereupon, Petitioner, alleging forgery of his signature on the bail
bond, filed with the court a quo a motion to be excluded as bondsman,
setting said motion for hearing on July 18, 1964. 4 On July 18, 1964
respondent Judge issued an order directing respondent Clerk of Court
to investigate the matter regarding the alleged forgery of petitioners
signature on the bail bond. By virtue of that order the Clerk of Court
forthwith sent by registered mail to herein petitioner Juan Apurillo, to
municipal judge Antonio Brillo before whom the bail bond appears to
79

have been subscribed and sworn to by the petitioner, and to

Wenceslao Yu, Martin Narido and Paciano Miralles, the other
bondsmen, a notice of the investigation to be conducted by him in his
office on July 29, 1964 at 8:00 a.m., attaching to the notice the said
order of the court.
Of those notified, only the petitioner and Judge Brillo appeared for the
investigation. 5 Both gave their respective testimonies, which were
reduced to writing in question-and-answer form and sworn to by them.
After the investigation, respondent Clerk of Court submitted to the
court a report of his findings, attaching thereto the sworn statements
of Judge Brillo and of the petitioner. 6 Acting upon the report of the
Clerk of Court, and on his "findings that the signature of the
bondsman Juan Apurillo is genuine as a result of his investigation of
the matter," respondent Judge, in an order dated August 13, 1964,
denied petitioners motion to be excluded as bondsman. 7
Without asking for the reconsideration of that order of August 13,
1964, petitioner filed with this Court the present action, alleging that in
denying his motion to be excluded as bondsman respondent Judge
acted with grave abuse of discretion for not affording him due process,
and that he is left without any plain, speedy and adequate remedy in
the ordinary course of law. 8 In his prayer, petitioner asks this Court to
issue a writ of prohibition ordering the respondents to desist from
further proceeding with the confiscation of petitioners property offered
as bond; to require the respondents to grant the petitioner a fair
hearing to determine the question of whether his signature was forged
or not; and for such other relief as may be just and equitable in the
premises. The petition was given due course by this Court and
ordered the issuance of a writ of injunction, prayed for, upon
petitioners posting of a bond in the sum of one thousand pesos
(P1,000.00). 9
Among the respondents, only the Clerk of Court filed an answer to the
petition. Subsequently, however, the Solicitor General, acting as
counsel for all the respondents and for the Republic of the Philippines,
filed a memorandum to amplify and further clarify respondents
position in addition to what have already been stated in the answer of
the Clerk of Court. 10 In said memorandum, the Solicitor General
submits that the petitioner was not denied due process of law and that
petitioners signature on the bail bond is not a forgery.

It is well settled that a writ of prohibition will not issue, unless it

appears that the party against whom it is sought has acted without or
in excess of jurisdiction or with grave abuse of discretion, and that
there is no appeal or any other plain, speedy and adequate remedy in
the ordinary course of law. 11 In the case at bar, the primary question
to be resolved is whether the respondent Judge had acted with grave
abuse of discretion, as claimed by petitioner, allegedly for not
affording him due process of law in denying his motion to be excluded
as bondsman. The order of denial, according to petitioner, was based
on the report of the Clerk of Court who, aside from making an arbitrary
finding without giving him an opportunity for a fair hearing, is not
competent to make a determination of the genuineness of the
signature in question because he is not a handwriting expert. 12
We find that petitioners claim that he was not afforded due process is
belied by the record, which shows the following: (1) the court, with
power to hear and determine the motion of the petitioner to be
excluded as bondsman, heard said motion on July 18, 1964; (2)
without abdicating its judicial power, the court, per order dated July
18, 1964, referred to the Clerk of Court, as Commissioner, for
investigation the matter regarding the alleged forgery of petitioners
signature on the bail bond; (3) petitioner was notified of the
investigation conducted by the Clerk of Court, first, by virtue of the
said order of the court, presumably during the hearing of the motion,
and second, by the notification sent by the Clerk of Court through
registered mail, to which notification the order of the court was
attached; (4) petitioner appeared before the Clerk of Court on July 29,
1964, the date set for the investigation, and presented his side,
testifying under oath and his statements were reduced to writing; (5)
during the investigation, petitioner had the opportunity to confront the
sole adverse witness, Judge Brillo, who testified that the bail bond
was subscribed and sworn to before him by the petitioner; (6) after the
investigation, the Clerk of Court submitted to the court his findings,
supported by the sworn declarations of the petitioner and of Judge
Brillo; (7) the respondent Judge, in resolving petitioners motion, took
into consideration the findings of the Clerk of Court and, presumably,
was guided by the expediente of Criminal Case No. 1030, more
particularly, the documents mentioned in the report as containing the
signatures of the petitioner (pp. 9-11, 77, 88 and 340). Indeed, with all
these circumstances disclosed by the record, it cannot be said that
80

the petitioner was not given "an opportunity for a fair hearing." We
hold that he was fully accorded due process of law.
"Due process is satisfied if the following conditions are present: (1)
there must be a court or tribunal clothed with judicial power to hear
and determine the matter before it; (2) jurisdiction must be lawfully
acquired over the person of the defendant or over the property which
is the subject of the proceeding; (3) the defendant must be given an
opportunity to be heard; and (4) judgment must be rendered upon
lawful hearing." 13
In order that the claim of abuse of discretion may be entertained, it
must be shown that there was such a capricious and whimsical
exercise of judgment, equivalent to lack of jurisdiction. In other words,
prohibition must be issued only after the reviewing tribunal shall have
convinced itself that the lower court has exercised its power in an
arbitrary or despotic manner, by reason of passion or personal
hostility, and it must be so patent and gross as would amount to an
evasion, or to a virtual refusal, to perform the duty enjoined by law. 14
In the case now before Us no act of respondent Judge may be
considered a capricious and whimsical exercise of judgment. On the
contrary, his actuations indicate that he had cautioned himself against
acting arbitrarily, despotically or whimsically. The procedure he
adopted, in referring to the Clerk of Court (as Commissioner) for
investigation the matter regarding the alleged forgery of petitioners
signature, is sanctioned by the Rules of Court. And his adoption in
toto of the findings of the Commissioner is allowed by said Rules. 15
We do not find anything irregular or illegal in the actuations of
respondent Judge, and of respondent Clerk of Court in his capacity as
commissioner.
Petitioners objection to the qualification of the commissioner that
he is not a handwriting expert cannot be entertained now. "A party
who desires to controvert the propriety of a reference should move
before the trial court for a revocation of the reference, and failure to
make such a motion is tantamount to acquiescence, and the point
cannot be initially raised before the reviewing court on appeal." 16
Equally without merit is petitioners claim that the proceeding was
tainted with irregularity because he was not given an opportunity to
object to the findings of the Commissioner. 17 Otherwise stated,

petitioner contends that there was non-observance of the procedure

prescribed by Sections 10 and 11 of Rule 33 of the Rules of Court,
that is, notice to the parties of the filing of the report of the
Commissioner and the setting of such report for hearing. In one case,
18 this Court dismissed such claim in this wise:jgc:chanrobles.com.ph
"Neither is there merit in the claim that there was irregularity in the
proceedings before the trial examiner due to the non-observance of
the procedure prescribed by Sections 10 and 11 of Rule 34 (now Rule
33) of the Rules of Court, that is, notice to the parties of the filing of
the report of a trial commissioner and the setting of such report for
hearing. In Manila Trading & Supply Co. v. Philippine Labor Union, 71
Phil. 539, it was held:chanrob1es virtual 1aw library
When the Court of Industrial Relations refers a case to a
commissioner for investigation, report and recommendation, and at
such investigation the parties are duly represented by counsel, heard
or at least given an opportunity to be heard, the requirements of due
process has been satisfied, even If the Court failed to set the report
for hearing, and a decision on the basis of such report, with the other
evidence of the case, is a decision which meets the requirements of a
fair and open hearing."
While the foregoing ruling was made in a case elevated to this Court
from the Court of Industrial Relations, in the proceedings of which the
Rules of Court have suppletory application, We find no legal bar to the
application of the principle evolved in said ruling to cases similarly
situated before the ordinary courts of justice.
One more thing. The general rule applicable to actions for prohibition,
as in the special civil action forcertiorari, against a tribunal, board or
officer, is that the aggrieved party must first seek a reconsideration of
the decision or order complained of, so that the tribunal, board or
officer will have an opportunity to correct the error or mistake in the
decision or order. 19 No such reconsideration was asked by petitioner
in the court below before filing the present action. An action for
prohibition would lie only in the absence of appeal, or any other plain,
speedy and adequate remedy in the ordinary course of law. Petitioner
had still the remedy of a motion for reconsideration which he did not
avail of. The circumstances of this case are such that petitioner
cannot be exempted from the general rule that he should first seek a
81

reconsideration, as a plain and adequate remedy, available to him,

before he resorts to the special civil action of prohibition.
DECISION
IN VIEW OF THE FOREGOING, the petition for prohibition should be,
and it is hereby, dismissed. Costs against the petitioner. It so ordered.
AVANCEA, C.J. :
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Sanchez, Castro,
Fernando, Capistrano, Teehankee and Barredo, JJ., concur.
Oath of Commissioner. (Sec. 4, Rule 32)
[G.R. No. 30711. September 26, 1929.]
PABLO PERLAS, Plaintiff-Appellant, v. ALFRED EHRMAN ET AL., as
Philippine trustees doing business under the name of CALAMBA
SUGAR ESTATE, and its manager L. WEINZHEIMER,DefendantsAppellees.
Emiliano Tria Tirona and Andres R. Faustino for Appellant.

This case has its origin in a milling contract between the plaintiff, as
producer of sugar cane, and the defendant, as a central engaged in
the milling thereof. At the hearing of the case, the parties, realizing
that the only question between them was one of accounts, asked the
court that it be submitted to the decision of three referees, one
appointed by each party and the third by the two members thus
chosen; that the decision of the majority be considered final and
binding upon the parties; that the case be decided by the court in
accordance with said report, and that its decision be final. The
majority of the referees submitted their report with one of them
dissenting, and the court, after further considering the evidence
presented to the referees, accepted the majority report and rendered
its decision in accordance therewith. An appeal was taken from this
decision.

Jose Yulo for Appellees.

SYLLABUS
1. REFEREES; REPORT OF MAJORITY; JUDGMENT IN
ACCORDANCE WITH SAME AND WITH EVIDENCE. The parties
having agreed that the decision of the majority of the referees
appointed in this cause in accordance with section 135 of the Code of
Civil Procedure, should be final and conclusive, and that the judgment
to be rendered by the court in accordance with said report should
likewise be final and conclusive, and the court having based its
judgment not only upon said report but also upon the very evidence
adduced before said referees, said judgment must be affirmed.
2. ID.; FAILURE OF REFEREES TO TAKE OATH. As the parties
did not raise the question of the referees failure to take the oath of
office, either before they proceeded with the hearing of the case or
before the court rendered judgment, this defect, if it be one, is a mere
irregularity which cannot vitiate the proceedings.

In the first place, the validity of the act of the referees is attacked
because two of them did not take the oath of office before discharging
their duty. It appears that this question of the failure of the two
referees to take the oath of office was not raised until the granting to
the appellant of the period within which to present his bill of
exceptions. Furthermore, in the absence of positive evidence that the
two referees did not take the oath of office, this defect is a mere
irregularity which cannot vitiate the proceedings, inasmuch as the
parties did not raise the question before the referees proceeded with
the hearing of the case, or before the court rendered its decision, but
only during the extension of time granted to present the bill of
exceptions.
It having been agreed by the parties that the opinion of the majority of
the referees should be final and conclusive, and that the decision of
the court in view of this report should likewise, be final, and, above all,
the courts decision having been based not only upon said report but
also upon the evidence itself adduced before said referees, the
82

judgment appealed from must be affirmed. We find no merit in the

other assignments of error in this instance.

Johnson, Street, Villamor, Johns, Romualdez and Villa-Real, JJ.,

concur.

The judgment appealed from is hereby affirmed, with costs against the
appellant. So ordered.

83