1
Rule 17 – Dismissal of Actions
Sec.1 Dismissal upon notice by plaintiff
Dael v. Spouses Beltran, G.R. No. 156470, April 30, 2008
Petition for review on certiorari under Rule 45 of the 1997 Rules of Civil
Procedure raising pure questions of law, and seeking a reversal of the Resolution dated
May 28, 2002 of the Regional Trial Court (RTC), Branch 34, Negros Oriental,
Dumaguete City, in Civil Case No. 13072, which dismissed with prejudice, petitioner’s
complaint for breach of contract and damages against the respondents. Also assailed is
the trial court’s Resolution dated December 5, 2002, denying petitioner’s motion for
reconsideration.
Petitioner's Claim:
1) Respondents’ non-disclosure of the extrajudicial foreclosure constituted
breach of contract on the implied warranties in a sale of property as provided under
Article 1547 of the New Civil Code.
2) He was entitled to damages because he had to pay for the property
twice.
Respondent's Action:
Filed a Motion to Dismiss on the ground that petitioner had no cause of
action since the contract to sell stated that the vendor was Benedicto Beltran and the
vendee was Frederick George Ghent Dael, not the petitioner.
Facts: On November 23, 2001, petitioner Frederick Dael filed before the RTC,
Branch 34, Negros Oriental, a Complaint for breach of contract and damages against
respondent-spouses Benedicto and Vilma Beltran. In his complaint, petitioner alleged
that respondents sold him a parcel of land covering three hectares located at
Palayuhan, Siaton, Negros Oriental and that respondents did not disclose that the land
was previously mortgaged.
On August 6, 2001, petitioner discovered that an extrajudicial foreclosure
over the property had already been instituted, and that he was constrained to bid in the
extrajudicial sale of the land conducted on August 29, 2001. Possession and
ownership of the property was delivered to him when he paid the bid price of P775,100.
Petitioner argued that respondents’ non-disclosure of the extrajudicial foreclosure
constituted breach of contract on the implied warranties in a sale of property as
provided under Article 1547 of the New Civil Code. He likewise claimed that he was
entitled to damages because he had to pay for the property twice.
On January 10, 2002, respondents filed a Motion to Dismiss on the ground
that petitioner had no cause of action since the contract to sell stated that the vendor
was Benedicto Beltran and the vendee was Frederick George Ghent Dael, not the
petitioner.
On February 12, 2002, in a hearing on the motion, Atty. Dirkie Y. Palma,
petitioner’s counsel, disclosed that petitioner is the father of Frederick George Ghent
Dael whose name appears as the contracting party in the Contract to Sell dated July
28, 2000. Atty. Palma moved to reset the hearing to enable the petitioner to withdraw
and have the complaint dismissed, amended, or to enter into a compromise agreement
with respondents.
The RTC on the same day ordered petitioner to clarify whether or not he and
Frederick George Ghent Dael were one and the same person; whether or not they were
Filipinos and residents of Dumaguete City; and whether or not Frederick George Ghent
Dael was of legal age, and married, as stated in the Contract to Sell. Petitioner did not
comply. Instead, he filed a Notice of Dismissal on February 20, 2002 but was dismissed
with prejudice on May 28,2002.
Arguing that the RTC erred in dismissing the complaint with prejudice based
on respondents’ Motion to Dismiss, and not without prejudice based on his Notice of
Dismissal, petitioner filed a Motion for Reconsideration but it was denied by the RTC in
a Resolution dated December 5, 2002.
Hence, this petition.
Issue: WON the RTC erred in dismissing the Complaint for Breach of Contract and
Damages based on the Motion to Dismiss filed by herein respondents and not on the
Notice of Dismissal promptly filed by herein petitioner before respondents could file a
responsive pleading under Rule 17, Section 1 of the 1997 Rules of Civil Procedure.
Arguments of:
Petitioner: Citing, Serrano v. Cabrera and Makabulo in his Memorandum,
argues that the 1997 Rules of Civil Procedure expressly states that before the
defendant has served his answer or moved for a summary judgment, he has, as a
matter of right, the prerogative to cause the dismissal of a civil action filed, and such
dismissal may be effected by a mere notice of dismissal. He further argues that such
dismissal is without prejudice, except (a) where the notice of dismissal so provides; (b)
where the plaintiff has previously dismissed the same case in a court of competent
jurisdiction; or (c) where the dismissal is premised on payment by the defendant of the
claim involved. He asserts it is the prerogative of the plaintiff to indicate if the Notice of
Dismissal filed is with or without prejudice and the RTC cannot exercise its own
discretion and dismiss the case with prejudice.
Respondent: On the other hand, respondents in their Memorandum,
counter that the RTC is correct in dismissing the case with prejudice based on their
Motion to Dismiss because they filed their motion on January 10, 2002, ahead of
petitioner who filed his Notice of Dismissal only on February 20, 2002. They further
argue that although it is correct that under the 1997 Rules of Civil Procedure a
complaint may be dismissed by the plaintiff by filing a notice of dismissal before service
of the answer or of a motion for summary judgment, the petitioner filed the Notice of
Dismissal only as an afterthought after he realized that the Motion to Dismiss was
meritorious.
Further, they point out that petitioner deceived the court when he filed the
action knowing fully well that he was not the real party-in-interest representing himself
as Frederick George Ghent Dael. Respondents also argue that petitioner’s recourse to
this Court by way of a petition for review on certiorari was not proper since the proper
remedy should have been to file an appeal of the order granting the Motion to Dismiss.
He contends that the petitioner should have appealed to the Court of Appeals under
Rule 41 instead of assailing the ruling of the RTC by way of a petition for review on
certiorari before the Supreme Court.
As to the propriety of dismissal of the complaint with prejudice, Section 1,
Rule 17 of the 1997 Rules of Civil Procedure provides:
SECTION 1. Dismissal upon notice by plaintiff. – A complaint
may be dismissed by the plaintiff by filing a notice of dismissal at
any time before service of the answer or of a motion for
summary judgment. Upon such notice being filed, the court
shall issue an order confirming the dismissal. Unless otherwise
stated in the notice, the dismissal is without prejudice,
except that a notice operates as an adjudication upon the merits
when filed by a plaintiff who has once dismissed in a competent
court an action based on or including the same claim.
Under this provision, it is mandatory that the trial court issue an
order confirming such dismissal and, unless otherwise stated in the notice,
the dismissal is without prejudice and could be accomplished by the plaintiff
through mere notice of dismissal, and not through motion subject to approval
by the court. Dismissal is ipso facto upon notice, and without prejudice
unless otherwise stated in the notice. The trial court has no choice but to
consider the complaint as dismissed, since the plaintiff may opt for such
dismissal as a matter of right, regardless of the ground.
Respondents argue that the Motion to Dismiss they filed
precedes the Notice of Dismissal filed by petitioner and hence, the trial court
correctly gave it precedence and ruled based on the motion.
Ruling: YES, Section 1 of Rule 17 does not encompass a Motion to Dismiss. The
provision specifically provides that a plaintiff may file a notice of dismissal before
service of the answer or a motion for summary judgment. Thus, upon the filing of the
Notice of Dismissal by the plaintiff, the Motion to Dismiss filed by respondents became
moot and academic and the trial court should have dismissed the case without
prejudice based on the Notice of Dismissal filed by the petitioner.
Moreover, to allow the case to be dismissed with prejudice would
erroneously result in res judicata and imply that petitioner can no longer file a case
against respondents without giving him a chance to present evidence to prove
otherwise.
Petitioner’s recourse to this Court by way of a petition for review on certiorari
under Rule 45 is proper. An order of dismissal, whether correct or not, is a final order. It
is not interlocutory because the proceedings were terminated; it leaves nothing more to
be done by the lower court. Therefore, the remedy of the plaintiff is to appeal the order.
Under the Rules of Court, a party may directly appeal to the Supreme Court from a
decision of the trial court only on pure questions of law.
WHEREFORE, the petition is GRANTED. The assailed Resolutions dated
May 28, 2002 and December 5, 2002 of the Regional Trial Court, Branch 34, Negros
Oriental are AFFIRMED with MODIFICATION such that the case is dismissed
without prejudice.
Rule 17
Sec. 1- DISMISSAL BY THE PLAINTIFF
G.R. No. L-58986 April 17, 1989
DANTE Y. GO vs. HON. FERNANDO CRUZ, Judge, etc., CITY SHERIFF OF
CALOOCAN CITY, and CALIFORNIA MANUFACTURING CO., INC.,
The dismissal of civil actions is always addressed to the sound judgment and
discretion of the court; this, (a) whether the dismissal is sought after a trial has been
completed or otherwise, (b) whether it is prayed for by a defending party , (c) or by a
plaintiff or claimant. There is one instance however where the dismissal of an action
rests exclusively on the will of a plaintiff or claimant, to prevent which the defending
party and even the court itself is powerless, requiring in fact no action whatever on the
part of the court except the acceptance and recording of the causative document. This is
dealt with in Section 1, Rule 17 of the Rules of Court, which reads as follows:
SECTION 1. Dismissal by the plaintiff. — An action may be
dismissed by the plaintiff without order of court by filing a notice
of dismissal at any time before service of the answer or of a
motion for summary judgment. Unless otherwise stated in the
notice, the dismissal is without prejudice, except that a notice
operates as an adjudication upon the merits when filed by a
plaintiff who has once dismissed in a competent court an action
based on or including the same claim. A class suit shall not be
dismissed or compromised without approval of the court.
FACTS:
On October 26, 1981, California Manufacturing Co., Inc. (hereinafter, simply, California)
brought an action in the Court of First Instance of Manila against Dante Go, accusing
him of unfair competition. [The gravamen of California's complaint was that Dante Go,
doing business under the name and style of "Sugarland International Products," and
engaged like California in the manufacture of spaghetti, macaroni, and other pasta was
selling his products in the open market under the brand name, "Great Italian," in
packages which were in colorable and deceitful imitation of California's containers
bearing its own brand, "Royal.”] Its complaint contained an application for preliminary
injunction commanding Dante Go to immediately cease and desist from the further
manufacture, sale and distribution of said products, and to retrieve those already being
offered for sale.
However, on November 12, 1981 (two weeks later), California filed a notice of dismissal
with the Court.
Four days afterwards, or on November 16, 1981, California received by registered mail
a copy of Dante Go's answer with counterclaim dated November 6, 1981, which had
been filed with the Court on November 9, 1981.
On November 19, 1981 a fire broke out at the Manila City Hall destroying among others
the sala of Judge Tengco and the records of cases therein kept, including that filed by
California against Dante Go.
On December 1, 1981, California filed another complaint asserting the same cause of
action against Dante Go, this time with the Court of First Instance at Caloocan City. This
second suit was docketed as Civil Case No. C-9702 and was assigned to the branch
presided over by Judge Fernando A. Cruz.
On December 3, 1981, Judge Cruz issued an ex parte restraining order directing "the
defendant ... to immediately cease and desist from the further manufacture, sale,
promotion and distribution of spaghetti, macaroni and other pasta products contained in
packaging boxes and labels under the name 'GREAT ITALIAN,' which are similar to or
copies of those of the plaintiff, and ... recall ... all his spaghetti, macaroni and other
pasta products using the brand, 'GREAT ITALIAN.'"
On the day following the rendition of the restraining order, Dante Go filed the present
petition for certiorari, etc. with this Court praying for its nullification and perpetual
inhibition. On December 11, 1981, this Court, in turn issued a writ of preliminary
injunction restraining California, Judge Cruz and the City Sheriff from enforcing or
implementing the restraining order of December 3, 1981, and from continuing with the
hearing on the application for preliminary injunction in said Civil Case No. C-9702. The
scope of the injunction was subsequently enlarged by this Court's Resolution of April
14,1982 to include the City Fiscal of Manila, who was thereby restrained from
proceeding with the case of unfair competition filed in his office by California against
Dante Go.
Dante Go's thesis is that the case filed against him by California in the Manila Court
remained pending despite California's notice of dismissal. According to him, since he
had already filed his answer to the complaint before California sought dismissal of the
action three (3) days afterwards, such dismissal was no longer a matter of right and
could no longer be effected by mere notice in accordance with Section 1, Rule 17 of the
Rules of Court, but only on plaintiff s motion, and by order of the Court; hence, the
Caloocan Court acted without jurisdiction over the second action based on the same

cause. He also accused California of forum shopping, of selecting a sympathetic court
for a relief which it had failed to obtain from another.
Issue:
Whether or not the first case filed before the Court of First Instance of Manila has been
validly dismissed upon filing of the Notice of Dismissal.
Ruling:
YES. What marks the loss by a plaintiff of the right to cause dismissal of the
action by mere notice is not the filing of the defendant's answer with the Court
(either personally or by mail) but the service on the plaintiff of said answer or of a
motion for summary judgment. This is the plain and explicit message of the
Rules. "The filing of pleadings, appearances, motions, notices, orders and other papers
with the court, according to Section 1, Rule 13 of the Rules of Court, means the delivery
thereof to the clerk of the court either personally or by registered mail. Service, on the
other hand, signifies delivery of the pleading or other paper to the parties affected
thereby through their counsel of record, unless delivery to the party himself is ordered
by the court, by any of the modes set forth in the Rules, i.e., by personal
service, service by mail, or substituted service.
Here, California filed its notice of dismissal of its action in the Manila Court after
the filing of Dante Go's answer but before service thereof. Thus having acted well
within the letter and contemplation of the afore-quoted Section 1 of Rule 17 of the
Rules of Court, its notice ipso facto brought about the dismissal of the action
then pending in the Manila Court, without need of any order or other action by the
Presiding Judge. The dismissal was effected without regard to whatever reasons or
motives California might have had for bringing it about, and was, as the same Section 1,
Rule 17 points out, "without prejudice," the contrary not being otherwise "stated in the
notice" and it being the first time the action was being so dismissed.
There was therefore no legal obstacle to the institution of the second action in the
Caloocan Court of First Instance based on the same claim. The filing of the complaint
invested it with jurisdiction of the subject matter or nature of the action. In truth, and
contrary to what petitioner Dante Go obviously believes, even if the first action were still
pending in the Manila Court, this circumstance would not affect the jurisdiction of the
Caloocan Court over the second suit. The pendency of the first action would merely give
the defendant the right to move to dismiss the second action on the ground of auter
action pendant or litis pendentia.
G.R. No. 188956 March 20, 2013
ARMED FORCES OF THE PHILIPPINES RETIREMENT AND SEPARATION
BENEFITS SYSTEM, Petitioner,
vs.
REPUBLIC OF THE PHILIPPINES, Respondent.
FACTS:
Petitioner created under Presidential Decree (P.D.) No. 361, 4 as amended, was
designed to establish a separate fund to guarantee continuous financial support to the
Armed Forces of the Philippines military retirement system as provided for in Republic
Act No. 340."5
Petitioner filed an Application for Registration of Title 6 over three parcels of land located
in West Bicutan, Taguig City, before the RTC of Pasig City. These three parcels of land
constitute a land grant by virtue of Presidential Proclamation No. 1218, issued by former
President Fidel V. Ramos on May 8, 1998.7
The application was filed by Mr. Honorio S. Azcueta (Mr. Azcueta), the then Executive
Vice President and Chief Operating Officer of the petitioner, who was duly authorized to
do so by the Board of Trustees of the petitioner, as evidenced by a notarized Secretary’s
Certificate8 dated August 18, 2003.
After due posting and publication of the requisite notices, the court a quo issued an
order of general default against the whole world, and the petitioner was allowed to
present evidence ex-parte.9
The petitioner then presented as its witness, Ms. Alma P. Aban (Ms. Aban), its Vice
President and Head of its Asset Enhancement Office. She testified, inter alia, that:
among her main duties is to ensure that the properties and assets of petitioner,
especially real property, are legally titled and freed of liens and encumbrances; the
subject properties were acquired by the petitioner through a land grant under
Presidential Proclamation No. 1218; prior to Presidential Proclamation No. 1218, the
Republic of the Philippines was in open, continuous, exclusive, notorious, and peaceful
possession and occupation of the subject properties in the concept of an owner to the
exclusion of the world since time immemorial; petitioner, after the Republic of the
Philippines transferred ownership of the subject properties to it, assumed open,
continuous, exclusive, notorious, and peaceful possession and occupation, and
exercised control over them in the concept of owner, and likewise assumed the
obligations of an owner; petitioner has been paying the real estate taxes on the subject
properties; and the subject properties are not mortgaged, encumbered, or tenanted. 10
Finding the Petition meritorious, the Court DECLARES, CONFIRMS AND ORDERS the
registration of AFPRSBS’ title thereto.
In response, the Office of the Solicitor General (OSG) filed a Motion for Reconsideration
arguing that the petitioner failed to prove that it has personality to own property in its
name and the petitioner failed to show that the witness it presented was duly authorized
to appear for and in its behalf.
The court a quo dismissed the Application for Registration upon motion of the OSG.
ISSUE:
Whether the court a quo acted contrary to law and jurisprudence when it dismissed
petitioner’s application for land registration on the ground that petitioner failed to
prosecute the subject case?
HELD:
We answer in the affirmative.
Section 3, Rule 17 of the 1997 Rules of Civil Procedure, as amended, provides only
three instances wherein the Court may dismiss a case for failure to prosecute:
Sec. 3. Dismissal due to fault of plaintiff.–If, for no justifiable cause, the plaintiff fails to
appear on the date of the presentation of his evidence in chief on the complaint, or to
prosecute his action for an unreasonable length of time, or to comply with these Rules
or any order of the court, the complaint may be dismissed upon motion of the defendant
or upon the court’s own motion, without prejudice to the right of the defendant to
prosecute his counterclaim in the same or in a separate action. This dismissal shall
have the effect of an adjudication upon the merits, unless otherwise declared by the
court.
Jurisprudence has elucidated on this matter in De Knecht v. CA: 18
An action may be dismissed for failure to prosecute in any of the following instances: (1)
if the plaintiff fails to appear at the time of trial; or (2) if he fails to prosecute the action
for an unreasonable length of time; or (3) if he fails to comply with the Rules of Court or
any order of the court. Once a case is dismissed for failure to prosecute, this has the
effect of an adjudication on the merits and is understood to be with prejudice to the filing
of another action unless otherwise provided in the order of dismissal. In other words,
unless there be a qualification in the order of dismissal that it is without prejudice, the
dismissal should be regarded as an adjudication on the merits and is with prejudice.
(Emphasis supplied.)
Clearly, the court a quo’s basis for pronouncing that the petitioner failed to prosecute its
case is not among those grounds provided by the Rules.
2
There was no basis for the court a quo’s ruling that the petitioner failed to prosecute the
subject case, because none of the grounds provided in the Rules for dismissing a case
due to failure to prosecute is present. That the RTC dismissed the application for land
registration of the petitioner for failure to prosecute after the petitioner presented all its
evidence and after said court has rendered a decision in its favor, is highly irregular.
There is no substantive or procedural rule which requires a witness for a party to
present some form of authorization to testify as a witness for the party presenting him or
her. No law or jurisprudence would support the conclusion that such omission can be
considered as a failure to prosecute on the part of the party presenting such witness. All
that the Rules require of a witness is that the witness possesses all the qualifications
and none of the disqualifications provided therein. Rule 130 of the Rules on Evidence
provides:
SEC. 20. Witnesses; their qualifications.–Except as provided in the next succeeding
section, all persons who can perceive, and perceiving, can make known their perception
to others, may be witnesses.
xxxx
Cavili v. Judge Florendo20 speaks of the disqualifications:
Sections 19 and 20 of Rule 130 provide for specific disqualifications.1âwphi1 Section 19
disqualifies those who are mentally incapacitated and children whose tender age or
immaturity renders them incapable of being witnesses. Section 20 provides for
disqualification based on conflicts of interest or on relationship. Section 21 provides for
disqualifications based on privileged communications. Section 15 of Rule 132 may not
be a rule on disqualification of witnesses but it states the grounds when a witness may
be impeached by the party against whom he was called.
x x x The specific enumeration of disqualified witnesses excludes the operation of
causes of disability other than those mentioned in the Rules. It is a maxim of recognized
utility and merit in the construction of statutes that an express exception, exemption, or
saving clause excludes other exceptions. (In Re Estate of Enriquez, 29 Phil. 167) As a
general rule, where there are express exceptions these comprise the only limitations on
the operation of a statute and no other exception will be implied. (Sutherland on
Statutory Construction, Fourth Edition, Vol. 2A, p. 90) The Rules should not be
interpreted to include an exception not embodied therein. (Emphasis supplied.)
A reading of the pertinent law and jurisprudence would show that Ms. Aban is qualified
to testify as a witness for the petitioner since she possesses the qualifications of being
able to perceive and being able to make her perceptions known to others. Furthermore,
she possesses none of the disqualifications described above.
The RTC clearly erred in ordering the dismissal of the subject application for land
registration for failure to prosecute because petitioner’s witness did not possess an
authorization to testify on behalf of petitioner. The court a quo also erred when it
concluded that the subject case was not prosecuted by a duly authorized representative
of the petitioner. The OSG and the court a quo did not question the
Verification/Certification21 of the application, and neither did they question the authority
of Mr. Azcueta to file the subject application on behalf of the petitioner. Case records
would reveal that the application was signed and filed by Mr. Azcueta in his capacity as
the Executive Vice President and Chief Operating Officer of the petitioner, as authorized
by petitioner’s Board of Trustees. 22 The authority of Mr. Azcueta to file the subject
application was established by a Secretary’s Certificate 23 attached to the said
application. The asseveration that the subject case was not prosecuted by a duly
authorized representative of the petitioner is thus unfounded.
Philippine Charter Insurance Corporation vs. Explorer Maritime Co.
FACTS:
Petitioner Philippine Charter Insurance Corporation (PCIC), as insurer-
subrogee, filed with the RTC of Manila a Complaint against respondents, to wit: the
unknown owner of the vessel M/V "Explorer" (common carrier), Wallem
Philippines Shipping, Inc. (ship agent), Asian Terminals, Inc. (arrastre), and
Foremost International Port Services, Inc. (broker). PCIC sought to recover from the
respondents the sum of P342,605.50, allegedly representing the value of lost or
damaged shipment paid to the insured, interest and attorney's fees. On the same date,
PCIC filed a similar case against respondents Wallem Philippines Shipping, Inc.,
Asian Terminals, Inc., and Foremost International Port Services, Inc., but, this time,
the fourth defendant is "the unknown owner of the vessel M/V "Taygetus."
Respondents filed their respective answers with counterclaims. PCIC later
filed its answer to the counterclaims. PCIC filed an ex parte motion to set the case for
pre-trial conference, which was granted by the trial court. However, before the
scheduled date of the pre-trial conference, PCIC filed an Amended Complaint. The
"Unknown Owner" of the vessel M/V "Explorer" and Asian Terminals, Inc. filed anew
their respective answers with counterclaims.
Foremost International Port Services, Inc. filed a Motion to Dismiss, which
was later denied by the trial court. On December 5, 2000, respondent common carrier,
"the Unknown Owner" of the vessel M/V "Explorer," and Wallem Philippines Shipping,
Inc. filed a Motion to Dismiss on the ground that PCIC failed to prosecute its action
for an unreasonable length of time. PCIC allegedly filed its Opposition, claiming that
the trial court has not yet acted on its Motion to Disclose which it purportedly filed on
November 19, 1997. In said motion, PCIC supposedly prayed for the trial court to order
respondent Wallem Philippines Shipping, Inc. to disclose the true identity and
whereabouts of defendant "Unknown Owner of the Vessel M/V 'Explorer.'" In said
motion, PCIC supposedly prayed for the trial court to order respondent Wallem
Philippines Shipping, Inc. to disclose the true identity and whereabouts of defendant
"Unknown Owner of the Vessel M/V 'Explorer.'"
The Trial Court dismissed the case for failure of petitioner to prosecute for
an unreasonable length of time. Upon receipt of the order of dismissal, PCIC allegedly
realized that its Motion to Disclose was inadvertently filed with Branch 38 of the RTC of
Manila, where the similar case involving the vessel M/V “Taygetus” was raffled to, and
not with Branch 37, where the present case was pending.
Thus, PCIC filed a Motion for Reconsideration explaining that its Motion to
Disclose was erroneously filed with Branch 38. PCIC claimed that the mistake stemmed
from the confusion created by an error of the docket section of the RTC of Manila in
stamping the same docket number to the simultaneously filed cases. According to PCIC,
it believed that it was still premature to move for the setting of the pre-trial conference
with the Motion to Disclose still pending resolution. The Motion for Reconsideration was
denied.
On appeal, the CA affirmed the Order of the RTC. The MR filed by PCIC was
also denied. Hence, this Petition for Review on Certiorari.
ISSUES: Whether or not dismissal was due to the fault of the plaintiff
RULING: YES. On June 27, 2007, this Court required the counsel of the "Unknown
Owner" of the vessel M/V Explorer and Wallem Philippines Shipping, Inc. to submit
proof of identification of the owner of said vessel. On September 17, 2007, this Court,
pursuant to the information provided by Wallem Philippines Shipping, Inc., directed its

Division Clerk of Court to change "Unknown Owner" to "Explorer Maritime Co., Ltd." in
the title of this case.
In affirming the dismissal of Civil Case No. 95-73340, the Court of Appeals
held that PCIC should have filed a motion to resolve the Motion to Disclose after a
reasonable time from its alleged erroneous filing. PCIC could have also followed up
the status of the case by making inquiries on the court's action on their motion,
instead of just waiting for any resolution from the court for more than three years.
The appellate court likewise noted that the Motion to Disclose was not the only
erroneous filing done by PCIC's former counsel, the Linsangan Law Office. The records
of the case at bar show that on November 16, 1997, said law office filed with Branch 37
a Pre-trial Brief for the case captioned as "Philippine Charter Insurance Corporation v.
Unknown Owners of the Vessel MV 'Taygetus', et al., Civil Case No. 95-73340." The firm
later filed a Manifestation and Motion stating that the same was intended for Civil Case
No. 95-73341 which was pending before Branch 38. All these considered, the Court of
Appeals ruled that PCIC must bear the consequences of its counsel's inaction and
negligence, as well as its own.
PCIC claims that the merits of its case warrant that it not be decided on technicalities.
Furthermore, PCIC claims that its former counsel merely committed excusable
negligence when it erroneously filed the Motion to Disclose with the wrong branch of the
court where the case is pending.
The basis for the dismissal by the trial court of Civil Case No. 95-73340 is Section 3,
Rule 17 and Section 1, Rule 18 of the Rules of Court, which respectively provide:
Section 3. Dismissal due to the fault of the plaintiff. — If, for no
justifiable cause, the plaintiff fails to appear on the date of the presentation
of his evidence in chief on the complaint, or to prosecute his action for an
unreasonable length of time, or to comply with these Rules or any order of
the court, the complaint may be dismissed upon motion of the defendant or
upon the court's own motion, without prejudice to the right of the defendant
to prosecute his counterclaim in the same or in a separate action. This
dismissal shall have the effect of adjudication upon the merits, unless
otherwise declared by the court.
xxx xxx xxx
Section 1. When conducted. — After the last pleading has been
served and filed, it shall be the duty of the plaintiff to promptly move ex parte
that the case be set for pre-trial.
In the fairly recent case of Espiritu v. Lazaro in affirming the dismissal of a case for
failure to prosecute on account of the omission of the plaintiff therein to move to set the
case for pre-trial for almost one year from their receipt of the Answer, issued several
guidelines in effecting such dismissal:
Respondents Lazaro filed the Cautionary Answer with Manifestation and
Motion to File a Supplemental/Amended Answer on July 19, 2002, a copy of
which was received by petitioners on August 5, 2002. Believing that the
pending motion had to be resolved first, petitioners waited for the court to act
on the motion to file a supplemental answer. Despite the lapse of almost
one year, petitioners kept on waiting, without doing anything to stir the court
into action.
In any case, petitioners should not have waited for the court to act on the
motion to file a supplemental answer or for the defendants to file a
supplemental answer. As previously stated, the rule clearly states that the
case must be set for pre-trial after the last pleading is served and filed. Since
respondents already filed a cautionary answer and [petitioners did not file
any reply to it] the case was already ripe for pre-trial.
It bears stressing that the sanction of dismissal may be imposed even
absent any allegation and proof of the plaintiff's lack of interest to
prosecute the action, or of any prejudice to the defendant resulting
from the failure of the plaintiff to comply with the rules. The failure of
the plaintiff to prosecute the action without any justifiable cause within
a reasonable period of time will give rise to the presumption that he is
no longer interested in obtaining the relief prayed for.
In this case, there was no justifiable reason for petitioners' failure to file a
motion to set the case for pre-trial. Petitioners' stubborn insistence that the
case was not yet ripe for pre-trial is erroneous. Although petitioners state
that there are strong and compelling reasons justifying a liberal application
of the rule, the Court finds none in this case. The burden to show that
there are compelling reasons that would make a dismissal of the case
unjustified is on petitioners, and they have not adduced any such
compelling reason. (Emphases supplied.)
In the case at bar, the alleged Motion to Disclose was filed on November 19, 1997.
Respondents filed the Motion to Dismiss on December 5, 2000. By that time, PCIC's
inaction was thus already almost three years. There is therefore no question that the
failure to prosecute in the case at bar was for an unreasonable length of time.
Consequently, the Complaint may be dismissed even absent any allegation and proof of
the plaintiff's lack of interest to prosecute the action, or of any prejudice to the defendant
resulting from the failure of the plaintiff to comply with the rules. The burden is now on
PCIC to show that there are compelling reasons that would render the dismissal of the
case unjustified.
-petition is denied
REPUBLIC V. ENRIQUEZ
FACTS:
On 23 July 1987, the Republic of the Philippines (Republic), represented by the
Presidential Commission on Good Government (PCGG) and the Office of the Solicitor
General (OSG), filed a Complaint against respondents. Docketed as Civil Case No.
0014, this civil action sought the recovery of ill-gotten wealth from respondents for the
benefit of the Republic. Allegedly, these properties were illegally obtained during the
reign of former President Ferdinand E. Marcos and, hence, were the subject of
sequestration orders.Thereafter, Civil Case No. 0014 went through a series of inclusions
of individual defendants and defendant corporations. As a result, respondents finished
filing their separate Answers eight years later, or in 1995.
In May 1996, some of the defendant corporations filed motions for dismissal. Six years
thereafter, the Sandiganbayan resolved the motions. It ruled in favor of defendant
corporations and lifted the sequestration orders against them.2
Aggrieved, the Republic filed a Petition for Certiorari3 before this
Court on 23 August 2002. Docketed as G.R. No. 154560,4 the Rule 65 petition
3
questioned the lifting of the sequestration orders against defendant corporations.
With these two cases at bay, the counsels for the Republic divided their responsibilities
as follows: Special PCGG Counsel Maria Flora A. Falcon (Falcon) attended to Civil
Case No. 0014, while OSG Senior State Solicitor Derek R. Puertollano (Puertollano)
handled G.R. No. 154560.
After receiving the Answers, the Sandiganbayan scheduled pretrial dates for Civil Case
No. 0014. However, the court failed to conduct pretrial hearings from 2002 to 2007. For
five years, it reset the hearings in view of the pending incidents, which included G.R. No.
154560, and because the case "was not yet ripe for a pretrial conference."5
On 28 June 2007, Civil Case No. 0014 was called for the initial presentation of plaintiff's
evidence, but the proceedings did not push through. Finally, two decades after the
inception of the case, both parties moved to set the pretrial and trial hearings on 1, 2,
29, and 30 October 2007. The Sandiganbayan granted their motions in this wise:6
When this case was called for initial presentation of plaintiff's evidence, both parties
moved for postponement. In the interim, the contract of Falcon with the PCGG
terminated on 1 July 2007.8 Through a letter dated 21 September 2007, she informed
Puertollano that she was no longer connected with the PCGG. She also turned over to
him the records of Civil Case.9 However, Puertollano belatedly received the letter on 8
October 2007. For all he knew, Falcon had attended the hearings prior to that date,
while he was pursuing G.R. No. 154560.
Thus, on 1 October 2007, no representative appeared on behalf of petitioner.
Consequently, the Sandiganbayan issued its 1 October 2007 Order dismissing the case
without prejudice. The court ruled thus:10
On motion of Atty. Nini Priscilla D. Sison-Ledesma for the dismissal of this case, since
plaintiff's counsel failed to appear despite due notice and there was no representative
from the plaintiff, this case is ordered DISMISSED without prejudice. However The OSG
belatedly learned the dismissal of the of Civil Case No. 0014. Petitioner brought to the
Sandiganbayan's attention the fact that Falcon, who was assigned to Civil Case No.
0014, had diligently attended to the civil action. But since she was no longer connected
to the PCGG, and given that the OSG only learned of this circumstance seven days
after the hearing on 1 October 2007, counsels for petitioner failed to appear during the
hearing.17
Hence, petitioner comes before this Court to seek the reinstatement of the 26-year-old
case. Therefore, this Court is tasked to resolve the two issues raised by petitioner as
follow
ISSUE:
I. Whether the Sandiganbayan gravely erred in dismissing Civil Case No. 0014 for the
failure of petitioner to appear during the hearing.
RULING:
This Court rules in favor of the Republic.
As worded, Rule 17, Section 3 of the Rules of Court, provides that the court may
dismiss a complaint in case there are no justifiable reasons that explain the plaintiff's
absence during the presentation of the evidence in chief. Generally speaking, the use of
"may" denotes its directory nature,20 especially if used in remedial statutes that are
known to be construed liberally. Thus, the word "may" in Rule 17, Section 3 of the Rules
of Court, operates to confer on the court the discretion21 to decide between the
dismissal of the case on technicality vis-à-vis the progressive prosecution thereof.
In Perez v. Perez, we held thus:
The records show that every time the case was set for hearing, the plaintiffs and their
counsel had always been present; however, the scheduled hearings were either
cancelled by the court motu propio and/or postponed by agreement of the parties, until
the case was eventually set for trial on the merits on February 15, 1967. It was only at
this hearing where the plaintiffs and their counsel failed to appear, prompting the court to
issue its controversial order of dismissal. Considering that it was the first time that the
plaintiffs failed to appear and the added fact that the trial on the merits had not as yet
commenced, We believe that it would have been more in consonance with the essence
of justice and fairness for the court to have postponed the hearing on February 15,
1967.
We are not unmindful of the fact that the matter of adjournment and postponement of
trials is within the sound discretion of the court; but such discretion should always be
predicated on the consideration that more than the mere convenience of the courts or of
the parties in the case, the ends of justice and fairness should be served thereby.
Postponements and continuances are part and parcel of our procedural system of
dispensing justice.
in this case no substantial rights are affected and the intention to delay is not manifest, it
is sound judicial discretion to allow them.
This Court further considers that based on the records, the contract of the handling
lawyer, Falcon, with the PCGG terminated without the knowledge of Puertollano. After
Falcon's resignation, it was only on 5 October 2007 that the case was transferred to the
new lawyer. These facts then explain the nonattendance of petitioner on 1 October
2007, and why it failed to keep abreast with the succeeding 2, 29, and 30 October 2007
hearings.
Moreover, this Court understands the absence of Puertollano in Civil Case No. 0014.
The OSG has explained that he attends to G.R. 154560, as the main case has been
delegated to the PCGG. We find this arrangement sensible, given that case
management is needed to tackle this sensitive case involving a number of high-profile
parties, sensitive issues and, of course, numerous offshoots and incidents.
Here, we find it incongruous to tip the balance of the scale in favor of a technicality that
would result in a complete restart of the 26-year-old civil case back to square one.
Surely, this Court cannot waste the progress of the civil case from the institution of the
complaint to the point of reaching the trial stage. Not only would this stance dry up the
resources of the government and the private parties, but it would also compromise the
preservation of the evidence needed by them to move forward with their respective
cases. Thus, to prevent a miscarriage of justice in its truest sense, and considering the
exceptional and special history of Civil Case No. 0014, this Court applies a liberal
construction of the Rules of Court.1âwphi1
Every party-litigant must be afforded the amplest opportunity for the proper and just
determination of its cause.26"Adventitious resort to technicality resulting in the dismissal
of cases is disfavored because litigations must as much as possible be decided on the
merits and not on technicalities."27 Inconsiderate dismissals, even if without prejudice to
its refiling as in this case, merely postpone the ultimate reckoning between the parties.
In the absence of a clear intention to delay, justice is better served by a brief
continuance, trial on the merits, and final disposition of the case before the court.28
IN VIEW THEREOF, the 11 March 2008 Petition for Review on Certiorari filed by
petitioner is GRANTED. The 1 October 2007 Order and 25 January 2008 Resolution of
the Sandiganbayan (Second Division) are REVERSED. Consequently, Civil Case No.
0014 is hereby REINSTATED.
G.R. No. 210252 June 16, 2014
VILMA QUINTOS, represented by her Attorney-in-Fact FIDEL I. QUINTOS, JR.;
FLORENCIA I. DANCEL, represented by her Attorney-in-Fact FLOVY I. DANCEL;
and CATALINO L. IBARRA, Petitioners,
vs.
PELAGIA I. NICOLAS, NOLI L. IBARRA, SANTIAGO L. IBARRA, PEDRO L.
IBARRA, DAVID L. IBARRA, GILBERTO L. IBARRA, HEIRS OF AUGUSTO L.
IBARRA, namely CONCHITA R., IBARRA, APOLONIO IBARRA, and NARCISO

IBARRA, and the spouses RECTO CANDELARIO and ROSEMARIE
CANDELARIO,Respondents.
Facts:
Petitioners Vilma Quintos, Florencia Dancel, and Catalino Ibarra, and
respondents Pelagia Nicolas, Noli Ibarra, Santiago Ibarra, Pedro Ibarra, David Ibarra,
Gilberto Ibarra, and the late Augusto Ibarra are siblings. Their parents, Bienvenido and
Escolastica Ibarra, were the owners of a parcel of land situated along Quezon Ave.,
Poblacion C, Camiling, Tarlac, covered by Transfer Certificate Title (TCT) No. 318717.
By 1999, both Bienvenido and Escolastica had already passed away, leaving
to their ten (10) children ownership over the subject property.
Subsequently, sometime in 2002, respondent siblings brought an action for
partition against petitioners. The case was raffled to the RTC, Branch 68, Camiling,
Tarlac. However, the trial court dismissed the case for failure of the parties, as well as
their counsels, to appear despite due notice.
As neither set of parties appealed, the ruling of the trial court became final,
as evidenced by a Certificate of Finality it eventually issued on August 22, 2008.
Having failed to secure a favorable decision for partition, respondent siblings
instead resorted to executing a Deed of Adjudication to transfer the property in favor of
the ten (10) siblings. As a result, TCT No. 318717 was canceled and in lieu thereof, TCT
No. 390484 was issued in its place by the Registry of Deeds of Tarlac in the names of
the ten (10) heirs of the Ibarra spouses.
Subsequently, respondent siblings sold their 7/10 undivided share over the
property in favor of their co-respondents, the spouses Recto and Rosemarie Candelario.
By virtue of a Deed of Absolute Sale executed in favor of the spouses Candelario and
an Agreement of Subdivision purportedly executed by them and petitioners, TCT No.
390484 was partially canceled and TCT No. 434304 was issued in the name of the
Candelarios, covering the 7/10portion.
Petitioners filed a complaint for Quieting of Title and Damages against
respondents alleging that during their parents’ lifetime, the couple distributed their real
and personal properties in favor of their ten (10) children. Upon distribution, they
received the subject property and the house constructed thereon as their share. They
likewise averred that they have been in adverse, open, continuous, and uninterrupted
possession of the property for over four (4) decades and are, thus, entitled to equitable
title thereto.
Respondents countered that petitioners’ cause of action was already barred
by estoppel when one of petitioners offered to buy the 7/10 undivided share of the
respondent siblings. They point out that this is an admission on the part of petitioners
that the property is not entirely theirs. Respondents sought, by way of counterclaim, the
partition of the property.
The quieting of title case was eventually raffled to Branch 68 of the court.
During pre-trial, respondents, or defendants a quo, admitted having filed an action for
partition, that petitioners did not participate in the Deed of Adjudication that served as
the basis for the issuance of TCT No. 390484, and that the Agreement of Subdivision
that led to the issuance of TCT No. 434304 in favor of respondent spouses Candelario
was falsified. Despite the admissions of respondents, however, the RTC dismissed
petitioners’ complaint. The court declared spouses Candelario as the absolute owners of
the 7/10 portion of the subject lot and ordered the partition of the subject lots between
the herein plaintiffs and the defendants-spouses Candelarios.
Aggrieved, petitioners appealed the trial court’s decision to the CA, pleading
the same allegations they averred in their underlying complaint for quieting of title.
However, they added that the partition should no longer be allowed since it is already
barred by res judicata, respondent siblings having already filed a case for partition that
was dismissed with finality, as admitted by respondents themselves during pre-trial.
The CA affirmed the Decision of the Regional Trial Court. Petitioners’
Motion for Reconsideration was likewise denied. Hence, the instant petition.
Issue:
Whether or not the respondents’ counterclaim for partition is already barred by res
judicata.
Ruling:
No. The counterclaim for partition is not barred by prior judgment. In their
answer to the counterclaim, petitioners countered that the action for partition has
already been barred by res judicata.
The doctrine of res judicata provides that the judgment in a first case is final
as to the claim or demand in controversy, between the parties and those privy with
them, not only as to every matter which was offered and received to sustain or defeat
the claim or demand, but as to any other admissible matter which must have been
offered for that purpose and all matters that could have been adjudged in that case. It
precludes parties from relitigating issues actually litigated and determined by a prior and
final judgment.
As held in Yusingco v. Ong Hing Lian:
It is a rule pervading every well-regulated system of jurisprudence, and is
put upon two grounds embodied in various maxims of the common law; the one, public
policy and necessity, which makes it to the interest of the state that there should be an
end to litigation — republicae ut sit finis litium; the other, the hardship on the individual
that he should be vexed twice for the same cause — nemo debet bis vexari et eadem
causa. A contrary doctrine would subject the public peace and quiet to the will and
neglect of individuals and prefer the gratitude identification of a litigious disposition on
the part of suitors to the preservation of the public tranquility and happiness.
The rationale for this principle is that a party should not be vexed twice
concerning the same cause. Indeed, res judicata is a fundamental concept in the
organization of every jural society, for not only does it ward off endless litigation, it
ensures the stability of judgment and guards against inconsistent decisions on the same
set of facts.
There is res judicata when the following requisites are present: ( 1) the
formal judgment or order must be final; ( 2) it must be a judgment or order on the
merits, that is, it was rendered after a consideration of the evidence or
stipulations submitted by the parties at the trial of the case; ( 3) it must have been
rendered by a court having jurisdiction over the subject matter and the parties;
and (4) there must be, between the first and second actions, identity of parties, of
subject matter and of cause of action.
In the case at bar, respondent siblings admit that they filed an action for
partition docketed as Civil Case No. 02-52, which the RTC dismissed through an Order
dated March 22, 2004 for the failure of the parties to attend the scheduled hearings.
Respondents likewise admitted that since they no longer appealed the dismissal, the
ruling attained finality. Moreover, it cannot be disputed that the subject property in Civil
Case No. 02-52 and in the present controversy are one and the same, and that in both
cases, respondents raise the same action for partition. And lastly, although respondent
spouses Candelario were not party-litigants in the earlier case for partition, there is
identity of parties not only when the parties in the case are the same, but also between
those in privity with them, such as between their successors-in-interest.
4
With all the other elements present, what is left to be determined now is
whether or not the dismissal of Civil case No. 02-52 operated as a dismissal on the
merits that would complete the requirements of res judicata.
In advancing their claim, petitioners cite Rule 17, Sec. 3 of the Rules of
Court, to wit:
Section 3. Dismissal due to fault of plaintiff. — If, for no justifiable cause, the
plaintiff fails to appear on the date of the presentation of his evidence in chief on
the complaint, or to prosecute his action for an unreasonable length of time, or to
comply with these Rules or any order of the court, the complaint may be
dismissed upon motion of the defendant or upon the court’s own motion, without
prejudice to the right of the defendant to prosecute his counterclaim in the same
or in a separate action. This dismissal shall have the effect of an adjudication
upon the merits, unless otherwise declared by the court.
The afore-quoted provision enumerates the instances when a
complaint may be dismissed due to the plaintiff's fault: (1) if he fails to appear on
the date for the presentation of his evidence in chief on the complaint; (2) if he
fails to prosecute his action for an unreasonable length of time; or (3) if he fails to
comply with the Rules or any order of the court. The dismissal of a case for failure
to prosecute has the effect of adjudication on the merits, and is necessarily understood
to be with prejudice to the filing of another action, unless otherwise provided in the order
of dismissal. Stated differently, the general rule is that dismissal of a case for
failure to prosecute is to be regarded as an adjudication on the merits and with
prejudice to the filing of another action, and the only exception is when the order
of dismissal expressly contains a qualification that the dismissal is without
prejudice. In the case at bar, petitioners claim that the Order does not in any language
say that the dismissal is without prejudice and, thus, the requirement that the dismissal
be on the merits is present.
We have had the occasion to rule that dismissal with prejudice under
the above-cited rule amply satisfies one of the elements of res judicata. It is, thus,
understandable why petitioners would allege res judicata to bolster their
claim. However, dismissal with prejudice under Rule 17, Sec. 3 of the Rules of
Court cannot defeat the right of a co-owner to ask for partition at any time,
provided that there is no actual adjudication of ownership of shares yet.
Pertinent hereto is Article 494 of the Civil Code, which reads:
Article 494. No co-owner shall be obliged to remain in the co-ownership.
Each co-owner may demand at any time the partition of the thing owned in
common, insofar as his share is concerned.
Nevertheless, an agreement to keep the thing undivided for a certain period
of time, not exceeding ten years, shall be valid. This term may be extended by a new
agreement.
A donor or testator may prohibit partition for a period which shall not exceed
twenty years. Neither shall there be any partition when it is prohibited by law. No
prescription shall run in favor of a co-owner or co-heir against his co-owners or co-heirs
so long as he expressly or impliedly recognizes the co-ownership. (emphasis supplied)
From the above-quoted provision, it can be gleaned that the law generally
does not favor the retention of co-ownership as a property relation, and is interested
instead in ascertaining the co-owners’ specific shares so as to prevent the allocation of
portions to remain perpetually in limbo. Thus, the law provides that each co-owner may
demand at any time the partition of the thing owned in common.
Between dismissal with prejudice under Rule 17, Sec. 3 and the right
granted to co-owners under Art. 494 of the Civil Code, the latter must prevail. To
construe otherwise would diminish the substantive right of a co-owner through the
promulgation of procedural rules. Such a construction is not sanctioned by the principle,
which is too well settled to require citation, that a substantive law cannot be amended by
a procedural rule.
This further finds support in Art. 496 of the New Civil Code, viz:
Article 496.Partition may be made by agreement between the parties or by judicial
proceedings. Partition shall be governed by the Rules of Court insofar as they are
consistent with this Code.
Thus, for the Rules to be consistent with statutory provisions, We hold
that Art. 494, as cited, is an exception to Rule 17, Sec. 3 of the Rules of Court to
the effect that even if the order of dismissal for failure to prosecute is silent on
whether or not it is with prejudice, it shall be deemed to be without prejudice.
This is not to say, however, that the action for partition will never be barred
by res judicata. There can still be res judicata in partition cases concerning the same
parties and the same subject matter once the respective shares of the co-owners have
been determined with finality by a competent court with jurisdiction or if the court
determines that partition is improper for co-ownership does not or no longer exists.
So it was that in Rizal v. Naredo, We ruled in the following wise:
Article 484 of the New Civil Code provides that there is co-ownership
whenever the ownership of an undivided thing or right belongs to different persons.
Thus, on the one hand, a co-owner of an undivided parcel of land is an owner of the
whole, and over the whole he exercises the right of dominion, but he is at the same time
the owner of a portion which is truly abstract. On the other hand, there is no co-
ownership when the different portions owned by different people are already concretely
determined and separately identifiable, even if not yet technically described.
Pursuant to Article 494 of the Civil Code, no co-owner is obliged to remain in the co-
ownership, and his proper remedy is an action for partition under Rule 69 of the Rules of
Court, which he may bring at anytime in so far as his share is concerned. Article 1079 of
the Civil Code defines partition as the separation, division and assignment of a thing
held in common among those to whom it may belong. It has been held that the fact that
the agreement of partition lacks the technical description of the parties’ respective
portions or that the subject property was then still embraced by the same certificate of
title could not legally prevent a partition, where the different portions allotted to each
were determined and became separately identifiable.
The partition of Lot No. 252 was the result of the approved Compromise
Agreement in Civil Case No. 36-C, which was immediately final and executory. Absent
any showing that said Compromise Agreement was vitiated by fraud, mistake or duress,
the court cannot set aside a judgment based on compromise. It is axiomatic that a
compromise agreement once approved by the court settles the rights of the parties and
has the force of res judicata. It cannot be disturbed except on the ground of vice of
consent or forgery.
Of equal significance is the fact that the compromise judgment in Civil Case
No. 36-C settled as well the question of which specific portions of Lot No. 252 accrued
to the parties separately as their proportionate shares therein. Through their subdivision
survey plan, marked as Annex "A" of the Compromise Agreement and made an integral
part thereof, the parties segregated and separately assigned to themselves distinct
portions of Lot No. 252. The partition was immediately executory, having been
accomplished and completed on December 1, 1971 when judgment was rendered
approving the same. The CA was correct when it stated that no co-ownership exist when
the different portions owned by different people are already concretely determined and
separately identifiable, even if not yet technically described. (emphasis supplied)
In the quoted case, We have held that res judicata applied because after the
parties executed a compromise agreement that was duly approved by the court, the
 5
different portions of the owners have already been ascertained. Thus, there was no
longer a co-ownership and there was nothing left to partition. This is in contrast with the
case at bar wherein the co-ownership, as determined by the trial court, is still subsisting
30-70 in favor of respondent spouses Candelario. Consequently, there is no legal bar
preventing herein respondents from praying for the partition of the property through
counterclaim.