Onate vs Abrogar

Facts: Sun Life filed a complaint for sum of money with a prayer for the issuance of
a writ of preliminary attachment against Onate, et. al. The prayer for the writ was
granted by the Court. The Sheriffattempted to serve summons to Onate, et. al. but
he was unsuccessful. Despite of this, the sheriff started to serve notices of
garnishment upon banks, and notices of attachment upon other properties of Onate.
The Sheriff was able to serve summons after the notice of garnishment. Onate
argues that the attachment is improper because the RTC has not yet acquired
jurisdiction over their persons. The SC said that whatever defects attended
theattachment, these were cured when the sheriff was finally able to serve them
the summons later on. Onate filed an MR.

Issue: Whether or not the attachment is valid for having been cured by a
subsequent service of summons

Held: No. Sun Life uses Davao Lights v CA to bolster its argument that the defects
in the attachment were cured by the subsequent service of summons. But this is a
misreading of the Davao Lights case. What the Davao Lights case said is that a
write of attachmentmay be issued and granted by the court, but it cannot be
implemented until jurisdiction is acquired over the persons whose properties are
subject to attachment. The subsequent service of summons, therefore, will not cure
any defect in the attachment.

The Court emphasized that at the very least, the writ of attachmentmust be served
simultaneously with the service of summons before the writ ma be enforced.
Preliminary Injunction
Hernandez v. NPC
485 SCRA 166 (2006)

Facts
Sometime in 1996, National Power Corporation (Napocor) began the
construction of 29 decagon-shaped steel poles or towers in connection with
its 230 Kilovolt Sucat-Araneta-Balintawak Power Transmission Project. Said
transmission line passes through the perimeter of Fort Bonifacio and
Dasmarias Village proximate to where petitioners homes are (Forbes Park).
Alarmed by the sight of the towering steel towers, petitioners researched and
found out through internet sources that exposure to electromagnetic fields

could cause diseases ranging from cancer to leukemia. Thus, petitioners had
various meetings with Napocor about the infrastructure project but such
meetings remained futile because both parties never reached an agreement.
Hence, on 9 March 2000, petitioners filed a complaint for damages with
prayer for the issuance of TRO and/or preliminary injunction against Napocor.
The complaint was granted by the court.
Napocor filed a petition for certiorari with prayer for TRO and Preliminary
Injunction with the CA, on the ground that Sec. 1 of PD 1818 provides that
no court of the Philippines shall have jurisdiction to issue any restraining
order, preliminary injunction or preliminary mandatory injunction in any case,
dispute, or controversy involving an infrastructure project
In the interregnum, by order dated 3 April 2000, the trial court ordered the
issuance of a writ of preliminary injunction against Napocor. The trial court
articulated that an injunction was necessary to stay Napocors activation of
its power lines due to the possible health risks posed to the petitioners. The
trial court was of the view that Presidential Decree No. 1818 and
jurisprudence proscribing injunctions against infrastructure projects do not
find application in the case at bar because of the health risks involved.
Napocor amended its petition filed before the CA to to include the prayer for
the nullification and injunction of the Order dated 3 April 2000 of the trial
court.
Moreover, the issuance by the trial court of a preliminary injunction finds
legal support in Section 3 of Rule 58 of the Rules of Court. The rule on
preliminary injunction merely requires that unless restrained, the act
complained of will probably violate his rights and tend to render the judgment
ineffectual. Here, there is adequate evidence on record to justify the
conclusion that the project of Napocor probably imperils the health and safety
of the petitioners so as to justify the issuance by the trial court of a writ of
preliminary injunction.
Receivership
Pacific Merchandising vs Consolacion
Appeal, on a question of law, from the judgment of the Court of First Instance Of
Manila, dated August 8, 1964, affirming the decision of the City Court in Civil Case
No. 117811. The issue arose from the following facts:

In Civil Case No. 117811, which was an action instituted by Pacific Merchandising
Corporation (plaintiff-appellee) to collect the sum of P2,562.88 from Consolacion
Insurance & Surety Co., Inc., (defendant- appellee) who in turn filed a third-party
complaint against Gregorio V. Pajarillo (third-party defendant-appellant). the City

Court of Manila rendered judgment on April 6, 1964, the dispositive portion of which
reads, in part, thus:

WHEREFORE, in view of the foregoing, judgment is hereby rendered in favor of the

plaintiff and against the defendant, ordering the latter to pay the former the sum of
P2,562.88 with interest thereon at the rate of 12% per annum from May 30, 1963
until fully paid, P100.00 as for attorney's fees, plus the costs of suit; condemning
third defendant to pay third-party plaintiff for whatever sums or amounts tlie latter
paid the plaintiff on account of this judgment.

By virtue of the appeal interposed by the third-party defendant Gregorio V. Pajarillo,

the case was elevated, on May 12, 1964, to the Court of First Instance of Manila. On
July 21, 1964, the parties, through their respective counsel, submitted the following
Stipulation of Facts:

1.
That on the 19th day of October, 1962, a Writ of Execution as isstica Iy the
Court of First Instance of Manila under Civil Case No. 49691, entitled Pacific
Merchandising Corporation vs. Leo Enterprises, Inc., a copy of the said Writ of
Execution is attached as ANNEX Ato the complaint;

2.
That by virtue of the aforesaid Writ of Execution, the Sheriff of Manila levied
and attached the following:

'l.

Second Hand AUTOMATICKET Machine No. MG-31833;and

'2.
Cinema Projectors Complete, trademark SIMPLEX PEERLESS MAGNARC NOS.
52625 and 62387' which items were advertised for sale on March 2, 1963, copy of
Notice of sale attached as ANNEX 'B' to the Complaint;

3.
That Atty. Greg V. Pajarillo was appointed on March 2, 1963 as Receiver of all
the assets, properties and equipment of Paris Theatre, olwrated by Leo Enterprises,
Inc. under Civil Case No. 50201 entitled Gregorio V. Pajarillo vs. Leo Enterprises,
Inc.;

4.
That the sale at public auction of the above described properties was
postponed and was later cancelled due to thc representation of Atty. Greg V. Pajarillo
as Receiver of Paris Theatre operated by Leo Enterprises, Inc. in which he undertook

the 1anient of the judgment rendered in favor of the plaintiff against Leo
Enterprises, Inc. as Ier undertaking dated March 11, 1963, copy of which is attached
as ANNEX 'C' to the complaint;

5.
That on or about hie third of March, 1963, third-party defendant Pajarillo
approached the third-party plaintiff and applied for a surety bond in the amount of
P5,000.00 to be rated in favor of the abovenamed plaintiff in order to guarantee to
said plaintiff the payment of obligations in its favor by the Leo Enterprises, Inc.;

6.
That the bond applied for was in fact executed in favor of the pIaintiff rith
third-party defendant Pajarillo as principal and third-party plaintiff as surety in the
context of the allegations of the preceding paragraph and a copy of the said bond is
attached a ANNEX 'A' to the third party complaint;

7.
That to protect thirrd party plaintiff against damage and injury, the third party
defendant Pajarillo executed in favor of the former an INDEMNITY AGREEMENT, copy
of which is attached as ANNEX 'B' to third party complaint; tlie trms of which aie
incorporated by reference;

8.
That the plaintiff received from hie aid principal, Greg V. Pajarillo the sum of
P2,000.00 leaving a balance of P2,562.88 still unpaid aside from interest at the rate
of 1% per month and atto lnen s f cluiaient to 25% of tht amount due as provided
for in said undertaking (ANNEX 'C' to tlie complaint);

9.
That on July 1, 1963, a decision was rendered tne court of First Instance of
Manila in Civil case No. 50201, copy of' which is attached its ANNEX 'A' to Answer to
Third Party Complaint, by virtue of which Greg V. Pajarillo, as said Received stololcl
making payments to plaintiff;

10.
That the said decision in Civl Case No. 50201 dated July 1, 1963 was
appealed lix defendant Leo Enterprises, Inc. to the court of Appeals and that the
records kere eleattd to the aid ApiIiat court on August 27, 1963;

11.
That on October 9, 1963, plaintiff's counsel demanded from the said principal,
Greg V. Paiarillo, the payment of the installments corresponding to the months of
May, June, July, August and September, 1963, which remain unpaid in spite of said
demand, copy of said letter being, attached as ANNEX 'E' to the complaint;

12.
That the defendant was duly notified of the demand made on the principal,
Greg V. Pajarillo and in spite of said notice the defendant has failed and refused to
pay the unpaid obligation;

13.
That on December 19, 1963, plaintiff's counsel demanded from the defendant
the payment of the unpaid obligation of the principal, Greg V. Pajarillo but refused
and failed to pay the same in spite of said demand;

14.
That when reminded by third-party plaintiff regarding his obligations in favor
of the plaintiff, the third-party defendant, Greg V. Pajarillo replied that he no longer
was bound to pay because he had ceased to be the receiver of Paris Theatre
operated by Leo Enterprises, Inc. by virtue of the decision of the Court in Civil Case
No. 50201 cited above, and for this reason, third- party plaintiff refused to pay the
demand of the plaintiff 2

On the basis of the foregoing Stipulation of Facts, the Court of First Instance
rendered judgment on August 8, 1964, which judgment was amended on August 25,
1964, affirming the appealed decision of the City Court . 2*

The trial court predicated its judgment on the following considerations: (1) Since the
unpaid claim represents the cost of certain materials used in the construction of the
Paris Theatre, the possession of which reverted to Gregorio V. Pajarillo as owner of
said property by virtue of the judgment in Civil Case No. 50201, "it is only simple
justice that Pajarillo should pay for the said claim. otherwise he would be enriching
himself by having the said building without paying plaintiff for the cost of certain
materials that went into its construction"; (2) "under Section 7 of Rule 61 of the
former Rules of Court, one of the powers of a receiver i8 to pay outstanding debts,
and since the said plaintiff's claim has been outstanding since August 27, 1962, if
not before, Pajarillo should have paid the same long before the alleged termination
of the receivership on July 1, 1963"; (3) the procedure outlined in Section 8 of the
Rule, namely, that whenever the court "shall determine that the necessity for a
receiver no longer exists, it shall, after due notice to all interested parties and
hearing, settle the accounts of the receiver, direct the delivery of the funds and
other property in his hands to the persons adjudged entitled to receive them, and
order the discharge of the receiver from further duty as such," has not been
followed; and (4) when Gregorio V. Pajarillo undertook to pay the amount owed to
plaintiff (Annex "C") and executed the surety bond (Annex "D") in favor of plaintiff,
he 4 6 stepped into the shoes" of the dr Leo Enterprises, Inc., .4 and the properties
of the said debtor having all subsequently passed on to Pajarillo, there is no reason,
legal or otherwise, for relieving defendants of their said undertaking."

The court a quo likewise declared that (1) "the receivership was not terminated by
virtue of the appeal interposed by Leo Enterprises, Inc., one of the defendants in
Civil Case No. 50201, because a decision which is appealed cannot be the subject of
execution"; (2) "granting arguendo that the decision is final and executory, the said
decision cannot bind nor can it be enforced against the plaintiff in the present case
because it is not a party in Civil Case No. 50201"; and (3) "when Atty. Pajarillo
assumed the obligation of Leo Enterprises, Inc., as a Receiver, there was a
subrogation of the party liable and, therefore, the plaintiff cannot enforce the
judgment in Civil Case No. 49691 against Leo Enterprises, Inc."

From the foregoing judgment, third-party defendant Gregorio V. Pajarillo interposed

an appeal to the Court of Appeals. The aforesaid Appellate Court, in turn certified
the same to this Court on the ground that there is no question of fact involved, but
only one of law.

The legal question is whether or not third party defendant-appellant Gregorio V.

Pajarillo is, under the facts and circumstances obtaining, liable to plaintiff for the
unpaid amount claimed. Upon the resolution of this issue will in turn depend the
liability of defendant-third-party plaintiff Consolacion Insurance & surety Co., Inc.
under the Surety Bond, on the basis of which it was ordered by the court a quo to
pay the amount involved to plaintiff-appellee.

1.
A receiver is not an agent or representative of any party to the action. He is
an officer of the court exercising his functions in the interest of neither plaintiff nor
defendant, but for the common benefit of all the parties in interest. 3 He performs
his duties "subject to the control of the Court," and every question involved in the
receivership may be determined by the court taking cognizance of the receivership
proceedings. 4 Thus, "a receiver, strictly speaking, has no right or power to make
any contract binding the property or fund in his custody or to pay out funds in his
hands without the authority or approval of the court ... . 5 As explained by Justice
Moran, speaking for the Court in a 1939 case 6 ... The custody of the receiver is the
custody of the court. His acts and possession are the acts and possession of the
court, and his contracts and liabilities are, in contemplation of law, the contracts
and liabilities of the court. As a necessary consequence, receiver is f subject to the
control and supervision of the court at every step in his management of the
property or funds placed in his hands. ... 7 He cannot operate independently of the
court, and cannot enter into any contract without its approval.

... El depositario no puede obrar independientemente del jusgado; contrata bajo el

control del mismo; sin su autorizacion o aprobaci6n expresa, el depositario no
puede perfeccionar ningun contrato. ... 8

2.
In the case at bar, appellant Pajarillo does not dispute the fact that he never
secured the court's approal of either the agreement of March 11, 1963, with Pacific
Merchandising Corporation or of his Indemnity Agreement with the Consolacion
Insurance & Surety Co., Inc. on March 14, 1963, in consideration of the performance
bond submitted by the latter to Pacific Merchandising Corporation to guarantee the
payment of the obligation. As the person to whom the possession of the theater and
its equipment was awarded by the court in Civil Case No. 50201, it was certainly to
his personal profit and advantage that the sale at public auction of the liquipment of
the theater was prevented by his execution of the aforesaid agreement and
submission of the afore-mentioned bond. In order to bind the property or fund in his
hands as receiver, he should have applied for and obtained from the court authority
to enter into the aforesaid contract. 9 Unauthorized contracts of a receiver do not
bind the court in charge of receivership. They are the receiver's own contracts and
are not recognized by the courts as contracts of the receivership. 10 Consequently,
the aforesaid agreement and undertaking entered into by appellant Pajarillo not
having been approved or authorized by the receivership court should, therefore, be
considered as his personal undertaking or obligation. Certainly, if such agreements
were known by the receivership court, it would not have terminated the receivership
without due notice to the judgment creditor as required by Section 8 of Rule 59 of
the Rules of Court. This must be assumed because of the legal presumption that
official duty has been regularly performed. 11 Indeed, if it were true that he entered
into the agreement and undertaking as a receiver, he should have, as such receiver,
submitted to the court an account of the status of the properties in his hands
including the outstanding obligations of the receivership. 12 Had he done so, it is
reasonable to assume that the judgment creditor would have opposed the
termination of the receivership, unless its claim was paid. Having failed to perform
his duty, to the prejudice of the creditor, appellant should not be permitted to take
advantage of his own wrong. The judgment creditor having been induced to enter
into the aforesaid agreement by appellant Pajarillo it was the duty of the latter to
comply with is end of the bargain. He not only failed to perform his undertaking, but
now attempts to evade completely his liability. Under such circumstances, appellant
is not entitled to equitable relief. No ground for equitable relief can be found in a
case where a party has not only failed to perform the conditions upon which he
alone obtained the execution of the contract, but where it is clear that he never, at
any time, intended to perform them. 13

3.
Moreover, it will be recalled that the obligation due the Pacific Merchandising
Corporation represented the cost of materials used in the construction of the Paris
Theatre. There can not be any question that such improvements, in the final
analysis, redounded to the advantage and personal profit of appellant Pajarillo
because the judgment in Civil Case No. 50201, which was in substance affirmed by
the Appellate Court, ordered that the "possession of the lands, building equipment,
furniture, and accessories ..." of the theater be transferred to said appellant as
owner thereof.

As the trial court aptly observed "... it is only simple justice that Pajarillo should pay
for the said claim, otherwise he would be enriching himself without paying plaintiff
for the cost of certain materials that went into its construction. ... It is argLicd
however, that he did so only as a receiver of Leo Pajarillo by virtue of the judgment
in Civil Case No. 50201 all of the properties of Leo Enterprises, Inc. passed on to
Pajarillo by virtue of the judgment in Civil Case No. %201 ...". This Roman Law
principle of "Nemo Cum alterious detrimento locupletari protest" is embodied in
Article 22 (Human Relations), 14 and Articles 2142 to 2175 (QuasiContracts) of the
New Civil Code. Long before the enactment of this Code, however, the principle of
unjust enrichment which is basic in every legal system, was already expressly
recognized in this jurisdiction.

As early as as 1903, in Perez v. Pomar, 15 this Court ruled that where one has
rendered services to another, and these services are accepted by the latter, in the
absence of proof that the service ",as rendered gratuitously, it is but just that he
should pay a reasonable remuneration therefore because "it is a wellknown principle
of law, that no one should be permitted to enrich himself to the damage of another."
Similarly in 1914, this Court declared that in this jurisdiction, even in the absence of
statute," ... under the general principle that one person may not enrich himself at
the expense of another, a judgment creditor would not be permitted to retain the
purchase price of land sold as the property of the judgment debtor after it has been
made to appear that the judgment debtor had no title to the land and that the
purchaser had failed to secure title thereto ... 16 The foregoing equitable principle
which springs from hie fountain of good conscience are applicable to the case at
bar.

ACCORDINGLY, in view of the foregoing, the judgment unirilleal is httcf AFFIRMED.

Costs against appellant.
Replevin
ROMEO S. CHUA, petitioner,
vs.
THE HON. COURT OF APPEALS, DENNIS CANOY AND ALEX DE
LEON, respondents.
Roberto R. Palmares for petitioner.
Josefino B. Remotigue for private respondents.

BIDIN, J.:
This is a petition for review on certiorari under Rule 45 of the Revised Rules of Court
assailing the decision of the Court of Appeals dated May 7, 1987 which nullified the

orders dated April 18, 1986 and May 19, 1986 of the Regional Trial Court of Cebu
City Branch VIII.
The facts of the case are not disputed. On April 12, 1986, Judge Lauro V. Francisco of
the Regional Trial Court of Cebu City Branch XIII, after examining 2Lt. Dennis P.
Canoy and two (2) other witnesses, issued a search warrant directing the immediate
search of the premises of R.R. Construction located at M.J. Cuenco Avenue, Cebu
City, and the seizure of an Isuzu dump truck with plate number GAP-175. At twelve
noon of the same date, respondent Canoy seized the aforesaid vehicle and took
custody thereof.
On April 14, 1986, a civil action for Replevin/Sum of Money for the recovery of
possession of the same Isuzu dump truck was filed by petitioner against respondent
Canoy and one "John Doe" in the Regional Trial Court of Cebu City Branch VIII,
presided by Judge Leonardo B. Caares and docketed thereat as Civil Case No. CEB
4384 alleging among other things, petitioner's lawful ownership and possession of
the subject vehicle; that he has not sold the subject vehicle to anyone; that he has
not stolen nor carnapped it, and that he has never been charged of the crime of
carnapping or any other crime for that matter. Further, petitioner questioned the
validity of the search warrant and the subsequent seizure of the subject vehicle on
the strength of the aforesaid search warrant.
On the same date, April 14, 1986, Judge Caares of the Regional Trial Court of Cebu
City Branch VIII directed the issuance of a writ of replevin upon the posting of a
bond in the amount of one hundred thousand pesos (P100,000.00). The writ of
replevin was also issued on the same date, and the subject vehicle was seized on
15 April 1986 by Deputy Sheriff Galicano V. Fuentes.
On April 16, 1986, respondent Canoy filed a motion for the dismissal of the
complaint and for the quashal of the writ of replevin. The motion was opposed by
petitioner. The motion to dismiss and to quash the writ of replevin was denied in an
Order dated April 18, 1986. A motion for reconsideration of the aforementioned
Order was filed and was opposed by petitioner. In an order dated May 19, 1986, the
Regional Trial Court of Cebu Branch VIII denied the motion for reconsideration and
directed the delivery of the subject vehicle to petitioner. Not satisfied, herein private
respondents filed with the Court of Appeals a Petition for Certiorari and Prohibition
praying for the nullification of the orders dated April 18, 1986 and May 19, 1986.
Meanwhile, a case for Carnapping docketed as I.S. No. 86-185, entitled "Alex De
Leon, Complainant, vs. Romeo Chua, Respondent" pending preliminary investigation
before the Office of the City Fiscal of Cebu City was provisionally dismissed upon
motion of Romeo Chua with the following reservation: "without prejudice to its
reopening once the issue of ownership is resolved", (Rollo, p. 62).
In a decision dated May 17, 1987, the Court of Appeals reversed the Regional Trial
Court of Cebu City Branch VIII, and nullified the questioned orders. The appellate
court ordered the dismissal of the Replevin action, and directed that possession of
the subject vehicle be restored to Canoy. It applied the ruling in the case
ofPagkalinawan vs. Gomez (21 SCRA 1275 [1967]) which held:

Once a Court of First Instance has been informed that a search warrant has been
issued by another court of first instance, it cannot require a sheriff or any proper
officer of the court to take the property subject of the replevin action, if theretofore
it came into custody of another public officer by virtue of a search warrant. Only the
court of first instance that issued such a search warrant may order its release.
Furthermore, it was also pointed out in the same case that the validity of a search
warrant may only be questioned in the same court that issued it.
Petitioner moved for a reconsideration of the decision, but the respondent court
denied the same. Thus, petitioner filed this appeal by certiorari. The parties
submitted their respective memoranda, and thereafter the case was deemed
submitted for decision.
The issue presented before the Court is whether or not the validity of a seizure
made pursuant to a search warrant issued by a court can be questioned in another
branch of the same court, where the criminal action filed in connection with which
the search warrant was issued, had been dismissed provisionally.
At the outset, it must be pointed out that the ruling made by the Office of the City
Fiscal in the complaint for carnapping was erroneous. It held: ". . . the preliminary
investigation of that case is premature until such time that the issue of ownership
will be resolved by the Court of Appeals, so that the instant case is
hereby dismissed provisionally without prejudice to its reopening once the issue of
ownership is resolved in favor of complainant." (emphasis supplied).
A criminal prosecution for carnapping need not establish the fact that complainant
therein is the absolute owner of the motor vehicle. What is material is the existence
of evidence which would show that respondent took the motor vehicle belonging to
another. The Anti-Carnapping Law or Republic Act No. 6539 punishes as carnapping
the taking with intent to gain, of a motor vehicle belonging to another person,
without the latter's consent or by means of violence or intimidation of person or by
using force upon things.
Another aspect which needs to be stressed is the fact that since a preliminary
investigation is not part of the trial, the dismissal of a case by the fiscal will not
constitute double jeopardy and hence there is no bar to the filing of another
complaint for the same offense (People vs. Medted, 68 Phil. 435).
We find no merit in the main issue presented before Us. Petitioner seeks a reversal
of a decision of the Court of Appeals which relied on the decision in Pagkalinawan
vs. Gomez (supra).
The principle followed among courts in the dispensation of justice is that a judge
who presides in a branch of a court cannot modify or annul the orders issued by
another branch of the same court, since the two (2) courts are of the same rank,
and act independently but coordinately (Montesa vs. Manila Cordage Co., 92 Phil. 25
[1952]).

It is a basic tenet of civil procedure that replevin will not lie for property in custodia
legis. A thing is in custodia legiswhen it is shown that it has been and is subjected to
the official custody of a judicial executive officer in pursuance of his execution of a
legal writ (Bagalihog vs. Fernandez, 198 SCRA 614 [1991]). The reason posited for
this principle is that if it was otherwise, there would be interference with the
possession before the function of the law had been performed as to the process
under which the property was taken. Thus, a defendant in an execution or
attachment cannot replevy goods in the possession of an officer under a valid
process, although after the levy is discharged, an action to recover possession will
lie (Francisco, Revised Rules of Court in the Philippines: Provisional Remedies, p. 402
[1985]).
The Court had occasion to rule on this issue in the case of Vlasons Enterprises
Corporation vs. Court of Appeals(155 SCRA 186 [1987]). In the aforementioned
case, two (2) propeller pieces were seized on the strength of a search warrant
issued by the Court of First Instance of Manila Branch XVIII. After the seizure,
criminal complaints were filed against the alleged thieves. However, the complaints
were later on dismissed. Five (5) months later, a civil action for the recovery of the
possession of the propellers were filed in the Court of First Instance of Manila Branch
XXIX. The latter court granted the motion for repossession of the propellers. On
appeal this Court held:
The proceeding for the seizure of the property in virtue of a search warrant does not
end with the actual taking of the property . . . and its delivery . . ., to the court . . . .
It is merely the first step in the process to determine the character of the seized
property. That determination is done in the criminal action involving the crime or
crimes in connection with which the search warrant was issued. Hence, such a
criminal action should be prosecuted, or commenced if not yet instituted, and
prosecuted. The outcome of the criminal action will dictate the disposition of the
seized property. (Vlasons Enterprises Corp. vs. Court of Appeals, supra.)
In the Vlasons case, the Court differentiated the case brought before it therein, from
the Pagkalinawan case. It stated that in the Pagkalinawan case, there was a conflict
in jurisdiction. On the other hand, in the Vlasons case, it was certain that no criminal
case would ensue subsequent to or in connection with the search warrant, hence no
conflict in jurisdiction or in the ultimate disposition of the property could arise. Thus,
where personal property is seized under a search warrant and it appears that the
seizure will not be followed by the filing of any criminal action, but there are
conflicting claims asserted over the seized property, the appropriate remedy is the
institution of an ordinary civil action by any interested party, or of an interpleader
action by the Government itself, in the proper competent court to which the seizing
court shall transfer custody of the articles. Another branch of the same court, in an
action to recover said property and during the pendency thereof, cannot order the
delivery of said personal property to therein plaintiff pendente lite.
Construing the Pagkalinawan case together with the Vlasons case, we rule that
where personal property is seized under a search warrant and there is reason to
believe that the seizure will not anymore be followed by the filing of a criminal and

there are conflicting claims over the seized property, the proper remedy is the filing
of an action for replevin, or an interpleader filed by the Government in the proper
court, not necessarily the same one which issued the search warrant; however,
where there is still a probability that the seizure will be followed by the filing of a
criminal action, as in the case at bar where the case for carnapping was "dismissed
provisionally, without prejudice to its reopening once the issue of ownership is
resolved in favor of complainant" (emphasis supplied), or the criminal information
has actually been commenced, or filed, and actually prosecuted, and there are
conflicting claims over the property seized, the proper remedy is to question the
validity of the search warrant in the same court which issued it and not in any other
branch of the said court.
Thus, the Regional Trial Court of Cebu Branch VIII erred when it ordered the transfer
of possession of the property seized to petitioner when the latter filed the action for
replevin. It should have dismissed the case since by virtue of the "provisional
dismissal", of the carnapping case there is still a probability that a criminal case
would be filed, hence a conflict in jurisdiction could still arise. The basic principle
that a judge who presides in one court cannot annul or modify the orders issued by
another branch of the same court because they are co-equal and independent
bodies acting coordinately, must always be
adhered to.
WHEREFORE, the petition is denied. The decision of the Court of Appeals dated May
7, 1987 is AFFIRMED.
Support Pendente Lite

G.R. No. 172471 November 12, 2012

ANTONIO PERLA,
Petitioner, vs.
MIRASOL BARING and RANDY PERLA,
Respondents. D E C I S I O N
DEL CASTILLO,
J .:
"An order for x x x support x x x must be issued only if paternity or filiation is
established by clear and convincing evidence."
1
Facts: Respondent Mirasol Baring (Mirasol) and her then minor son, Randy
(collectively respondents), filed before the RTC a Complaint

6
for support against Antonio. They alleged in said Complaint that Mirasol and
Antonio lived together as common-law spouses for two years. As a result of said
cohabitation, Randy was born on November 11, 1983. However, when Antonio
landed a job as seaman, he abandoned them and failed to give any support to his
son. Respondents thus prayed that Antonio be ordered to support Randy.
She presented Randys Cert
ificate of Live Birth
17
and Baptismal Certificate
18
indicating her and Antonio as parents of the child. Mirasol testified that she and
Antonio supplied the information in the said certificates.
19
Antonio supplied his name and birthplace after Erlinda Balmori (Erlinda), the "hilot"
who
assisted in Mirasols delivery of Randy, went to his house to solicit the said
information.
20
Mirasol also claimed that it was Erlinda who supplied the date and place of marriage
of the parents so that the latter can file the birth certificate.
21
Mirasol likewise confirmed that she is the same "Mirasol Perla" who signed as the
informant therein.
22
In his Answer with Counterclaim,
7
Antonio, who is now married and has a family of his own, denied having fathered
Randy. Although he admitted to having known Mirasol, he averred that she never
became his common-law wife nor was she treated as such. Antonio admitted having
sexual intercourse with Mirasol in February and August
33
of 1981.
34

When shown wi
th Randys Certificate of Live Birth and
asked whether he had a hand in the preparation of the same, Antonio answered in
the negative.
35

Anent Randys Certifica

te of Live Birth, Antonio testified as to several inaccuracies in the entries thereon.
According to him, his middle initial is "E" and not "A" as appearing in the said
certificate of live birth.
42
Also, he is not a protestant and a laborer as indicated in said certificate.
43
Antonio likewise alleged that Mirasol only made up the entries with respect to their
marriage on October 28, 1981.
44
After trial, the RTC rendered a Decision
49
dated February 26, 2003 ordering Antonio to support Randy. On appeal, the Court
of Appeals
upheld Randys illegitimate filiation based on the certified true copies of
his birth certificate and of his baptismal certificate identifying Antonio as his father.
According to the appellate court, while these documents do not bear the signature
of Antonio, they are proofs that Antonio is the known, imputed and identified father
of Randy. Issue: WON,
Randys illeg
itimate filiation to Antonio has been established HELD: In cases where the absent
parent does not acknowledge the child to be his, the law requires that paternity and
filiation must first be established before the court can decide on the matter of child
support. In a recent case decided by the Supreme Court, the decision of the lower
courts granting child support was overturned because there was no sufficient
evidence to establish that the child was indeed the illegitimate son of the
defendant. According to the Supreme Court, since the complaint for support was
anchored on the alleged filiation of the putative father to the son, the lower courts
should have first made a determination of the same (Antonio Perla vs. Mirasol
Baring, G.R. No. 172471, November 12, 2012).

In the case cited above, the complainant only presented a birth certificate that
indicated the name of the alleged father but which was not signed by him. The
mother and the alleged illegitimate son were also presented as witnesses, but the
mother's testimony on their alleged sexual encounters was conflicting and did not
coincide with the child's birth date.
The Supreme Court reiterated the evidence required to prove filiation of legitimate
or illegitimate children, as stated in Article 175 in relation to Article 172 of the
Family Code. These are any of the following: 1) record of birth appearing in the civil
register or a final judgment; admission of filiation in a public document or a private
handwritten instrument and signed by the parent concerned; or, in the absence of
any of the above, the open and continuous possession of the status of a legitimate
or illegitimate child, or any other means allowed by the Rules of Court and special
laws, such as DNA testing.
In his testimony, the alleged illegitimate child recounted "having met [his alleged
father for the first time in 1994 in the house of his Aunt Lelita, [his father's] sister,
where he was vacationing. During their encounter, [he] called [his alleged father]
"Papa" and kissed his hand while the latter hugged him. When he asked him for
support, [he] promised that he would support him. He further testified that during
his one-week stay in his Aunt Lelita's place, the latter treated him as member of the
family." According to the Supreme Court, however, this recollection of an isolated
event does not meet the requirement of "open and continuous possession" of the
status of an illegitimate child.
The quest for child support can be anything from smooth to bloody. The threat of a
drawn-out battle should not discourage any parent from fighting for the rights of
their child.

Special Civil Action

Interpleader
Mesina vs. IAC, GR L-70145, 13 November 1986, 145 SCRA 497 [proper
remedy against conflicting claims]

Respondent Jose Go, purchased from Associated Bank Cashier's Check No. 011302
for P800,000.00. Unfortunately, Jose Go left said check on the top of the desk of the
bank manager when he left the bank. The bank manager entrusted the check for
safekeeping to a bank official, a certain Albert Uy, who had then a visitor in the
person of Alexander Lim. Uy had to answer a phone call on a nearby telephone
after which he proceeded to the men's room. When he returned to his desk, his
visitor Lim was already gone. When Jose Go inquired for his cashier's check from
Albert Uy, the check was not in his folder and nowhere to be found. The latter
advised Jose Go to go to the bank to accomplish a "STOP PAYMENT" order, which
suggestion Jose Go immediately followed. He also executed an affidavit of loss.

Albert Uy went to the police to report the loss of the check, pointing to the person of
Alexander Lim as the one who could shed light on it.
The records of the police show that Associated Bank received the lost check for
clearing, coming from Prudential Bank, Escolta Branch. The check was immediately
dishonored by Associated Bank by sending it back to Prudential Bank, with the
words "Payment Stopped" stamped on it. However, the same was again returned to
Associated Bank on and for the second time it was dishonored. Several days later,
respondent Associated Bank received a letter, dated January 9, 1984, from a certain
Atty. Lorenzo Navarro demanding payment on the cashier's check in question,
which was being held by his client.
Unsure of what to do on the matter, respondent Associated Bank on February 2,
1984 filed an action for Interpleader naming as respondent, Jose Go and one John
Doe, Atty. Navarro's then unnamed client. On even date, respondent bank received
summons and copy of the complaint for damages of a certain Marcelo A. Mesina
from the Regional Trial Court (RTC) of Caloocan City. Respondent bank moved to
amend its complaint, having been notified for the first time of the name of Atty.
Navarro's client and substituted Marcelo A. Mesina for John Doe. Marcelo Mesina
when asked how he came to possess the check, he said it was paid to him by
Alexander Lim in a "certain transaction".
Meanwhile, Jose Go filed his answer on February 24, 1984 in the Interpleader Case
and moved to participate as intervenor in the complain for damages. Albert Uy filed
a motion of intervention and answer in the complaint for Interpleader.. Petitioner
instead of filing his answer to the complaint in the interpleader filed on May 17,
1984 an Omnibus Motion to Dismiss Ex Abudante Cautela alleging lack of
jurisdiction in view of the absence of an order to litigate, failure to state a cause of
action and lack of personality to sue. Respondent bank in the other civil case for
damages moved to dismiss suit in view of the existence already of the Interpleader
case.
The trial court in the interpleader case issued an order dated July 13, 1984, denying
the motion to dismiss of petitioner Mesina and ruling that respondent bank's
complaint sufficiently pleaded a cause of action for interpleader.
Petitioner Mesina filed a petition for certiorari with preliminary injunction with IAC to
set aside 1) order of respondent court denying his omnibus Motion to Dismiss 2)
order of 3) the order of default against him.
IAC rendered its decision dimissing the petition for certiorari.
unnamed client. On even date, respondent bank received summons and copy of the
complaint for damages of a certain Marcelo A. Mesina from the Regional Trial Court
(RTC) of Caloocan City. Respondent bank moved to amend its complaint, having
been notified for the first time of the name of Atty. Navarro's client and substituted
Marcelo A. Mesina for John Doe. Marcelo Mesina when asked how he came to
possess the check, he said it was paid to him by Alexander Lim in a "certain
transaction".

Meanwhile, Jose Go filed his answer on February 24, 1984 in the Interpleader Case
and moved to participate as intervenor in the complain for damages. Albert Uy filed
a motion of intervention and answer in the complaint for Interpleader.. Petitioner
instead of filing his answer to the complaint in the interpleader filed on May 17,
1984 an Omnibus Motion to Dismiss Ex Abudante Cautela alleging lack of
jurisdiction in view of the absence of an order to litigate, failure to state a cause of
action and lack of personality to sue. Respondent bank in the other civil case for
damages moved to dismiss suit in view of the existence already of the Interpleader
case.
The trial court in the interpleader case issued an order dated July 13, 1984, denying
the motion to dismiss of petitioner Mesina and ruling that respondent bank's
complaint sufficiently pleaded a cause of action for interpleader.
Petitioner Mesina filed a petition for certiorari with preliminary injunction with IAC to
set aside 1) order of respondent court denying his omnibus Motion to Dismiss 2)
order of 3) the order of default against him.
IAC rendered its decision dimissing the petition for certiorari.
ISSUE:
WON the orders of respondent Judge of RTC Manila may be annulled by giving due
course to the interpleader suit and declaring petitioner in default.
HELD:
No. Petitioner stubbornly insists that there is no showing of conflicting claims and
interpleader is out of the question. There is enough evidence to establish the
contrary. Considering the aforementioned facts and circumstances, respondent
bank merely took the necessary precaution not to make a mistake as to
whom to pay and therefore interpleader was its proper remedy. It has been
shown that the interpleader suit was filed by respondent bank because petitioner
and Jose Go were both laying their claims on the check, petitioner asking payment
thereon and Jose Go as the purchaser or owner. The allegation of petitioner that
respondent bank had effectively relieved itself of its primary liability under the
check by simply filing a complaint for interpleader is belied by the willingness of
respondent bank to issue a certificate of time deposit in the amount of P800,000
representing the cashier's check in question in the name of the Clerk of Court of
Manila to be awarded to whoever will be found by the court as validly entitled to it.
Said validity will depend on the strength of the parties' respective rights
and titles thereto. Bank filed the interpleader suit not because petitioner
sued it but because petitioner is laying claim to the same check that Go is
claiming. On the very day that the bank instituted the case in interpleader, it was
not aware of any suit for damages filed by petitioner against it as supported by the
fact that the interpleader case was first entitled Associated Bank vs. Jose Go and
John Doe, but later on changed to Marcelo A. Mesina for John Doe when his name
became known to respondent bank.

The records of the case show that respondent bank had to resort to details in
support of its action for Interpleader. Before it resorted to Interpleader, respondent
bank took a precautionary and necessary measures to bring out the truth.
Declaratory relief
Malana vs. Tappa, GR 181303, 17 September 2009 [Proper party, three
remedies similar to declaratory relief, reformation, quieting of title and
consolidation; jurisdiction]
Facts: Petitioners Carmen Danao Malana alleged to be the owners of a land in
Tugegarao which they inherited from Anastacio Danao. During the lifetime of
Danao, he allowed Consuelo Pauig (family member of Tappa) to build on and occupy
the southern portion of the subject property. Danao and Consuelo agreed that the
latter would vacate the said land at any time that Danao and his heirs might need
it. Danao heirs claimed that respondents Benigno Tappa, et al. continued to occupy
the subject property even after Consuelos death, building their residences thereon
using permanent materials. Danao heirs also learned that Tappa were claiming
ownership over the subject property. Averring that they already needed it, Danao
heirs demanded that respondents vacate the same. The call was unheeded.
Meanwhile, Danao heirs referred their land dispute to the Lupong Tagapamayapa.
During the conciliation proceedings, respondents asserted that they owned the
subject property and presented documents ostensibly supporting their claim of
ownership. The heirs opposed this, saying that the documents were falsified and
highly dubious. This notwithstanding, Tappa, et al. created a cloud upon the heirs
title to the property. Thus, the heirs filed a case for Reivindicacion, Quieting of Title,
and Damages in the RTC.

Issue:WON the judge commit grave abuse of discretion in motu proprio dismissing
the complaint for lack of jurisdiction.

Held: An action for declaratory relief should be filed by a person interested under a
deed, a will, a contract or other written instrument, and whose rights are affected
by a statute, an executive order, a regulation or an ordinance. The relief sought
under this remedy includes the interpretation and determination of the validity of
the written instrument and the judicial declaration of the parties rights or duties
thereunder. Petitions for declaratory relief are governed by Rule 63.
Section 1 states that an action for the reformation of an instrument, to
quiet title, and to consolidate ownership in a sale with a right to
repurchase may be brought under the RTC. These remedies are
considered similar to declaratory relief because they result in the
adjudication of the legal rights of the litigants, often without the need of
execution. Whereas the Rules of Court uses may, as the amended Judicial
Reorganization Act uses the word shall in determining jurisdiction. JRA
explicitly requires the MTC to exercise exclusive original jurisdiction over

all civil actions which involve title to or possession of real property where
the assessed value does not exceed P20,000 (OMM) or P50,000 (MM). In
this case, the assessed value of the subject property is only P410.00;
therefore, the jurisdiction is with the MTC, not the RTC.

Further, an action for declaratory relief presupposes that there has been
no actual breach of the instruments involved or of rights arising
thereunder. The purpose of an action for declaratory relief is to secure an
authoritative statement of the rights and obligations of the parties under
a statute, deed or contract for their guidance in the enforcement thereof,
and not to settle issues arising from an alleged breach thereof. Where the
law or contract has already been contravened prior to the filing of an
action for declaratory relief, the courts can no longer assume jurisdiction
over the action. In the present case, the case for quieting of title was filed
after Danao heirs already demanded, and Tappa refused to vacate the
subject property. Since the heirs had already been deprived of the
possession of their property, the proper remedy for them is the filing of an
accion publiciana or an accion reivindicatoria, not a case for declaratory
relief. An accion publiciana is a suit for the recovery of possession, filed
one year after the occurrence of the cause of action or from the unlawful
withholding of possession of the realty. Jurisdiction over such an action
would depend on the value of the property involved. Given that the
property is only at P410.00, then the MTC, not the RTC, has jurisdiction
over an action to recover the same.

REVIEW OF JUDGEMENTS
ESTEVES VS SARMIENTO
This is a special civil action for certiorari and prohibition 1 under Rule 65 of the 1997
Rules of Civil Procedure, assailing the Resolution 2 of the Second Division of the
Commission on Elections (COMELEC) in SPR No. 46-2007. Said resolution set aside
the Order3 dated 8 September 2007 issued by the Regional Trial Court (RTC), Branch
96, Baler, Aurora and consequently dismissed the election protest filed by herein
petitioner Jeremias V. Esteves against private respondent Mayor Reynaldo Teh
Bitong.
As culled from the records of the case, the following antecedent facts appear:
In the national and local elections conducted last 14 May 2007, petitioner and
private respondent both ran for the position of municipal mayor of the Municipality
of Casiguran, Aurora. On 15 May 2007, the Municipal Board of Canvassers
proclaimed private respondent as the duly-elected Mayor of Casiguran on the basis
of the results of the canvassing, which showed him having garnered 3,342 votes or
with a margin of 48 votes over petitioner, who obtained 3,294 votes. 4

On 25 May 2007, petitioner filed an election protest before the Regional Trial Court
of Baler, Aurora. The protest was docketed as Election Protest Case (EPC) No. 99
and raffled to Branch 96 presided by Judge Corazon D. Soluren. 5
The RTC then issued a precautionary protection order directing the Municipal
Treasurer and Election Officer of Casiguran to take immediate steps to safeguard
the integrity of all the ballot boxes, lists of voters and other paraphernalia used in
the elections and thereafter directed that all the election paraphernalia, including
the ballot boxes and lists of voters, subject of the protest be brought before the
court.6
Private respondent then filed an answer, which the RTC admitted in an Order dated
2 August 2007. In the same order, the RTC denied the motion for reconsideration of
the dismissal of private respondent's counter-protest on the ground of non-payment
of filing fee. Thereafter, the RTC ordered the creation of the revision committees. 7
On 6 September 2007, private respondent filed a motion to dismiss the election
protest, arguing that it was defective in form and substance as it did not specify the
precincts where fraud and irregularities were committed. On 8 September 2007, the
RTC issued the order denying private respondent's motion to dismiss for lack of
merit.8
Thus, private respondent filed before the COMELEC a petition for certiorari and
prohibition with application for temporary restraining order (TRO) and/or writ of
preliminary injunction.9 The petition sought to nullify the RTC Order dated 8
September 2007 denying private respondent's motion to dismiss. It also prayed that
the election protest filed by petitioner be dismissed and the proceedings thereon
enjoined on the ground that the election protest failed to comply with the
requirements of Section 11(f), Rule 210 of A.M. No. 07-4-15-SC. Petitioner filed an
answer on 5 December 2007.
After hearing private respondent's application, the COMELEC (Second Division)
issued a temporary restraining order (TRO) on 06 December 2007, which directed
Judge Soluren to desist from further proceeding with Election Protest Case No. 96
until further orders from the COMELEC.11
Thereafter, petitioner filed before this Court a special civil action for certiorari and
prohibition with application for issuance of a temporary restraining order and/or writ
of preliminary injunction. The petition, docketed as G.R. No. 180792, prayed that a
temporary restraining order be issued enjoining the COMELEC (Second Division)
from taking cognizance of SPR Case No. 46-2007 and that the TRO issued by the
COMELEC be ordered lifted.
On 15 January 2008, the Court resolved to dismiss G.R. No. 180792 for failure of the
petition to state the material dates showing that the petition was filed on time,
failure to submit the required competent proof of identity in the
verification/certification, failure to give an explanation why service was not
personally made and failure to show that any grave abuse of discretion was
committed by the COMELEC in rendering the challenged order.

On 29 February 2008, the COMELEC (Second Division) issued the assailed resolution
penned by Commissioner Nicodemo T. Ferrer. The assailed resolution nullified the 8
September 2007 Order of the RTC and, accordingly, dismissed EPC No. 99. 12 The
other member of the Second Division, Commissioner Rene V. Sarmiento, wrote a
dissenting opinion.13 It appears that before the issuance of the assailed resolution,
the third member of the Second Division, Presiding Commissioner Florentino A.
Tuazon, Jr. had retired from the service.
Hence, the instant petition, raising the following arguments: (1) the COMELEC
(Second Division) has no jurisdiction to entertain special relief cases like petitions
for certiorari, prohibition or mandamus; (2) the challenged resolution did not comply
with the constitutional requirement that it must be decided by a majority vote of all
the members; and (3) the challenged resolution negated the spirit and very purpose
of A.M. No. 07-4-15-SC.
The Office of the Solicitor General (OSG) manifested that under Section 5, Rule 65 of
the Rules of Court, only the private respondent is required to appear and defend the
case, both on his own behalf and on behalf of the public respondent COMELEC, and
prayed that the COMELEC be excused from filing the required comment. 14 In a
Resolution dated 12 August 2008, the Court granted the motion of the OSG. 15
The petition deserves dismissal.
Section 3, Article IX-C of the Constitution expressly states:
Section 3. The Commission on Elections may sit en banc or in two divisions, and
shall promulgate its rules of procedure in order to expedite disposition of election
cases, including pre-proclamation controversies. All such election cases shall be
heard and decided in division, provided that motions for reconsideration of decisions
shall be decided by the Commission en banc.
Also, Section 7, Article IX-A of the Constitution provides:
Section 7. Each Commission shall decide by a majority vote of all its Members any
case or matter brought before it within sixty days from the date of its submission for
decision or resolution. A case or matter is deemed submitted for decision or
resolution upon the filing of the last pleading, brief, or memorandum required by the
rules of the Commission or by the Commission itself. Unless otherwise provided by
this Constitution or by law, any decision, order, or ruling of each Commission may
be brought to the Supreme Court on certiorari by the aggrieved party within thirty
days from receipt of a copy thereof.
Under the aforequoted constitutional provisions, the requirement that an aggrieved
party must first file a motion for reconsideration of a resolution of the Division to the
COMELEC en banc is mandatory and jurisdictional in invoking the power of review of
the Supreme Court. Failure to abide by this procedural requirement constitutes a
ground for dismissal of the petition.16
All election cases, including pre-proclamation controversies, shall be decided by the
COMELEC in division, and the motion for reconsideration shall be decided by the

COMELEC en banc.17 As held inAmbil v. Commission on Elections,18 the power of

review of the Supreme Court of the rulings of the COMELEC is limited only to the
final decision or resolution of the COMELEC en banc and not the final resolution of
its Division. The Supreme Court has no power to review, via certiorari, an
interlocutory order or even a final resolution of a Division of the Commission on
Elections.
Moreover, pursuant to Section 5 (c), Rule 3 19 of the COMELEC Rules of Procedure, a
resolution issued by a Division of the COMELEC must first be elevated to the
COMELEC en banc by filing a motion for reconsideration.
The filing of a motion for reconsideration is mandatory because the mode by which
a decision, order or ruling of the COMELEC en banc may be elevated to the Supreme
Court is by the special civil action of certiorari under Rule 64 of the Rules of Civil
Procedure. It is settled that the filing of a motion for reconsideration of the order,
resolution or decision of the tribunal, board or office is, subject to well-recognized
exceptions, a condition sine qua non to the institution of a special civil action for
certiorari. The rationale therefore is that the law intends to afford the tribunal, board
or office an opportunity to rectify the errors and mistakes it may have lapsed into
before resort to the courts of justice can be had. 20
Since the COMELEC Rules of Procedure allows the review of a resolution of the
Division by the COMELEC en banc, the filing of the instant petition for certiorari and
prohibition is premature. The petition does not allege that petitioner indeed filed a
motion for reconsideration before the COMELECen banc. The unquestioned rule in
this jurisdiction is that certiorari will lie only if there is no appeal or any other plain,
speedy and adequate remedy in the ordinary course of law against the acts of
public respondent.21 Certiorari cannot be resorted to as a shield from the adverse
consequences of petitioner's own omission to file the required motion for
reconsideration.22 A litigant should first exhaust the administrative remedies
provided by law before seeking judicial intervention in order to give the
administrative agency an opportunity to decide correctly the matter and prevent
unnecessary and premature resort to the court. 23 The premature invocation of
judicial intervention is fatal to one's cause of action. 24
WHEREFORE, the instant petition for certiorari and prohibition is DENIED. Costs
against petitioner.
CERTIORARI
LEYTE VS LEYECO
Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of
Court assailing the Resolution[1] dated September 4, 2002 of the Court of Appeals
(CA) in CA-G.R. SP No. 72336 which dismissed outright petitioner's Petition
for Certiorari for adopting a wrong mode of appeal and the CA Resolution [2]dated
February 28, 2003 which denied petitioner's Motion for Reconsideration.

The facts:
On April 6, 1998, Leyte IV Electric Cooperative, Inc. (petitioner) and Leyeco IV
Employees Union-ALU (respondent) entered into a Collective Bargaining Agreement
(CBA)[3] covering petitioner rank-and-file employees, for a period of five (5) years
effective January 1, 1998.

On June 7, 2000, respondent, through its Regional Vice-President, Vicente P. Casilan,

sent a letter to petitioner demanding holiday pay for all employees, as provided for
in the CBA.[4]

On June 20, 2000, petitioner, through its legal counsel, sent a letter-reply to Casilan,
explaining that after perusing all available pay slips, it found that it had paid all
employees all the holiday pays enumerated in the CBA. [5]

After exhausting the procedures of the grievance machinery, the parties agreed to
submit the issues of the interpretation and implementation of Section 2, Article VIII
of the CBA on the payment of holiday pay, for arbitration of the National Conciliation
and Mediation Board (NCMB), Regional Office No. VIII inTacloban City.[6] The parties
were required to submit their respective position papers, after which the dispute
was submitted for decision.

While admitting in its Position Paper[7] that the employees were paid all of the days
of the month even if there was no work, respondent alleged that it is not prevented
from making separate demands for the payment of regular holidays concomitant
with the provisions of the CBA, with its supporting documents consisting of a letter
demanding payment of holiday pay, petitioner's reply thereto and respondent's
rejoinder, a computation in the amount of P1,054,393.07 for the unpaid legal
holidays, and several pay slips.

Petitioner, on the other hand, in its Position Paper, [8] insisted payment of the holiday
pay in compliance with the CBA provisions, stating that payment was presumed
since the formula used in determining the daily rate of pay of the covered
employees is Basic Monthly Salary divided by 30 days or Basic Monthly Salary
multiplied by 12 divided by 360 days, thus with said formula, the employees are
already paid their regular and special days, the days when no work is done, the 51
un-worked Sundays and the 51 un-worked Saturdays.

On March 1, 2001, Voluntary Arbitrator Antonio C. Lopez, Jr. rendered a Decision [9] in
favor of respondent, holding petitioner liable for payment of unpaid holidays from

1998 to 2000 in the sum of P1,054,393.07. He reasoned that petitioner miserably

failed to show that it complied with the CBA mandate that holiday pay be
reflected during any payroll period of occurrence since the payroll slips did not
reflect any payment of the paid holidays. He found unacceptable not only
petitioner's presumption of payment of holiday pay based on a formula used in
determining and computing the daily rate of each covered employee, but also
petitioner's further submission that the rate of its employees is not less than the
statutory minimum wage multiplied by 365 days and divided by twelve.

On April 11, 2001, petitioner filed a Motion for Reconsideration [10] but it was denied
by the Voluntary Arbitrator in a Resolution[11] dated June 17, 2002.Petitioner
received said Resolution on June 27, 2002.[12]

Thirty days later, or on July 27, 2002,[13] petitioner filed a Petition for Certiorari[14] in
the CA, ascribing grave abuse of discretion amounting to lack of jurisdiction to the
Voluntary Arbitrator: (a) for ignoring that in said company the divisor for computing
the applicable daily rate of rank-and-file employees is 360 days which already
includes payment of 13 un-worked regular holidays under Section 2, Article VIII of
the CBA;[15] and (b) for holding the petitioner liable for the unpaid holidays just
because the payroll slips submitted as evidence did not show any payment for the
regular holidays.[16]

In a Resolution[17] dated September 4, 2002, the CA dismissed outright petitioner's

Petition for Certiorari for adopting a wrong mode of appeal. It reasoned:

Considering that what is assailed in the present recourse is a Decision of a Voluntary

Arbitrator, the proper remedy is a petition for review under Rule 43 of the 1997
Rules of Civil Procedure; hence, the present petition for certiorari under Rule 65 filed
on August 15, 2002, should be rejected, as such a petition cannot be a substitute
for a lost appeal. And in this case, the period for appeal via a petition for review has
already lapsed since the petitioner received a copy of the Resolution denying its
motion for reconsideration onJune 27, 2002, so that its last day to appeal lapsed
on July 12, 2002.

x x x x[18]

Petitioner filed a Motion for Reconsideration [19] but it was denied by the CA in a
Resolution[20] dated February 28, 2003.

Hence, the present petition anchored on the following grounds:

(1) The Honorable Court of Appeals erred in rejecting the petition for certiorari
under Rule 65 of the Rules of Court filed by herein petitioner to assail the Decision
of the Voluntary Arbitrator.[21]

(2) Even if decisions of voluntary arbitrator or panel of voluntary arbitrators

are appealable to the Honorable Court of Appeals under Rule 43, a petition for
certiorari under Rule 65 is still available if it is grounded on grave abuse of
discretion. Hence, the Honorable Court of Appeals erred in rejecting the petition
for certiorari under Rule 65 of the Rules of Court filed by herein petitioner. [22]

(3) The Honorable Court of Appeals erred in refusing to rule on the legal issue
presented by herein petitioner in the petition for certiorari that it had filed and in
putting emphasis instead on a technicality of procedure. The legal issues needs a
clear-cut ruling by this Honorable Court for the guidance of herein petitioner and
private respondent.[23]

Petitioner contends that Rule 65 of the Rules of Court is the applicable mode of
appeal to the CA from judgments issued by a voluntary arbitrator since Rule 43 only
allows appeal from judgments of particular quasi-judicial agencies and voluntary
arbitrators authorized by law and not those judgments and orders issued under the
Labor Code; that the petition before the CA did not raise issues of fact but was
founded on jurisdictional issues and, therefore, reviewable through a special civil
action for certiorari under Rule 65; that technicalities of law and procedure should
not be utilized to subvert the ends of substantial justice.

In its Comment,[24] respondent avers that Luzon Development Bank v. Association of

Luzon Development Bank Employees[25] laid down the prevailing rule that judgments
of the Voluntary Arbitrator are appealable to the CA under Section 1, Rule 43 of the
Rules of Court; that having failed to file the appropriate remedy due to the lapse of
the appeal period, petitioner cannot simply invoke Rule 65 for its own convenience,
as an alternative remedy.

In its Reply,[26] petitioner submits that the ruling in Luzon Development Bank does
not expressly exclude the filing of a petition for certiorari under Rule 65 of the Rules
of Court to assail a decision of a voluntary arbitrator. It reiterates that
technicalities of law and procedure should not be utilized to subvert the ends of
substantial justice.

 It has long been settled in the landmark

case Luzon Development Bank that a voluntary arbitrator, whether acting solely or
in a panel, enjoys in law the status of a quasi-judicial agency; hence, his decisions
and awards are appealable to the CA. This is so because the awards of voluntary
arbitrators become final and executory upon the lapse of the period to appeal;
[27]
and since their awards determine the rights of parties, their decisions have the
same effect as judgments of a court. Therefore, the proper remedy from an award
of a voluntary arbitrator is a petition for review to the CA, following Revised
Administrative Circular No. 1-95, which provided for a uniform procedure for
appellate review of all adjudications of quasi-judicial entities, which is now
embodied in Section 1, Rule 43 of the 1997 Rules of Civil Procedure, which reads:

SECTION 1. Scope. This Rule shall apply to appeals from judgments or final orders
of the Court of Tax Appeals and from awards, judgments, final orders or resolutions
of or authorized by any quasi-judicial agency in the exercise of its quasi-judicial
functions. Among these agencies are the Civil Service Commission, Central Board of
Assessment Appeals, Securities and Exchange Commission, Office of the President,
Land Registration Authority, Social Security Commission, Civil Aeronautics Board,
Bureau of Patents, Trademarks and Technology Transfer, National Electrification
Administration, Energy Regulatory Board, National Telecommunications Commission,
Department of Agrarian Reform under Republic Act No. 6657, Government Service
Insurance System, Employees Compensation Commission, Agricultural Inventions
Board, Insurance Commission, Philippine Atomic Energy Commission, Board of
Investments, Construction Industry Arbitration Commission, and voluntary
arbitrators authorized by law.[28] (Emphasis supplied)
Section 2, Rule 43 of the 1997 Rules of Civil Procedure which
provides that:

SEC. 2. Cases not covered. - This Rule shall not apply to judgments or final orders
issued under the Labor Code of the Philippines.

did not alter the Court's ruling in Luzon Development Bank. Section 2, Rule 42 of
the 1997 Rules of Civil Procedure, is nothing more than a reiteration of the
exception to the exclusive appellate jurisdiction of the CA, [29] as provided for in
Section 9, Batas Pambansa Blg. 129,[30] as amended by Republic Act No. 7902:[31]

(3) Exclusive appellate jurisdiction over all final judgments, decisions, resolutions,
orders or awards of Regional Trial Courts and quasi-judicial agencies,
instrumentalities, boards or commissions, including the Securities and Exchange
Commission, the Employees Compensation Commission and the Civil Service

Commission, except those falling within the appellate jurisdiction of the

Supreme Court in accordance with the Constitution, the Labor Code of the
Philippines under Presidential Decree No. 442, as amended,the provisions of
this Act and of subparagraph (1) of the third paragraph and subparagraph (4) of the
fourth paragraph of Section 17 of the Judiciary Act of 1948.

The Court took into account this exception in Luzon Development Bank but,
nevertheless, held that the decisions of voluntary arbitrators issued pursuant to the
Labor Code do not come within its ambit, thus:

x x x. The fact that [the voluntary arbitrators] functions and powers are provided
for in the Labor Code does not place him within the exceptions to said Sec. 9 since
he is a quasi-judicial instrumentality as contemplated therein. It will be noted that,
although the Employees Compensation Commission is also provided for in the
Labor Code, Circular No. 1-91, which is the forerunner of the present Revised
Administrative Circular No. 1-95, laid down the procedure for the appealability of its
decisions to the Court of Appeals under the foregoing rationalization, and this was
later adopted by Republic Act No. 7902 in amending Sec. 9 of B.P. 129.

A fortiori, the decision or award of the voluntary arbitrator or panel of arbitrators

should likewise be appealable to the Court of Appeals, in line with the procedure
outlined in Revised Administrative Circular No. 1-95, just like those of the quasijudicial agencies, boards and commissions enumerated therein.

This would be in furtherance of, and consistent with, the original purpose of Circular
No. 1-91 to provide a uniform procedure for the appellate review of adjudications of
all quasi-judicial entities not expressly excepted from the coverage of Sec. 9 of B.P.
129 by either the Constitution or another statute. Nor will it run counter to the
legislative intendment that decisions of the NLRC be reviewable directly by the
Supreme Court since, precisely, the cases within the adjudicative competence of the
voluntary arbitrator are excluded from the jurisdiction of the NLRC or the labor
arbiter.[32]

This ruling has been repeatedly reiterated in subsequent cases [33] and continues to
be the controlling doctrine. Thus, the general rule is that the proper remedy from
decisions of voluntary arbitrators is a petition for review under Rule 43 of the Rules
of Court.

Nonetheless, a special civil action for certiorari under Rule 65 of the Rules of Court
is the proper remedy for one who complains that the tribunal, board or officer

exercising judicial or quasi-judicial functions acted

in total disregard of evidence material to or decisive of the controversy.
[34]
As this Court elucidated in Garcia v. National Labor Relations Commission[35] -

[I]n Ong v. People, we ruled that certiorari can be properly resorted to where the
factual findings complained of are not supported by the evidence on
record. Earlier, in Gutib v. Court of Appeals, we emphasized thus:

[I]t has been said that a wide breadth of discretion is granted a court of justice
in certiorari proceedings. The cases in which certiorari will issue cannot be defined,
because to do so would be to destroy its comprehensiveness and usefulness. So
wide is the discretion of the court that authority is not wanting to show
thatcertiorari is more discretionary than either prohibition or mandamus. In the
exercise of our superintending control over inferior courts, we are to be guided by
all the circumstances of each particular case as the ends of justice may require.
So it is that the writ will be granted where necessary to prevent a
substantial wrong or to do substantial justice. [36]

In addition, while the settled rule is that an independent action for certiorari may be
availed of only when there is no appeal or any plain, speedy and adequate remedy
in the ordinary course of law[37] and certiorari is not a substitute for the lapsed
remedy of appeal,[38] there are a few significant exceptions when the extraordinary
remedy of certiorari may be resorted to despite the availability of an appeal,
namely: (a) when public welfare and the advancement of public policy
dictate; (b) when the broader interests of justice so require; (c) when the
writs issued are null; and (d) when the questioned order amounts to an oppressive
exercise of judicial authority.[39]

In this case, while the petition was filed on July 27, 2002,[40] 15 days after July 12,
2002, the expiration of the 15-day reglementary period for filing an appeal under
Rule 43, the broader interests of justice warrant relaxation of the rules on
procedure. Besides, petitioner alleges that the Voluntary Arbitrators conclusions
have no basis in fact and in law; hence, the petition should not be dismissed on
procedural grounds.

The Voluntary Arbitrator gravely abused its discretion in giving a strict or literal
interpretation of the CBA provisions that the holiday pay be reflected in the payroll
slips. Such literal interpretation ignores the admission of respondent in its Position
Paper[41] that the employees were paid all the days of the month even if not
worked. In light of such admission, petitioner's submission of its 360 divisor in
the computation of employees salaries gains significance.

In Union of Filipro Employees v. Vivar, Jr.[42] the Court held that [t]he divisor
assumes an important role in determining whether or not holiday pay is already
included in the monthly paid employees salary and in the computation of his daily
rate. This ruling was applied in Wellington Investment and Manufacturing
Corporation v. Trajano,[43] Producers Bank of the Philippines v. National Labor
Relations Commission[44] and Odango v. National Labor Relations Commission,
[45]
among others.[46]

In Wellington,[47] the monthly salary was fixed by Wellington to provide for

compensation for every working day of the year including the holidays specified by
law and excluding only Sundays. In fixing the salary, Wellington used what it
called the 314 factor; that is, it simply deducted 51 Sundays from the 365 days
normally comprising a year and used the difference, 314, as basis for determining
the monthly salary. The monthly salary thus fixed actually covered payment for
314 days of the year, including regular and special holidays, as well as days when
no work was done by reason of fortuitous cause, such as transportation strike, riot,
or typhoon or other natural calamity, or cause not attributable to the employees.

In Producers Bank,[48] the employer used the divisor 314 in arriving at the daily wage
rate of monthly salaried employees. The divisor 314 was arrived at by subtracting
all Sundays from the total number of calendar days in a year, since Saturdays are
considered paid rest days. The Court held that the use of 314 as a divisor leads to
the inevitable conclusion that the ten legal holidays are already included therein.

In Odango v. National Labor Relations Commission,[49] the Court ruled that the use
of a divisor that was less than 365 days cannot make the employer automatically
liable for underpayment of holiday pay. In said case, the employees were required
to work only from Monday to Friday and half of Saturday. Thus, the minimum
allowable divisor is 287, which is the result of 365 days, less 52 Sundays and less 26
Saturdays (or 52 half Saturdays). Any divisor below 287 days meant that the
employees were deprived of their holiday pay for some or all of the ten legal
holidays. The 304-day divisor used by the employer was clearly above the
minimum of 287 days.

In this case, the employees are required to work only from Monday to Friday. Thus,
the minimum allowable divisor is 263, which is arrived at by deducting 51 unworked Sundays and 51 un-worked Saturdays from 365 days. Considering that
petitioner used the 360-day divisor, which is clearly above the minimum,
indubitably, petitioner's employees are being given their holiday pay.

Thus, the Voluntary Arbitrator should not have simply brushed aside petitioner's
divisor formula. In granting respondent's claim of non-payment of holiday pay, a
double burden was imposed upon petitioner because it was being made to pay
twice for its employees' holiday pay when payment thereof had already been
included in the computation of their monthly salaries. Moreover, it is absurd to
grant respondent's claim of non-payment when they in fact admitted that they were
being paid all of the days of the month even if not worked. By granting
respondent's claim, the Voluntary Arbitrator sanctioned unjust enrichment in favor
of the respondent and caused unjust financial burden to the petitioner. Obviously,
the Court cannot allow this.

While the Constitution is committed to the policy of social justice[50] and the
protection of the working class,[51] it should not be supposed that every labor
dispute would automatically be decided in favor of labor. Management also has it
own rights which, as such, are entitled to respect and enforcement in the interest of
simple fair play. Out of concern for those with less privileges in life, this Court has
inclined more often than not toward the worker and upheld his cause in his conflicts
with the employer. Such favoritism, however, has not blinded us to the rule that
justice is in every case for the deserving, to be dispensed in the light of the
established facts and the applicable law and doctrine. [52]

WHEREFORE, the petition for review is GRANTED. The

Resolutions dated September 4, 2002 and February 28, 2003 of the Court of
Appeals in CA-G.R. SP No. 72336 are REVERSED and SET ASIDE. The Decision
dated March 1, 2001 and Resolution dated June 17, 2002 of the Voluntary Arbitrator
are declared NULL and VOID.

PROHIBITION
CITY ENGINEER OF BAGUIO VS ROLANDO BANIQUED
CITY ENGINEER OF BAGUIO and HON. MAURICIO DOMOGAN, petitioners
vs.
ROLANDO BANIQUED, respondent.
DECISION
REYES, R.T., J.:
OFT-QUOTED in cases involving searches and seizures is the principle that a man's
home is his castle. Not even the king would dare desecrate it. In protecting his
home, the poorest and most humble citizen or subject may bid defiance to all the
powers of the State.1 Indeed, a man is king in his own house.
The case before Us views the sanctity of a man's home in a different light. It is
about a man's struggle against the attempt of the State to demolish his house.

Petitioners Leo Bernardez, Jr. and Mauricio Domogan question by way of appeal
under Rule 45 the Decision2 and Resolution3 of the Court of Appeals (CA) which set
aside the Order4 of the Regional Trial Court (RTC) dismissing the complaint 5 for
prohibition with temporary restraining order (TRO)/injunction filed by private
respondent Rolando Baniqued.
The Facts
Generoso Bonifacio, acting as the attorney-in-fact of Purificacion de Joya, Milagros
Villar, Minerva Baluyut and Israel de Leon filed a complaint with the Office of the
Mayor of Baguio City seeking the demolition of a house built on a parcel of
land6 located at Upper Quezon Hill, Baguio City.
On May 19, 1999, Domogan, the then city mayor of Baguio City, issued Notice of
Demolition No. 55, Series of 1999, against spouses Rolando and Fidela Baniqued.
Pertinent parts of the notice read:
The investigation and ocular inspection conducted by the City Engineer's Office
(memorandum dated 18 February 1998) showed that you built your structures
sometime in 1999 without any building permit in violation of P.D. 1096 and possibly
R.A. 7279, qualifying your structure structures illegal, thus, subject to demolition.
The Anti-Squatting Committee in its Resolution No. 52-4 dated 22 April 1999 has
recommended for the demolition of your illegal structures.
IN VIEW OF THE FOREGOING, you are hereby notified to voluntarily
remove/demolish your illegal structures within seven (7) days from receipt of this
notice, otherwise the City Demolition Team will undertake the demolition of your
illegal structures at your own expense.7
Aggrieved, Rolando Baniqued filed a complaint for prohibition with TRO/injunction
before Branch 60 of the RTC in Baguio City.
In his complaint, Baniqued alleged that the intended demolition of his house was
done without due process of law and "was arrived at arbitrarily and in a martial-law
like fashion." Specifically, Baniqued alleged that he was (1) never given any copy of
the complaint of Generoso Bonifacio; (2) "never summoned nor subpoenaed to
answer that complaint"; (3) "never allowed to participate in the investigation and
ocular inspection which the City Engineer's Office allegedly conducted, as a
consequence of the complaint of Bonifacio, much less to adduce evidence in
support of his position"; (4) "never summoned nor subpoenaed to appear before the
Anti-Squatting Committee"; and (5) "not given the opportunity to contest the
complaint against him, before such complaint was decided and to be carried out by
the Defendants."8
Baniqued buttressed his complaint by arguing that Article 536 of the Civil Code
should be applied, i.e., there should be a court action and a court order first before
his house can be demolished and before he can be ousted from the lot. 9 More, under
Section 28 of Republic Act 7279, an adequate relocation should be provided first
before demolition can be had.10 Too, by virtue of the National Building Code or

Presidential Decree (P.D.) No. 1096, the demolition of buildings or structures should
only be resorted to in case they are dangerous or ruinous. Otherwise, the remedy is
criminal prosecution under Section 213 of P.D. No. 1096. 11 Lastly, the 1991 Local
Government Code does not empower the mayor to order the demolition of anything
unless the interested party was afforded prior hearing and unless the provisions of
law pertaining to demolition are satisfied.12 Thus, Baniqued prayed for the following
reliefs:
A. Immediately upon the filing hereof, a temporary restraining order be issued
stopping the Defendants, or any other person acting under their orders or authority,
from carrying out, or causing to carry out, the demolition of Plaintiff's residential
unit at Upper Quezon Hill, Baguio City under Notice of Demolition No. 55;
B. After due notice and hearing, a writ of preliminary injunction be issued for the
same purpose as to that of the TRO, and, thereafter, for this preliminary writ to be
made permanent;
C. A writ of prohibition be issued, commanding the Defendants to stop carrying out,
or causing to carry out, the demolition of the aforesaid unit of the Plaintiffs. 13
On June 7, 1999, the RTC enjoined the carrying out of the demolition of the house of
Baniqued. The hearing on his application for preliminary injunction was also set. 14
On June 25, 1999, petitioners moved to dismiss15 the complaint of Baniqued on the
ground of lack of cause of action because (1) there is nothing to be enjoined "as
there is no Demolition Order issued by the City Mayor" and that the Demolition
Team "does not demolish on the basis of a mere Notice of Demolition"; (2) he has
"no clear legal right to be protected as his structure is illegal, the same having been
built on a land he does not own without the consent of the owner thereof and
without securing the requisite building permit"; (3) the Notice of Demolition "was
issued in accordance with law and in due performance of the duties and functions of
defendants, who being public officers, are mandated by law to enforce all pertinent
laws against illegal constructions"; and that (4) "[d]efendants do not exercise
judicial and quasi-judicial functions. Neither was the issuance of the assailed Notice
of Demolition an exercise of a ministerial function. Nor is there any allegation in the
complaint that defendants acted without or in excess of jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction." 16
RTC and CA Dispositions
On October 15, 1999, the RTC granted the motion of petitioners and dismissed the
complaint of Baniqued with the following disposition:
WHEREFORE, finding merit in the motion to dismiss filed by the defendant, the
same is hereby GRANTED and this case is hereby DISMISSED without
pronouncement as to costs.
Atty. Melanio Mauricio is hereby cited for contempt of court and is hereby warned
that a repetition of his use of improper language whether orally or in any of his
pleadings will be dealt with more severely in the future.

SO ORDERED.17
The RTC reasoned that petitioners "are unquestionably members of the executive
branch whose functions are neither judicial nor quasi-judicial." 18 The RTC also
sustained the argument of petitioners that "the act complained of can hardly qualify
as ministerial in nature as to put it within the ambit of the rule on
prohibition."19 Lastly, the complaint of Baniqued was procedurally infirm because he
failed to exhaust administrative remedies. 20
Baniqued moved for reconsideration21 which was opposed.22 On March 3, 2000, the
RTC denied the motion.23
Refusing to give up, Baniqued appealed the decision of the RTC. The CA sustained
Baniqued, disposing as follows:
IN VIEW OF ALL THE FOREGOING, the instant petition is GRANTED and the
appealed Orders dated October 15, 1999 and March 3 2000 are
both RECALLED and SET ASIDE and a new one issued DENYING the Motion to
Dismiss dated June 25, 1999. After the finality of this judgment, let the entire
original records of the case at bench be returned to the court a quowhich is
reminded to decide the case on the merits and with dispatch. No pronouncement as
to costs.
SO ORDERED.24
According to the CA, it may be true that the mayor is an executive official. However,
as such, he has also been given the authority to hear controversies involving
property rights. In that regard, the Mayor exercises quasi-judicial functions. 25
The CA also held that the allegations in the complaint of Baniqued state a cause of
action. The averments in the complaint call for a determination whether court action
is needed before Baniqued can be ousted from the questioned lot. 26
Petitioners attempted at a reconsideration27 to no avail. Left with no other recourse,
they interposed the present appeal.28
Issues
Petitioners impute to the CA the following errors, viz.:
1. THE COURT OF APPEALS GRAVELY ERRED AND ABUSED ITS DISCRETION IN
RULING THAT THE ACT OF THE CITY MAYOR IN ISSUING A NOTICE OF DEMOLITION IS
A QUASI-JUDICIAL FUNCTION;
2. THE COURT OF APPEALS GRAVELY ERRED AND ABUSED ITS DISCRETION IN
RULING THAT THE ACTION OF PROHIBITION FILED BY BANIQUED WITH THE TRIAL
COURT IS PROPER UNDER THE CIRCUMSTANCES;
3. THE COURT OF APPEALS GRAVELY ERRED AND ABUSED ITS DISCRETION IN
REVERSING THE DECISION OF THE TRIAL COURT.29 (Underscoring supplied)

In sum, petitioners claim that Baniqued incorrectly availed of the remedy of

prohibition.
Our Ruling
The petition is unmeritorious.
Baniqued correctly availed of the remedy of prohibition. Prohibition or a "writ
of prohibition" is that process by which a superior court prevents inferior courts,
tribunals, officers, or persons from usurping or exercising a jurisdiction with which
they have not been vested by law. 30 As its name indicates, the writ is one that
commands the person or tribunal to whom it is directed not to do something which
he or she is about to do. The writ is also commonly defined as one to prevent a
tribunal possessing judicial or quasi-judicial powers from exercising jurisdiction over
matters not within its cognizance or exceeding its jurisdiction in matters of which it
has cognizance.31 At common law, prohibition was a remedy used when subordinate
courts and inferior tribunals assumed jurisdiction which was not properly theirs.
Prohibition, at common law, was a remedy against encroachment of jurisdiction. Its
office was to restrain subordinate courts and inferior judicial tribunals from
extending their jurisdiction and, in adopting the remedy, the courts have almost
universally preserved its original common-law nature, object and function. Thus, as
a rule, its proper function is to prevent courts, or other tribunals, officers, or persons
from usurping or exercising a jurisdiction with which they are not vested by law, and
confine them to the exercise of those powers legally conferred. However, the
function of the writ has been extended by some authorities to cover situations
where, even though the lower tribunal has jurisdiction, the superior court deems it
necessary and advisable to issue the writ to prevent some palpable and
irremediable injustice, and, x x x the office of the remedy in some jurisdictions has
been enlarged or restricted by constitutional or statutory provisions. While
prohibition has been classified as an equitable remedy, it is generally referred to as
a common-law remedy or writ; it is a remedy which is in nature legal, although, x x
x its issuance is governed by equitable principles. 32 (Citations omitted)
Prohibition is not a new concept. It is a remedy of ancient origin. It is even said that
it is as old as common law itself. The concept originated in conflicts of jurisdiction
between royal courts and those of the church. 33 In our jurisdiction, the rule on
prohibition is enshrined in Section 2, Rule 65 of the Rules on Civil Procedure, to wit:
Sec. 2. Petition for prohibition. - When the proceedings of any tribunal, corporation,
board, officer or person, whether exercising judicial, quasi-judicial or ministerial
functions, are without or in excess of its or his jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction, and there is no appeal or any
other plain, speedy, and adequate remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the proper court, alleging the facts
with certainty and praying that the judgment be rendered commanding the
respondent to desist from further proceedings in the action or matter specified
therein, or otherwise granting such incidental reliefs as the law and justice require.

The petition shall likewise be accompanied by a certified true copy of the judgment,
order or resolution subject thereof, copies of all pleadings and documents relevant
and pertinent thereto and a sworn certification of non-forum shopping as provided
in the third paragraph of Section 3, Rule 46.
It is very clear that before resorting to the remedy of prohibition, there should be
"no appeal or any other plain, speedy, and adequate remedy in the ordinary course
of law." Thus, jurisprudence teaches that resort to administrative remedies should
be had first before judicial intervention can be availed of.
This Court in a long line of cases has consistently held that before a party is allowed
to seek the intervention of the court, it is a pre-condition that he should have
availed of all the means of administrative processes afforded him. Hence, if a
remedy within the administrative machinery can still be resorted to by giving the
administrative officer concerned every opportunity to decide on a matter that
comes within his jurisdiction then such remedy should be exhausted first before
court's judicial power can be sought. The premature invocation of court's
intervention is fatal to one's cause of action. x x x 34
Explaining the reason behind the rule, Mr. Justice Justo Torres, Jr., expounded, thus:
x x x This doctrine of exhaustion of administrative remedies was not without its
practical and legal reasons, for one thing, availment of administrative remedy
entails lesser expenses and provides for a speedier disposition of controversies. It is
no less true to state that the courts of justice for reasons of comity and convenience
will shy away from a dispute until the system of administrative redress has been
completed and complied with so as to give the administrative agency concerned
every opportunity to correct its error and to dispose of the case. x x x 35
Petitioners are of the view that the complaint of Baniqued for prohibition is fatally
defective because he failed to exhaust administrative remedies. If he felt aggrieved
by the issuance of the notice of demolition, administrative remedies were readily
available to him. For example, he could have easily filed a motion for reinvestigation
or reconsideration.36
The argument fails to persuade.
The doctrine of exhaustion of administrative remedies is not an iron-clad
rule.37 It admits of several exceptions. Jurisprudence is well-settled that the doctrine
does not apply in cases (1) when the question raised is purely legal; (2) when the
administrative body is in estoppel; (3) when the act complained of is patently
illegal; (4) when there is urgent need for judicial intervention; (5) when the
claim involved is small; (6) when irreparable damage will be suffered; (7)
when there is no other plain, speedy, and adequate remedy; (8) when strong public
interest is involved; (9) when the subject of the proceeding is private land; (10)
in quo warranto proceedings; and (11) where the facts show that there was violation
of due process.38
Here, there was an urgent need for judicial intervention. The filing of a motion for
reinvestigation or reconsideration would have been a useless exercise. The notice of

demolition is very clear and speaks for itself. City Mayor Domogan already made up
his mind that the house of Baniqued was illegally built and was thus subject to
demolition. It could reasonably be assumed that a motion for reinvestigation or
reconsideration would have also been denied outright. The irreparable damage to
Baniqued in case his house was demolished cannot be gainsaid.
Petitioners contend, though, that the complaint of Baniqued is premature. They
say that what was issued by City Mayor Domogan was only a notice of demolition,
and not an order of demolition.39 In short, petitioners are saying that Baniqued
jumped the gun. He should have waited first for the issuance of a demolition order
because no demolition can be carried out in the absence of such order.
To Our mind, the distinction between a notice of demolition and an order of
demolition is immaterial. What is material is that Baniqued felt threatened with the
impending demolition of his house. It would have been too late and illogical if he
waited first for his house to be actually demolished, before seeking protection from
the courts. Acting in the earliest opportunity and availing of the best remedy
available to protect his right was the prudent course of action.
Petitioners also argue that the complaint of Baniqued should not prosper because
he never allegedthat the act complained of was done without or in excess of
jurisdiction or with grave abuse of discretion. 40 To support their stance, they
cite Reyes v. Romero41 where this Court denied the petition for prohibition because
there was "no allegation whatsoever charging the respondent Judge with lack of
jurisdiction or with having committed grave abuse of discretion." 42 Put differently,
petitioners argue that for a complaint for prohibition to prosper, there should be a
specific allegation that the act complained of was done without or in excess of
jurisdiction or with grave abuse of discretion.
The argument is specious on two grounds.
First, Romero is not necessarily applicable to the instant case because it involved a
different set of facts. There, a team of PC Rangers raided a house in Pasay City,
Rizal, which was dubbed as a Gambling Casino. As a result, twelve persons were
charged for violating the gambling law. The case was tried in the branch of the
Municipal Trial Court in Pasay presided by Judge Lucio Tianco. The accused were
later acquitted for insufficiency of evidence.
An off-shoot of the raid was the prosecution of petitioners as maintainers of a
gambling den. The case was also assigned to the sala of Judge Tianco. However, as
Judge Tianco was on leave, the Secretary of Justice designated Judge Guillermo
Romero to preside over said branch.
Sometime later, Judge Tianco returned to office and resumed his duties. This,
notwithstanding, Judge Romero ordered the continuation of the trial before him.
Petitioners then sought the inhibition of Judge Romero in view of the return of Judge
Tianco. The motion was denied. The matter was brought directly to this Court on
petition for prohibition with preliminary injunction. One of the two issues resolved by
the Court was "whether respondent Judge in refusing to inhibit himself from

continuing with the trial of the criminal case in question, acted without or in excess
of his jurisdiction or with grave abuse of discretion." 43
Clearly, the surrounding circumstances in Romero are absent in the case now before
Us. They cannot be remotely applied even by analogy.
Second, petitioners misconstrued Romero by interpreting it literally. The better
interpretation is that the absence of specific allegation that the act complained of
was done without or in excess of jurisdiction or with grave abuse of discretion would
not automatically cause the dismissal of the complaint for prohibition, provided that
a reading of the allegations in the complaint leads to no other conclusion than that
the act complained of was, indeed, done without or in excess of jurisdiction. To
subscribe to the reasoning of petitioners may lead to an absurd situation. A patently
unmeritorious complaint for prohibition may not be given due course just because
of an allegation that the act complained of was committed without or in excess of
jurisdiction or with grave abuse of discretion.
This interpretation is supported by Romero itself. Petitioners overlooked that the
case goes on to say that even if there were allegations of grave abuse of discretion,
"there can be no abuse of discretion, much less a grave one, for respondent Judge
to comply with a valid and legal Administrative Order (No. 183) of the Secretary of
Justice."44
The Mayor, although performing executive functions, also exercises quasijudicial function which may be corrected by prohibition. As a parting
argument, petitioners contend that the complaint of Baniqued is outside the scope
of the rule on prohibition which covers the proceedings of any "tribunal, corporation,
board, officer or person, whether exercising judicial, quasi-judicial or ministerial
functions." The issuance of the notice of demolition by the City Mayor is never a
judicial, ministerial or rule-making function. It is strictly an act of law enforcement
and implementation, which is purely an executive function. Neither is the Office of
the City Mayor a quasi-judicial body. 45
Again, petitioners are mistaken. We need not belabor so much on this point. We
quote with approval the CA observations in this regard, viz.:
Under existing laws, the office of the mayor is given powers not only relative to its
function as the executive official of the town. It has also been endowed with
authority to hear issues involving property rights of individuals and to come out with
an effective order or resolution thereon. In this manner, it exercises quasi-judicial
functions. This power is obviously a truism in the matter of issuing demolition
notices and/or orders against squatters and illegal occupants through some of its
agencies or authorized committees within its respective municipalities or cities.
There is no gainsaying that a city mayor is an executive official nor is the matter of
issuing demolition notices or orders not a ministerial one. But then, it cannot be
denied as well that in determining whether or not a structure is illegal or it should
be demolished, property rights are involved thereby needing notices and
opportunity to be heard as provided for in the constitutionally guaranteed right of

due process. In pursuit of these functions, the city mayor has to exercise quasijudicial powers. Moreno, in his Philippine Law Dictionary, 3rd Edition,defines
quasi-judicial function as applying to the action discretion, etc. of public
administrative officers or bodies, who are required to investigate facts or ascertain
the existence of facts, hold hearings, and draw conclusions from them, as a basis
for their official action, and to exercise discretion of a judicial nature (Midland
Insurance Corp. v. Intermediate Appellate Court, 143 SCRA 458 [1986]).
Significantly, the Notice of Demolition in issue was the result of the exercise of
quasi-judicial power by the Office of the Mayor. 46
We also agree with the CA that the complaint of Baniqued states a cause of action.
The averments in the complaint "call for a determination of whether or not there is
need for a court action or a court litigation to oust plaintiff from the possession of
the subject lot, or, it is within the jurisdictional prerogative of the Office of the Mayor
to eject [an] unlawful occupant from a private titled land he does not own." 47
Lest this Decision be misunderstood, We hasten to clarify that We have not
prejudged the merits of the case. Whether or not Baniqued is, indeed, entitled to a
writ of prohibition is a matter which the trial court should determine in the first
instance without further delay.
WHEREFORE, the appealed Decision is AFFIRMED. The case is REMANDED to the
trial court for further proceedings.
MANDAMUS
UY LIAO ENG VS NIXON LEE
Nixon filed a petition for issuance of writ of mandamus with damages to compel his
mother Kiao Eng to produce the holographic will of his mother, who died on June 22,
1992. This because his mother refused to settle the estate and liquidate his fathers
estate and deliver to the legal heirs their inheritance. In her answer, Kiao Eng
posited that the complaint should be dismissed for failure to cause a state of action,
lack of cause of action, and non-compliance with a condition precedent, alleging
that Nixon already have copies of the will; in fact he was able to attach copy of the
will to his petiton; no earnest efforts amicably settle the case was also made by
Nixon.
After Nixon presented his evidence, Kiao Eng filed her demurrer to evidence,
alleging that Nixon failed to prove her custody of the will. The lower court initially
denied the demurrer, but on motion for reconsideration reversed itself and
dismissed the case filed by Nixon. Nixon thus appealed to the Court of Appeals. The
Court of Appeals initially dismissed the appeal, but granted the same, commanding
the issuance of the writ of mandamus to produce the holographic will of Nixons
father.
Kiao Eng thus appealed to the Supreme Court, contesting the grant of mandamus to
produce the holographic will.
The Supreme Court granted the petition:

Mandamus is a command issuing from a court of law of competent jurisdiction, in

the name of the state or the sovereign, directed to some inferior court, tribunal, or
board, or to some corporation or person requiring the performance of a particular
duty therein specified, which duty results from the official station of the party to
whom the writ is directed or from operation of law. This definition recognizes the
public character of the remedy, and clearly excludes the idea that it may be
resorted to for the purpose of enforcing the performance of duties in which the
public has no interest. The writ is a proper recourse for citizens who seek to enforce
a public right and to compel the performance of a public duty, most especially when
the public right involved is mandated by the Constitution. As the quoted provision
instructs, mandamus will lie if the tribunal, corporation, board, officer, or person
unlawfully neglects the performance of an act which the law enjoins as a duty
resulting from an office, trust or station.
xxx
In the instant case, the Court, without unnecessarily ascertaining whether the
obligation involved herethe production of the original holographic willis in the
nature of a public or a private duty, rules that the remedy of mandamus cannot be
availed of by respondent Lee because there lies another plain, speedy and adequate
remedy in the ordinary course of law. Let it be noted that respondent has a
photocopy of the will and that he seeks the production of the original for purposes
of probate. The Rules of Court, however, does not prevent him from instituting
probate proceedings for the allowance of the will whether the same is in his
possession or not. Rule 76, Section 1 relevantly provides:
Section 1. Who may petition for the allowance of will.Any executor, devisee, or
legatee named in a will, or any other person interested in the estate, may, at any
time, after the death of the testator, petition the court having jurisdiction to have
the will allowed, whether the same be in his possession or not, or is lost or
destroyed.
An adequate remedy is further provided by Rule 75, Sections 2 to 5, for the
production of the original holographic will. Thus
SEC. 2. Custodian of will to deliver.The person who has custody of a will shall,
within twenty (20) days after he knows of the death of the testator, deliver the will
to the court having jurisdiction, or to the executor named in the will.
SEC. 3. Executor to present will and accept or refuse trust.A person named as
executor in a will shall within twenty (20) days after he knows of the death of the
testator, or within twenty (20) days after he knows that he is named executor if he
obtained such knowledge after the death of the testator, present such will to the
court having jurisdiction, unless the will has reached the court in any other manner,
and shall, within such period, signify to the court in writing his acceptance of the
trust or his refusal to accept it.

SEC. 4. Custodian and executor subject to fine for neglect.A person who neglects
any of the duties required in the two last preceding sections without excuse
satisfactory to the court shall be fined not exceeding two thousand pesos.
SEC. 5. Person retaining will may be committed.A person having custody of a will
after the death of the testator who neglects without reasonable cause to deliver the
same, when ordered so to do, to the court having jurisdiction, may be committed to
prison and there kept until he delivers the will.
There being a plain, speedy and adequate remedy in the ordinary course of law for
the production of the subject will, the remedy of mandamus cannot be availed of.
Suffice it to state that respondent Lee lacks a cause of action in his petition. Thus,
the Court grants the demurrer.

QUOWARRANTO
TOPACIO VS ONG
Ferdinand Topacio (petitioner) via the present petition for certiorari and prohibition
seeks, in the main, to prevent Justice Gregory Ong (Ong) from further exercising the
powers, duties and responsibilities of a Sandiganbayan Associate Justice.
It will be recalled that in Kilosbayan Foundation v. Ermita,1 the Court, by Decision of
July 3, 2007, enjoined Ong "from accepting an appointment to the position of
Associate Justice of the Supreme Court or assuming the position and discharging the
functions of that office, until he shall have successfully completed all necessary
steps, through the appropriate adversarial proceedings in court, to show that he is a
natural-born Filipino citizen and correct the records of his birth and citizenship." 2
On July 9, 2007, Ong immediately filed with the Regional Trial Court (RTC) of Pasig
City a Petition for the "amendment/ correction/ supplementation or annotation of an
entry in [his] Certificate of Birth," docketed as S.P. Proc No. 11767-SJ, "Gregory
Santos Ong v. The Civil Registrar of San Juan, Metro Manila, et al."3
Meanwhile, petitioner, by verified Letter-Request/Complaint 4 of September 5, 2007,
implored respondent Office of the Solicitor General (OSG) to initiate post-haste
a quo warranto proceeding against Ong in the latters capacity as an incumbent
Associate Justice of the Sandiganbayan. Invoking paragraph 1, Section 7, Article VIII
of the Constitution5 in conjunction with the Courts Decision in Kilosbayan
Foundation v. Ermita,6 petitioner points out that natural-born citizenship is also a
qualification for appointment as member of the Sandiganbayan and that Ong has
failed to meet the citizenship requirement from the time of his appointment as such
in October 1998.
The OSG, by letter of September 25, 2007, informed petitioner that it "cannot
favorably act on [his] request for the filing of a quo warranto petition until the [RTC]
case shall have been terminated with finality." 7 Petitioner assails this position of the
OSG as being tainted with grave abuse of discretion, aside from Ongs continuous
discharge of judicial functions.

Hence, this petition, positing that:

IN OCTOBER OF 1998, RESPONDENT WAS NOT DULY-QUALIFIED UNDER THE FIRST
SENTENCE OF PARAGRAPH 1, SECTION 7, OF THE 1987 CONSTITUTION, TO BE
APPOINTED AN ASSOCIATE JUSTICE OF THE SANDIGANBAYAN, MERELY ON THE
STRENGTH OF AN IDENTIFICATION CERTIFICATE ISSUED BY THE BUREAU OF
IMMIGRATION AND A 1ST INDORSEMENT DATED 22 MAY 1997 ISSUED BY THE
SECRETARY OF JUSTICE, BECAUSE, AS OF OCTOBER 1998, RESPONDETS BIRTH
CERTIFICATE INDICATED THAT RESPONDENT IS A CHINESE CITIZEN AND BECAUSE,
AS OF OCTOBER 1998, THE RECORDS OF THIS HONORABLE COURT DECLARED THAT
RESPONDENT IS A NATURALIZED FILIPINO CITIZEN.8 (Underscoring supplied)
Petitioner thus contends that Ong should immediately desist from holding the
position of Associate Justice of the Sandiganbayan since he is disqualified on the
basis of citizenship, whether gauged from his birth certificate which indicates him to
be a Chinese citizen or against his bar records bearing out his status as a
naturalized Filipino citizen, as declared in Kilosbayan Foundation v. Ermita.
Ong, on the other hand, states that Kilosbayan Foundation v. Ermita did not annul or
declare null his appointment as Justice of the Supreme Court, but merely enjoined
him from accepting his appointment, and that there is no definitive pronouncement
therein that he is not a natural-born Filipino. He informs that he, nonetheless,
voluntarily relinquished the appointment to the Supreme Court out of judicial
statesmanship.9
By Manifestation and Motion to Dismiss of January 3, 2008, Ong informs that the
RTC, by Decision of October 24, 2007, already granted his petition and recognized
him as a natural-born citizen. The Decision having, to him, become final, 10he caused
the corresponding annotation thereof on his Certificate of Birth. 11
Invoking the curative provisions of the 1987 Constitution, Ong explains that his
status as a natural-born citizen inheres from birth and the legal effect of such
recognition retroacts to the time of his birth.
Ong thus concludes that in view of the RTC decision, there is no more legal or
factual basis for the present petition, or at the very least this petition must await
the final disposition of the RTC case which to him involves a prejudicial issue.
The parties to the present petition have exchanged pleadings 12 that mirror the
issues in the pending petitions for certiorari in G.R. No. 180543, "Kilosbayan
Foundation, et al. v. Leoncio M. Janolo, Jr., et al," filed with this Court and in CA-G.R.
SP No. 102318, "Ferdinand S. Topacio v. Leoncio M. Janolo, Jr., et al.,"13 filed with the
appellate court, both of which assail, inter alia, the RTC October 24, 2007 Decision.
First, on the objection concerning the verification of the petition.
The OSG alleges that the petition is defectively verified, being based on petitioners
"personal knowledge and belief and/or authentic records," and having been
"acknowledged" before a notary public who happens to be petitioners father,

contrary to the Rules of Court14 and the Rules on Notarial Practice of

2004,15 respectively.
This technicality deserves scant consideration where the question at issue, as in this
case, is one purely of law and there is no need of delving into the veracity of the
allegations in the petition, which are not disputed at all by respondents. 16
One factual allegation extant from the petition is the exchange of written
communications between petitioner and the OSG, the truthfulness of which the
latter does not challenge. Moreover, petitioner also verifies such correspondence on
the basis of the thereto attached letters, the authenticity of which he warranted in
the same verification-affidavit. Other allegations in the petition are verifiable in a
similar fashion, while the rest are posed as citations of law.
The purpose of verification is simply to secure an assurance that the allegations of
the petition or complaint have been made in good faith; or are true and correct, not
merely speculative. This requirement is simply a condition affecting the form of
pleadings, and non-compliance therewith does not necessarily render it fatally
defective. Indeed, verification is only a formal, not a jurisdictional requirement. 17
In the same vein, the Court brushes aside the defect, insofar as the petition is
concerned, of a notarial act performed by one who is disqualified by reason of
consanguinity, without prejudice to any administrative complaint that may be filed
against the notary public.
Certiorari with respect to the OSG
On the issue of whether the OSG committed grave abuse of discretion in deferring
the filing of a petition for quo warranto, the Court rules in the negative.
Grave abuse of discretion implies such capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction, or, in other words, where the power
is exercised in an arbitrary or despotic manner by reason of passion or personal
hostility, and it must be so patent and gross as to amount to an evasion of positive
duty or to a virtual refusal to perform the duty enjoined or to act at all in
contemplation of law.18
The Court appreciates no abuse of discretion, much less, a grave one, on the part of
the OSG in deferring action on the filing of a quo warranto case until after the RTC
case has been terminated with finality. A decision is not deemed tainted with grave
abuse of discretion simply because the affected party disagrees with it. 19
The Solicitor General is the counsel of the government, its agencies and
instrumentalities, and its officials or agents. In the discharge of its task, the Solicitor
General must see to it that the best interest of the government is upheld within the
limits set by law.20
The pertinent rules of Rule 66 on quo warranto provide:

SECTION 1. Action by Government against individuals. An action for the

usurpation of a public office, position or franchise may be commenced by a verified
petition brought in the name of the Republic of the Philippines against:
(a) A person who usurps, intrudes into, or unlawfully holds or exercises a public
office, position or franchise;
(b) A public officer who does or suffers an act which, by the provision of law,
constitutes a ground for the forfeiture of his office; or
(c) An association which acts as a corporation within the Philippines without being
legally incorporated or without lawful authority so to act.
SEC. 2. When Solicitor General or public prosecutor must commence action. The
Solicitor General or a public prosecutor, when directed by the President of the
Philippines, or when upon complaint or otherwise he has good reason to believe that
any case specified in the preceding section can be established by proof, must
commence such action.
SEC. 3. When Solicitor General or public prosecutor may commence action with
permission of court. The Solicitor General or a public prosecutor may, with the
permission of the court in which the action is to be commenced, bring such an
action at the request and upon the relation of another person; but in such case the
officer bringing it may first require an indemnity for the expenses and costs of the
action in an amount approved by and to be deposited in the court by the person at
whose request and upon whose relation the same is brought. (Italics and emphasis
in the original)
In the exercise of sound discretion, the Solicitor General may suspend or turn down
the institution of an action forquo warranto where there are just and valid
reasons.21 Thus, in Gonzales v. Chavez,22 the Court ruled:
Like the Attorney-General of the United States who has absolute discretion in
choosing whether to prosecute or not to prosecute or to abandon a prosecution
already started, our own Solicitor General may even dismiss, abandon, discontinue
or compromise suits either with or without stipulation with the other party.
Abandonment of a case, however, does not mean that the Solicitor General may just
drop it without any legal and valid reasons, for the discretion given him is not
unlimited. Its exercise must be, not only within the parameters get by law but with
the best interest of the State as the ultimate goal. 23
Upon receipt of a case certified to him, the Solicitor General exercises his discretion
in the management of the case. He may start the prosecution of the case by filing
the appropriate action in court or he may opt not to file the case at all. He may do
everything within his legal authority but always conformably with the national
interest and the policy of the government on the matter at hand. 24
It appears that after studying the case, the Solicitor General saw the folly of relitigating the same issue of Ongs citizenship in the quo warranto case
simultaneously with the RTC case, not to mention the consequent risk of forum-

shopping. In any event, the OSG did not totally write finis to the issue as it merely
advised petitioner to await the outcome of the RTC case.
Certiorari and Prohibition with respect to Ong
By petitioners admission, what is at issue is Ongs title to the office of Associate
Justice of Sandiganbayan.25 He claims to have been constrained to file the present
petition after the OSG refused to heed his request to institute a suit for quo
warranto. Averring that Ong is disqualified to be a member of any lower collegiate
court, petitioner specifically prays that, after appropriate proceedings, the Court
. . . issue the writs of certiorari and prohibition against Respondent Ong, ordering
Respondent Ong to cease and desist from further exercising the powers, duties, and
responsibilities of a Justice of the Sandiganbayan due to violation of the first
sentence of paragraph 1, Section 7, of the 1987 Constitution; . . . issue the writs of
certiorari and prohibition against Respondent Ong and declare that he was
disqualified from being appointed to the post of Associate Justice of the
Sandiganbayan in October of 1998, considering that, as of October of 1998, the
birth certificate of Respondent Ong declared that he is a Chinese citizen, while even
the records of this Honorable Court, as of October of 1998, declared that
Respondent Ong is a naturalized Filipino; x x x 26
While denominated as a petition for certiorari and prohibition, the petition partakes
of the nature of a quo warrantoproceeding with respect to Ong, for it effectively
seeks to declare null and void his appointment as an Associate Justice of the
Sandiganbayan for being unconstitutional. While the petition professes to be one for
certiorari and prohibition, petitioner even adverts to a "quo warranto" aspect of the
petition.27
Being a collateral attack on a public officers title, the present petition for certiorari
and prohibition must be dismissed.
The title to a public office may not be contested except directly, by quo
warranto proceedings; and it cannot be assailed collaterally, 28 even through
mandamus29 or a motion to annul or set aside order.30 In Nacionalista Party v. De
Vera,31 the Court ruled that prohibition does not lie to inquire into the validity of the
appointment of a public officer.
x x x [T]he writ of prohibition, even when directed against persons acting as judges
or other judicial officers, cannot be treated as a substitute for quo warranto or be
rightfully called upon to perform any of the functions of the writ. If there is a court,
judge or officer de facto, the title to the office and the right to act cannot be
questioned by prohibition. If an intruder takes possession of a judicial office, the
person dispossessed cannot obtain relief through a writ of prohibition commanding
the alleged intruder to cease from performing judicial acts, since in its very nature
prohibition is an improper remedy by which to determine the title to an office. 32
Even if the Court treats the case as one for quo warranto, the petition is, just the
same, dismissible.

A quo warranto proceeding is the proper legal remedy to determine the right or title
to the contested public office and to oust the holder from its enjoyment. 33 It is
brought against the person who is alleged to have usurped, intruded into, or
unlawfully held or exercised the public office, 34 and may be commenced by the
Solicitor General or a public prosecutor, as the case may be, or by any person
claiming to be entitled to the public office or position usurped or unlawfully held or
exercised by another.35
Nothing is more settled than the principle, which goes back to the 1905 case
of Acosta v. Flor,36 reiterated in the recent 2008 case of Feliciano v.
Villasin,37 that for a quo warranto petition to be successful,
the privateperson suing must show a clear right to the contested office. In
fact, not even a mere preferential right to be appointed thereto can lend a modicum
of legal ground to proceed with the action. 38
In the present case, petitioner presented no sufficient proof of a clear and
indubitable franchise to the office of an Associate Justice of the Sandiganbayan. He
in fact concedes that he was never entitled to assume the office of an Associate
Justice of the Sandiganbayan.39
In the instance in which the Petition for Quo Warranto is filed by an individual in his
own name, he must be able to prove that he is entitled to the controverted public
office, position, or franchise; otherwise, the holder of the same has a right to the
undisturbed possession thereof. In actions for Quo Warranto to determine title to a
public office, the complaint, to be sufficient in form, must show that the plaintiff is
entitled to the office. In Garcia v. Perez, this Court ruled that the person instituting
Quo Warranto proceedings on his own behalf, under Section 5, Rule 66 of the Rules
of Court, must aver and be able to show that he is entitled to the office in dispute.
Without such averment or evidence of such right, the action may be dismissed
at any stage.40 (Emphasis in the original)
The rightful authority of a judge, in the full exercise of his public judicial functions,
cannot be questioned by any merely private suitor, or by any other, except in the
form especially provided by law.41 To uphold such action would encourage every
disgruntled citizen to resort to the courts, thereby causing incalculable mischief and
hindrance to the efficient operation of the governmental machine. 42
Clearly then, it becomes entirely unwarranted at this time to pass upon the
citizenship of Ong. The Court cannot, upon the authority of the present petition,
determine said question without encroaching on and preempting the proceedings
emanating from the RTC case. Even petitioner clarifies that he is not presently
seeking a resolution on Ongs citizenship, even while he acknowledges the
uncertainty of Ongs natural-born citizenship. 43
The present case is different from Kilosbayan Foundation v. Ermita, given Ongs
actual physical possession and exercise of the functions of the office of an Associate
Justice of the Sandiganbayan, which is a factor that sets into motion the de
facto doctrine.

Suffice it to mention that a de facto officer is one who is in possession of the office
and is discharging its duties under color of authority, and by color of authority is
meant that derived from an election or appointment, however irregular or informal,
so that the incumbent is not a mere volunteer. 44 If a person appointed to an office is
subsequently declared ineligible therefor, his presumably valid appointment will
give him color of title that will confer on him the status of a de facto officer.45
x x x A judge de facto assumes the exercise of a part of the prerogative of
sovereignty, and the legality of that assumption is open to the attack of the
sovereign power alone. Accordingly, it is a well-established principle, dating back
from the earliest period and repeatedly confirmed by an unbroken current of
decisions, that the official acts of a de facto judge are just as valid for all purposes
as those of a de jurejudge, so far as the public or third persons who are interested
therein are concerned.46
If only to protect the sanctity of dealings by the public with persons whose
ostensible authority emanates from the State, and without ruling on the conditions
for the interplay of the de facto doctrine, the Court declares that Ong may turn out
to be either a de jure officer who is deemed, in all respects, legally appointed and
qualified and whose term of office has not expired, or a de facto officer who enjoys
certain rights, among which is that his title to said office may not be contested
except directly by writ of quo warranto,47 which contingencies all depend on the
final outcome of the RTC case.
With the foregoing disquisition, it becomes unnecessary to dwell on the ancillary
issues raised by the parties.
WHEREFORE, the petition is DISMISSED.

EXPROPRIATION
CITY OF ILOILO VS CONTRERAS
GR No. 168967
Ponente: J. Del Castillo
Date: February 12, 2010

Petitioner: City of Iloilo represented by Hon. Jerry P. Treas City Mayor

Respondents: Hon. Lolita Contreras-Besana, Presiding Judge RTC, and Elpidio
Javellana

FACTS:

On September 18, 1981, City of Iloilo filed a complaint for eminent domain
against Elpidio Javellana and Southern Negros Development Bank (as
mortgagee). It sought to expropriate two parcels of land registered in
Javellanas name to be used as a school site for Lapaz High School. City of
Iloilo alleged that the Subject Property declared to have a value of P60.00 per
square meter or a total value of P43,560.

Javellana admitted ownership of the Subject Property but denied petitioners

public purpose because there was already an existing school site for Lapaz
High School. He also claimed that the true fair market value of the property
was no less than P220 per square meter.

City of Iloilo filed a Motion for Issuance of Writ of Possession, alleging that it
had deposited the amount of P40,000.00 with the Philippine National BankIloilo Branch. Petitioner claimed that it was entitled to the immediate
possession of the Subject Property, citing Section 1 of Presidential Decree No.
1533, after it had deposited an amount equivalent to 10% of the amount of
compensation.

Javellana filed an Opposition to the Motion for the Issuance of Writ of

Possession citing the same grounds he raised in his Answer that the city
already had a vast tract of land where its existing school site was located,
and the deposit of a mere 10% of the Subject Propertys tax valuation was
grossly inadequate.

On May 17, 1983, the trial court issued an Order which granted
petitioners Motion for Issuance of Writ of Possession and authorized the
petitioner to take immediate possession of the Subject Property. The Subject
Property was used as the site for Lapaz National High School.

Sixteen years later, on April 17, 2000, Javellana filed an Ex Parte

Motion/Manifestation, where he alleged that when he finally sought to
withdraw the P40,000.00 allegedly deposited by the petitioner, he discovered
that no such deposit was ever made. This was supported by PNB. He
demanded his just compensation as well as interest.

City of Iloilo could not present any evidence to prove that they payment was
made to Javellana.

Javellana filed a Complaint against petitioner for Recovery of Possession,

Fixing and Recovery of Rental and Damages. He alleges that since he was not
compensated, petitioners possession was illegal and he was entitled to
recovery of possession of his lots. He prayed that petitioner be ordered to
vacate the Subject Property and pay rentals amounting to P15,000.00 per
month together with moral, exemplary, and actual damages, as well as
attorneys fees.

City of Iloilo argued that Javellana could no longer bring an action for
recovery since the Subject Property was already taken for public use. Rather,

private respondent could only demand for the payment of just compensation.
The legality of possession of property should be determined in the eminent
domain case and not in a separate action for recovery of possession (but later
on the two cases were consolidated).

A commission was created to determine the just compensation due to

Javellana.

RTC issued the following orders, which overturned its May 17, 1983 decision:

First Assailed Order: This order nullified the issuance of writ of possession
over the subject property. City of Iloilo is ordered to immediately deposit with
the PNB the 10% of the just compensation after Commission shall have
rendered its report and have determined the value of the property not at the
time it was condemned but at the time the complaint was filed in court.

Second Assailed Order: This is an amendment of the First Order. It

maintained the First Order except that the reckoning point for just
compensation was not the time this order was issued, which is June 15,
2004.
o

City of Iloilo filed a Motion for Reconsideration claiming that there was
no legal basis for the issuance of the Second Assailed Order.

Javellana opposition: They were interlocutory in character, there were

always subject to modification and revision by the court anytime.

Third Assailed Order: This order denied City of Iloilos Motion for
Reconsideration and upholds the Second Assailed Order. In the interest of
justice, the Court said that it can amend their decision because there was no
deposit made by petitioner. The just compensation must be determined as of
the date of the filing of the complaint is true if there was a deposit.

Recommendation of the Commission:

Recko
ning
Point

1981 at the
time
the
compl
aint

Value
per
square
meter

Fair
Market
Value

P110.0
0/sqm

P79,860.0
0

Basis

based on three or more

recorded sales of
similar types of land in
the vicinity in the same
year

was
filed
1981
at the
time
the
compl
aint
was
filed

P686.8
1/sqm

P498,625.
22

Appraisal by Southern
Negros Development
Bank based on market
value, zonal value,
appraised value of
other banks, recent
selling price of
neighboring lots

2002

P3,500.
00/sqm

P2,541,00
0.00

Appraisal by the City

Appraisal Committee,
Office of the City
Assessor

P3,049,2
00.00

Private Appraisal
Report (Atty. Roberto
Cal Catolico dated April
6, 2004)

2004

P4,200.
00/sqm

In this case, City of Iloilo is claiming the following:

o

(1) the trial court gravely abused its discretion amounting to lack or
excess of jurisdiction in overturning the Order dated May 17, 1983,
which was already a final order; and

(2) just compensation for the expropriation should be based on the

Subject Propertys fair market value either at the time of taking or filing
of the complaint.

Javellanas counter-arguments:
o

(1) there was no error of jurisdiction correctible by certiorari; and

(2) that the Assailed Orders were interlocutory orders that were subject
to amendment and nullification at the discretion of the court.

ISSUE1: Does an order of expropriation become final?

HELD/RATIO1: YES, trial court gravely erred in nullifying the May 17, 1983 Order
(through the First, Second, and Third Assailed Orders).

Expropriation proceedings have two stages:

1

FIRST PHASE: ends with an order of dismissal or a determination that the

property is to be acquired for public purpose.

SECOND PHASE: consists of the determination of just compensation. It ends

with an order fixing the amount to be paid to the landowner.

An order of condemnation or dismissal is final, resolving the question of whether or

not the plaintiff has properly and legally exercised its power of eminent domain. It
may have been appealable but Javellana did not bother to file an appeal from
May 17, 1983 Order. Thus, it became final and no longer subject to review.
ISSUE2: What is the correct reckoning point for the determination of just
compensation?
HELD/RATIO2: The date when the expropriation complaint was filed on
September 18, 1981.

Based on jurisprudence, just compensation is to be ascertained as of the time of the

taking, which usually coincides with the commencement of the expropriation
proceedings. Where the institution of the action precedes entry into the property,
the just compensation is to be ascertained as of the time of the filing of the
complaint.
Javellana claims that the reckoning date should be in 2004 because of the "clear
injustice to the private respondent who all these years has been deprived of the
beneficial use of his properties." Javellana also slept on his rights for over 18 years
and did not bother to check with the PNB if a deposit was actually made by the
petitioner. Evidently, from his inaction in failing to withdraw or even verify the
amounts purportedly deposited, private respondent not only accepted the valuation
made by the petitioner, but also was not interested enough to pursue the
expropriation case until the end. As such, private respondent may not recover
possession of the Subject Property, but is entitled to just compensation.
However, the City of Iloilo should be held liable for damages for taking private
respondents property without payment of just compensation. It is high time that
private respondent be paid what was due him after almost 30 years.
DISPOSITIVE: Petition is granted. Orders of RTC are annulled and set aside
The Regional Trial Court of Iloilo City, Branch 32 is DIRECTED to immediately
determine the just compensation due to private respondent Elpidio T. Javellana
based on the fair market value of the Subject Property at the time Civil Case No.
14052 was filed, or on September 18, 1981 with interest at the legal rate of six
percent (6%) per annum from the time of filing until full payment is made.

The City of Iloilo is ORDERED to pay private respondent the amount of P200,000.00
as exemplary damages.

FORECLOSURE
PSB VS SPOUSES GERONIMO
The Case

This petition for review[1] assails the 30 August 2005 Decision[2] and
3 November 2005 Resolution[3] of the Court of Appeals in CA-G.R. CV No.
66672. The Court of Appeals reversed the decision of Branch 121 of the Regional
Trial Court of Caloocan City, National Capital Region (trial court) bydeclaring void
the questioned extrajudicial foreclosure of real estate mortgage for non-compliance
with the statutory requirement of publication of the notice of sale.

The Facts

On 9 February 1995, respondents Spouses Dionisio and Caridad

Geronimo (respondents) obtained a loan from petitioner Philippine Savings Bank
(petitioner) in the amount of P3,082,000, secured by a mortgage on respondents
land situated in Barrio Talipapa, Caloocan City and covered by Transfer Certificate of
Title No. C-50575.[4] Respondents defaulted on their loan, prompting petitioner to
initiate the extra-judicial foreclosure of the real estate mortgage. At the auction
sale conducted on 29 March 1996, the mortgaged property was sold to petitioner,
[5]
being the highest bidder, for P3,000,000. Consequently, a Certificate of Sale
was issued in favor of petitioner. [6]

Claiming that the extrajudicial foreclosure was void for noncompliance with the law, particularly the publication requirement, respondents filed
with the trial court a complaint for the annulment of the extrajudicial foreclosure.
[7]

The trial court sustained the validity of the extrajudicial

foreclosure, and disposed of the case as follows:

 WHEREFORE, premises considered, the instant Complaint for

Annulment of Foreclosure of Mortgage and Damages is hereby DISMISSED for lack
of merit.

SO ORDERED.[8]

On appeal, the Court of Appeals held:

WHEREFORE, the assailed decision dated 26 November 1999 of the

Regional Trial Court of Caloocan City is REVERSED and SET ASIDE. The
Extrajudicial Foreclosure of Mortgage conducted on 29 March 1996 is declared NULL
and VOID.

SO ORDERED.[9]

The Court of Appeals denied petitioners motion for

reconsideration.

Hence, this petition.

The Ruling of the Trial Court

The trial court held that personal notice on the mortgagor is not
required under Act No. 3135. All that is required is the posting of the notices
of sale for not less than 20 days in at least three public places in the municipality or
city where the property is situated, and publication once a week for at least three
consecutive weeks in a newspaper of general circulation in the municipality or city,
if the property is worth more than four hundred pesos.

The trial court further ruled there was compliance with the
statutory publication requirement. Since the affidavit of publication was excluded as
petitioners evidence, the trial court relied instead on the positive testimony of
Deputy Sheriff Alberto Castillo, that he caused the publication of the Notice of Sale,
in holding there was publication of the notice of sale in a newspaper of general
circulation. In relation to this, the trial court cited the presumption of regularity in

the performance of official duty. The trial court found that respondents, as plaintiffs,
failed to discharge their burden of proving petitioners alleged non-compliance
with the requisite publication. The trial court stated that the testimony of
respondents witness, a newsstand owner, that he has never sold Ang
Pinoy newspaper can never lead to the conclusion that such publication does not
exist.

The Ruling of the Court of Appeals

The Court of Appeals reversed the ruling of the trial court.

The Court of Appeals found no sufficient evidence to prove

that Ang Pinoy is a newspaper of general circulation in Caloocan City. In a
Resolution dated 2 February 2005, the Court of Appeals required the then Executive
Judge of the Regional Trial Court of Caloocan City to inform the appellate court of
the following facts:

1.
If Ang Pinoy newspaper is a newspaper of general circulation
particularly for the years 1995 and 1996; and
2.

If there was compliance with Sec. 2 of P.D. No. 1079 which provides:

The executive judge of the court of first instance shall designate a

regular working day and a definite time each week during which the said judicial
notices or advertisements shall be distributed personally by him for publication to
qualified newspapers or periodicals x x x, which distribution shall be done by
raffle.[10]

Executive Judge Victoria Isabel A. Paredes (Executive Judge

Paredes) complied with the directive by stating that:

a) Ang Pinoy newspaper is not an accredited periodical in Caloocan

City. Hence, we are unable to categorically state whether it is a newspaper of
general circulation at present or for the years 1995 and 1996 (Certification marked
as Annex A)
b) Sec. 2, P.D. No. 1079 is being observed and complied with in that
the raffle of judicial notices for publication, is a permanent agenda item in the
regular raffle with the RTC, Caloocan City, holds every Monday at 2 oclock in the
afternoon at the courtroom of RTC, Branch 124 (Certification marked as Annex
B); and

c)
We have no knowledge on whether Ang Pinoy was included in the
raffles conducted in 1995 and 1996, as we do not have the case record where the
information may be verified.[11]

The Court of Appeals concluded that, based on the compliance of

Executive Judge Paredes, Ang Pinoy is not a newspaper of general circulation in
Caloocan City. Therefore, the extrajudicial foreclosure is void for non-compliance
with the requirement of the publication of the notice of sale in a newspaper of
general circulation.

The Issue

Basically, the issue in this case is whether the extra-judicial

foreclosure is void for non-compliance with the publication requirement under Act
No. 3135.

The Ruling of the Court

The petition lacks merit.

Section 3 of Act No. 3135[12] reads:

SECTION 3. Notice shall be given by posting notices of the

sale for not less than twenty days in at least three public places of the municipality
or city where the property is situated, and if such property is worth more than four
hundred pesos, such notice shall also be published once a week for at least
three consecutive weeks in a newspaper of general circulation in the
municipality or city. (Emphasis supplied)

Petitioner claims that it complied with the above provision in

foreclosing extrajudicially the subject real estate mortgage. To buttress its

claim, petitioner presented the testimony of Deputy Sheriff Alberto Castillo of the
trial court, the pertinent portion of which states:
ATTY. DAVIS:
Do you remember having come across a certain property
owned by spouses Geronimo covered by TCT No. 50576 of the Register of Deeds of
Caloocan City?

xxxx

A. Yes, sir.

ATTY. DAVIS:
Q. In what connection?
A. In connection with the extra judicial foreclosure filed by the PS
Bank, sir.

xxxx

Q. When this was assigned to you what action did you take thereon?

A. I prepared the notice of sale having published in the newspaper

which the executive judge awarded it. Sent notice to the said parties and posted it
to the three conspicuous places of Caloocan City, sir.

Q. You mentioned about your issuance of Notice of Sale I am referring

you now to the document previously marked as Exhibit 6. What relation is this
if any to the one you have mentioned?
A. This is the Notice of Sale I have prepared, sir.

Q. Now you also mentioned that you have caused the publication of
this Notice of Sheriffs Sale to a newspaper of general circulation, do you
remember what newspaper it was?
A. Ang Pinoy, sir.

Q. How come that this newspaper was selected for purposes of

publication?
A. It was the executive judge who awarded that publication, sir.

Q. How do you know particularly that this notice was published in the
newspaper?
A. That during the auction sale the mortgagee bank presented
affidavit of publication, sir.[13]

On the other hand, respondents dispute the existence of

the publication of the notice of sale. Assuming that the notice of sale was
published, respondents contend that Ang Pinoy, where it was published, is not a
newspaper of general circulation. To bolster their claim of non-publication,
respondents offered the testimony of Danilo Magistrado, a newsstand owner, which
pertinently states:

ATTY. SAYA:
Do you know by chance the Pinoy Newspaper?

ATTY. DAVIS:
No basis.

COURT:
Objection overruled. Witness may answer.

A. None, sir. I do not sell Pinoy Newspaper, sir.

ATTY. SAYA:
Why do you say that you do not know
Pinoy Newspaper?
A. From the time I sold newspapers, sir, I have not seen Pinoy
Newspaper.

ATTY. SAYA:
That would be all, your Honor.

Before resolving the principal issue, we must point out the

requirement of accreditation was imposed by the Court only in 2001, through A.M.
No. 01-1-07-SC or the Guidelines in the Accreditation of Newspapers and Periodicals
Seeking to Publish Judicial and Legal Notices and Other Similar Announcements and
in the Raffle Thereof.[14] The present case involves an extrajudicial foreclosure
conducted in 1996; thus, there were no such guidelines in effect during the
questioned foreclosure. At any rate, the accreditation by the Executive Judge is
not decisive of whether a newspaper is of general circulation. [15]

It is settled that for the purpose of extrajudicial foreclosure of

mortgage, the party alleging non-compliance with the requisite publication has the
burden of proving the same.[16] In this case, respondents presented the testimony
of a newsstand owner to prove that Ang Pinoy is not a newspaper of general
circulation. However, this particular evidence is unreliable, as the same witness
testified that he sells newspapers in Quezon City, not in Caloocan City, and that
he is unaware of Ang Pinoy newspaper simply because he is not selling the same
and he had not heard of it. His testimony states:

Q. Where is this place that you traditionally or usually sell newspaper?

A. Corner of A. Bonifacio and 6th Avenue.

Q. This is in Quezon City?

A. Yes, sir.

Q. Not in Caloocan?
A. In Quezon City, sir.

xxxx

COURT: Clarificatory question.

Q. You said that there is no Pinoy magazine simply because you

are not selling Pinoy magazine?
A. Yes, your Honor.

Q. But you are not certain that there is really no Pinoy magazine?

COURT:
But have you heard about Pinoy magazine or Pinoy
newspaper?
A. I have not heard, your Honor.[17]

Notwithstanding, petitioner could have easily produced the

affidavit of publication and other competent evidence (such as the published
notices) to refute respondents claim of lack of publication of the notice of
sale. In Spouses Pulido v. Court of Appeals,[18] the Court held:

While it may be true that the party alleging non-compliance with the
requisite publication has the burden of proof, still negative allegations need not be
proved even if essential to ones cause of action or defense if they constitute a
denial of the existence of a document the custody of which belongs to the other
party.

In relation to the evidentiary weight of the affidavit of publication,

the Court ruled in China Banking Corporation v. Spouses Martir[19] that the affidavit
of publication executed by the account executive of the newspaper is prima
facie proof that the newspaper is generally circulated in the place where the
properties are located.[20]

In the present case, the Affidavit of Publication or Exhibit 8,

although formally offered by petitioner, was excluded by the trial court for being
hearsay.[21] Petitioner never challenged the exclusion of the affidavit of
publication. Instead, petitioner relies solely on the testimony of Deputy Sheriff
Alberto Castillo to prove compliance with the publication requirement under Section
3 of Act No. 3135. However, there is nothing in such testimony to clearly and
convincingly prove that petitioner complied with the mandatory requirement of

publication. When Sheriff Castillo was asked how he knew that the notice of sale
was published, he simply replied that during the auction sale the mortgagee bank
presented the affidavit of publication.[22] Evidently, such an answer does not
suffice to establish petitioners claim of compliance with the statutory requirement
of publication. On the contrary, Sheriff Castillos testimony reveals that he had no
personal knowledge of the actual publication of the notice of sale, much less the
extent of the circulation of Ang Pinoy.

Moreover, the Court notes that Ang Pinoy is a newspaper of

general circulation printed and published in Manila, not in Caloocan City where the
mortgaged property is located, as indicated in the excluded Affidavit of
Publication. This is contrary to the requirement under Section 3 of Act No. 3135
pertaining to the publication of the notice of sale in a newspaper of general
circulation in the city where the property is situated. Hence, even if the Affidavit
of Publication was admitted as part of petitioners evidence, it would not support
petitioners case as it does not clearly prove petitioners compliance with the
publication requirement.

Petitioners invocation of the presumption of regularity in the

performance of official duty on the part of Sheriff Castillo is misplaced. While
posting the notice of sale is part of a sheriffs official functions,[23] the actual
publication of the notice of sale cannot be considered as such, since this concerns
the publishers business. Simply put, the sheriff is incompetent to prove that the
notice of sale was actually published in a newspaper of general circulation.

The Court further notes that the Notice of Extra-Judicial Sale,

[24]
prepared and posted by Sheriff Castillo, does not indicate the newspaper where
such notice would be published. The space provided where the name of the
newspaper should be was left blank, with only the dates of publication clearly
written.This omission raises serious doubts as to whether there was indeed
publication of the notice of sale.

Once again, the Court stresses the importance of the notice

requirement, as enunciated in Metropolitan Bank and Trust Company, Inc. v.
Peafiel,[25] thus:

The object of a notice of sale is to inform the public of the nature and condition of
the property to be sold, and of the time, place and terms of the sale. Notices are
given for the purpose of securing bidders and to prevent a sacrifice [sale] of
the property. The goal of the notice requirement is to achieve a reasonably wide
publicity of the auction sale. This is why publication in

a newspaper of general circulation is required. The Court has previously taken

judicial notice of the far-reaching effects of publishing the notice of sale in
a newspaper of general circulation.
In addition, the Court reminds mortgagees of their duty to comply
faithfully with the statutory requirements of foreclosure. In Metropolitan Bank v.
Wong,[26] the Court declared:

While the law recognizes the right of a bank to foreclose a mortgage upon the
mortgagors failure to pay his obligation, it is imperative that such right be
exercised according to its clear mandate. Each and every requirement of the law
must be complied with, lest, the valid exercise of the right would end. It must be
remembered that the exercise of a right ends when the right disappears, and it
disappears when it is abused especially to the prejudice of others.

In sum, petitioner failed to establish its compliance with the

publication requirement under Section 3 of Act No. 3135. Consequently, the
questioned extrajudicial foreclosure of real estate mortgage and sale are void. [27]

WHEREFORE, we DENY the petition. We AFFIRM the 30 August

2005 Decision and 3 November 2005 Resolution of the Court of Appeals in CA-G.R.
CV No. 66672.

PARTITION
MUNICIPALITY OF BINAN VS GARCIA
Facts: The expropriation suit was commenced by complaint of the Municipality of
Bian, Laguna filed in the RTC. The complaint named as defendants the owners of
eleven (11) adjacent parcels of land in Bian The land sought to be expropriated
was intended for use as the new site of a modern public market and the acquisition
was authorized by a resolution of the Sangguniang Bayan. One of the defendants,
Francisco filed a MTD. Her motion was filed pursuant to Section 3, Rule 67. Her
"motion to dismiss" was thus actually a pleading, taking the place of an answer in
an ordinary civil action; it was not an ordinary motion governed by Rule 15, or a
"motion to dismiss" within the contemplation of Rule 16. Respondent Judge issued a
writ of possession in favor of the plaintiff Municipality.
Francisco filed a "Motion for Separate Trial. She alleged she had the special defense
of "a constitutional defense of vested right via a pre-existing approved

Locational Clearance from the H.S.R.C. The Court granted the motion. It directed
that a separate trial be held for Francisco regarding her special defenses.
Judge issued order dismissing the complaint "as against defendant FRANCISCO,"
and amending the Writ of Possessions as to "exclude therefrom and from its force
and effects said defendant .. and her property ..."
The Municipality filed a MR. Francisco filed an "Ex-Parte Motion for Execution and/or
Finality of Order," contending that the Order had become "final and executory for
failure of the Municipality to file a motion for reconsideration and/or appeal within
the reglementary period," i.e "fifteen (15) days counted from the notice of the final
order .. appealed from.
The Municipality contended that "multiple appeals are allowed by law" in actions of
eminent domain, and hence the period of appeal is thirty (30), not fifteen (15)
days;the special civil action of partition and accounting under Rule 69.
Issue: whether the special civil action of eminent domain under Rule 67 is a case
"wherein multiple appeals are allowed, as regards which 'the period of appeal shall
be thirty [30] days, instead of fifteen (15) days
Held: In actions of eminent domain, as in actions for partition, since no less than
two (2) appeals are allowed by law, the period for appeal from an order of
condemnation is thirty (30) days counted from notice of order and not the ordinary
period of fifteen (15) days prescribed for actions in general, conformably with the
provision of Section 39 of BP129 to the effect that in "appeals in special proceedings
in accordance with Rule 109 of the Rules of Court and other cases wherein multiple
appeals are allowed, the period of appeal shall be thirty (30) days, a record of
appeal being required.
The municipality's MR was therefore timely presented, well within the thirty-day
period laid down by law therefor; and it was error for the Trial Court to have ruled
otherwise and to have declared that the order sought to be considered had become
final and executory.
It is claimed by the Municipality that the issuance of such a separate, final order or
judgment had given rise "ipso facto to a situation where multiple appeals became
available." The Municipality is right. In an action against several defendants, the
court may, when a several judgment is proper, render judgment against one or
more of them, leaving the action to proceed against the others. " In lieu of the
original record, a record on appeal will perforce have to be prepared and
transmitted to the appellate court. More than one appeal being permitted in this
case, therefore, "the period of appeal shall be thirty (30) days, a record of appeal
being required as provided by the Implementing Rules in relation to Section 39 of
B.P. Blg. 129.
EJECTMENT

SUNFLOWER NEIGHBORHOOD ASSOCIATION VS CA

Judgment in an ejectment suit, although an action in personam, is binding on
anyone who has not been impleaded if he or she is: (a) a trespasser, squatter or
agent of the defendant fraudulently occupying the property to frustrate the
judgment; (b) a guest or occupant of the premises with the permission of the
defendant; (c) a transferee pendente lite; (d) a sub-lessee; (e) a co-lessee; or (f) a
member of the family, relative or privy of of the defendant.
SUNFLOWER NEIGHBORHOOD ASSOCIATION, represented by FLORO
ARAGAN, petitioners, vs. COURT OF APPEALS, HON. ACTING PRESIDING
JUDGE LORIFEL LACAP PHIMNA, MeTC, Branch 77, Paraaque City and ELISA
MAGLAQUI-CAPARAS, respondents.
DECISION
CORONA, J.:
This is a petition for review of the July 16, 1998 decision of the Court of Appeals [1] in
CA-G.R. SP No. 46861 (a) declaring null and void the injunction orders respectively
issued by Judge Amelita Tolentino[2] in Civil Case No. 96-0253, for Expropriation, and
Judge Rolando G. How in Civil Case No. 96-0480, for Prohibition with Preliminary
Injunction; and (b) ordering the Metropolitan Trial Court (MeTC) of Paraaque City,
Branch 78, to enforce its July 8, 1996 Writ of Demolition. The dispositive portion
read:
WHEREFORE, foregoing considered, the injunction orders subject of the instant
petition are hereby DECLARED NULL AND VOID. Corollary thereto, the Court of
origin, Metropolitan Trial Court, Branch 78, Paraaque, is hereby directed to ENFORCE
its Writ of Demolition dated July 8, 1996. [3]
The antecedent facts follow.
Private respondent Elisa Maglaqui-Caparas, in her capacity as executrix of the
testate estate of Macaria Maglaqui, filed on March 16, 1993 a complaint for unlawful
detainer (Civil Case No. 8550) against Alfredo Mogar and 46 other persons [4] who
were occupying several parcels of land (Lots 1-A, B, C, E, F and G) in Yellow Ville,
United Paraaque Subdivision IV, Metro Manila. These parcels of land are covered by
individual transfer certificates of title[5] registered in the name of Macaria Maglaqui,
private respondents mother.
The MeTC of Paraaque City, Branch 78, eventually decided in favor of private
respondent. On appeal, the decision of the MeTC was affirmed by the Regional Trial
Court (RTC) of Makati City, Branch 66. Mogar et al. elevated the case to the Court of
Appeals but their petition was dismissed by the appellate court on December 12,
1994. After the dismissal became final, a writ of demolition was issued by the MeTC
of Paraaque City, Branch 78. The writ, however, was not immediately implemented
because the case was transferred to Branch 77 of the same court. On February 6,
1997, Mogar et al. filed a petition with the RTC of Paraaque City, Branch 257,
presided over by Judge Rolando G. How, to enjoin the implementation of the writ of

demolition. However, this petition was denied and subsequently, an alias writ of
demolition was issued by Judge Vivencio G. Lirio of MeTC Branch 77, the court of
origin.
The alias writ of demolition was, again, not executed, this time due to the ex
parte issuance of a writ of preliminary injunction by Judge Amelita Tolentino, in
connection with the expropriation case (Civil Case No. 96-0253) filed by the
Municipality of Paraaque against the Testate Estate of Macaria Maglaqui.
Meanwhile, another group of persons occupying portions of the parcels of land (Lots
I-F and I-G) subject of the unlawful detainer case, organized themselves into the
Sunflower Neighborhood Association (Sunflower), the petitioner herein. On
November 18, 1996, Sunflower, represented by one Floro Aragan, filed a complaint
for prohibition/injunction with preliminary injunction against private respondent also
with the RTC of Paraaque City, Branch 257. Sunflower argued that its members
should be excluded from the demolition order as they were not parties to the
original unlawful detainer case. To include their houses in the demolition would be
to deprive them of due process. This time, Judge How granted the injunction and
ordered the exclusion of the houses belonging to petitioner from demolition.
Thus, private respondent filed a petition for certiorari, prohibition and mandamus
with the Court of Appeals (CA GR SP No. 46861) assailing both the injunction orders
issued by Judge Tolentino in the expropriation case and by Judge How in the
prohibition case.
The Court of Appeals ruled in favor of private respondent holding that, as the
judgment in the unlawful detainer case had already become final, the execution
could not be enjoined. Consequently, the MeTC of Paraaque City, Branch 77 issued
another alias writ of demolition on September 14, 1998.
In order to stay the execution of the writ of demolition, Sunflower filed on January 7,
1999 an urgent motion in this Court for the issuance of a status quo order. This we
granted in a resolution dated January 20, 1999. Prior to the issuance of our
resolution, however, the writ of demolition was implemented on January 14, 1999.
Petitioner thus filed a motion to allow its members to return to the premises, which
we granted in another resolution dated April 28, 1999. Thereafter, we required both
parties to submit their memoranda.
Sometime in November 1998, the group of Mogar et al. filed in this Court a petition
for review of the decision of the Court of Appeals in CA GR SP No. 46861. However,
we dismissed the same on January 18, 1999 for failure of said petitioners to comply
with certain procedural requirements, including their failure to submit a certification
of non-forum shopping.[6]
For its part, petitioner Sunflower likewise assailed the same decision of the Court of
Appeals in this petition for review on certiorari under Rule 45 of the Revised Rules of
Court.
Before we proceed, it should be pointed out that any issue relating to the
expropriation case (Civil Case No. 96-0253) filed by the Municipality of Paraaque has

been rendered moot by the dismissal of that case. This Court, in a Resolution dated
January 29, 2003,[7] ordered the presiding judge of the RTC of Paraaque City, Branch
274 to report on the status of the expropriation case filed by the Municipality of
Paraaque against herein private respondent. The presiding judge reported that the
case was already dismissed on June 1, 1999 in an order issued by then Presiding
Judge Amelita Tolentino who granted the motion to dismiss filed by herein private
respondent. Said dismissal was not challenged by the Municipality of Paraaque. [8]
The basic issue before us is whether petitioners members, who were not parties to
the unlawful detainer case, may be ejected from the land subject of this case.
We rule in the affirmative. It is well-settled that, although an ejectment suit is an
action in personam wherein the judgment is binding only upon the parties properly
impleaded and given an opportunity to be heard, the judgment becomes binding on
anyone who has not been impleaded if he or she is: (a) a trespasser, squatter or
agent of the defendant fraudulently occupying the property to frustrate the
judgment; (b) a guest or occupant of the premises with the permission of the
defendant; (c) a transferee pendente lite; (d) a sublessee; (e) a co-lessee or (f) a
member of the family, relative or privy of the defendant. [9]
In the case at bar, the records show that petitioners members are trespassers or
squatters who do not have any right to occupy the property of respondent.
Petitioner does not dispute the ownership of the parcels of land in question. In fact,
it even admitted that the subject property is owned by Macaria Maglaqui, mother of
private respondent.[10]Petitioner failed to establish any right which would entitle its
members to occupy the land in any capacity, whether as lessees, tenants and the
like. Petitioners only defense against the eviction and demolition orders is their
supposed non-inclusion in the original detainer case. This defense, however, has no
legal support since its members are trespassers or squatters who are bound by the
judgment.
Petitioners argument that the parcels of land occupied by its members (Lots I-F and
I-G) were not included in the original ejectment complaint has no basis. The
complaint private respondent filed with the MeTC of Paraaque City, Branch 78,
clearly included Lots I-F and I-G as part of the subject matter under litigation in the
unlawful detainer case.[11] Thus, petitioners members, together with all the parties in
the unlawful detainer case, must vacate the disputed land.
The Court commiserates with respondent, already in her twilight years, who has
been unlawfully deprived of her land for a good number of years. Thus, we exhort
the court of origin to execute this decision with reasonable dispatch, consistent with
the requirements of Section 28 of RA 7279 and EO 152, [12] on eviction and
demolition.
WHEREFORE, the petition is hereby DENIED and the decision of the Court of
Appeals in CA-GR SP No. 46861 is AFFIRMED.

CONTEMPT

BPI VS CALANZA
This is a Petition for Indirect Contempt filed by petitioner Bank of the Philippine
Islands (BPI) against respondents Labor Arbiter Roderick Joseph Calanza (LA
Calanza), Sheriff Enrico Y. Paredes (Sheriff Paredes), Amelia Enriquez (Enriquez), and
Remo L. Sia (Sia).

The case stemmed from the following facts:

Enriquez and Sia were the branch manager and the assistant
branch manager, respectively, of Bacolod-Singcang Branch of petitioner. On
September 3, 2003, they were dismissed from employment on grounds of breach of
trust and confidence and dishonesty. The following day, they filed separate
complaints for illegal dismissal against petitioner before the National Labor
Relations Commission (NLRC), Regional Arbitration Branch No. VI, Bacolod City.[1]

After the submission of their respective position papers, Executive LA Danilo C.

Acosta rendered a decision on March 29, 2004, finding that Enriquez and Sia had
been illegally dismissed from employment. The dispositve portion of LA Acostas
decision reads:

WHEREFORE, premises considered, judgment is hereby rendered as follows:

1.
DECLARING that complainants were illegally dismissed by
respondents;

2.
ORDERING respondents to reinstate complainants to their former
position without loss of seniority rights and to pay them their corresponding full
back wages inclusive of allowances and other benefits as computed, in the sum of
Pesos: ONE MILLION ONE HUNDRED SEVENTY-THREE THOUSAND,
FOUR HUNDREDTHIRTY-FOUR AND 50/100 ONLY (P1,173,434.50).
[2]

Pursuant to the aforesaid decision, Enriquez and Sia were reinstated in petitioners
payroll.[3]

Petitioner appealed to the NLRC. The NLRC ruled that petitioner had just cause to
terminate Enriquez and Sia. Hence, it reversed and set aside the LA decision and,

although it dismissed the complaint, it ordered petitioner to give the dismissed

employees financial assistance equivalent to one-half months pay for every year
of service.[4] In view of this decision, petitioner stopped the payroll reinstatement. [5]

Enriquez and Sia elevated the matter to the Court of Appeals (CA), but failed to
obtain a favorable decision. On November 30, 2005, the appellate court affirmed in
toto the NLRC decision. The case eventually reached this Court and was docketed as
G.R. No. 172812.

During the pendency of the petition before this Court, Enriquez and Sia filed a
Motion for Partial Execution[6] of the LA decision dated March 29, 2004.
CitingRoquero v. Philippine Airlines,[7] they claimed that the reinstatement aspect of
the LA decision was immediately executory during the entire period that the case
was on appeal.

In an Order[8] dated October 13, 2007, LA Calanza granted Enriquez and Sias
motion despite the opposition of petitioner. He opined that so long as there is no
finality yet of the decision reversing a ruling of the lower tribunal (in this case, the
LA) awarding reinstatement, the same should be enforced. Considering that the
case was then pending before this Court, he sustained Enriquez and Sias claim,
applying the cases of Roquero and Air Philippines Corporation v. Zamora.[9] The
corresponding writ of execution was subsequently issued. [10] Upon service of the
writ, Sheriff Paredes served on petitioner a notice of sale of a parcel of land owned
by petitioner to satisfy its obligation.[11]

Aggrieved, petitioner immediately filed an Urgent Petition for Injunction with prayer
for the issuance of a Temporary Restraining Order (TRO) and/or Writ of Preliminary
Injunction with the NLRC, Fourth Division, Cebu City. On November 26, 2007, the
NLRC issued a TRO.[12]

Disappointed with the conduct of LA Calanza, Sheriff Paredes, Enriquez, and Sia,
and in view of the pendency of G.R. No. 172812, entitled Enriquez v. Bank of the
Philippine Islands,[13] before this Court, petitioner instituted the present petition for
indirect contempt. Petitioner avers that LA Calanzas Order granting Enriquez and
Sias motion for partial writ of execution preempts the decision of this Court and
eventually results in the payment of Enriquez and Sia's claims which may be
contrary to this Courts conclusion. Petitioner adds that respondents obstinately
persist in applying jurisprudence which is clearly inapplicable. Finally, petitioner
argues that the execution proceedings were done with undue haste that petitioner
was not given an opportunity to submit evidence in its defense to stop the

execution. These, according to petitioner, clearly indicate utter disrespect to the

Court and are grounds to cite respondents in indirect contempt.

Meanwhile, on February 12, 2008, this Court rendered a Decision in G.R. No.
172812, denying the petition filed by Enriquez and Sia, thereby sustaining the NLRC
and the CAs conclusion that Enriquez and Sia were validly dismissed from
employment by petitioner.

In a decision[14] dated June 30, 2008, the NLRC, Fourth Division, Cebu City, granted
BPIs petition for injunction, the dispositive portion of which is quoted below:

WHEREFORE, premises considered, the instant petition is hereby GRANTED. The

Order dated 12 October 2007 issued by public respondent Labor Arbiter granting
the Writ of Execution is declared NULL and VOID. The Writ of Execution issued in
pursuance to said Order is likewise declared NULL and VOID. Public respondent
Labor Arbiter Roderick Joseph B. Calanza, and any person acting for and in his
behalf, is DIRECTED to take no further action in pursuance of the aforementioned
Order and Writ of Execution.

The Writ of Preliminary Injunction issued by this Commission dated 12 December

2007 is hereby MADE PERMANENT.

SO ORDERED.[15]

On October 27, 2008, LA Calanza issued an Order [16] considering the case closed
and terminated based on Enriquez and Sias manifestation and motion to dismiss
in view of the satisfaction and full payment of their claims.

Hence, the only issue that is left unsettled is whether or not respondents are guilty
of indirect contempt.

Indirect contempt of court is governed by Section 3, Rule 71 of the Rules of Court,

which provides:

 SEC. 3. Indirect contempt to be punished after charge and

hearing.-After a charge in writing has been filed, and an opportunity given to the
respondent to comment thereon within such period as may be fixed by the court
and to be heard by himself or counsel, a person guilty of any of the following acts
may be punished for indirect contempt:
(a) Misbehavior of an officer of a court in the performance of his
official duties or in his official transactions;
(b) Disobedience of or resistance to a lawful writ, process, order,
or judgment of a court, including the act of a person who, after being dispossessed
or ejected from any real property by the judgment or process of any court of
competent jurisdiction, enters or attempts or induces another to enter into or upon
such real property, for the purpose of executing acts of ownership or possession, or
in any manner disturbs the possession given to the person adjudged to be entitled
thereto;
(c) Any abuse of or any unlawful interference with the processes
or proceedings of a court not constituting direct contempt under section 1 of this
Rule;
(d) Any improper conduct tending, directly or indirectly, to
impede, obstruct, or degrade the administration of justice;
(e) Assuming to be an attorney or an officer of a court, and
acting as such without authority;
(f) Failure to obey a subpoena duly served;
(g) The rescue, or attempted rescue, of a person or property in
the custody of an officer by virtue of an order or process of a court held by him. x x
x.

Do the acts of respondents Enriquez and Sia in filing a motion for partial execution;
of LA Calanza in granting the writ of execution and applying or not applying
established jurisprudence; and of Sheriff Paredes in serving the notice of sale of the
real property owned by petitioner fall under the above enumeration?

We answer in the negative.

Contempt of court is defined as a disobedience to the court by acting in opposition

to its authority, justice, and dignity. It signifies not only a willful disregard or
disobedience of the courts order, but such conduct which tends to bring the
authority of the court and the administration of law into disrepute or, in some
manner, to impede the due administration of justice. [17] It is a defiance of the
authority, justice, or dignity of the court which tends to bring the authority and
administration of the law into disrespect or to interfere with or prejudice partylitigants or their witnesses during litigation. [18]

The power to punish for contempt is inherent in all courts and is essential to the
preservation of order in judicial proceedings and to the enforcement of judgments,
orders, and mandates of the court, and consequently, to the due administration of
justice.[19] However, such power should be exercised on the preservative, not on the
vindictive, principle. Only occasionally should the court invoke its inherent power in
order to retain that respect, without which the administration of justice will falter or
fail.[20] Only in cases of clear and contumacious refusal to obey should the power be
exercised. Such power, being drastic and extraordinary in its nature, should not be
resorted to unless necessary in the interest of justice. [21]

It is true that, at the time of the filing by Enriquez and Sia of the motion for the
partial execution of the LA decision which directed their reinstatement, the decision
had already been reversed by the NLRC, and such reversal was affirmed by the
CA. The case was then on appeal to this Court via a petition for review
oncertiorari under Rule 45 of the Rules of Court. We find that their motion for
partial execution was a bona fide attempt to implement what they might have
genuinely believed they were entitled to in accordance with existing laws and
jurisprudence.[22] This is especially true in the instant case where the means of
livelihood of the dismissed employees was at stake. Any man in such an uncertain
and economically threatened condition would be expected to take whatever
measures are available to ensure a means of sustenance for himself and his family.
[23]
Clearly, Enriquez and Sia were merely pursuing a claim which they honestly
believed was due them. Their act is far from being contumacious.

On the other hand, LA Calanza, on motion of Enriquez and Sia, issued the writ of
execution considering that at the time of the application of the writ, this Court had
yet to decide G.R. No. 172812. LA Calanza opined that so long as there is no finality
yet of the decision reversing a ruling of the LA awarding reinstatement, the same
should be enforced. This was how he interpreted this Courts pronouncements
in Roquero[24] and Zamora;[25] that even if the order of reinstatement of the Labor
Arbiter is reversed on appeal, it is obligatory on the part of the employer to

reinstate and pay the wages of the dismissed employee during the period of appeal
until reversal by the higher court.

But as we clearly discussed in Bago v. National Labor Relations Commission,[26] while

it is true that the reinstatement aspect of the LA decision is immediately executory,
the reversal thereof by the NLRC becomes final and executory after ten (10) days
from receipt thereof by the parties. That the CA may take cognizance of and resolve
a petition for the nullification of the NLRC decision on jurisdictional and due process
considerations does not affect the statutory finality of the NLRC decision. It then
logically follows that, at the time of the application for the writ since the Court
eventually sustained the NLRC and the CA decisions in G.R. No. 172812 no issue
of payroll reinstatement may be considered at all after the reversal of the LA
decision by the NLRC.

Still, the erroneous issuance of the writ of execution by LA Calanza can only be
deemed grave abuse of discretion which is more properly the subject of a petition
for certiorari and not a petition for indirect contempt.[27] No one who is called upon
to try the facts or interpret the law in the process of administering justice can be
infallible in his judgment.[28]

Finally, Sheriff Paredes, in serving the notice of sale, was only performing his duty
pursuant to the writ of execution. No matter how erroneous the writ was, it was
issued by LA Calanza and was addressed to him as the sheriff, commanding him to
collect from petitioner the amount due Enriquez and Sia. In the event he failed to
collect the amount, he was authorized to cause the satisfaction of the same on the
movable and immovable properties of petitioner not exempt from execution.
[29]
Thus, any act performed by Sheriff Paredes pursuant to the aforesaid writ
cannot be considered contemptuous. At the time of the service of the notice of sale,
there was no order from any court or tribunal restraining him from enforcing the
writ. It was ministerial duty for him to implement it.

To be considered contemptuous, an act must be clearly contrary to or prohibited by

the order of the court or tribunal. A person cannot, for disobedience, be punished
for contempt unless the act which is forbidden or required to be done is clearly and
exactly defined, so that there can be no reasonable doubt or uncertainty as to what
specific act or thing is forbidden or required. [30]

WHEREFORE, premises considered, the petition is DISMISSED for lack of merit.

SPEC PRO
MONTANER VS SHARIA DISTRICT
SAN LUIS VS SAN LUIS
NAPOLEON NERI VS UY
UY VS LEE
PIZARRO VS CA
SALONGA HERNANDEZ VS PASCUAL
RCBC VS HI TRI DEVELOPMENT VS BAKUNAWA
SENEN VS PICHAY
REPUBLIC VS HERNANDEZ
SY VS CA
REPUBLIC VS MERCADERA
SILVERIO VS REPUBLIC
EVID
PEOPLE VS VALLEJO