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[G.R. Nos. 147933-34.

December 12, 2001]

PUBLIC ESTATES AUTHORITY, petitioner, vs.


ELPIDIO S. UY, doing business under the
name and style EDISON DEVELOPMENT
& CONSTRUCTION, AND THE COURT
OF APPEALS,respondents.
DECISION
YNARES-SANTIAGO, J.:

This is a petition for review of the Joint Decision dated


September 25, 2000[1] and the Joint Resolution dated April 25,
2001[2] of the Court of Appeals in the consolidated cases CAG.R. SP Nos. 59308 and 59849.
Petitioner Public Estates Authority is the government
agency tasked by the Bases Conversion Development
Authority to develop the first-class memorial park known as
the Heritage Park, located in Fort Bonifacio, Taguig, Metro
Manila. On November 20, 1996, petitioner executed with
respondent Elpidio S. Uy, doing business under the name and
style Edison Development & Construction, a Landscaping and
Construction Agreement, whereby respondent undertook to
perform all landscaping works on the 105-hectare Heritage
Park. The Agreement stipulated that the completion date for
the landscaping job was within 450 days, commencing within

14 days after receipt by respondent from petitioner of a written


notice to proceed. Due to delays, the contracted period was
extended to 693 days. Among the causes of the delay was
petitioners inability to deliver to respondent 45 hectares of the
property for landscaping, because of the existence of squatters
and a public cemetery.
Respondent instituted with the Construction Industry
Arbitration Commission an action, docketed as CIAC Case No.
02-2000, seeking to collect from petitioner damages arising
from its delay in the delivery of the entire property for
landscaping. Specifically, respondent alleged that he incurred
additional rental costs for the equipment which were kept on
stand-by and labor costs for the idle manpower. Likewise, the
delay incurred by petitioner caused the topsoil at the original
supplier to be depleted, which compelled respondent to obtain
the topsoil from a farther source, thereby incurring added
costs. He also claims that he had to mobilize water trucks for
the plants and trees which have already been delivered at the
site. Furthermore, it became necessary to construct a nursery
shade to protect and preserve the young plants and trees prior
to actual transplanting at the landscaped area.
On May 16, 2000, the CIAC rendered a decision, the
dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered in favor


of the Claimant Contractor ELPIDIO S.

UY and Award is hereby made on its monetary claim as


follows:
Respondent PUBLIC ESTATES AUTHORITY is
directed to pay the Claimant the following amounts:
P19,604,132.06 --- for the cost of idle time of
equipment.
2,275,721.00 --- for the cost of idled manpower.
6,050,165.05 --- for the construction of the nursery
shade net area.
605,016.50 --- for attorneys fees.
Interest on the amount of P6,050,165.05 as cost for the
construction of the nursery shade net area shall be paid
at the rate of 6% per annum from the date the Complaint
was filed on 12 January 2000. Interest on the total
amount ofP21,879,853.06 for the cost of idled
manpower and equipment shall be paid at the same rate
of 6% per annum from the date this Decision is
promulgated. After finality of this Decision, interest at
the rate of 12% per annum shall be paid on the total of
these 3 awards amounting to P27,930,018.11 until full
payment of the awarded amount shall have been

made, this interim period being deemed to be at that


time already a forbearance of credit (Eastern Shipping
Lines, Inc. v. Court of Appeals, et al., 243 SCRA 78
[1994]; Keng Hua Paper Products Co., Inc. v. Court of
Appeals, 286 SCRA 257 [1998]; Crismina Garments,
Inc. v. Court of Appeals, G.R. No. 128721, March 9,
1999).
SO ORDERED.[3]

Both petitioner and respondent filed petitions for review


with the Court of Appeals. In CA-G.R. SP No. 59308,
petitioner contested the monetary awards given by the
CIAC. On the other hand, respondent filed CA-G.R. SP No.
59849, arguing that the CIAC erred in awarding a reduced
amount for equipment stand-by costs and for denying his
claims for additional costs for topsoil hauling and operating
costs of water trucks.
The two petitions were consolidated. On September 25,
2000, the Court of Appeals rendered the now assailed Joint
Decision, dismissing the petitions, to wit:

WHEREFORE, premises considered, the petitions in


CA-G.R. SP No. 59308, entitled Public Estates
Authority v. Elpidio S. Uy, doing business under the
name and style of Edison Development &
Construction, and CA-G.R. SP No. 59849, Elpidio

S. Uy, doing business under the name and style of


Edison Development & Construction v. Public Estates
Authority, are both hereby DENIED DUE COURSE
and accordingly, DISMISSED, for lack of merit.

WHEREFORE, the present Motion/s for


Reconsideration in CA-G.R. SP No. 59308 and CAG.R. SP No. 59849 are hereby both DENIED, for lack
of merit.

Consequently, the Award/Decision issued by the


Construction Industry Arbitration Commission on May
16, 2000 in CIAC Case No. 02-200, entitled Elpidio S.
Uy, doing business under the name and style of
Edison Development & Construction v. Public Estates
Authority, is hereby AFFIRMED in toto.
No pronouncement as to costs.

Accordingly, let an injunction issue permanently


enjoining the Construction Industry Arbitration
Commission from proceeding with CIAC Case No. 032001, entitled ELPIDIO S. UY, doing business under
the name and style of EDISON DEVELOPMENT &
CONSTRUCTION v. PUBLIC ESTATES
AUTHORITY and/or HONORABLE CARLOS P.
DOBLE.

SO ORDERED.[4]

SO ORDERED.[5]

Both
parties
filed
motions
for
reconsideration. Subsequently, petitioner filed with the Court
of Appeals an Urgent Motion for Issuance of a Temporary
Restraining Order and/or Writ of Preliminary Injunction,
seeking to enjoin the CIAC from proceeding with CIAC Case
No. 03-2001, which respondent has filed. Petitioner alleged
that the said case involved claims by respondent arising from
the same Landscaping and Construction Agreement, subject of
the cases pending with the Court of Appeals.

Hence, this petition for review, raising the following


arguments:

On April 25, 2001, the Court of Appeals issued the


assailed Joint Resolution, thus:

THE HONORABLE COURT OF APPEALS


GRAVELY ERRED IN DENYING DUE COURSE
PETITIONERS (SIC) PETITION FILED PURSUANT
TO RULE 43 OF THE 1997 RULES OF CIVIL
PROCEDURE APPEALING THE ADVERSE
DECISION OF THE CIAC A QUO

II

THE HONORABLE COURT OF APPEALS


GRAVELY ERRED IN DENYING THE HEREIN
PETITIONERS MOTION FOR
RECONSIDERATION ON THE JOINT DECISION
PROMULGATED ON SEPTEMBER 25, 2000.
III

THE HONORABLE COURT OF APPEALS


GRAVELY ERRED IN NOT ALLOWING THE
APPEAL ON THE MERITS TO BE THRESHED OUT
PURSUANT TO EXISTING LAWS AND
JURISPRUDENCE ALL IN INTEREST OF DUE
PROCESS,.
IV

THE HONORABLE COURT OF APPEALS ERRED


IN DENYING PETITIONERS CLAIM FOR
UNRECOUPED BALANCE IN THE 15% ADVANCE
PAYMENT; UNRECOUPED BALANCE ON PREPAID MATERIALS, AND OVERPAYMENT BASED
ON ACTUAL PAYMENT MADE AS AGAINST
PHYSICAL ACCOMPLISHMENTS.
V

THE HONORABLE COURT OF APPEALS ERRED


IN AFFIRMING THE CIAC DECISION FINDING
RESPONDENT ENTITLED TO ATTORNEYS FEES
IN THE AMOUNT OF P605,096.50 WHICH IS 10%
OF THE AMOUNT AWARDED FOR THE CLAIM OF
NURSERY SHADE CONSTRUCTION WHILE
DENYING PETITIONERS COUNTERCLAIM FOR
ATTORNEYS FEES.
VI

THE HONORABLE COURT OF APPEALS ERRED


IN NOT FINDING THAT PETITIONERS
OBLIGATION, IF ANY, HAS BEEN EFFECTIVELY
EXTINGUISHED.
VII

THE HONORABLE COURT OF APPEALS ERRED


IN NOT ORDERING THE RESPONDENT TO
REIMBURSE THE PETITIONER THE AMOUNT OF
P345,583.20 THE LATTER PAID TO THE
CONSTRUCTION INDUSTRY ARBITRATION
COMMISSION.[6]
After respondent filed its comment[7] on August 20, 2001,
this Court issued a resolution dated September 3,
2001[8] requiring petitioner to file its reply within ten days from

notice. Despite service of the resolution on petitioner and its


counsel on October 1, 2001, no reply has been filed with this
Court to date. Therefore, we dispense with the filing of
petitioners reply and decide this case based on the pleadings
on record.
The petition is without merit.
Petitioner assails the dismissal of its petition by the Court
of Appeals based on a technicality, i.e., the verification and
certification of non-forum shopping was signed by its Officerin-Charge, who did not appear to have been authorized by
petitioner to represent it in the case. Petitioner moreover
argues that in an earlier resolution, the First Division of the
Court of Appeals gave due course to its petition. Despite this,
it was the Seventeenth Division of the Court of Appeals which
rendered the Joint Decision dismissing its petition.
The contention is untenable. Petitioner, being a
government owned and controlled corporation, can act only
through its duly authorized representatives. In the case
of Premium Marble Resources, Inc. v. Court of Appeals,
[9]
which the Court of Appeals cited, we made it clear that in the
absence of an authority from the board of directors, no person,
not even the officers of the corporation, can validly bind the
corporation.[10] Thus, we held in that case:

We agree with the finding of public respondent Court of


Appeals, that in the absence of any board resolution

from its board of directors the [sic] authority to act for


and in behalf of the corporation, the present action must
necessary fail. The power of the corporation to sue and
be sued in any court is lodged with the board of
directors that exercises its corporate powers. Thus, the
issue of authority and the invalidity of plaintiffappellants subscription which is still pending, is a
matter that is also addressed, considering the premises,
to the sound judgment of the Securities and Exchange
Commission.[11]
Therefore, the Court of Appeals did not err in finding that,
in view of the absence of a board resolution authorizing
petitioners Officer-in-Charge to represent it in the petition, the
verification and certification of non-forum shopping executed
by said officer failed to satisfy the requirement of the Rules. In
this connection, Rule 43, Section 7, of the 1997 Rules of Civil
Procedure categorically provides:

Effect of failure to comply with requirements. --- The


failure of the petition to comply with any of the
foregoing requirements regarding the payment of the
docket and other lawful fees, the deposit for costs, proof
of service of the petition, and the contents of and the
documents which should accompany the petition shall
be sufficient ground for the dismissal thereof.

Anent petitioners contention that its petition had already


been given due course, it is well to note that under the Internal
Rules of the Court of Appeals, each case is raffled to a Justice
twice --- the first raffle for completion of records and the
second raffle for study and report.[12] Hence, there was nothing
unusual in the fact that its petition was first raffled to the First
Division of the Court of Appeals but was later decided by the
Seventeenth Division thereof. Petitioners imputations of
irregularity have no basis whatsoever, and can only viewed as a
desperate attempt to muddle the issue by nit-picking on nonessential matters. Likewise, the giving of due course to a
petition is not a guarantee that the same will be granted on its
merits.
Significantly, the dismissal by the Court of Appeals of the
petition was based not only on its fatal procedural defect, but
also on its lack of substantive merit; specifically, its failure to
show that the CIAC committed gross abuse of discretion, fraud
or error of law, such as to warrant the reversal of its factual
findings.
We have carefully gone over the decision of the CIAC in
CIAC Case No. 02-2000, and we have found that it contains an
exhaustive discussion of all claims and counterclaims of
respondent and petitioner, respectively. More importantly, its
findings are well supported by evidence which are properly
referred to in the record. In all, we have found no ground to
disturb the decision of the CIAC, especially since it possesses
the required expertise in the field of construction arbitration. It

is well settled that findings of fact of administrative agencies


and quasi-judicial bodies, which have acquired expertise
because their jurisdiction is confined to specific matters, are
generally accorded not only respect, but finality when affirmed
by the Court of Appeals.[13]
Thus, we affirm the factual findings and conclusions of the
CIAC as regards the arbitral awards to respondent. The
records clearly show that these are amply supported by
substantial evidence.
Coming now to petitioners counterclaims, we find that the
CIAC painstakingly sifted through the records to discuss these,
despite its initial observation that petitioner absolutely omitted
to make any arguments to substantiate the same. [14] As far as
the unrecouped balance on prepaid materials are concerned, the
CIAC found:

The Arbitral Tribunal finds the evidence adduced by the


Respondents (petitioner herein) sorely lacking to
establish this counterclaim. The affidavit of Mr. Jaime
Millan touched on this matter by merely stating this
additional claim a)Unrecouped balance on prepaid
materials amounting to P45,372,589.85. No further
elaboration was made of this bare statement. The
affidavit of Mr. Roigelio A. Cantoria merely states that
as Senior Accountant, it was he who prepared the
computation for the recoupment of prepaid materials

and advance payment marked as Annex B of


Respondents Compliance/Submission dated 16 March
2000. Examination of that single page document shows
that for the 2nd Billing, the amount of P32,695,138.86
was 75% Prepaid for some unspecified Materials on
Hand. The rest of the other items were payments
for trees and shrubs, RCP, Baluster & Cons. Paver,
and GFRC (Baluster) in various amounts taken from
other billings. The billings themselves have not been
introduced in evidence. No testimonial evidence was
also offered to explain how these computations were
made, if only to explain the meaning of those terms
above-quoted and why the recoupment of amounts of
the various billings were generally much lower than the
payment for materials. As stated at the outset of the
discussion of these additional claims, it is not the
burden of this Tribunal to dig into the haystack to look
for the proverbial needle to support these
counterclaims.[15]
On the other hand, we find that the CIAC correctly
deferred determination of the counterclaim for unrecouped
balance on the advance payment. It explained that the amount
of this claim is determined by deducting from respondents
progress billing a proportionate amount equal to the percentage
of work accomplished. However, this could not be done since
petitioner terminated the construction contract. At the time the

CIAC rendered its decision, the issue of the validity of the


termination was still pending determination by the Regional
Trial Court of Paraaque. Thus, in view of the non-fulfillment
of that precondition to the grant of petitioners counterclaim,
the CIAC deferred resolution of the same.[16] In the case at bar,
petitioner still failed to show that its termination of the
construction contract was upheld by the court as valid.
Anent petitioners claim for attorneys fees, suffice it to
state that it was represented by the Government Corporate
Counsel in the proceedings before the CIAC. Attorney's fees
are in the nature of actual damages, which must be duly
proved.[17] Petitioner failed to show with convincing evidence
that it incurred attorneys fees.
Petitioner further argues that its liability to respondent has
been extinguished by novation when it assigned and turned
over all its contracted works at the Heritage Park to the
Heritage Park Management Corporation.[18] This, however, can
not bind respondent, who was not a party to the
assignment. Moreover, it has not been shown that respondent
gave his consent to the turn-over. Article 1293 of the Civil
Code expressly provides:

Novation which consists in substituting a new debtor in


the place of the original one, may be made even without
the knowledge or against the will of the latter, but not
without the consent of the creditor. Payment by the

new debtor gives him the rights mentioned in articles


1236 and 1237. (emphasis ours)

in its questioned decision, the merits of which were not


submitted to us for determination in the instant petition.

Lastly, petitioner argues that respondent should reimburse


to it all fees paid to the CIAC by reason of the case. To be
sure, this contention is based on the premise that the suit filed
by respondent was unwarranted and without legal and factual
basis. But as shown in the CIAC decision, this was not so. In
fact, respondent was adjudged entitled to the arbitral awards
made by the CIAC. These awards have been sustained by the
Court of Appeals, and now by this Court.

WHEREFORE, in view of the foregoing, the petition for


review is DENIED. The Motion to Consolidate this petition
with G.R. No. 147925-26 is also DENIED.

It appears that there is a pending motion to consolidate the


instant petition with G.R. No. 147925-26, filed by
respondent. Considering, however, that the instant petition has
no merit, the motion for consolidation is rendered also without
merit, as there will be no more petition to consolidate with the
said case. Hence, the motion to consolidate filed in this case
must be denied.
However, in order not to prejudice the deliberations of the
Courts Second Division in G.R. No. 147925-26, it should be
stated that the findings made in this case, especially as regards
the correctness of the findings of the CIAC, are limited to the
arbitral awards granted to respondent Elpidio S. Uy and to the
denial of the counterclaims of petitioner Public Estates
Authority. Our decision in this case does not affect the other
claims of respondent Uy which were not granted by the CIAC

SO ORDERED.
G.R. No. 147989

February 20, 2006

ROLANDO CLAVECILLA, Petitioner,


vs.
TERESITO QUITAIN and RICO QUITAIN, et al., Respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
Before this Court is a petition for review on certiorari assailing the
Resolution1 of the Court of Appeals (CA) dated October 5, 2000
which dismissed Rolando Clavecillas petition on the ground that
the verification and certification of non-forum shopping was
signed by counsel without the proper authority from petitioner, as
well as the Resolution dated March 28, 20012 which denied
petitioners motion for reconsideration.
The facts are as follows:
Teresito and Rico Quitain (Quitains) filed on March 7, 1997, a
complaint against Rolando Clavecilla (Clavecilla) before the
Municipal Trial Court in Cities, Branch 6, Davao City (MTCC) for

the enforcement of the amicable settlement entered into by them


on August 19, 1996 before the Lupon Tagapamayapa,
Barangay Talomo, Davao. Pertinent portions of said settlement
reads:

3. Price per sq.m. P1,000.00 only.


4. Failure to accomplished (sic) this Nov. 5, 1996
requirement, the respondent will voluntarily vacate the
said lot with a P5,000.00 assistance for their effort.

1. That the respondent (Clavecilla) agreed to purchase


the property on October 15, 1996.
2. Failure to pay the property on the said date the
respondent will voluntarily vacate the place with the
assistance of five thousand (P5,000.00) pesos only.
3. The complainant (Rico Quitain) agreed to the demand
of the respondent.3
The Quitains alleged that Clavecilla failed to pay the amount
agreed upon and six months had already passed since the
agreement was entered into and yet Clavecilla has still not left the
premises.4
Clavecilla answered that the August 19, 1996 agreement was no
longer enforceable since it was novated by an agreement dated
October 29, 1996.5 Said agreement reads:
xxx
1. That both parties agreed to meet again on Nov. 5, 1996
at the Barangay for another round of talk (sic).
2. That on Nov. 5, 1996 the respondent will pay the 50%
total amount of the selling price of the said lot, 111 sq.m.
more or less located at Lot 1989-A being a portion of Lot
1989 (T.C.T. # T-6615) at Talomo proper.

5. All agreement is final upon signing.6


xxx
Clavecilla claims that on November 5, 1996, he appeared at
the barangay and was supposed to pay Quitains the 50% price of
the lot in question but they were not present.7 Rico Quitain
asserts however that he was present that day as shown by a
certification made by the office of the lupon of said barangay.8
On March 8, 2000, the MTCC rendered its Decision in favor of the
Quitains finding that there was no novation, as the October 29,
1996 was not incompatible with the August 19, 1996 agreement
but was only a reiteration of the earlier agreement. 9
Clavecilla filed a notice of appeal.10
On June 20, 2000, the Regional Trial Court of Davao City, Branch
33 (RTC) dismissed the appeal for Clavecillas failure to file the
memorandum on appeal within the period prescribed by the
Rules.11
Clavecilla filed a Motion for Reconsideration and For Leave of
Court to Admit Appeal Memorandum claiming that his counsel
was not able to file the memorandum on appeal on time since
said counsel was diagnosed with pneumonia and had to rest for
more than ten days.12 Clavecilla then filed an Appeal

Memorandum claiming that the MTCC erred in rendering


judgment against him since he did not sign the agreement but it
was his wife Erlinda who signed the same without authority from
him.13

Accordingly, the Court Resolves to DENY DUE COURSE and


to DISMISS the petition.

On July 5, 2000, the RTC denied Clavecillas motion stating that


the reason advanced by Clavecillas counsel for his failure to file
the appeal memorandum on time is not a compelling reason, and
even if such memorandum was given due course, the arguments
raised by Clavecilla therein are not sufficient to justify a reversal
of the Decision of the lower court.14

Petitioners motion for reconsideration was also denied on March


28, 2001 as follows:

SO ORDERED.17

Petitioner moves for the reconsideration of our Resolution dated


05 October 2000 dismissing the petition for the reason that the
certificate of non-forum shopping was signed by petitioners
counsel and not by the petitioner.
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Petitioner filed another motion for reconsideration dated July 21,


2000 which was denied by the RTC on the same day.15
On September 13, 2000, petitioner filed a petition for review
under Rule 42 of the Rules of Court with the CA which rendered
the herein assailed Resolution on October 5, 2000 thus:
The Verification and Certification of non-forum shopping, which
accompanied the petition at bench, was executed and signed by
petitioners counsel Atty. Oswaldo A. Macadangdang, without the
proper authority from petitioner, in violation of Sec. 5, Rule 7 and
Sec. 2, Rule 42 of the 1997 Rules of Civil Procedure. The duty to
certify under oath is strictly addressed to petitioner, Rolando
Clavecilla. To allow delegation of said duty to anyone would
render Revised Circular No. 28-91 inutile.16

Admitting that the duty to sign under oath the certificate is


addressed to the petitioner, petitioner attached to his motion a
Special Power of Attorney dated 09 August 2000 authorizing his
counsel to sign the certificate. The court believes that this
authorization was made after the petition had been filed, in a vain
attempt to cure the fatal defect, for if Atty. Maca[d]angdang had
such authority, he would have indicated that in the Verification
and Certification he signed on 25 August 2000 attached to the
petition.
In any event, it is a settled rule that the certificate against forum
shopping must be executed by the petitioner and not by counsel.
xxx To merit the Courts Consideration, petitioner must show
reasonable cause for failure to personally sign the certification. x
x x This petitioner failed to show. (citations omitted)

xxx
xxxx

WHEREFORE, the Motion for Reconsideration is DENIED for


lack of merit.
SO ORDERED.18

Hence, the present petition alleging that:


THE HONORABLE COURT OF APPEALS ERRED IN
DEPARTING FROM THE ACCEPTED JURISPRUDENCE OF
ALLOWING LIBERAL INTERPRETATION OF THE RULES OF
COURT PROVIDED PETITIONER SUBSTANTIALLY COMPLIED
WITH CIRCULAR NO. 28-91 AS SHOWN IN THE SPECIAL
POWER OF ATTORNEY WHICH HE ATTACHED TO HIS
MOTION FOR RECONSIDERATION.19
Petitioner avers that: his lawyer had the authority to sign the
certification against forum shopping; the CA was hasty in
concluding that the authorization of petitioners lawyer was made
after the petition had been filed; the CA should have granted
petitioner the benefit of the doubt that he gave such authorization
to his lawyer at the time that his lawyer signed the verification and
certification against forum shopping; petitioners failure to have a
properly executed certification against forum shopping attached
to his petition for review is not fatal; the rules of procedure are
used only to help secure and not override substantial justice, and
the CA departed from the established liberal interpretation of the
rules despite petitioners substantial compliance with the rule on
non-forum shopping.20
Rico Quitain in his Comment countered that: the petition is not
sufficient in form and substance and is utterly deficient in factual
and procedural bases; petitioner named "Teresito Quitain, Rico
Quitain, et al." as respondents without specifying who "et al."
referred to; Teresito Quitain is already deceased and the MTCC
as early as June 5, 1998 already ordered Teresitos substitution;
the spouse and children of Teresito, to wit, Lolita, Rene, Ruel,
Radi and Romy, all surnamed Quitain, have the right to be
informed of the filing of the petition and the fact that they were not

so specifically named as respondents but were referred to as "et


al." makes the petition a sham pleading; petitioner failed to attach
certified true copies of the MTCC Decision dated March 8, 2000
and the RTC Order dated July 5, 2000 which should have been
included as annexes in the present petition as they are material to
the case, and the petition does not allege a good and valid
defense which, if appreciated, could probably cause the reversal
of the July 5, 2000 and March 8, 2000 issuances.21
The parties filed their respective Memoranda reiterating their
respective contentions.22
After evaluating the records of the case and the issues raised by
the parties, the Court finds that the CA did not err in denying the
petition and motion for reconsideration filed by Clavecilla before
it. The Court however finds different grounds for denying
Clavecillas petition.
First, it must be determined whether there existed a special
power of attorney in favor of petitioners counsel when the petition
before the CA was filed.
The CA in its Resolution dated March 28, 2001, stated that it
believes that the special power of attorney in favor of the lawyer
attached to petitioners motion for reconsideration was only made
after the petition had been filed reasoning that if the counsel had
such authority from the beginning, he would have attached the
same when the petition was first filed.
The Court disagrees.
The rule is that any suspicion on the authenticity and due
execution of the special power of attorney which is a notarized

document, thus a public document, cannot stand against the


presumption of regularity in their favor absent evidence that is
clear, convincing and more than merely preponderant.23

On this ground alone, the petition should already be dismissed for


as provided for in Section 4 Rule 7 of the Rules of Court, as
amended by A.M. No. 00-2-10-SC dated May 1, 2000:

In this case, the petition before the CA was filed on September


13, 2000.24 The special power of attorney meanwhile was dated
August 9, 2000.25 Absent any proof that the special power of
attorney was not actually in existence before the petition was
filed, this Court has no recourse but to believe that it was indeed
in existence at such time.

Sec. 4. Verification. ---xxx

The next matter to be determined is whether the CA was correct


in dismissing Clavecillas petition and motion for reconsideration,
notwithstanding the authority given by Clavecilla in favor of his
lawyer to sign the verification and certification in his behalf.
The Court answers in the affirmative.
Obedience to the requirements of procedural rules is needed if
we are to expect fair results therefrom, and utter disregard of the
rules cannot justly be rationalized by harking on the policy of
liberal construction.26 Time and again, this Court has strictly
enforced the requirement of verification and certification of nonforum shopping under the Rules of Court.27 This case is no
exception.
Verification is required to secure an assurance that the
allegations of the petition have been made in good faith, or are
true and correct and not merely speculative.28
In this case, petitioners counsel signed the verification alleging
that he had read the petition and the contents thereof are true
and correct of his own "knowledge and belief."29

A pleading is verified by an affidavit that the affiant has read the


pleading and that the allegations therein are true and correct of
his personal knowledge or based on authentic records.
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A pleading required to be verified which contains a verification


based on "information and belief," or upon "knowledge,
information and belief," or lacks a proper verification, shall be
treated as an unsigned pleading.
While the Court has exercised leniency in cases where the lapse
in observing the rules was committed when the rules have just
recently taken effect,30 the attendant circumstances in this case
however do not warrant such leniency.
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The certification against forum shopping in this case was signed


by petitioners counsel despite the clear requirement of the law
that petitioners themselves must sign the certification. The
certification must be made by petitioner himself and not by
counsel, since it is petitioner who is in the best position to know
whether he has previously commenced any similar action
involving the same issues in any other tribunal or agency.31 And
the lack of a certification against forum shopping, unlike that of
verification, is generally not cured by its submission after the filing
of the petition.32
As explained by this Court in Gutierrez v. Sec. of Dept. of Labor
and Employment:33

x x x [T]he certification (against forum shopping) must be signed


by the plaintiff or any of the principal parties and not by the
attorney. For such certification is a peculiar personal
representation on the part of the principal party, an assurance
given to the court or other tribunal that there are no other pending
cases involving basically the same parties, issues and causes of
action.
x x x Obviously it is the petitioner, and not always the counsel
whose professional services have been retained for a particular
case, who is in the best position to know whether he or it actually
filed or caused the filing of a petition in that case. Hence, a
certification against forum shopping by counsel is a defective
certification.34
In Mariveles Shipyard Corp. v. Court of Appeals,35 this Court
further elucidated that:
x x x In the case of natural persons, the Rule requires the
parties themselves to sign the certificate of non-forum
shopping. x x x [I]n the case of the corporations, the physical act
of signing may be performed, on behalf of the corporate entity,
only by specifically authorized individuals for the simple reason
that corporations, as artificial persons, cannot personally do the
task themselves.36 (emphasis supplied)

authorized lawyer who has personal knowledge of the facts


required to be disclosed in such document. However, BA Savings
Bank must be distinguished from the case at bar because in the
former, the complainant was a corporation, and hence, a juridical
person. Therefore, that case made an exception to the general
rule that the certification must be made by the petitioner himself
since a corporation can only act through natural persons. In fact,
physical actions, e.g., signing and delivery of documents, may be
performed on behalf of the corporate entity only by specifically
authorized individuals. In the instant case, petitioners are all
natural persons and there is no showing of any reasonable
cause to justify their failure to personally sign the
certification. It is noteworthy that PEPSI in its Comment stated
that it was petitioners themselves who executed the verification
and certification requirements in all their previous pleadings.
Counsel for petitioners argues that as a matter of policy,
a Special Power of Attorney is executed to promptly and
effectively meet any contingency relative to the handling of a
case. This argument only weakens their position since it is clear
that at the outset no justifiable reason yet existed for
counsel to substitute petitioners in signing the certification.
In fact, in the case of natural persons, this policy serves no
legal purpose. Convenience cannot be made the basis for a
circumvention of the Rules.38 (emphasis supplied)

In the case of Santos v. Court of Appeals,37 the Court further


clarified, that even with a special power of attorney executed by
the petitioners in favor of their counsel to sign the certification on
their behalf, still the rule stands. Thus:

While there are cases when the Court has relaxed the rule
requiring that in case of a natural person, he shall personally sign
the non-forum shopping certification, in such cases the Court
found compelling and justifiable reasons to relax observance of
the rules.

We are aware of our ruling in BA Savings Bank v. Sia that a


certification against forum shopping may be signed by an

In Donato v. Court of Appeals39 and Wee v. Galvez40 the Court


noted that the petitioners were already in the United States, thus

the signing of the certification by their authorized representatives


was deemed sufficient compliance with the rules. In Orbeta v.
Sendiong41 the Court found that the annulment of judgment filed
by the parties was meritorious thus the certification signed by the
daughter of petitioner who had a general power of attorney in her
favor was deemed sufficient. In Sy Chin v. Court of Appeals42 the
Court also upheld substantial justice and ruled that the failure of
the parties to sign the certification may be overlooked as the
parties case was meritorious.

Novation cannot be presumed but must be clearly shown either


by the express assent of the parties or by the complete
incompatibility between the old and the new agreements.47 In this
case, the October 29, 1996 agreement merely held that the
parties shall meet again on November 5, 1996 at which time
petitioner shall pay 50% of the purchase price or he will vacate
the property. His obligation to pay the purchase price or to vacate
the property in case of his failure to do so, still exists and was not
extinguished by the October 29, 1996 agreement.

No such justifiable or compelling reasons exist in the case at bar.

Records also show that Rico Quitain was ready to comply with his
part of the agreement as he was present at thebarangay on
November 5, 1996 to receive the payment from
Clavecilla.48 Quitain also consigned the amount ofP5,000.00 to
the court, which is the amount he agreed to give Clavecilla to
assist him and his family when they leave the property.49

In this case, petitioner did not present any cause for his failure to
personally sign the certification against forum shopping at the
time that the petition was filed at the CA. He merely
acknowledged in his motion for reconsideration of the October 5,
2000 Resolution of the CA that he "has the duty to certify under
oath."43 He then asked for a reconsideration of the said
Resolution and attached a Special Power of Attorney executed by
him in favor of his lawyer.44
There is also no showing that there is substantial merit in
petitioners claims. In his petition before the CA and in his Appeal
Memorandum filed with the RTC, petitioner argues that he is not
a party to the amicable settlement as it was his wife who signed
the same without authority from him.45 Petitioner in his Answer
however admitted having entered into an agreement with the
Quitains, before the lupon of their barangay on August 19, 1996.46
Petitioner also claims that the August 19, 1996 agreement was
novated by the one dated October 29, 1996. The claim has no
merit.

As correctly pointed out by the RTC, even if petitioners appeal


was allowed to proceed, still the arguments raised are not
sufficient to overturn the ruling of the MTCC.
It is also worth mentioning that the petitioner erred in including the
name of Teresito in the caption of the petition and using only the
phrase "et al." to refer to the heirs who substituted him after his
death. As pointed out by respondent Rico Quitain, Teresito is
already deceased and was already substituted by his heirs,
namely: Lolita, widow of Teresito, Rene, Ruel, Radi, and Romy,
sons of Teresito, in the Order of the MTCC dated June 5,
1998.50 Consequently, the above-named heirs are deemed corespondents in the present petition.
WHEREFORE, the petition is DENIED for lack of merit. Costs
against petitioner.

SO ORDERED.
G.R. No. 146459

June 8, 2006

HEIRS OF DICMAN, namely: ERNESTO DICMAN, PAUL


DICMAN, FLORENCE DICMAN FELICIANO TORRES, EMILY
TORRES, TOMASITO TORRES and HEIRS OF CRISTINA
ALAWAS and BABING COSIL, * Petitioners,
vs.
JOSE CARIO and COURT OF APPEALS, Respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
This refers to the petition for review on certiorari under Rule 45 of
the Rules of Court questioning the Decision1dated June 30, 2000
of the Court of Appeals (CA) in C.A.-G.R. CV No. 33731, which
affirmed in toto the Decision dated November 28, 1990 of the
Regional Trial Court (RTC), Branch 7 (Baguio City), La Trinidad,
Benguet; and the CA Resolution dated December 15, 2000 which
denied the petitioners motion for reconsideration.
The petition originated from an action for recovery of possession
of the eastern half of a parcel of land situated in Residence
Section "J", Camp Seven, Baguio City, consisting of 101,006
square meters, more or less, and identified as Lot 46, Ts-39, Plan
SWO-37115.2

other buildings had been constructed by H.C. Heald in connection


with his lumber business. On March 14, 1916, H.C. Heald sold
the buildings to Sioco Cario, son of Mateo Cario and
grandfather of private respondent Jose Cario. Sioco Cario then
took possession of the buildings and the land on which the
buildings were situated.
Ting-el Dicman,3 predecessor-in-interest of the petitioners,
namely, Ernesto Dicman, Paul Dicman, Florence Dicman, Babing
Cosil, Feliciano Torres, Cristina Alawas, Emily Torres and
Tomasito Torres, and resident of Atab, a sitio within the City of
Baguio but located at some distance from the land in controversy,
had been employed by Sioco Cario as his cattle herder. On the
advice of his lawyers, and because there were already many
parcels of land recorded in his name,4 Sioco Cario caused the
survey of the land in controversy in the name of Ting-el Dicman.
On October 22, 1928, Ting-el Dicman executed a public
instrument entitled "Deed of Conveyance of Part Rights and
Interests in Agricultural Land" with Sioco Cario. The deed reads:
DEED OF CONVEYANCE OF PART RIGHTS AND
INTERESTS IN AGRICULTURAL LAND.
KNOW ALL PERSONS BY THESE PRESENTS:
That I, Ting-el Diac-man, of legal age, widower, and resident of
the sitio known as "Atab", near Camp Seven, City of Baguio,
Philippine Islands, DO HEREBY STATE, viz:

The antecedent facts are clear:


The subject land, at the turn of the 20th century, had been part of
the land claim of Mateo Cario. Within this site, a sawmill and

That I am the applicant for a free-patent of a parcel of land


(public), having a surface of over ten (10) hectares, surveyed by

the District Land Office of Baguio for me, and located in the place
known as Camp Seven, Baguio;

his right thumbmark5


TING-EL DIAC-MAN

That to-date I have not as yet received the plan for said survey;

After the execution of the foregoing deed, Sioco Cario, who had
been in possession of the land in controversy since 1916,
continued to stay thereon.

That Mr. Sioco Cario has advanced all expenses for said survey
for me and in my name, and also all other expenses for the
improvement of said land, to date;
That for and in consideration of said advance expenses, to me
made and delivered by said Mr. Sioco Cario, I hereby pledge
and promise to convey, deliver and transfer unto said Sioco
Cario, of legal age, married to Guilata Acop, and resident of
Baguio, P.I., his heirs and assigns, one half (1/2) of my title,
rights, and interest to and in the aforesaid parcel of land; same to
be delivered, conveyed and transferred in a final form, according
to law, to him, his heirs and assigns, by me, my heirs, and
assigns, as soon as title for the same is issued to me by proper
authorities.
That this conveyance, transfer, or assignment, notwithstanding its
temporary nature, shall have legal force and effect; once it is
approved by the approving authorities all the final papers and
documents, this instrument shall be considered superseded.
After I have received my title to said parcel of land I bind myself,
my heirs and assigns, to execute the final papers and forward
same for approval of the competent authorities at Mr. Sioco
Carios expense.
WITNESS MY HAND in the City of Baguio, P.I., this, the 22nd day
of October, 1928, A.D.

On January 10, 1938, Sioco Cario executed, as seller, a public


instrument entitled "Deed of Absolute Sale" covering the subject
land and its improvements with his son, Guzman Cario, as
buyer. The contract states in part:
x x x for and in consideration of the sum of ONE PESO (P 1.00)
Philippine Currency and other valuable considerations which I
had received from my son, Guzman A. Cario x x x have ceded,
transferred and conveyed as by these presents do hereby cede,
convey and transfer unto the [sic] said Guzman A. Cario, his
heirs, executors, administrators and assigns, all my rights, title,
interests in and participation to that parcel of land (public)
covered by an application for free patent with a surface area of
Ten (10) hectares, surveyed by the District Land Office of Baguio
in the name of Pingel Dicman, and who ceded, conveyed and
transferred one half of his title, rights and interests to me under
an instrument executed by the said owner in the city of Baguio,
Philippines, on the 22nd day of October, 1928 A.D. and duly
ratified before Notary Public x x x together with all improvements
therein, consisting of oranges, mangoes, and other fruit trees and
a building of strong materials (half finished) x x x, which building
was purchased by me from H.C. Heald on March 14, 1916, free
from all liens and encumbrances, with full rights and authority to
the said Guzman A. Cario to perfect his claim with any
government agency the proper issuance of such patent or title as
may be permitted to him under existing laws.

x x x x6
In a letter dated January 15, 1938, Sioco Cario asked his son,
Guzman Cario, who had been doing business in Damortis, Sto.
Tomas, La Union, to take possession of the subject land and
building.7 Guzman Cario moved to Baguio as requested and
occupied the property. Evidence was adduced in the RTC to the
effect that Guzman Cario took possession of the property
publicly, peacefully, and in the concept of owner: the directory of
Baguio Telephones published in October 1940 lists the residence
of Guzman A. Cario at Camp 7, Baguio City, along with his
telephone number; pictures were taken of him and his family,
including the private respondent who was then an infant,
depicting the property in the background; U.S. Army authorities
obtained permission from Guzman Cario to use a part of the
land in question after the war; he introduced various
improvements on the property over the years and exercised acts
of ownership over them; he permitted the use of portions of the
land to Governor Eulogio Rodriguez, Jr. and the Boy Scouts of
Rizal Province; he leased out portions of the land to Bayani
Pictures, Inc.; and his neighbors confirmed the possession and
occupation over the property of Guzman Cario and, after him,
his son, herein private respondent Jose Cario. These findings of
fact were either confirmed or uncontroverted by the CA.8
On July 27, 1954, Guzman Cario had the entire Lot 46
resurveyed so as to indicate the half portion that belonged to him
and the other half that belonged to the petitioners. The resurvey
evenly divided the lot into Lot 76-A and 76-B, and purportedly
indicated that Lot 76-A, consisting of 50,953 square meters,
belonged to the petitioners, while Lot 76-B, also consisting of
50,953 square meters, formerly pertained to Sioco Cario and,
later, to Guzman Cario. Additionally, the resurvey indicated the

house where private respondent Jose Cario resided and, before


him, where his predecessors-in-interest, Sioco and Guzman
Cario, also resided.
On May 23, 1955, Guzman Cario filed a Free Patent Application
over the land in question. The application was given due course,
but Guzman later withdrew it when he decided to file his
opposition to the petition later filed by the heirs of Ting-el Dicman.
This petition, entitled "Petition of the Heirs of Dicman to Reopen
Civil Reservation Case No. 1, G.L.R.O. 211," was filed by Felipe
Dicman, Bobing Dicman and Cating Dicman, in their capacity as
compulsory heirs of Ting-el Dicman on April 24, 1959 with the
Court of First Instance of Baguio. The petition sought to establish
ownership over Lot 76-A and Lot 76-B which, taken together,
covered an area of 10.1006 hectares. Guzman Cario opposed
the petition insofar as he insisted ownership over Lot 76-B, the
land in controversy. The Estate of Sioco Cario likewise filed an
opposition.
On March 6, 1963, the trial court rendered a partial judgment and
confirmed that the title over Lot 76-A belonged to the heirs of
Ting-el Dicman, there having been no adverse claim. But as to
Lot 76-B, the trial court found it necessary to hold further hearing
in order to decide on the adverse claims of the parties.
Meanwhile, on January 8, 1960, while the foregoing petition was
pending in the trial court, President Carlos P. Garcia issued
Proclamation No. 628 "excluding from the operation of the Baguio
Townsite Reservation certain parcels of public land known as
Igorot Claims situated in the City of Baguio and declaring the
same open to disposition under the provisions of Chapter VII of
the Public Land Act." The Proclamation further provided that the
"Igorot Claims" enumerated therein shall be "subject to the

condition that except in favor of the government or any of its


branches, units, or institutions, lands acquired by virtue of this
proclamation shall not be encumbered or alienated within a
period of fifteen years from and after the date of issuance of
patent." One such claim pertained to the "Heirs of Dicman," to wit:

Heirs of 46 Swo-37115 "J" 101,006

On April 20, 1983, petitioners, suing as compulsory heirs of Tingel Dicman, revived the foregoing case by filing a complaint for
recovery of possession with damages involving the subject
property with the RTC, docketed as Civil Case No. 59-R. As
earlier stated, petitioners, then complainants, originally sought to
recover possession of the eastern half of the parcel of land
situated in Residence Section "J", Camp Seven, Baguio City,
consisting of 101,006 square meters, more or less, and identified
as Lot 46, Ts-39, Plan SWO-37115.

Dicman

Petitioners, then plaintiffs, averred in their complaint:

Before the trial court could dispose of the case, the Supreme
Court promulgated Republic v. Marcos9 which held that Courts of
First Instance of Baguio have no jurisdiction to reopen judicial
proceedings on the basis of Republic Act No. 931. As a
consequence, on July 28, 1978, the trial court dismissed the
petition to reopen Civil Reservation Case No. 1, G.L.R.O. 211
insofar as Lot 76-B was concerned, and the certificate of title
issued pursuant to the partial decision involving Lot 76-A was
invalidated. The trial court stated that the remedy for those who
were issued titles was to file a petition for revalidation under
Presidential Decree No. 1271, as amended by Presidential
Decrees No. 1311 and 2034.

10. That however, this Honorable Court was not able to decide
the [ ] petition for reopening as far as the remaining eastern half
portion of the above-described property is concerned due to the
fact that the said petition was dismissed for alleged lack of
jurisdiction; x x x

Name Lot No. Survey Plan Residence Section Area (Sq.m.)

After the dismissal of the case, Guzman Cario was left


undisturbed in his possession of the subject property until his
death on August 19, 1982. His remains are buried on the land in
question, next to the large house purchased in 1916 by his father,
Sioco Cario (the grandfather of private respondent), from H.C.
Heald. Guzmans widow and son, private respondent Jose Sioco
C. Cario, continued possession of the subject property.10

11. That because of the above-mentioned dismissal, the conflict


between herein plaintiffs and defendant over the half eastern
portion of the above-described property which was one of the
issues supposed to be decided in the said judicial reopening case
remains undecided;
12. That after the dismissal of the abovementioned petition and
before the dispute between herein plaintiffs and defendant over
the eastern half portion of the above-described property,
defendant unlawfully and illegally continue to occupy portion [sic]
of the above-described property to the clear damage and
prejudice of herein plaintiffs;

13. That the defendant has no valid claim of ownership and


possession over any of the portions of the above-described
property;
14. That plaintiffs and their predecessors-in-interest have been
religiously paying the realty taxes covering the above-described
property x x x11
Private respondent Jose Cario filed his answer and prayed for
dismissal. He alleged that his predecessors-in-interest had
acquired the land by onerous title through the "Deed of Absolute
Sale" dated January 10, 1938 executed by his grandfather, Sioco
Cario, as seller, and his father, Guzman Cario, as buyer; that
the property was earlier acquired by Sioco Cario by virtue of the
"Deed of Conveyance of Part Rights and Interests in Agricultural
Land" dated October 22, 1928 executed between Sioco Cario
and Ting-el Dicman; and that he has been in possession of the
subject property for 55 years peacefully, in good faith, and in
concept of owner and therefore perfected title over the same
through acquisitive prescription.
On June 13, 1983, the administratrix of the Estate of Sioco Cario
filed a motion to intervene with the RTC. On July 1, 1983, the
RTC granted said motion. On July 11, 1983, the Estate of Sioco
Cario filed its Complaint-in-Intervention, praying for quieting of
title among the adverse claimants.
The RTC, through an ocular inspection on February 15, 1984,
found that the larger building still stands on the land in
controversy and, together with the surrounding area, constituted
the residence and was in the possession of private respondent
and his family.

On November 28, 1990, the RTC rendered its decision in favor of


private respondent, the dispositive portion of which states:
IN VIEW OF THE FOREGOING, judgment is hereby rendered as
follows:
1. Plaintiffs complaint is hereby DISMISSED;
2. Plaintiffs-Intervenors complaint-in-intervention is
hereby dismissed;
3. Defendant is hereby declared the lawful possessor and
as the party who has the better right over the land subject
matter [sic] of this action and as such he may apply for
the confirmation of his title thereto in accordance with law
(R.A. No. 894012 )[.] Defendants counterclaim is
dismissed;
4. Costs is [sic] adjudged against the plaintiff and plaintiffintervenor.
SO ORDERED.
To support its ruling, the RTC found that the tax declarations and
their revisions submitted as evidence by the petitioners made no
reference to the land in question;13 that no tax declaration over the
land declared in the name of the Estate of Sioco Cario had been
submitted as evidence, and that the intervenor-estate presented
tax declarations over the building only; that it was Guzman Cario
alone who declared for taxation purposes both the land and the
improvements thereon in his name;14 that there is no evidence to
the

effect that petitioners ever filed any action to challenge the validity
of the "Deed of Conveyance of Part Rights and Interests in
Agricultural Land" dated October 22, 1928; that even assuming
that this instrument may be invalid for whatever reason, the fact
remains that Sioco Cario and his successors-in-interest had
been in possession of the subject property publicly, adversely,
continuously and in concept of owner for at least 55 years before
the filing of the action;15 that Siocos successor, Guzman Cario,
had been in open and continuous possession of the property in
good faith and in the concept of owner from 1938 until his death
in 1982 and, hence, the Estate of Sioco Cario has lost all rights
to recover possession from Guzman Cario or his heirs and
assigns; and that although the Estate of Sioco Cario attempted
to assail the genuineness and due execution of the "Deed of
Absolute Sale" dated January 10, 1938 executed by Sioco Cario
in favor of his son, Guzman Cario, the challenge failed since no
evidence had been adduced to support the allegation of forgery.16
On January 23, 1991, petitioners seasonably filed their notice of
appeal. The RTC, however, denied the motion for reconsideration
and motion to admit appeal filed by the Estate of Sioco Cario on
July 3, 1991 for being filed out of time.
Petitioners raised the following issues before the Court of
Appeals:
1. THE HONORABLE TRIAL COURT SERIOUSLY
ERRED IN NOT CONSIDERING THE DOCUMENTARY
EVIDENCE OF THE PLAINTIFFS-APPELLANTS AND
THE STRAIGHTFORWARD DECLARATIONS OF THEIR
WITNESS.

2. THE HONORABLE TRIAL COURT ERRED IN


CONSIDERING THE DEED OF CONVEYANCE [OF]
PART RIGHTS AND INTERESTS IN AGRICULTURAL
LAND EXECUTED BY DICMAN IN FAVOR OF SIOCO
CARIO DESPITE ITS NULLITY.
3. THE HONORABLE TRIAL COURT ERRED IN
DECLARING DEFENDANT-APPELLEE TO HAVE A
BETTER RIGHT TO THE PROPERTY IN DISPUTE.
4. THE HONORABLE TRIAL COURT ERRED IN
DISMISSING THE COMPLAINT AND NOT GRANTING
THE RELIEFS PRAYED FOR THEREIN.
On June 30, 2000, the CA dismissed the petition and affirmed in
toto the ruling of the RTC. On December 15, 2000, the CA issued
a Resolution denying petitioners motion for reconsideration.
The CA based its ruling on the following reasons: that the
petitioners raised for the first time on appeal the issue on whether
the "Deed of Conveyance of Part Rights and Interests in
Agricultural Land" is void ab initio under Sections 145 and 146 of
the Administrative Code of Mindanao and Sulu17 (which was made
applicable later to the Mountain Province and Nueva Viscaya by
Act 2798, as amended by Act 2913, and then to all other cultural
minorities found within the national territory by virtue of Section
120 of the Public Land Act18 ) and, hence, cannot be considered
by the reviewing court;19 that, even if this issue were considered,
the records fail to show that Ting-el Dicman, though an Igorot, is a
non-Christian and, hence, the foregoing laws are not
applicable;20 that there was sufficient proof of consideration for the
said deed;21 and that even if the deed were a mere contract to sell
and not an absolute sale, under Borromeo v. Franco22 the

obligation on the part of the purchaser to perfect the title papers


within a certain time is not a condition subsequent nor essential to
the obligation to sell, but rather the same is an incidental
undertaking the failure to comply therewith not being a bar to the
sale agreed upon.23
On February 12, 2001, petitioners, through newly retained
counsel, filed their petition for review on certiorariunder Rule 45.
Petitioners raise the following grounds for the petition:
A.
THE COURT OF APPEALS ERRED IN RULING THAT THE
PROVISIONS OF ACT NO. 2798 ARE NOT APPLICABLE TO
THE "DEED OF CONVEYANCE" EXECUTED BY PING-EL
DICMAN ON THE GROUNDS THAT THERE IS NO PROOF
THAT HE WAS A NON-CHRISTIAN AND THAT BAGUIO CITY IS
NOT COVERED BY THE SAID ACT.
B.
THE COURT OF APPEALS ERRED IN THE APPLICATION OF
THE RULING IN BORROMEO V. FRANCO (5 PHIL 49 [1905])
THAT AN AGREEMENT ON THE PART OF THE PARTY TO A
CONTRACT TO PERFECT THE TITLE PAPERS TO A CERTAIN
PROPERTY WITHIN A CERTAIN TIME IS NOT A CONDITION
SUBSEQUENT OR ESSENTIAL OF THE OBLIGATION TO SELL
[sic].
C.

THE COURT OF APPEALS ERRED IN RULING THAT THE


PROPERTY SUBJECT OF LITIGATION AND OVER WHICH
RESPONDENTS IMPROVEMENTS ARE BUILT BELONGS TO
RESPONDENT NOTWITHSTANDING UNCONTROVERTED
EVIDENCE THAT PETITIONERS PREDECESSOR-ININTEREST PING-EL DICMAN HAD APPLIED FOR FREE
PATENT OVER THE SUBJECT AREA AND HAD BEEN ISSUED
PLAN SWO-37115 IN HIS NAME BY THE BUREAU OF LANDS
IN 1954 AND HAD BEEN IN ACTUAL, OPEN, PEACEFUL,
ADVERSE AND CONTINUOUS POSSESSION OF THE
PROPERTY SINCE THE EARLY 1900s UNTIL HIS DEATH
WHEN HIS GRANCHILDREN AND SUCCESSORS-ININTEREST, THE PETITIONERS, TOOK OVER AND
CONTINUED THE POSSESSION OF THEIR GRANDFATHER,
PING-EL DICMAN.
On March 2, 2001, petitioners filed their Manifestation and Motion
to Substitute Babing Cosil and Cristina Alawas With Their
Respective Heirs stating, among others, that Julio F. Dicman, son
of petitioner Ernesto Dicman, had been appointed by the
petitioners to sign the petition for and in their behalf, but due to
distance and time constraints between Makati City and Baguio,
he was not able to submit the same in time for the deadline for
the petition on February 12, 2001. Petitioners attached the
Special Power of Attorney seeking to formalize the appointment
of Julio F. Dicman as their attorney-in-fact and to ratify his
execution of the verification and certification of non-forum
shopping for and on behalf of the petitioners.
On March 15, 2001, private respondent filed with this Court a
Motion for Leave of Court to File Motion to Dismiss and/or Deny
Due Course, arguing that the petition failed to comply with the
requirements for verification and certification of non-forum

shopping. The affiant of the petition, according to private


respondent, is not a principal party in the case; rather, he is
merely the son of Ernesto Dicman, one of the petitioners. The
verification and certification reads:
VERIFICATION AND CERTIFICATION
I, JULIO F. DICMAN, of legal age, Filipino, with residence
address at Camp 7, Montecillo Road, Baguio City, after being first
duly sworn in accordance with law, do hereby depose and state:
1. I am one of the petitioners in the above-entitled case;
x x x (emphasis supplied)
To private respondent, since Ernesto Dicman, one of the
petitioners, appears to be alive, he excludes his son as the
successor-in-interest of Ting-el Dicman. The verification,
therefore, is false in view of the statement under oath that Julio F.
Dicman is a petitioner when in fact he is not, and should be cause
for the dismissal of the case and indirect contempt of court,
without prejudice to administrative and criminal action.
On May 2, 2001, in their Manifestation and Motion for Leave to
File the Attached Reply and Reply, petitioners argued that while it
may be true that the verification and certification to the petition
were signed by Julio F. Dicman, the son of one of the petitioners,
they subsequently confirmed his authority to sign on behalf of all
the petitioners through the Special Power of Attorney submitted to
the Court in a Manifestation and Motion to Substitute Babing
Cosil and Cristina Alawas With Their Respective Heirs filed on
March 2, 2001. Petitioners invoked substantial compliance and
prayed that the Court overlook the procedural lapse in the interest

of substantial justice. The parties thereafter submitted their


respective memoranda.
The petition must be dismissed on the following grounds:
1. Section 5, Rule 7 of the 1997 Rules of Civil Procedure, which
requires the pleader to submit a certificate of non-forum shopping
to be executed by the plaintiff or principal party, is mandatory, and
non-compliance therewith is a sufficient ground for the dismissal
of the petition.24 The forum shopping certification must be signed
by the party himself as he has personal knowledge of the facts
therein stated.25 Obviously, it is the plaintiff or principal party who
is in the best position to know whether he actually filed or caused
the filing of a petition in the case.26 Where there are two or more
plaintiffs or petitioners, all of them must sign the verification and
non-forum certification, and the signature of only one of them is
insufficient,27 unless the one who signs the verification and
certification has been authorized to execute the same by, and on
behalf of, the co-plaintiff or co-petitioner.28 But it must be stressed
that the requirement the principal party himself should sign the
certification applies only to a natural person and not to a juridical
person which can only act through its officer or duly authorized
agent.29
However, the Court has also held that the rules on forum
shopping were designed to promote and facilitate the orderly
administration of justice and thus should not be interpreted with
such absolute literalness as to subvert its own ultimate and
legitimate objective. The rule of substantial compliance may be
availed of with respect to the contents of the certification. This is
because the requirement of strict compliance with the provisions
regarding the certification of non-forum shopping merely
underscores its mandatory nature in that the certification cannot

be altogether dispensed with or its requirements completely


disregarded.30 Thus, under justifiable circumstances, the Court
has relaxed the rule requiring the submission of such certification
considering that although it is obligatory, it is not jurisdictional. 31
lawphil.net

But a perusal of the relevant decisions handed down by this Court


consistently shows that substantial compliance may be invoked
and the procedural lapse overlooked provided that, where the
petitioner is a natural person as in the case at bar, the authorized
signatory must also be a principal party or copetitioner.32 Petitioners, as natural persons, cannot therefore
appoint a non-party to sign for them, especially since only the
petitioners occupy the best position to know whether they actually
filed or caused the filing of a petition in this case and who
personally know the facts stated in the petition. On this point
alone the petition should be dismissed.
2. It is a settled rule that in the exercise of the Supreme Courts
power of review, the Court is not a trier of facts and does not
normally undertake the re-examination of the evidence presented
by the contending parties during the trial of the case considering
that the findings of facts of the CA are conclusive and binding on
the Court. While jurisprudence has recognized several exceptions
in which factual issues may be resolved by this Court, namely: (1)
when the findings are grounded entirely on speculation, surmises
or conjectures; (2) when the inference made is manifestly
mistaken, absurd or impossible; (3) when there is grave abuse of
discretion; (4) when the judgment is based on a misapprehension
of facts; (5) when the findings of facts are conflicting; (6) when in
making its findings the CA went beyond the issues of the case, or
its findings are contrary to the admissions of both the appellant
and the appellee; (7) when the findings are contrary to the trial
court; (8) when the findings are conclusions without citation of

specific evidence on which they are based; (9) when the facts set
forth in the petition as well as in the petitioners main and reply
briefs are not disputed by the respondent; (10) when the findings
of fact are premised on the supposed absence of evidence and
contradicted by the evidence on record; and (11) when the CA
manifestly overlooked certain relevant facts not disputed by the
parties, which, if properly considered, could justify a different
conclusion,33 none of these exceptions has been shown to apply
in the present case and, hence, this Court may not review the
findings of fact made by the lower courts.
3. Petitioners argue on appeal that the "Deed of Conveyance of
Part Rights and Interests in Agricultural Land" dated October 22,
1928 executed between Sioco Cario and Ting-el Dicman is
void ab initio for lack of approval of competent authorities as
required under Section 145 in relation to Section 146 of the
Administrative Code of Mindanao and Sulu, the application of
which was later extended to the Mountain Province and Nueva
Viscaya and, thereafter, throughout the entire national
territory;34 that the sale was without valid consideration; and that
the said deed is not an absolute sale but merely a contract to sell
subject to the suspensive condition that the papers evidencing
the title must first be perfected. These arguments were lumped
under the following issue in their appeal to the CA:
2. THE HONORABLE TRIAL COURT ERRED IN CONSIDERING
THE DEED OF CONVEYANCE [OF] PART RIGHTS AND
INTERESTS IN AGRICULTURAL LAND EXECUTED BY
DICMAN IN FAVOR OF SIOCO CARIO DESPITE ITS NULLITY.
The foregoing issue and the incidents thereunder were never
raised by the petitioners during the proceedings before the RTC.
Suffice it to say that issues raised for the first time on appeal and

not raised timely in the proceedings in the lower court are barred
by estoppel.35 Matters, theories or arguments not brought out in
the original proceedings cannot be considered on review or
appeal where they are raised for the first time. To consider the
alleged facts and arguments raised belatedly would amount to
trampling on the basic principles of fair play, justice and due
process.36
4. Even if this Court should declare the sale null and void or the
agreement merely a contract to sell subject to a suspensive
condition that has yet to occur, private respondent nonetheless
acquired ownership over the land in question through acquisitive
prescription.37
The records show that as early as 1938, the land in controversy
had been in the possession of Guzman Cario, predecessor-ininterest of private respondent, continuously, publicly, peacefully, in
concept of owner, and in good faith with just title, to the exclusion
of the petitioners and their predecessors-in-interest, well beyond
the period required under law to acquire title by acquisitive
prescription which, in this case, is 10 years.38 The findings of fact
of the lower courts, and which this Court has no reason to disturb,
inescapably point to this conclusion: immediately after the "Deed
of Absolute Sale," a public instrument dated January 10, 1938,
had been executed by Sioco Cario in favor of his son, Guzman
Cario (the father of private respondent), the latter immediately
occupied the property; the 1940 directory of Baguio Telephones
lists his residence at Camp 7, Baguio City along with his
telephone number; his permitting the use of portions of the
property to various third parties; his introduction of improvements
over the land in controversy; the testimonial accounts of his
neighbors; and that it was Guzman Cario alone who declared for
tax purposes both the land and the improvements thereon in his

name, while the tax declarations of the other claimants made no


reference to the subject property.39 Although arguably Sioco
Cario may not have been the owner of the subject property
when he executed the "Deed of Absolute Sale" in 1938 in favor of
his son, the requirement of just title is nonetheless satisfied,
which means that the mode of transferring ownership should
ordinarily have been valid and true, had the grantor been the
owner.40By the time the successors-in-interest of Ting-el Dicman
sought to establish ownership over the land in controversy by
filing their "Petition of the Heirs of Dicman to Reopen Civil
Reservation Case No. 1, G.L.R.O. 211" on April 24, 1959 with the
trial court, and which Guzman timely opposed, more than 20
years had already elapsed. Thus, the 10-year period for
acquisitive prescription is deemed satisfied well before Guzmans
possession can be said to be civilly interrupted by the filing of the
foregoing petition to reopen.41 After the dismissal of that case on
July 28, 1978, Guzman Cario was left undisturbed in his
possession of the subject property until his death on August 19,
1982. His remains are buried on the land in question. Thereafter,
Guzmans widow and son, herein private respondent, continued
possession of the subject property in the same manner. When
petitioners, heirs of Ting-el Dicman, tried to revive the case on
April 20, 1983, they had, far before that time, lost all rights to
recover possession or ownership.
5. Prescinding from the issue on prescription, the petitioners and
their predecessors-in-interest are nonetheless guilty of laches.
Laches has been defined as such neglect or omission to assert a
right, taken in conjunction with the lapse of time and other
circumstances causing prejudice to an adverse party, as will
operate as a bar in equity.42 It is a delay in the assertion of a right
which works disadvantage to another43 because of the inequity

founded on some change in the condition or relations of the


property or parties.44 It is based on public policy which, for the
peace of society,45 ordains that relief will be denied to a stale
demand which otherwise could be a valid claim.46 It is different
from and applies independently of prescription. While prescription
is concerned with the fact of delay, laches is concerned with the
effect of delay. Prescription is a matter of time; laches is
principally a question of inequity of permitting a claim to be
enforced, this inequity being founded on some change in the
condition of the property or the relation of the parties. Prescription
is statutory; laches is not. Laches applies in equity, whereas
prescription applies at law. Prescription is based on a fixed time,
laches is not.47 Laches means the failure or neglect for an
unreasonable and unexplained length of time, to do that which, by
exercising due diligence, could or should have been done earlier;
it is negligence or omission to assert a right within a reasonable
time, warranting the presumption that the party entitled to assert it
either has abandoned or declined to assert it.48 It has been held
that even a registered owner of property under the Torrens Title
system may be barred from recovering possession of property by
virtue of laches.49
Given the foregoing findings of fact, all the four (4) elements of
laches, as prescribed by the decisions of this Court, are present
in the case, to wit:
1. a. Conduct on the part of the defendant, or of one under whom
he claims, giving rise to the situation of which complaint is made
and for which the complaint seeks a remedy;
2. b. Delay in asserting the complainants rights, the complainant
having had knowledge or notice, of the defendants conduct and
having been afforded an opportunity to institute a suit;

3. c. Lack of knowledge or notice on the part of the defendant that


the complainant would assert the right on which he bases his suit;
and
d. Injury or prejudice to the defendant in the event relief is
accorded to the complainant, or the suit is not held to be barred.50
As correctly held by the RTC, there is no evidence to the effect
that Ting-el Dicman or his successors-in-interest ever filed any
action to question the validity of the "Deed of Conveyance of Part
Rights and Interests in Agricultural Land" after its execution on
October 22, 192851 despite having every opportunity to do so. Nor
was any action to recover possession of the property from
Guzman Cario instituted anytime prior to April 24, 1959, a time
when the period for acquisitive prescription, reckoned from
Guzmans occupation of the property in 1938, had already
transpired in his favor. No evidence likewise appears on the
record that Sioco Cario or his Estate ever filed any action to
contest the validity of the "Deed of Absolute Sale" dated January
10, 1938.52 Though counsel for the Estate of Sioco Cario tried to
assail the deed as a forgery in the trial court, the attempt failed
and no appeal was lodged therefrom. It will be difficult for this
Court to assume that the petitioners and their predecessors were
all the while ignorant of the adverse possession of private
respondent and his predecessors given the publicity of their
conduct and the nature of their acts. Private respondent and his
predecessors-in-interest were made to feel secure in the belief
that no action would be filed against them by such passivity.
There is no justifiable reason for petitioners delay in asserting
their rightsthe facts in their entirety show that they have slept
on them. For over 30 years reckoned from the "Deed of
Conveyance of Part Rights and Interests in Agricultural Land"
dated October 22, 1928, or 20 years reckoned from the "Deed of

Absolute Sale" dated January 10, 1938, they neglected to take


positive steps to assert their dominical claim over the property.
With the exception of forgery, all other issues concerning the
validity of the two instruments abovementioned, as well as the
averment that the former was in the nature of a contract to sell,
were issues raised only for the first time on appeal and cannot
therefore be taken up at this late a stage. The features of this
case are not new. The Court has on several occasions held in
particular that despite the judicial pronouncement that the sale of
real property by illiterate ethnic minorities is null and void for lack
of approval of competent authorities, the right to recover
possession has nonetheless been barred through the operation of
the equitable doctrine of laches.53
6. Petitioners argue that Proclamation No. 628 issued by then
President Carlos P. Garcia on January 8, 1960 had the effect of
"segregating" and "reserving" certain Igorot claims identified
therein, including one purportedly belonging to the "Heirs of
Dicman," and prohibiting any encumbrance or alienation of these
claims for a period of 15 years from acquisition of patent. But by
the time the Proclamation had been issued, all rights over the
property in question had already been vested in private
respondent. The executive issuance can only go so far as to
classify public land, but it cannot be construed as to prejudice
vested rights. Moreover, property rights may not be altered or
deprived by executive fiat alone without contravening the due
process guarantees54 of the Constitution and may amount to
unlawful taking of private property to be redistributed for public
use without just compensation.55

constitute important public policies which bear upon this case. To


give life and meaning unto these policies the legislature saw it fit
to enact Republic Act No. 8371, otherwise known as The
Indigenous Peoples Rights Act of 1997, as a culminating measure
to affirm the views and opinions of indigenous peoples and ethnic
minorities
on matters that affect their life and culture.56 The provisions of that
law unify an otherwise fragmented account of constitutional,
jurisprudential and statutory doctrine which enjoins the organs of
government to be vigilant for the protection of indigenous cultural
communities as a marginalized sector,57 to protect their ancestral
domain and ancestral lands and ensure their economic, social,
and cultural well-being,58 and to guard their patrimony from those
inclined to prey upon their ignorance or ductility.59 As the final
arbiter of disputes and the last bulwark of the Rule of Law this
Court has always been mindful of the highest edicts of social
justice especially where doubts arise in the interpretation and
application of the law. But when in the pursuit of the loftiest ends
ordained by the Constitution this Court finds that the law is clear
and leaves no room for doubt, it shall decide according to the
principles of right and justice as all people conceive them to be,
and with due appreciation of the rights of all persons concerned.
WHEREFORE, the instant petition is DENIED and the assailed
Decision and Resolution of the Court of Appeals are AFFIRMED.
No pronouncement as to costs.
SO ORDERED.

The recognition, respect, and protection of the rights of


indigenous peoples to preserve and develop their cultures,
traditions, and institutions are vital concerns of the State and

[G.R. No. 132007. August 5, 1998]

SOLAR
TEAM
ENTERTAINMENT,
INC., petitioner, vs.
HON.
HELEN
BAUTISTA RICAFORT,in her capacity as
Presiding Judge of the Regional Trial
Court of Paraaque, Metro Manila
(Branch
260),
TEAM
IMAGE
ENTERTAINMENT, INC., FELIX S. CO,
JEFFREY
C.
CAL,
and
KING
CUISIA, respondents.
DECISION
DAVIDE, JR., J.:

At issue is whether respondent judge committed


grave abuse of discretion amounting to lack or excess of
jurisdiction in denying petitioners motion to expunge
private respondents answer with counterclaims on the
ground that said pleading was not served personally;
moreover, there was no written explanation as to why
personal service was not accomplished, as required by
Section 11 of Rule 13 of the 1997 Rules of Civil
Procedure.
The antecedents are not disputed.
On 10 July 1997, petitioner, as plaintiff, filed before
the Regional Trial Court (RTC) in Paraaque, Metro

Manila, a complaint for recovery of possession and


damages with prayer for a writ of replevin [1] against herein
private respondents. The case was docketed as Civil
Case No. 97-0304 and was assigned to Branch 260 of
said court, presided over by public respondent Judge
Helen Bautista-Ricafort.
Summonses and copies of the complaint were
forthwith served on private respondents. On 25 July
1997, their counsel filed a notice of appearance with
urgent ex-parte motion for extension of time to plead,
[2]
which the court granted in its order of 4 August 1997. [3]
On 8 August 1997, private respondents, as
defendants, filed their Answer (with Counterclaims). [4] A
copy thereof was furnished counsel for petitioner by
registered mail; however, the pleading did not contain
any written explanation as to why service was not made
personally upon petitioner-plaintiff, as required by Section
11 of Rule 13 of the 1997 Rules of Civil Procedure.
On 11 August 1997, petitioner filed a motion to
expunge the Answer (with Counterclaims) and to
declare herein private respondents in default, [5] alleging
therein that the latter did not observe the mandate of the
aforementioned Section 11, and that there was:

[A]bsolutely no valid reason why defendant[s]


should not have personally served plaintiffs ...

counsel with [a] copy of their answer [as] (t)he


office of defendants (sic) counsel, Atty. Froilan
Cabaltera, is just a stone [sic] throw away from the
office of [petitioners] counsel, with an estimate
(sic) distance of about 200 meters more or less.
Petitioner further alleged that the post office was about
ten (10) times farther from the office of Atty. Cabaltera.
On 15 August 1997, private respondents filed their
opposition[6] to the above mentioned motion, alleging that
petitioners rigid and inflexible reliance on the provisions
of Section 11, Rule 13 ... is an adventitious resort to
technicality and is contrary to Section 6 of Rule 3 ...
which admonishes that said Rules shall be liberally
construed in order to promote their objective in securing
a just, speedy and inexpensive disposition of [e]very
action and proceeding; and that Section 11, Rule 13
notwithstanding,
private
respondents
religiously
complied with [Section 5 of Rule 13] by personally
present[ing] to the clerk of court their said Answer ...
furnishing a copy thereof to the counsel for [petitioner] by
way of registered mail.
On 8 September 1997, public respondent Judge
Bautista-Ricafort issued an order[7]stating that under
Section 11 of Rule 13 it is within the discretion of the
[trial court] whether to consider the pleading as filed or
not, and denying, for lack of merit, petitioners motion to

expunge the Answer (with Counterclaims) and to


declare private respondents in default.
Petitioner immediately moved for reconsideration [8] of
the order, but public respondent Judge Bautista-Ricafort
denied this motion in her order[9] of 17 November
1997. The order justified the denial in this wise:

Section 6 [of] Rule 1 of the 1997 Rules of Civil


Procedure ordains that the Rules shall be liberally
construed in order to promote their objective of
securing a just, speedy and inexpensive
disposition of every action and proceeding.
Liberal construction of the rules and the pleading is
the controlling principle to effect substantial justice.
As pointed out by the Supreme Court in Alonso vs.
Villamor, 16 Phil. 315, "the error in this case is
purely technical. To take advantage of it for other
purposes than to cure it, does not appeal a fair
sense of justice. Its presentation as fatal to plaintiff
a [sic] case smacks of skill rather than right. A
litigation is not a game of technicalities in which
one, more deeply schooled and skilled in the
subtle art of movement and position, entraps and
destroys the other. It is rather, a contest in which

each contending party fully and fairly lays before


the Court the facts in issue and then, brushing
aside as wholly trivial and indecisive all
imperfections or form of technicalities of
procedure, asks that justice be done upon the
merits. Lawsuits, unlike duels, are not to be won
by a rapier's thrust."
While it is desirable that the above Rules be
faithfully and even meticulously observed, courts
should not strict about procedural lapses that do
not really impair the proper administration of
justice. Furthermore, it is well settled that litigations
should, as much as possible be decided on their
merits and not on technicalities.
Petitioner thus filed the instant special civil action
of certiorari, contending that public respondent Judge
Bautista-Ricafort committed grave abuse of discretion
amounting to lack or excess of jurisdiction when she
admitted
private
respondents'
"Answer
(with
Counterclaims)" notwithstanding private respondents'
clear, admitted and inexcusable violation of Section 11,
Rule 13 of the 1997 Rules of Civil Procedure, in that: (a)
the "Answer (with Counterclaims)" was not served
personally upon petitioners counsel despite the
undisputed fact that the offices of private respondents
counsel and that of petitioners counsel are only about

200 meters away from each other; and (b) the Answer did
not contain any explanation as to why the answer was
not served personally.
In their Comment, filed in compliance with the
resolution of 2 February 1998, and to which petitioner
filed a Reply, private respondents aver that public
respondent Judge Bautista-Ricafort correctly admitted
private respondents Answer (with Counterclaims) in
light of Section 6, Rule 1 of the 1997 Rules of Civil
Procedure; that Section 11 of Rule 13 begins with the
phrase whenever practicable, thereby suggesting that
service by mail may still be effected depending on the
relative priority of the pleading sought to be filed; and
when service is not done personally, it is more prudent
and judicious for the courts to require a written
explanation rather than to expunge the pleading outright
or consider the same as not being filed.
In view of the importance of the issue raised, which
is, undoubtedly, one of the first impression, the Court
resolved to give due course to the petition and consider
it submitted for decision on the basis of the pleadings
filed by the parties.
Section 5, Rule 13 of the 1997 Rules of Civil
Procedure prescribes two modes of service of pleadings,
motions, notices, orders, judgments and other papers,
namely: (1) personal service; and (2) service by
mail. The first is governed by Section 6, while the

second, by Section 7 of said Rule. If service cannot be


done either personally or by mail, substituted service may
be resorted to under Section 8 thereof.
Pursuant, however, to Section 11 of Rule 13, service
and filing of pleadings and other papers must, whenever
practicable, be done personally; and if made through
other modes, the party concerned must provide a written
explanation as to why the service or filing was not done
personally. The section reads:

SEC. 11. Priorities in modes of service and


filing. -- Whenever practicable, the service and
filing of pleadings and other papers shall be done
personally. Except with respect to papers
emanating from the court, a resort to other modes
must be accompanied by a written explanation why
the service or filing was not done personally. A
violation of this Rule may be cause to consider the
paper as not filed.(n)
Note that Section 11 refers to both service of pleadings
and other papers on the adverse party or his counsel as
provided for in Sections 6, 7 and 8; and to the filing of
pleadings and other papers in court.
Personal service and filing are preferred for obvious
reasons. Plainly, such should expedite action or

resolution on a pleading, motion or other paper; and


conversely, minimize, if not eliminate, delays likely to be
incurred if service or filing is done by mail, considering
the inefficiency of the postal service. Likewise, personal
service will do away with the practice of some lawyers
who, wanting to appear clever, resort to the following less
than ethical practices: (1) serving or filing pleadings by
mail to catch opposing counsel off-guard, thus leaving
the latter with little or no time to prepare, for instance,
responsive pleadings or an opposition; or (2) upon
receiving notice from the post office that the registered
parcel containing the pleading of or other paper from the
adverse party may be claimed, unduly procrastinating
before claiming the parcel, or, worse, not claiming it at all,
thereby causing undue delay in the disposition of such
pleading or other papers.
If only to underscore the mandatory nature of this
innovation to our set of adjective rules requiring personal
service whenever practicable, Section 11 of Rule 13 then
gives the court the discretion to consider a pleading or
paper as not filed if the other modes of service or filing
were resorted to and no written explanation was made as
to why personal service was not done in the first
place. The exercise of discretion must, necessarily,
consider the practicability of personal service, for Section
11 itself begins with the clause whenever practicable.

We thus take this opportunity to clarify that under


Section 11, Rule 13 of the 1997 Rules of Civil Procedure,
personal service and filing is the general rule, and resort
to other modes of service and filing, the
exception. Henceforth, whenever personal service or
filing is practicable, in light of the circumstances of time,
place and person, personal service or filing is
mandatory. Only when personal service or filing is not
practicable may resort to other modes be had, which
must then be accompanied by a written explanation as to
why personal service or filing was not practicable to
begin with. In adjudging the plausibility of an
explanation, a court shall likewise consider the
importance of the subject matter of the case or the issues
involved therein, and the prima facie merit of the pleading
sought to be expunged for violation of Section 11. This
Court cannot rule otherwise, lest we allow circumvention
of the innovation introduced by the 1997 Rules in order to
obviate delay in the administration of justice.
Here, the proximity between the offices of opposing
counsel was established; moreover, that the office of
private respondents counsel was ten times farther from
the post office than the distance separating the offices of
opposing counsel. Of course, proximity would seem to
make personal service most practicable, but exceptions
may nonetheless apply. For instance, where the adverse
party or opposing counsel to be served with a pleading
seldom reports to office and no employee is regularly

present to receive pleadings, or where service is done on


the last day of the reglementary period and the office of
the adverse party or opposing counsel to be served is
closed, for whatever reason.
Returning, however, to the merits of this case, in view
of the proximity between the offices of opposing counsel
and the absence of any attendant explanation as to why
personal service of the answer was not effected,
indubitably, private respondents counsel violated Section
11 of Rule 13 and the motion to expunge was prima
facie meritorious. However, the grant or denial of said
motion nevertheless remained within the sound exercise
of the trial courts discretion. Thus, as guided by Section
6, Rule 1 of the 1997 Rules of Civil Procedure, which
ordains that the Rules shall be liberally construed in order
to promote their objective of securing a just, speedy and
inexpensive disposition of every action or proceeding, as
well as by the dictum laid down in Alonso v. Villamor, 16
Phil. 315 [1910], the trial court opted to exercise its
discretion in favor of admitting the Answer (with
Counterclaims), instead of expunging it from the record.
To our mind, if motions to expunge or strike out
pleadings for violation of Section 11 of Rule 13 were to be
indiscriminately resolved under Section 6 of Rule 1
or Alonzo v. Villamor and other analogous cases, then
Section 11 would become meaningless and its sound
purpose negated. Nevertheless, we sustain the

challenged ruling of the trial court, but for reasons other


than those provided for in the challenged order.
The 1997 Rules of Civil Procedure took effect only on
1 July 1997, while the questioned Answer (with
Counterclaims) was filed only on 8 August 1997, or on
the 39th day following the effectivity of the 1997
Rules. Hence, private respondents counsel may not
have been fully aware of the requirements and
ramifications of Section 11, Rule 13. In fact, as pointed
out by petitioners counsel, in another case where private
respondents counsel was likewise opposing counsel, the
latter similarly failed to comply with Section 11.
It has been several months since the 1997 Rules of
Civil Procedure took effect. In the interim, this Court has
generally accommodated parties and counsel who failed
to comply with the requirement of a written explanation
whenever personal service or filing was not practicable,

guided, in the exercise of our discretion, by the primary


objective of Section 11, the importance of the subject
matter of the case, the issues involved and the prima
facie merit of the challenged pleading. However, as we
have in the past, for the guidance of the Bench and Bar,
strictest compliance with Section 11 of Rule 13 is
mandated one month from promulgation of this Decision.
WHEREFORE, the instant petition is DISMISSED
considering that while the justification for the denial of the
motion to expunge the Answer (with Counterclaims)
may not necessarily be correct, yet, for the reasons
above stated, the violation of Section 11 of Rule 13 may
be condoned.
No pronouncement as to costs.
SO ORDERED.