ALEJANDRO NG WEE, petitioner, vs. MANUEL TANKIANSEE, respondent. D E C I S I O N NACHURA, J.: Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court assailing the September 14, 2005 Decision 1 of the Court of Appeals (CA) in CA-G.R. SP No. 90130 and its January 6, 2006 Resolution 2
denying the motion for reconsideration thereof. The facts are undisputed. Petitioner Alejandro Ng Wee, a valued client of Westmont Bank (now United Overseas Bank), made several money placements totaling P210,595,991.62 with the bank's affiliate, Westmont Investment Corporation (Wincorp), a domestic entity engaged in the business of an investment house with the authority and license to extend credit. 3
Sometime in February 2000, petitioner received disturbing news on Wincorp's financial condition prompting him to inquire about and investigate the company's operations and transactions with its borrowers. He then discovered that the company extended a loan equal to his total money placement to a corporation [Power Merge] with a subscribed capital of only P37.5M. This credit facility originated from another loan of about P1.5B extended by Wincorp to another corporation [Hottick Holdings]. When the latter defaulted in its obligation, Wincorp instituted a case against it and its surety. Settlement was, however, reached in which Hottick's president, Luis Juan L. Virata (Virata), assumed the obligation of the surety. 4
Under the scheme agreed upon by Wincorp and Hottick's president, petitioner's money placements were transferred without his knowledge and consent to the loan account of Power Merge through an agreement that virtually freed the latter of any liability. Allegedly, through the false representations of Wincorp and its officers and directors, petitioner was enticed to roll over his placements so that Wincorp could loan the same to Virata/Power Merge. 5
Finding that Virata purportedly used Power Merge as a conduit and connived with Wincorp's officers and directors to fraudulently obtain for his benefit without any intention of paying the said placements, petitioner instituted, on October 19, 2000, Civil Case No. 00-99006 for damages with the Regional Trial Court (RTC) of Manila. 6 One of the defendants impleaded in the complaint is herein respondent Manuel Tankiansee, Vice-Chairman and Director of Wincorp. 7
On October 26, 2000, on the basis of the allegations in the complaint and the October 12, 2000 Affidavit 8 of petitioner, the trial court ordered the issuance of a writ of preliminary attachment against the properties not exempt from execution of all the defendants in the civil case subject, among others, to petitioner's filing of a P50M-bond. 9 The writ was, consequently, issued on November 6, 2000. 10
Arguing that the writ was improperly issued and that the bond furnished was grossly insufficient, respondent, on December 22, 2000, moved for the discharge of the attachment. 11 The other defendants likewise filed similar motions. 12 On October 23, 2001, the RTC, in an Omnibus Order, 13 denied all the motions for the discharge of the attachment. The defendants, including respondent herein, filed their respective motions for reconsideration 14 but the trial court denied the same on October 14, 2002. 15
Incidentally, while respondent opted not to question anymore the said orders, his co-defendants, Virata and UEM-MARA Philippines Corporation (UEM-MARA), assailed the same via certiorari under Rule 65 before the CA [docketed as CA-G.R. SP No. 74610]. The appellate court, however, denied the certiorari petition on August 21, 2003, 16 and the motion for reconsideration thereof on March 16, 2004. 17 In a petition for review on certiorari before this Court, in G.R. No. 162928, we denied the petition and affirmed the CA rulings on May 19, 2004 for Virata's and UEM-MARA's failure to sufficiently show that the appellate court committed any reversible error. 18 We subsequently denied the petition with finality on August 23, 2004. 19
On September 30, 2004, respondent filed before the trial court another Motion to Discharge Attachment, 20 re-pleading the grounds he raised in his first motion but raising the following additional grounds: (1) that he was not present in Wincorp's board meetings approving the questionable transactions; 21 and (2) that he could not have connived with Wincorp and the other defendants because he and Pearlbank Securities, Inc., in which he is a major stockholder, filed cases against the company as they were also victimized by its fraudulent schemes. 22
Ruling that the grounds raised were already passed upon by it in the previous orders affirmed by the CA and this Court, and that the additional grounds were respondent's affirmative defenses that properly pertained to the merits of the case, the trial court denied the motion in its January 6, 2005 Order. 23
With the denial of its motion for reconsideration, 24 respondent filed a certiorari petition before the CA docketed as CA-G.R. SP No. 90130. On September 14, 2005, the appellate court rendered the assailed Decision 25
reversing and setting aside the aforementioned orders of the trial court and lifting the November 6, 2000 Writ of Preliminary Attachment 26 to the extent that it concerned respondent's properties. Petitioner moved for the reconsideration of the said ruling, but the CA denied the same in its January 6, 2006 Resolution. 27
Thus, petitioner filed the instant petition on the following grounds: A. IT IS RESPECTFULLY SUBMITTED THAT THE COURT OF APPEALS SHOULD NOT HAVE GIVEN DUE COURSE TO THE PETITION FOR CERTIORARI FILED BY RESPONDENT, SINCE IT MERELY RAISED ERRORS IN JUDGMENT, WHICH, UNDER PREVAILING JURISPRUDENCE, ARE NOT THE PROPER SUBJECTS OF A WRIT OF CERTIORARI. B. MOREOVER, IT IS RESPECTFULLY SUBMITTED THAT THE COURT OF APPEALS COMMITTED SERIOUS LEGAL ERROR IN RESOLVING FAVORABLY THE GROUNDS ALLEGED BY RESPONDENT IN HIS PETITION AND (SIC) LIFTING THE WRIT OF PRELIMINARY ATTACHMENT, SINCE THESE GROUNDS ALREADY RELATE TO THE MERITS OF CIVIL CASE NO. 00-99006 WHICH, UNDER PREVAILING JURISPRUDENCE, CANNOT BE USED AS BASIS (SIC) FOR DISCHARGING A WRIT OF PRELIMINARY ATTACHMENT. C. LIKEWISE, IT IS RESPECTFULLY SUBMITTED THAT THE COURT OF APPEALS ERRED IN SUSTAINING THE ERRORS IN JUDGMENT ALLEGED BY RESPONDENT, NOT ONLY BECAUSE THESE ARE BELIED BY THE VERY DOCUMENTS HE SUBMITTED AS PROOF OF SUCH ERRORS, BUT ALSO BECAUSE THESE HAD EARLIER BEEN RESOLVED WITH FINALITY BY THE LOWER COURT. 28
For his part, respondent counters, among others, that the general and sweeping allegation of fraud against respondent in petitioner's affidavit- respondent as an officer and director of Wincorp allegedly connived with the other defendants to defraud petitioner-is not sufficient basis for the trial court to order the attachment of respondent's properties. Nowhere in the said affidavit does petitioner mention the name of respondent and any specific act committed by the latter to defraud the former. A writ of attachment can only be granted on concrete and specific grounds and not on general averments quoting perfunctorily the words of the Rules. Connivance cannot also be based on mere association but must be particularly alleged and established as a fact. Respondent further contends that the trial court, in resolving the Motion to Discharge Attachment, need not actually delve into the merits of the case. All that the court has to examine are the allegations in the complaint and the supporting affidavit. Petitioner cannot also rely on the decisions of the appellate court in CA- G.R. SP No. 74610 and this Court in G.R. No. 162928 to support his claim because respondent is not a party to the said cases. 29
We agree with respondent's contentions and deny the petition. In the case at bench, the basis of petitioner's application for the issuance of the writ of preliminary attachment against the properties of respondent is Section 1(d) of Rule 57 of the Rules of Court which pertinently reads: Section 1. Grounds upon which attachment may issue.-At the commencement of the action or at any time before entry of judgment, a plaintiff or any proper party may have the property of the adverse party attached as security for the satisfaction of any judgment that may be recovered in the following cases: x x x x (d) In an action against a party who has been guilty of a fraud in contracting the debt or incurring the obligation upon which the action is brought, or in the performance thereof. For a writ of attachment to issue under this rule, the applicant must sufficiently show the factual circumstances of the alleged fraud because fraudulent intent cannot be inferred from the debtor's mere non-payment of the debt or failure to comply with his obligation. 30 The applicant must then be able to demonstrate that the debtor has intended to defraud the creditor. 31 In Liberty Insurance Corporation v. Court of Appeals, 32 we explained as follows: To sustain an attachment on this ground, it must be shown that the debtor in contracting the debt or incurring the obligation intended to defraud the creditor. The fraud must relate to the execution of the agreement and must have been the reason which induced the other party into giving consent which he would not have otherwise given. To constitute a ground for attachment in Section 1 (d), Rule 57 of the Rules of Court, fraud should be committed upon contracting the obligation sued upon. A debt is fraudulently contracted if at the time of contracting it the debtor has a preconceived plan or intention not to pay, as it is in this case. Fraud is a state of mind and need not be proved by direct evidence but may be inferred from the circumstances attendant in each case. 33
In the instant case, petitioner's October 12, 2000 Affidavit 34 is bereft of any factual statement that respondent committed a fraud. The affidavit narrated only the alleged fraudulent transaction between Wincorp and Virata and/or Power Merge, which, by the way, explains why this Court, in G.R. No. 162928, affirmed the writ of attachment issued against the latter. As to the participation of respondent in the said transaction, the affidavit merely states that respondent, an officer and director of Wincorp, connived with the other defendants in the civil case to defraud petitioner of his money placements. No other factual averment or circumstance details how respondent committed a fraud or how he connived with the other defendants to commit a fraud in the transaction sued upon. In other words, petitioner has not shown any specific act or deed to support the allegation that respondent is guilty of fraud. The affidavit, being the foundation of the writ, 35 must contain such particulars as to how the fraud imputed to respondent was committed for the court to decide whether or not to issue the writ. 36 Absent any statement of other factual circumstances to show that respondent, at the time of contracting the obligation, had a preconceived plan or intention not to pay, or without any showing of how respondent committed the alleged fraud, the general averment in the affidavit that respondent is an officer and director of Wincorp who allegedly connived with the other defendants to commit a fraud, is insufficient to support the issuance of a writ of preliminary attachment. 37 In the application for the writ under the said ground, compelling is the need to give a hint about what constituted the fraud and how it was perpetrated 38 because established is the rule that fraud is never presumed. 39 Verily, the mere fact that respondent is an officer and director of the company does not necessarily give rise to the inference that he committed a fraud or that he connived with the other defendants to commit a fraud. While under certain circumstances, courts may treat a corporation as a mere aggroupment of persons, to whom liability will directly attach, this is only done when the wrongdoing has been clearly and convincingly established. 40
Let it be stressed that the provisional remedy of preliminary attachment is harsh and rigorous for it exposes the debtor to humiliation and annoyance. 41 The rules governing its issuance are, therefore, strictly construed against the applicant, 42 such that if the requisites for its grant are not shown to be all present, the court shall refrain from issuing it, for, otherwise, the court which issues it acts in excess of its jurisdiction. 43
Likewise, the writ should not be abused to cause unnecessary prejudice. If it is wrongfully issued on the basis of false or insufficient allegations, it should at once be corrected. 44
Considering, therefore, that, in this case, petitioner has not fully satisfied the legal obligation to show the specific acts constitutive of the alleged fraud committed by respondent, the trial court acted in excess of its jurisdiction when it issued the writ of preliminary attachment against the properties of respondent. We are not unmindful of the rule enunciated in G.B. Inc., etc. v. Sanchez, et al., 45 that [t]he merits of the main action are not triable in a motion to discharge an attachment otherwise an applicant for the dissolution could force a trial of the merits of the case on his motion. 46
However, the principle finds no application here because petitioner has not yet fulfilled the requirements set by the Rules of Court for the issuance of the writ against the properties of respondent. 47 The evil sought to be prevented by the said ruling will not arise, because the propriety or impropriety of the issuance of the writ in this case can be determined by simply reading the complaint and the affidavit in support of the application. Furthermore, our ruling in G.R. No. 162928, to the effect that the writ of attachment is properly issued insofar as it concerns the properties of Virata and UEM-MARA, does not affect respondent herein, for, as correctly ruled by the CA, respondent is "never a party thereto." 48 Also, he is not in the same situation as Virata and UEM-MARA since, as aforesaid, while petitioner's affidavit detailed the alleged fraudulent scheme perpetrated by Virata and/or Power Merge, only a general allegation of fraud was made against respondent. We state, in closing, that our ruling herein deals only with the writ of preliminary attachment issued against the properties of respondent-it does not concern the other parties in the civil case, nor affect the trial court's resolution on the merits of the aforesaid civil case. WHEREFORE, premises considered, the petition is DENIED. The September 14, 2005 Decision and the January 6, 2006 Resolution of the Court of Appeals in CA-G.R. SP No. 90130 are AFFIRMED. SO ORDERED. G.R. No. 161417 February 8, 2007 MA. TERESA CHAVES BIACO, Petitioner, vs. PHILIPPINE COUNTRYSIDE RURAL BANK, Respondent. D E C I S I O N TINGA, J.: Petitioner, Ma. Teresa Chaves Biaco, seeks a review of the Decision 1 of the Court of Appeals in CA-G.R. No. 67489 dated August 27, 2003, which denied her petition for annulment of judgment, and the Resolution 2 dated December 15, 2003 which denied her motion for reconsideration. The facts as succinctly stated by the Court of Appeals are as follows: Ernesto Biaco is the husband of petitioner Ma. Teresa Chaves Biaco. While employed in the Philippine Countryside Rural Bank (PCRB) as branch manager, Ernesto obtained several loans from the respondent bank as evidenced by the following promissory notes: Feb. 17, 1998 P 65,000.00 Mar. 18, 1998 30,000.00 May 6, 1998 60,000.00 May 20, 1998 350,000.00 July 30, 1998 155,000.00 Sept. 8, 1998 40,000.00 Sept. 8, 1998 120,000.00 As security for the payment of the said loans, Ernesto executed a real estate mortgage in favor of the bank covering the parcel of land described in Original Certificate of Title (OCT) No. P-14423. The real estate mortgages bore the signatures of the spouses Biaco. When Ernesto failed to settle the above-mentioned loans on its due date, respondent bank through counsel sent him a written demand on September 28, 1999. The amount due as of September 30, 1999 had already reached ONE MILLION EIGHTY THOUSAND SIX HUNDRED SEVENTY SIX AND FIFTY CENTAVOS (P1,080,676.50). The written demand, however, proved futile. On February 22, 2000, respondent bank filed a complaint for foreclosure of mortgage against the spouses Ernesto and Teresa Biaco before the RTC of Misamis Oriental. Summons was served to the spouses Biaco through Ernesto at his office (Export and Industry Bank) located at Jofelmor Bldg., Mortola Street, Cagayan de Oro City. Ernesto received the summons but for unknown reasons, he failed to file an answer. Hence, the spouses Biaco were declared in default upon motion of the respondent bank. The respondent bank was allowed to present its evidence ex parte before the Branch Clerk of Court who was then appointed by the court as Commissioner. Arturo Toring, the branch manager of the respondent bank, testified that the spouses Biaco had been obtaining loans from the bank since 1996 to 1998. The loans for the years 1996-1997 had already been paid by the spouses Biaco, leaving behind a balance of P1,260,304.33 representing the 1998 loans. The amount being claimed is inclusive of interests, penalties and service charges as agreed upon by the parties. The appraisal value of the land subject of the mortgage is only P150,000.00 as reported by the Assessors Office. Based on the report of the Commissioner, the respondent judge ordered as follows: WHEREFORE, judgment is hereby rendered ordering defendants spouses ERNESTO R. BIACO and MA. THERESA [CHAVES] BIACO to pay plaintiff bank within a period of not less than ninety (90) days nor more than one hundred (100) days from receipt of this decision the loan of ONE MILLION TWO HUNDRED SIXTY THOUSAND THREE HUNDRED FOUR PESOS and THIRTY THREE CENTAVOS (P1,260,304.33) plus litigation expenses in the amount of SEVEN THOUSAND SIX HUNDRED FORTY PESOS (P7,640.00) and attorneys fees in the amount of TWO HUNDRED FIFTY TWO THOUSAND THIRTY PESOS and FORTY THREE CENTAVOS (P252,030.43) and cost of this suit. In case of non-payment within the period, the Sheriff of this Court is ordered to sell at public auction the mortgaged Lot, a parcel of registered land (Lot 35802, Cad. 237 {Lot No. 12388-B, Csd-10-002342-D}), located at Gasi, Laguindingan, Misamis Oriental and covered by TCT No. P-14423 to satisfy the mortgage debt, and the surplus if there be any should be delivered to the defendants spouses ERNESTO and MA. THERESA [CHAVES] BIACO. In the event however[,] that the proceeds of the auction sale of the mortgage[d] property is not enough to pay the outstanding obligation, the defendants are ordered to pay any deficiency of the judgment as their personal liability. SO ORDERED. On July 12, 2000, the sheriff personally served the above-mentioned judgment to Ernesto Biaco at his office at Export and Industry Bank. The spouses Biaco did not appeal from the adverse decision of the trial court. On October 13, 2000, the respondent bank filed an ex parte motion for execution to direct the sheriff to sell the mortgaged lot at public auction. The respondent bank alleged that the order of the court requiring the spouses Biaco to pay within a period of 90 days had passed, thus making it necessary to sell the mortgaged lot at public auction, as previously mentioned in the order of the court. The motion for execution was granted by the trial court per Order dated October 20, 2000. On October 31, 2000, the sheriff served a copy of the writ of execution to the spouses Biaco at their residence in #92 9th Street, Nazareth, Cagayan de Oro City. The writ of execution was personally received by Ernesto. By virtue of the writ of execution issued by the trial court, the mortgaged property was sold at public auction in favor of the respondent bank in the amount of ONE HUNDRED FIFTY THOUSAND PESOS (P150,000.00). The amount of the property sold at public auction being insufficient to cover the full amount of the obligation, the respondent bank filed an "ex parte motion for judgment" praying for the issuance of a writ of execution against the other properties of the spouses Biaco for the full settlement of the remaining obligation. Granting the motion, the court ordered that a writ of execution be issued against the spouses Biaco to enforce and satisfy the judgment of the court for the balance of ONE MILLION THREE HUNDRED SIXTY NINE THOUSAND NINE HUNDRED SEVENTY FOUR PESOS AND SEVENTY CENTAVOS (P1,369,974.70). The sheriff executed two (2) notices of levy against properties registered under the name of petitioner Ma. Teresa Chaves Biaco. However, the notices of levy were denied registration because Ma. Teresa had already sold the two (2) properties to her daughters on April 11, 2001. 3
Petitioner sought the annulment of the Regional Trial Court decision contending that extrinsic fraud prevented her from participating in the judicial foreclosure proceedings. According to her, she came to know about the judgment in the case only after the lapse of more than six (6) months after its finality. She claimed that extrinsic fraud was perpetrated against her because the bank failed to verify the authenticity of her signature on the real estate mortgage and did not inquire into the reason for the absence of her signature on the promissory notes. She moreover asserted that the trial court failed to acquire jurisdiction because summons were served on her through her husband without any explanation as to why personal service could not be made. The Court of Appeals considered the two circumstances that kept petitioner in the dark about the judicial foreclosure proceedings: (1) the failure of the sheriff to personally serve summons on petitioner; and (2) petitioners husbands concealment of his knowledge of the foreclosure proceedings. On the validity of the service of summons, the appellate court ruled that judicial foreclosure proceedings are actions quasi in rem. As such, jurisdiction over the person of the defendant is not essential as long as the court acquires jurisdiction over the res. Noting that the spouses Biaco were not opposing parties in the case, the Court of Appeals further ruled that the fraud committed by one against the other cannot be considered extrinsic fraud. Her motion for reconsideration having been denied, petitioner filed the instant Petition for Review, 4 asserting that even if the action is quasi in rem, personal service of summons is essential in order to afford her due process. The substituted service made by the sheriff at her husbands office cannot be deemed proper service absent any explanation that efforts had been made to personally serve summons upon her but that such efforts failed. Petitioner contends that extrinsic fraud was perpetrated not so much by her husband, who did not inform her of the judicial foreclosure proceedings, but by the sheriff who allegedly connived with her husband to just leave a copy of the summons intended for her at the latters office. Petitioner further argues that the deficiency judgment is a personal judgment which should be deemed void for lack of jurisdiction over her person. Respondent PCRB filed its Comment, 5 essentially reiterating the appellate courts ruling. Respondent avers that service of summons upon the defendant is not necessary in actions quasi in rem it being sufficient that the court acquire jurisdiction over the res. As regards the alleged conspiracy between petitioners husband and the sheriff, respondent counters that this is a new argument which cannot be raised for the first time in the instant petition. We required the parties to file their respective memoranda in the Resolution 6 dated August 18, 2004. Accordingly, petitioner filed her Memorandum 7 dated October 10, 2004, while respondent filed its Memorandum for Respondent 8 dated September 9, 2004. Annulment of judgment is a recourse equitable in character, allowed only in exceptional cases as where there is no available or other adequate remedy. Jurisprudence and Sec. 2, Rule 47 of the 1997 Rules of Civil Procedure (Rules of Court) provide that judgments may be annulled only on grounds of extrinsic fraud and lack of jurisdiction or denial of due process. 9
Petitioner asserts that extrinsic fraud consisted in her husbands concealment of the loans which he obtained from respondent PCRB; the filing of the complaint for judicial foreclosure of mortgage; service of summons; rendition of judgment by default; and all other proceedings which took place until the writ of garnishment was served. 10
Extrinsic fraud exists when there is a fraudulent act committed by the prevailing party outside of the trial of the case, whereby the defeated party was prevented from presenting fully his side of the case by fraud or deception practiced on him by the prevailing party. 11 Extrinsic fraud is present where the unsuccessful party had been prevented from exhibiting fully his case, by fraud or deception practiced on him by his opponent, as by keeping him away from court, a false promise of a compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or where the attorney regularly employed corruptly sells out his clients interest to the other side. The overriding consideration is that the fraudulent scheme of the prevailing litigant prevented a party from having his day in court. 12
With these considerations, the appellate court acted well in ruling that there was no fraud perpetrated by respondent bank upon petitioner, noting that the spouses Biaco were co-defendants in the case and shared the same interest. Whatever fact or circumstance concealed by the husband from the wife cannot be attributed to respondent bank. Moreover, petitioners allegation that her signature on the promissory notes was forged does not evince extrinsic fraud. It is well-settled that the use of forged instruments during trial is not extrinsic fraud because such evidence does not preclude the participation of any party in the proceedings. 13
The question of whether the trial court has jurisdiction depends on the nature of the action, i.e., whether the action is in personam, in rem, or quasi in rem. The rules on service of summons under Rule 14 of the Rules of Court likewise apply according to the nature of the action. An action in personam is an action against a person on the basis of his personal liability. An action in rem is an action against the thing itself instead of against the person. An action quasi in rem is one wherein an individual is named as defendant and the purpose of the proceeding is to subject his interest therein to the obligation or lien burdening the property. 14
In an action in personam, jurisdiction over the person of the defendant is necessary for the court to validly try and decide the case. In a proceeding in rem or quasi in rem, jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction on the court provided that the court acquires jurisdiction over the res. Jurisdiction over the res is acquired either (1) by the seizure of the property under legal process, whereby it is brought into actual custody of the law; or (2) as a result of the institution of legal proceedings, in which the power of the court is recognized and made effective. 15
Nonetheless, summons must be served upon the defendant not for the purpose of vesting the court with jurisdiction but merely for satisfying the due process requirements. 16
A resident defendant who does not voluntarily appear in court, such as petitioner in this case, must be personally served with summons as provided under Sec. 6, Rule 14 of the Rules of Court. If she cannot be personally served with summons within a reasonable time, substituted service may be effected (1) by leaving copies of the summons at the defendants residence with some person of suitable age and discretion then residing therein, or (2) by leaving the copies at defendants office or regular place of business with some competent person in charge thereof in accordance with Sec. 7, Rule 14 of the Rules of Court. In this case, the judicial foreclosure proceeding instituted by respondent PCRB undoubtedly vested the trial court with jurisdiction over the res. A judicial foreclosure proceeding is an action quasi in rem. As such, jurisdiction over the person of petitioner is not required, it being sufficient that the trial court is vested with jurisdiction over the subject matter. There is a dimension to this case though that needs to be delved into. Petitioner avers that she was not personally served summons. Instead, summons was served to her through her husband at his office without any explanation as to why the particular surrogate service was resorted to. The Sheriffs Return of Service dated March 21, 2000 states: x x x x That on March 16, 2000, the undersigned served the copies of Summons, complaint and its annexes to the defendants Sps. Ernesto R. & Ma. Teresa Ch. Biaco thru Ernesto R. Biaco[,] defendant of the above-entitled case at his office EXPORT & INDUSTRY BANK, Jofelmore Bldg.[,] Mortola St., Cagayan de Oro City and he acknowledged receipt thereof as evidenced with his signature appearing on the original copy of the Summons. 17
[Emphasis supplied] Without ruling on petitioners allegation that her husband and the sheriff connived to prevent summons from being served upon her personally, we can see that petitioner was denied due process and was not able to participate in the judicial foreclosure proceedings as a consequence. The violation of petitioners constitutional right to due process arising from want of valid service of summons on her warrants the annulment of the judgment of the trial court. There is more, the trial court granted respondent PCRBs ex-parte motion for deficiency judgment and ordered the issuance of a writ of execution against the spouses Biaco to satisfy the remaining balance of the award. In short, the trial court went beyond its jurisdiction over the res and rendered a personal judgment against the spouses Biaco. This cannot be countenanced.1awphil.net In Sahagun v. Court of Appeals, 18 suit was brought against a non-resident defendant, Abelardo Sahagun, and a writ of attachment was issued and subsequently levied on a house and lot registered in his name. Claiming ownership of the house, his wife, Carmelita Sahagun, filed a motion to intervene. For failure of plaintiff to serve summons extraterritorially upon Abelardo, the complaint was dismissed without prejudice. Subsequently, plaintiff filed a motion for leave to serve summons by publication upon Abelardo. The trial court granted the motion. Plaintiff later filed an amended complaint against Abelardo, this time impleading Carmelita and Rallye as additional defendants. Summons was served on Abelardo through publication in the Manila Evening Post. Abelardo failed to file an answer and was declared in default. Carmelita went on certiorari to the Court of Appeals assailing as grave abuse of discretion the declaration of default of Abelardo. The Court of Appeals dismissed the petition and denied reconsideration. In her petition with this Court, Carmelita raised the issue of whether the trial court acquired jurisdiction over her husband, a non-resident defendant, by the publication of summons in a newspaper of general circulation in the Philippines. The Court sustained the correctness of extrajudicial service of summons by publication in such newspaper. The Court explained, citing El Banco Espaol-Filipino v. Palanca, 19 that foreclosure and attachment proceedings are both actions quasi in rem. As such, jurisdiction over the person of the (non-resident) defendant is not essential. Service of summons on a non-resident defendant who is not found in the country is required, not for purposes of physically acquiring jurisdiction over his person but simply in pursuance of the requirements of fair play, so that he may be informed of the pendency of the action against him and the possibility that property belonging to him or in which he has an interest may be subjected to a judgment in favor of a resident, and that he may thereby be accorded an opportunity to defend in the action, should he be so minded. Significantly, the Court went on to rule, citing De Midgely v. Ferandos, et. al. 20 and Perkins v. Dizon, et al. 21 that in a proceeding in rem or quasi in rem, the only relief that may be granted by the court against a defendant over whose person it has not acquired jurisdiction either by valid service of summons or by voluntary submission to its jurisdiction, is limited to the res. Similarly, in this case, while the trial court acquired jurisdiction over the res, its jurisdiction is limited to a rendition of judgment on the res. It cannot extend its jurisdiction beyond the res and issue a judgment enforcing petitioners personal liability. In doing so without first having acquired jurisdiction over the person of petitioner, as it did, the trial court violated her constitutional right to due process, warranting the annulment of the judgment rendered in the case. WHEREFORE, the instant petition is GRANTED. The Decision dated August 27, 2003 and the Resolution dated December 15, 2003 of the Court of Appeals in CA-G.R. SP No. 67489 are SET ASIDE. The Judgment dated July 11, 2000 and Order dated February 9, 2001 of the Regional Trial Court of Cagayan de Oro City, Branch 20, are likewise SET ASIDE. SO ORDERED. BIAN STEEL CORPORATION, petitioner, vs. HON. COURT OF APPEALS, MYLENE C. GARCIA and MYLA C. GARCIA, respondents. [G.R. No. 148430. October 15, 2002] MYLENE C. GARCIA and MYLA C. GARCIA, petitioners, vs. HON. ENRICO A. LANZANAS, Presiding Judge, RTC, Branch 7, Manila and RUFO J. BERNARDO, Sheriff-In-Charge, for the Ex-Officio Sheriff of Manila, respondents. D E C I S I O N CORONA, J.: Before us are two consolidated petitions: (1) G.R. No. 142013, a special civil action for certiorari and mandamus seeking to annul and set aside the Resolutions1[1] of the Court of Appeals dated October 21, 1999 and January 31, 2000, denying petitioner Bian Steel Corporations motion for intervention and motion for reconsideration, and (2) G.R. No. 148430, seeking to set aside the decision2[2] and resolution of the Court of Appeals dated February 10, 2000 and May 31, 2001, respectively, dismissing the
petition of petitioners Mylene C. Garcia and Myla C. Garcia for violating the rules on forum-shopping. Stripped of the non-essentials, the facts of the case are as follows: On July 22, 1998, Bian Steel Corporation (BSC) filed with the Regional Trial Court of Manila a complaint against Joenas Metal Corporation and spouses Ng Ley Huat and Leticia Dy Ng (the spouses Ng) for collection of a sum of money with damages, docketed as Civil Case No. 98-89831. On July 24, 1998, the trial court3[3] issued a Writ of Preliminary Attachment after BSC filed an attachment bond. Pursuant thereto, on July 27, 1998, the sheriff of Branch 7 of the RTC of Manila, Manuelito P. Viloria, levied on the property registered in the names of the spouses Ng and covered by TCT No. 11387 of the Registry of Deeds of Quezon City. This property under preliminary attachment was in fact mortgaged to the Far East Bank and Trust Company (FEBTC), now Bank of the Philippine Islands (BPI), and consisted of a 268-square-meter lot located at 14 Tulip Road, Gardenville Town and Country Homes, Congressional Avenue, Project 8, Quezon City. On August 5, 1998, a sheriffs return was filed by Viloria, stating that, as of that date, summons was not served upon the defendant spouses Ng because they could not be located. BSC caused the filing of a motion to serve the summons by publication which was granted. Summons by publication thereafter ensued. In the meantime, defendant-spouses Ng sold the property to petitioners (in G.R. No. 148430) Mylene and Myla Garcia by means of a deed of sale dated June 29, 1998. Said transaction was registered only about a month- and-a-half later, on August 12, 1998, after the mortgagee FEBTC gave its approval to the sale. On August 19, 1998, TCT No. 11387 in the name of
the spouses Ng was cancelled and, in lieu thereof, TCT No. 194226 in the names of Mylene and Myla Garcia was issued. The annotation of the preliminary attachment made earlier on July 27, 1998 by sheriff Viloria on the old title, TCT No. 11387, was transferred to TCT No. 194226. On August 28, 1998, the Garcias filed a complaint-in-intervention in Civil Case No. 98-89831 pending at Branch 7 of the Manila RTC, alleging that they were the registered owners of the property covered by TCT No. 194226 which was the subject of BSCs writ of preliminary attachment. Said complaint-in-intervention was denied by the trial court for lack of merit. On April 14, 1999, the trial court rendered judgment by default in favor of BSC, the dispositive portion of which was: WHEREFORE, decision is hereby rendered in favor of plaintiff Bian Steel Corporation, and against defendants Joenas Metal Corporation, Ng Ley Huat and Leticia Dy Ng, ordering the latter to jointly and severally: 1. pay the plaintiff the amount of FIVE MILLION EIGHT HUNDRED FIFTY SIX THOUSAND PESOS (P5,856,000.00) as actual damages; 2. pay the plaintiff the amount of ONE MILLION PESOS (P1,000,000.00) as and for consequential damages; 3. pay the plaintiff the amount equivalent to 25% of the total amount due the plaintiff from the defendant as and for attorneys fees; and 4. to pay the costs of suit. SO ORDERED.4[4]
On June 14, 1999, a Notice of Sale of Execution on Real Property was issued by respondent sheriff Rufo J. Bernardo. It scheduled the public auction of the property on July 7, 1999. Meanwhile, on February 18, 1999, in view of the dismissal of their complaint-in-intervention, the Garcias filed an action against BSC, sheriff Manuelito P. Viloria, the Register of Deeds of Quezon City and FEBTC (now BPI) for cancellation of the notice of levy annotated on TCT No. 194226 before Branch 98 of the Regional Trial Court of Quezon City,5[5] docketed as Civil Case No. 99-36804. The Garcias claimed that they were the registered owners of the property in dispute, having acquired the same on June 29, 1998 by means of a deed of sale with assumption of mortgage from spouses Ng Ley Huat and Leticia Dy Ng. In said case in the Quezon City RTC, the Garcias were able to secure a temporary restraining order enjoining sheriff Rufo J. Bernardo or any person acting in his behalf from continuing with the public auction sale of the subject property initially scheduled on July 7, 1999. This TRO was disregarded by the Manila RTC. Acting on the ex-parte manifestation with motion to proceed with the execution sale filed by BSC, Judge Enrico Lanzanas of Branch 7, RTC, Manila affirmed, on July 8, 1999, his previous order and directed the public auction of the attached property, unless otherwise enjoined by the Court of Appeals or this Court. Thereafter, the public auction was rescheduled from July 7, 1999 to August 6, 1999. On August 4, 1999, the Garcias filed another case with the Court of Appeals for the issuance of a writ of preliminary injunction with prayer for temporary restraining order which sought to perpetually enjoin Judge Lanzanas and sheriff Bernardo from proceeding with the public auction on August 6, 1999. Their petition did not implead BSC as private respondent.
In a resolution dated August 5, 1999, the Third Division of the Court of Appeals6[6] temporarily restrained public respondents Judge Lanzanas and Bernardo from proceeding with the public auction of the subject property. Hence, the scheduled public sale on August 6, 1999 did not transpire. This prompted petitioner BSC to file a motion for intervention on August 16, 1999, praying that it be allowed to intervene and be heard in the case as private respondent, and to comment and oppose the petition filed by the Garcias. Likewise, said motion sought to oppose the prayer for preliminary injunction with urgent request for the issuance of the temporary restraining order. On October 21, 1999, the First Division of the Court of Appeals, in its resolution,7[7] denied BSCs motion for intervention on the ground that its rights could be protected in a separate proceeding, particularly in the cancellation case filed by the Garcias. BSC's motion for reconsideration was likewise denied on January 31, 2000. Thus, on March 13, 2000, BSC filed with this Court a special civil action for certiorari and mandamus, docketed as G.R. No. 142013, seeking to annul and set aside the Resolutions of the Court of Appeals dated October 21, 1999 and January 31, 2000. BSC is invoking the following issues: I THE RESPONDENT HONORABLE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION TANTAMOUNT TO LACK OR EXCESS OF JURISDICTION IN DENYING PETITIONERS MOTION FOR INTERVENTION FOR BEING IMPROPER AS INTERVENORS RIGHTS MAY BE PROTECTED IN A SEPARATE PROCEEDING IN CIVIL CASE NO. 99-36804 OF THE RTC, BRANCH
98, QUEZON CITY, FOR CANCELLATION OF THE NOTICE OF LEVY ANNOTATED ON TCT NO. 194226. II THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION TANTAMOUNT TO LACK OR EXCESS OF JURISDICTION IN HOLDING THAT TO ENTERTAIN PETITIONERS INTERVENTION WOULD NECESSARY (SIC) PRE-EMPT THE ADJUDICATION OF ISSUES IN CIVIL CASE NO. 99-36804 BECAUSE EVIDENCE AND COUNTER-EVIDENCE WILL BE PRODUCED BY THE PARTIES IN THE INJUNCTION SUIT, AND THIS WILL UNDULY DELAY OR PREJUDICE THE ADJUDICATION OF THE RIGHTS OF THE PRINCIPAL PARTIES. III THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION TANTAMOUNT TO LACK OR EXCESS OF JURISDICTION IN RULING THAT THE ALLOWANCE OR DISALLOWANCE OF A MOTION TO INTERVENE IS ADDRESSED TO THE SOUND DISCRETION OF THE COURT, OVERLOOKING THE FACT THAT IN THE INSTANT CASE, THE APPELLATE COURT DID NOT EXERCISE WISELY ITS SOUND DISCRETION WHEN IT DENIED PETITIONERS MOTION FOR INTERVENTION. Similarly, the Fifteenth Division of the Court of Appeals, in its decision8[8] dated February 10, 2000, dismissed the petition of the Garcias for violating the rules on forum-shopping. It denied their motion for reconsideration on May 31, 2001. The Garcias thus filed with this Court a petition for review on certiorari, docketed as G.R. No. 148430, seeking to set aside the February 10, 2000
decision of the Court of Appeals as well as its resolution dated May 31, 2001 denying their motion for reconsideration, raising the following errors: I WHETHER OR NOT PETITIONERS WERE GUILTY OF VIOLATING THE RULES ON FORUM-SHOPPING. II WHETHER OR NOT PETITIONERS ARE ENTITLED TO THE ISSUANCE OF A WRIT OF INJUNCTION. Subsequently, G.R. No. 142013 and G.R. No. 148430 were consolidated pursuant to this Court's Resolution dated February 27, 2002. In the meantime, on August 4, 2001, the Garcias were again served by the sheriff of the Manila RTC with a notice of sale of execution of the disputed property scheduled for August 7, 2001. Because no TRO was issued by this Court, the public auction ordered by the Manila RTC was held as scheduled and the property was awarded to BSC as the highest bidder. On August 15, 2001, a little too late, this Court9[9] issued the TRO sought by the Garcias in a resolution which partially stated that: Acting on the Petitioners Urgent Motion for the Issuance of a temporary restraining order and/or writ of preliminary injunction dated August 6, 2001, praying that public respondents be enjoined from proceeding with the conduct of the public auction sale involving Petitioners property, registered under TCT No. 194226 of the Registry of Deeds of Quezon City,
the Court Resolved to ISSUE the TEMPORARY RESTRAINING ORDER prayed for, effective immediately until further orders from this Court.10[10] A year after the public auction, on August 6, 2002, the Garcias, fearful of the impending consolidation of title in favor of BSC, filed before this Court an urgent ex-parte motion for the issuance of an order maintaining the status quo ante. They wanted to prevent the consolidation of the title and possession by BSC until such time as the rights and interests of both sets of petitioners in the two cases before us shall have been determined and finally resolved. Acting on the said motion, on August 9, 2002, the Court11[11] resolved to grant the motion and directed the parties to maintain the status quo as of August 6, 2002. Going over the merits of the petitions, the Court deems it essential to resolve two pivotal issues: (1) who, between BSC and the Garcias, has a better right to the disputed property, and (2) whether the Garcias violated the rule against forum- shopping. It should be noted that, at the time of the attachment of the property on July 27, 1998, the spouses Ng were still the registered owners of said property. It should also be observed that the preliminary attachment in favor of petitioner BSC was annotated and recorded in the Registry of Deeds of Quezon City on July 27, 1998 in accordance with the provisions of
the Property Registration Decree (PD 1529). This annotation produced all the effects which the law gives to its registration or inscription.12[12] This Court has always held that attachment is a proceeding in rem. It is against the particular property, enforceable against the whole world. The attaching creditor acquires a specific lien on the attached property which ripens into a judgment against the res when the order of sale is made. Such a proceeding in effect means that the property attached is an indebted thing and a virtual condemnation of it to pay the owners debt.13[13] This doctrine was validated by this Court in the more recent case of Republic vs. Saludares14[14]: xxx. The law does not provide the length of time an attachment lien shall continue after the rendition of the judgment, and it must therefore necessarily continue until the debt is paid, or sale is had under execution issued on the judgment, or until the judgment is satisfied, or the attachment discharged or vacated in some manner provided by law. Thus, if the property attached is subsequently sold, the purchaser of the attached property acquires it subject to an attachment legally and validly levied thereon. xxx.
In the instant case, the records reveal that the levy on attachment covering the subject property was annotated on TCT No. 11387 on July 27, 1998. The deed of sale executed on June 29, 1998 in favor of the Garcias was approved by FEBTC only on August 12, 1998 which was also the date when the sale was registered. From the foregoing, it can be seen that, when the Garcias purchased the property in question, it was already under a duly registered preliminary attachment. In other words, there was already notice to said purchasers (and the whole world) of the impending acquisition by BSC, as the judgment creditor, of a legal lien on the title of the Ng spouses as judgment debtors in case BSC won its case in the Manila RTC. The Garcias claim they acquired the subject property by means of a deed of sale with assumption of mortgage dated June 29, 1998, meaning, they purchased the property ahead of the inscription of the levy on attachment thereon on July 27, 1998. But, even if consensual, not all contracts of sale became automatically and immediately effective.15[15] In Ramos vs. Court of Appeals16[16] we held: In sales with assumption of mortgage, the assumption of mortgage is a condition precedent to the sellers consent and therefore, without approval of the mortgagee, the sale is not perfected. Apart therefrom, notwithstanding the approval of the sale by mortgagee FEBTC (BPI), there was yet another step the Garcias had to take and it was the registration of the sale from the Ngs to them. Insofar as third persons
are concerned, what validly transfers or conveys a person's interest in real property is the registration of the deed.17[17] Thus, when the Garcias bought the property on June 29, 1998, it was, at that point, no more than a private transaction between them and the Ngs. It needed to be registered before it could become binding on all third parties, including BSC. It turned out that the Garcias registered it only on August 12, 1998, after FEBTC (now BPI) approved the sale. It was too late by then because, on July 27, 1998, the levy in favor of BSC, pursuant to the preliminary attachment ordered by the Manila RTC, had already been annotated on the original title on file with the Registry of Deeds. This registration of levy (or notice, in laymans language) now became binding on the whole world, including the Garcias. The rights which had already accrued in favor of BSC by virtue of the levy on attachment over the property were never adversely affected by the unregistered transfer from the spouses Ng to the Garcias. We sympathize with the Garcias but, had they only bothered to check first with the Register of Deeds of Quezon City before buying the property as a prudent buyer would have done they would have seen the warning about BSCs superior rights over it. This alone should have been sufficient reason for them to back out of the deal. It is doctrinal that a levy on attachment, duly registered, has preference over a prior unregistered sale and, even if the prior unregistered sale is subsequently registered before the sale on execution but after the levy is made, the validity of the execution sale should be upheld because it retroacts to the date of levy. The priority enjoyed by the levy on attachment extends, with full force and effect, to the buyer at the auction sale conducted by virtue of such levy.18[18] The sale between the spouses
Ng and the Garcias was undoubtedly a valid transaction between them. However, in view of the prior levy on attachment on the same property, the Garcias took the property subject to the attachment. The Garcias, in buying registered land, stood exactly in the shoes of their vendors, the Ngs, and their title ipso facto became subject to the incidents or results of the pending litigation19[19] between the Ngs and BSC. Even the alleged lack of actual and personal knowledge of the existence of the levy on attachment over the subject property by the Garcias cannot be sustained by this Court on the ground that one who deals with registered land is charged with notice of the burdens on the property which are duly noted on the certificate of title. On this specific point, we are concerned not with actual or personal knowledge but constructive notice through registration in the Registry of Deeds. Otherwise stated, what we should follow is the annotation (or lack thereof) on the original title on file with the Registry of Deeds, not on the duplicate title in the hands of the private parties. When a conveyance has been properly recorded, such record is constructive notice of its contents and all interests, legal and equitable, included therein. Under the rule on notice, it is presumed that the purchaser has examined every instrument on record affecting the title. Such presumption is irrefutable and cannot be overcome by any claim of innocence or good faith. Therefore, such presumption cannot be defeated by proof of lack of knowledge of what the public record contains any more than one may be permitted to show that he was ignorant of the provisions of the law. The rule that all persons must take notice of the facts which the public record contains is a rule of law. The rule must be absolute. Any variation would lead to endless confusion and useless litigation.20[20]
Otherwise, the very purpose and object of the law requiring public registration would be for naught. Pertinent to the matter at hand is Article 1544 of the New Civil Code which provides: If the same thing should have been sold to different vendees, x x x should it be immovable property, the ownership shall belong to the person acquiring it who in good faith first recorded it in the Registry of Property. x x x Because of the principle of constructive notice to the whole world, one who deals with registered property which is the subject of an annotated levy on attachment cannot invoke the rights of a purchaser in good faith. As between two purchasers, the one who registers the sale in his favor has a preferred right over the other who has not registered his title even if the latter is in actual possession of the immovable property.21[21] And, as between two purchasers who both registered the respective sales in their favor, the one who registered his sale ahead of the other would have better rights than the other who registered later. Applying said provision of the law and settled jurisprudence to the instant case, when the disputed property was consequently sold on execution to BSC, this auction sale retroacted to the date of inscription of BSC's notice of attachment on July 27, 1998. The earlier registration thus gave BSC superior and preferential rights over the attached property as against the Garcias22[22] who registered their purchase of the property at a later
date. Notably, the Garcias were not purchasers for value in view of the fact that they acquired the property in payment of the loan earlier obtained from them by the Spouses Ng.23[23] All told, the purchaser of a property subject to an attachment legally and validly levied thereon is merely subrogated to the rights of the vendor and acquires the property subject to the rights of the attachment creditor. An attaching creditor who registers the order of attachment and the sale by public auction of the property to him as the highest bidder acquires a superior title to the property as against a vendee who previously bought the same property from the registered owner but who failed to register his deed of sale.24[24] Petitioners Garcias failed to show that BSC acted in bad faith which would have impelled this Court to rule otherwise. The foregoing considerations show that the Garcias are not entitled to the issuance of a writ of preliminary injunction from this Court. For the issuance of the writ to be proper, it must be shown that the invasion of the right sought to be protected is material and substantial, that the right of the Garcias is clear and unmistakable and that there is an urgent and paramount necessity for the writ to prevent serious damage.25[25] Such requirements are all wanting in the case at bar. Thus, in view of the clear
and unmistakable absence of any legal basis for the issuance thereof, the same must be denied. On the second question whether the Garcias violated the rule against forum-shopping we answer in the affirmative. The Court of Appeals, in dismissing the Garcias' petition on the ground of forum-shopping, explained: A party is guilty of forum-shopping where he repetitively availed of several judicial remedies in different courts, simultaneously or successively, all substantially founded on the same transactions and the same essential facts and circumstances, and all raising substantially the same issues either pending in, or already resolved adversely by some other court (Gatmaytan vs. Court of Appeals, 267 SCRA 487). The test to determine whether a party violated the rule against forum- shopping is where the elements of litis pendentia are present or where a final judgment in one case will amount to res judicata in another (Solid Homes, Inc. vs. Court of Appeals, 271 SCRA 157). What is truly important to consider in determining whether forum- shopping exists or not is the vexation caused the courts and parties- litigants by a party who asks different courts and/or administrative agencies to rule on the same or related causes and/or grant the same or substantially the same reliefs, in the process creating possibility of conflicting decisions being rendered by the different fora upon the same issues (Golangco vs. Court of Appeals, 283 SCRA 493). The above jurisprudence instructs us the various indicia of forum- shopping. The more important of these are: when the final judgment in one case will amount to res judicata in another, or where the cases filed are substantially founded on the same transactions and the same essential facts and circumstances, or raising substantially the same issues, or more importantly, where there exists the possibility of conflicting decisions being rendered by different fora upon the same issues. If we take a look closely on the instant Petition for Injunction, forum- shopping is evident. In Civil Case No. 99-36804 raffled to Branch 98 of RTC- Quezon City, petitioners therein prayed for the cancellation of the notice of levy in their title. They are claiming that the controverted property is owned by them such that the respondent therein has no right to levy on their property, petitioners not being the respondents debtor. In the present petition, petitioners seek that the scheduled auction sale of the same property be perpetually enjoined, claiming that the property is owned by them and that the same is erroneously made to answer for liability not owing by them. Ultimately, the two actions involve the same essential facts and circumstances, and are raising the same issues. x x x The propriety of the issuance of injunction would depend on the finding that the petitioners have a clear legal right over the property - a right in esse or the existence of a right to be protected. Thus, this court must make a categorical finding of fact. This very same issue of fact who as between the two contending parties have a better right to the property is the very issue presented before the RTC of Quezon City. Clearly therefore, this Court and that of RTC Quezon City are called upon to decide on the same issues based on the same essential facts and circumstances. Hence, the possibility of these two courts rendering or coming up with different or conflicting decisions is very much real. Needless to say, the decision in one case would constitute res judicata in the other. The instant petition for injunction obviously violates the rule on forum-shopping. We agree with the Court of Appeals. As clearly demonstrated, the willful attempt by the Garcias to obtain a preliminary injunction in another court (the Court of Appeals) after they filed a case seeking the same relief from the original court (the Quezon City RTC) constitutes grave abuse of the judicial process. Such contemptuous act is penalized by the summary dismissal of both actions as mandated by paragraph 17 of the Interim Rules and Guidelines issued by this Court on January 11, 1983 and Supreme Court Circular No. 28-91, to wit: x x x SUBJECT: ADDITIONAL REQUISITES FOR PETITIONS FILED WITH THE SUPREME COURT AND THE COURT OF APPEALS TO PREVENT FORUM- SHOPPING OR MULTIPLE FILING OF PETITIONS AND COMPLAINTS. The attention of the Court has been called to the filing of multiple petitions and complaints involving the same issues in the Supreme Court, the Court of Appeals or different Divisions thereof, or any other tribunal or agency, with the result that said tribunals or agency have to resolve the same issues. x x x. 3. Penalties. (a) Any violation of this Circular shall be a cause for the summary dismissal of the multiple petition or complaint; x x x. In Bugnay Construction & Development Corporation vs. Laron,26[26] we declared: Forum-shopping, an act of malpractice, is proscribed and condemned as trifling with the courts and abusing their processes. It is improper conduct that degrades the administration of justice. The rule has been formalized in Paragraph 17 of the Interim Rules and Guidelines issued by this Court of January 11, 1983, in connection with the implementation of the Judiciary Reorganization Act x x x. The Rule ordains that (a) violation of the rule shall constitute a contempt of court and shall be a cause for the summary dismissal of both petitions, without prejudice to the taking of appropriate action against the counsel or party concerned.
The rule against forum-shopping has been further strengthened by the issuance of Supreme Court Administrative Circular No. 04-94. Said circular formally established the rule that the deliberate filing of multiple complaints to obtain favorable action constitutes forum-shopping and shall be a ground for summary dismissal thereof. Accordingly, the Garcias cannot pursue simultaneous remedies in two different fora. This is a practice which degrades the judicial process, messes up the orderly rules of procedure and is vexatious and unfair to the other party in the case. We rule therefore that the execution sale in favor of BSC was superior to the sale of the same property by the Ngs to the Garcias on August 12, 1998. The right of petitioner BSC to the ownership and possession of the property, the surrender of the owner's duplicate copy of TCT No. 194226 covering the subject property for inscription of the certificate of sale, the cancellation of TCT No. 194226 and the issuance of a new title in favor of BSC, is affirmed without prejudice to the right of the Garcias to seek reimbursement from the spouses Ng. In view of our disposition of the first issue resulting in the denial of the Garcias petition, the petition of BSC praying that it be allowed to intervene therein has been rendered moot. The Court thus finds it unnecessary to discuss it. WHEREFORE, the petitions are DENIED. The Resolution dated August 9, 2002 issued by this Court directing the parties to maintain the status quo as of August 6, 2002 is hereby lifted and set aside. The Registry of Deeds of Quezon City is hereby ordered to cancel TCT No. 194226 in the names of Myla and Mylene Garcia and issue a new title in favor of BSC without further delay. SO ORDERED. G.R. No. 178618 : October 11, 2010 MINDANAO SAVINGS AND LOAN ASSOCIATION, INC., represented by its Liquidator, THE PHILIPPINE DEPOSIT INSURANCE CORPORATION, Petitioner, v. EDWARD WILLKOM; GILDA GO; REMEDIOS UY; MALAYO BANTUAS, in his capacity as the Deputy Sheriff of Regional Trial Court, Branch 3, Iligan City; and the REGISTER OF DEEDS of Cagayan de Oro City, Respondent.cralaw D E C I S I O N NACHURA, J.: This is a petition for review on certiorari under Rule 45 of the Rules of Court filed by Mindanao Savings and Loan Association, Inc. (MSLAI), represented by its liquidator, Philippine Deposit Insurance Corporation (PDIC), against respondents Edward R. Willkom (Willkom); Gilda Go (Go); Remedios Uy (Uy); Malayo Bantuas (sheriff Bantuas), in his capacity as sheriff of the Regional Trial Court (RTC), Branch 3 of Iligan City; and the Register of Deeds of Cagayan de Oro City. MSLAI seeks the reversal and setting aside of the Court of Appeals 1 cra1aw (CA) Decision 2 cra1aw dated March 21, 2007 and Resolution 3 cra1aw dated June 1, 2007 in CA-G.R. CV No. 58337. The controversy stemmed from the following facts:chanroblesvirtualawlibrary The First Iligan Savings and Loan Association, Inc. (FISLAI) and the Davao Savings and Loan Association, Inc. (DSLAI) are entities duly registered with the Securities and Exchange Commission (SEC) under Registry Nos. 34869 and 32388, respectively, primarily engaged in the business of granting loans and receiving deposits from the general public, and treated as banks. 4 chanroblesvirtuallawlibrary Sometime in 1985, FISLAI and DSLAI entered into a merger, with DSLAI as the surviving corporation. 5 cra1aw The articles of merger were not registered with the SEC due to incomplete documentation. 6 cra1aw On August 12, 1985, DSLAI changed its corporate name to MSLAI by way of an amendment to Article 1 of its Articles of Incorporation, but the amendment was approved by the SEC only on April 3, 1987. 7 chanroblesvirtuallawlibrary Meanwhile, on May 26, 1986, the Board of Directors of FISLAI passed and approved Board Resolution No. 86-002, assigning its assets in favor of DSLAI which in turn assumed the formers liabilities. 8 chanroblesvirtuallawlibrary The business of MSLAI, however, failed. Hence, the Monetary Board of the Central Bank of the Philippines ordered its closure and placed it under receivership per Monetary Board Resolution No. 922 dated August 31, 1990. The Monetary Board found that MSLAIs financial condition was one of insolvency, and for it to continue in business would involve probable loss to its depositors and creditors. On May 24, 1991, the Monetary Board ordered the liquidation of MSLAI, with PDIC as its liquidator. 9 chanroblesvirtuallawlibrary It appears that prior to the closure of MSLAI, Uy filed with the RTC, Branch 3 of Iligan City, an action for collection of sum of money against FISLAI, docketed as Civil Case No. 111-697. On October 19, 1989, the RTC issued a summary decision in favor of Uy, directing defendants therein (which included FISLAI) to pay the former the sum of P136,801.70, plus interest until full payment, 25% as attorneys fees, and the costs of suit. The decision was modified by the CA by further ordering the third-party defendant therein to reimburse the payments that would be made by the defendants. The decision became final and executory on February 21, 1992. A writ of execution was thereafter issued. 10 chanroblesvirtuallawlibrary On April 28, 1993, sheriff Bantuas levied on six (6) parcels of land owned by FISLAI located in Cagayan de Oro City, and the notice of sale was subsequently published. During the public auction on May 17, 1993, Willkom was the highest bidder. A certificate of sale was issued and eventually registered with the Register of Deeds of Cagayan de Oro City. Upon the expiration of the redemption period, sheriff Bantuas issued the sheriffs definite deed of sale. New certificates of title covering the subject properties were issued in favor of Willkom. On September 20, 1994, Willkom sold one of the subject parcels of land to Go. 11 chanroblesvirtuallawlibrary On June 14, 1995, MSLAI, represented by PDIC, filed before the RTC, Branch 41 of Cagayan de Oro City, a complaint for Annulment of Sheriffs Sale, Cancellation of Title and Reconveyance of Properties against respondents. 12 cra1aw MSLAI alleged that the sale on execution of the subject properties was conducted without notice to it and PDIC; that PDIC only came to know about the sale for the first time in February 1995 while discharging its mandate of liquidating MSLAIs assets; that the execution of the RTC decision in Civil Case No. 111-697 was illegal and contrary to law and jurisprudence, not only because PDIC was not notified of the execution sale, but also because the assets of an institution placed under receivership or liquidation such as MSLAI should be deemed in custodia legis and should be exempt from any order of garnishment, levy, attachment, or execution. 13 chanroblesvirtuallawlibrary In answer, respondents averred that MSLAI had no cause of action against them or the right to recover the subject properties because MSLAI is a separate and distinct entity from FISLAI. They further contended that the "unofficial merger" between FISLAI and DSLAI (now MSLAI) did not take effect considering that the merging companies did not comply with the formalities and procedure for merger or consolidation as prescribed by the Corporation Code of the Philippines. Finally, they claimed that FISLAI is still a SEC registered corporation and could not have been absorbed by petitioner. 14 chanroblesvirtuallawlibrary On March 13, 1997, the RTC issued a resolution dismissing the case for lack of jurisdiction. The RTC declared that it could not annul the decision in Civil Case No. 111-697, having been rendered by a court of coordinate jurisdiction. 15 chanroblesvirtuallawlibrary On appeal, MSLAI failed to obtain a favorable decision when the CA affirmed the RTC resolution. The dispositive portion of the assailed CA Decision reads:chanroblesvirtualawlibrary WHEREFORE, premises considered, the instant appeal is DENIED. The decision assailed is AFFIRMED. We REFER Sheriff Malayo B. Bantuas violation of the Supreme Court Administrative Circular No. 12 to the Office of the Court Administrator for appropriate action. The Division Clerk of Court is hereby DIRECTED to furnish the Office of the Court Administrator a copy of this decision. SO ORDERED. 16 chanroblesvirtuallawlibrary The appellate court sustained the dismissal of petitioners complaint not because it had no jurisdiction over the case, as held by the RTC, but on a different ground. Citing Associated Bank v. CA, 17 cra1aw the CA ruled that there was no merger between FISLAI and MSLAI (formerly DSLAI) for their failure to follow the procedure laid down by the Corporation Code for a valid merger or consolidation. The CA then concluded that the two corporations retained their separate personalities; consequently, the claim against FISLAI is warranted, and the subsequent sale of the levied properties at public auction is valid. The CA went on to say that even if there had been a de facto merger between FISLAI and MSLAI (formerly DSLAI), Willkom, having relied on the clean certificates of title, was an innocent purchaser for value, whose right is superior to that of MSLAI. Furthermore, the alleged assignment of assets and liabilities executed by FISLAI in favor of MSLAI was not binding on third parties because it was not registered. Finally, the CA said that the validity of the auction sale could not be invalidated by the fact that the sheriff had no authority to conduct the execution sale. 18 chanroblesvirtuallawlibrary Petitioners motion for reconsideration was denied in a Resolution dated June 1, 2007. Hence, the instant petition anchored on the following grounds:chanroblesvirtualawlibrary THE HONORABLE COURT OF APPEALS, CAGAYAN DE ORO COMMITTED GRAVE AND REVERSIBLE ERROR WHEN:chanroblesvirtualawlibrary (1) IT PASSED UPON THE EXISTENCE AND STATUS OF DSLAI (now MSLAI) AS THE SURVIVING ENTITY IN THE MERGER BETWEEN DSLAI AND FISLAI AS A DEFENSE IN AN ACTION OTHER THAN IN A QUO WARRANTO PROCEEDING UPON THE INSTITUTION OF THE SOLICITOR GENERAL AS MANDATED UNDER SECTION 20 OF BATAS PAMBANSA BLG. 68. (2) IT REFUSED TO RECOGNIZE THE MERGER BETWEEN F[I]SLAI AND DSLAI WITH DSLAI AS THE SURVIVING CORPORATION. (3) IT HELD THAT THE PROPERTIES SUBJECT OF THE CASE ARE NOT IN CUSTODIA LEGIS AND THEREFORE, EXEMPT FROM GARNISHMENT, LEVY, ATTACHMENT OR EXECUTION. 19 chanroblesvirtuallawlibrary To resolve this petition, we must address two basic questions: (1) Was the merger between FISLAI and DSLAI (now MSLAI) valid and effective; and (2) Was there novation of the obligation by substituting the person of the debtor? We answer both questions in the negative. Ordinarily, in the merger of two or more existing corporations, one of the corporations survives and continues the combined business, while the rest are dissolved and all their rights, properties, and liabilities are acquired by the surviving corporation. 20 cra1aw Although there is a dissolution of the absorbed or merged corporations, there is no winding up of their affairs or liquidation of their assets because the surviving corporation automatically acquires all their rights, privileges, and powers, as well as their liabilities. 21 chanroblesvirtuallawlibrary The merger, however, does not become effective upon the mere agreement of the constituent corporations. 22 cra1aw Since a merger or consolidation involves fundamental changes in the corporation, as well as in the rights of stockholders and creditors, there must be an express provision of law authorizing them. 23 chanroblesvirtuallawlibrary The steps necessary to accomplish a merger or consolidation, as provided for in Sections 76, 24 cra1aw 77, 25 cra1aw 78, 26 cra1aw and 79 27 cra1aw of the Corporation Code, are:chanroblesvirtualawlibrary (1) The board of each corporation draws up a plan of merger or consolidation. Such plan must include any amendment, if necessary, to the articles of incorporation of the surviving corporation, or in case of consolidation, all the statements required in the articles of incorporation of a corporation. (2) Submission of plan to stockholders or members of each corporation for approval. A meeting must be called and at least two (2) weeks notice must be sent to all stockholders or members, personally or by registered mail. A summary of the plan must be attached to the notice. Vote of two-thirds of the members or of stockholders representing two-thirds of the outstanding capital stock will be needed. Appraisal rights, when proper, must be respected. (3) Execution of the formal agreement, referred to as the articles of merger o[r] consolidation, by the corporate officers of each constituent corporation. These take the place of the articles of incorporation of the consolidated corporation, or amend the articles of incorporation of the surviving corporation. (4) Submission of said articles of merger or consolidation to the SEC for approval. (5) If necessary, the SEC shall set a hearing, notifying all corporations concerned at least two weeks before. (6) Issuance of certificate of merger or consolidation. 28 chanroblesvirtuallawlibrary Clearly, the merger shall only be effective upon the issuance of a certificate of merger by the SEC, subject to its prior determination that the merger is not inconsistent with the Corporation Code or existing laws. 29 cra1aw Where a party to the merger is a special corporation governed by its own charter, the Code particularly mandates that a favorable recommendation of the appropriate government agency should first be obtained. 30 chanroblesvirtuallawlibrary In this case, it is undisputed that the articles of merger between FISLAI and DSLAI were not registered with the SEC due to incomplete documentation. Consequently, the SEC did not issue the required certificate of merger. Even if it is true that the Monetary Board of the Central Bank of the Philippines recognized such merger, the fact remains that no certificate was issued by the SEC. Such merger is still incomplete without the certification. The issuance of the certificate of merger is crucial because not only does it bear out SECs approval but it also marks the moment when the consequences of a merger take place. By operation of law, upon the effectivity of the merger, the absorbed corporation ceases to exist but its rights and properties, as well as liabilities, shall be taken and deemed transferred to and vested in the surviving corporation. 31 chanroblesvirtuallawlibrary The same rule applies to consolidation which becomes effective not upon mere agreement of the members but only upon issuance of the certificate of consolidation by the SEC. 32 cra1aw When the SEC, upon processing and examining the articles of consolidation, is satisfied that the consolidation of the corporations is not inconsistent with the provisions of the Corporation Code and existing laws, it issues a certificate of consolidation which makes the reorganization official. 33 cra1aw The new consolidated corporation comes into existence and the constituent corporations are dissolved and cease to exist. 34 chanroblesvirtuallawlibrary There being no merger between FISLAI and DSLAI (now MSLAI), for third parties such as respondents, the two corporations shall not be considered as one but two separate corporations. A corporation is an artificial being created by operation of law. It possesses the right of succession and such powers, attributes, and properties expressly authorized by law or incident to its existence. 35 cra1aw It has a personality separate and distinct from the persons composing it, as well as from any other legal entity to which it may be related. 36 cra1aw Being separate entities, the property of one cannot be considered the property of the other. Thus, in the instant case, as far as third parties are concerned, the assets of FISLAI remain as its assets and cannot be considered as belonging to DSLAI and MSLAI, notwithstanding the Deed of Assignment wherein FISLAI assigned its assets and properties to DSLAI, and the latter assumed all the liabilities of the former. As provided in Article 1625 of the Civil Code, "an assignment of credit, right or action shall produce no effect as against third persons, unless it appears in a public instrument, or the instrument is recorded in the Registry of Property in case the assignment involves real property." The certificates of title of the subject properties were clean and contained no annotation of the fact of assignment. Respondents cannot, therefore, be faulted for enforcing their claim against FISLAI on the properties registered under its name. Accordingly, MSLAI, as the successor- in-interest of DSLAI, has no legal standing to annul the execution sale over the properties of FISLAI. With more reason can it not cause the cancellation of the title to the subject properties of Willkom and Go. Petitioner cannot also anchor its right to annul the execution sale on the principle of novation. While it is true that DSLAI (now MSLAI) assumed all the liabilities of FISLAI, such assumption did not result in novation as would release the latter from liability, thereby exempting its properties from execution. Novation is the extinguishment of an obligation by the substitution or change of the obligation by a subsequent one which extinguishes or modifies the first, either by changing the object or principal conditions, by substituting another in place of the debtor, or by subrogating a third person in the rights of the creditor. 37 chanroblesvirtuallawlibrary It is a rule that novation by substitution of debtor must always be made with the consent of the creditor. 38 cra1aw Article 1293 of the Civil Code is explicit, thus:chanroblesvirtualawlibrary Art. 1293. 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. In this case, there was no showing that Uy, the creditor, gave her consent to the agreement that DSLAI (now MSLAI) would assume the liabilities of FISLAI. Such agreement cannot prejudice Uy. Thus, the assets that FISLAI transferred to DSLAI remained subject to execution to satisfy the judgment claim of Uy against FISLAI. The subsequent sale of the properties by Uy to Willkom, and of one of the properties by Willkom to Go, cannot, therefore, be questioned by MSLAI. The consent of the creditor to a novation by change of debtor is as indispensable as the creditors consent in conventional subrogation in order that a novation shall legally take place. 39 cra1aw Since novation implies a waiver of the right which the creditor had before the novation, such waiver must be express. 40 chanroblesvirtuallawlibrary WHEREFORE, premises considered, the petition is DENIED. The Court of Appeals Decision dated March 21, 2007 and Resolution dated June 1, 2007 in CA-G.R. CV No. 58337 are AFFIRMED. SO ORDERED. PHILIPPINE COMMERCIAL INTERNATIONAL BANK, Petitioner, vs. JOSEPH ANTHONY M. ALEJANDRO, Respondent. D E C I S I O N YNARES-SANTIAGO, J.: This petition for review assails the May 31, 2006 Decision 1 of the Court of Appeals in CA-G.R. CV No. 78200 affirming the August 30, 2000 Decision 2
of the Regional Trial Court of Makati, which granted respondent Joseph Anthony M. Alejandros claim for damages arising from petitioner Philippine Commercial International Banks (PCIB) invalid garnishment of respondents deposits. On October 23, 1997, petitioner filed against respondent a complaint 3 for sum of money with prayer for the issuance of a writ of preliminary attachment. Said complaint alleged that on September 10, 1997, respondent, a resident of Hong Kong, executed in favor of petitioner a promissory note obligating himself to pay P249,828,588.90 plus interest. In view of the fluctuations in the foreign exchange rates which resulted in the insufficiency of the deposits assigned by respondent as security for the loan, petitioner requested the latter to put up additional security for the loan. Respondent, however, sought a reconsideration of said request pointing out petitioners alleged mishandling of his account due to its failure to carry out his instruction to close his account as early as April 1997, when the prevailing rate of exchange of the US Dollar to Japanese yen was US$1.00:JPY127.50. 4 It appears that the amount of P249,828,588.90 was the consolidated amount of a series of yen loans granted by petitioner to respondent during the months of February and April 1997. 5
In praying for the issuance of a writ of preliminary attachment under Section 1 paragraphs (e) and (f) of Rule 57 of the Rules of Court, petitioner alleged that (1) respondent fraudulently withdrew his unassigned deposits notwithstanding his verbal promise to PCIB Assistant Vice President Corazon B. Nepomuceno not to withdraw the same prior to their assignment as security for the loan; and (2) that respondent is not a resident of the Philippines. The application for the issuance of a writ was supported with the affidavit of Nepomuceno. 6
On October 24, 1997, the trial court granted the application and issued the writ ex parte 7 after petitioner posted a bond in the amount of P18,798,734.69, issued by Prudential Guarantee & Assurance Inc., under Bond No. HO-46764-97. On the same date, the bank deposits of respondent with Rizal Commercial Banking Corporation (RCBC) were garnished. On October 27, 1997, respondent, through counsel, filed a manifestation informing the court that he is voluntarily submitting to its jurisdiction. 8
Subsequently, respondent filed a motion to quash 9 the writ contending that the withdrawal of his unassigned deposits was not fraudulent as it was approved by petitioner. He also alleged that petitioner knew that he maintains a permanent residence at Calle Victoria, Ciudad Regina, Batasan Hills, Quezon City, and an office address in Makati City at the Law Firm Romulo Mabanta Buenaventura Sayoc & De los Angeles, 10 where he is a partner. In both addresses, petitioner regularly communicated with him through its representatives. Respondent added that he is the managing partner of the Hong Kong branch of said Law Firm; that his stay in Hong Kong is only temporary; and that he frequently travels back to the Philippines. On December 24, 1997, the trial court issued an order quashing the writ and holding that the withdrawal of respondents unassigned deposits was not intended to defraud petitioner. It also found that the representatives of petitioner personally transacted with respondent through his home address in Quezon City and/or his office in Makati City. It thus concluded that petitioner misrepresented and suppressed the facts regarding respondents residence considering that it has personal and official knowledge that for purposes of service of summons, respondents residence and office addresses are located in the Philippines. The dispositive portion of the courts decision is as follows: WHEREFORE, the URGENT MOTION TO QUASH, being meritorious, is hereby GRANTED, and the ORDER of 24 October 1997 is hereby RECONSIDERED and SET ASIDE and the WRIT OF attachment of the same is hereby DISCHARGED. SO ORDERED. 11
With the denial 12 of petitioners motion for reconsideration, it elevated the case to the Court of Appeals (CA-G.R. SP No. 50748) via a petition for certiorari. On May 10, 1999, the petition was dismissed for failure to prove that the trial court abused its discretion in issuing the aforesaid order. 13
Petitioner filed a motion for reconsideration but was denied on October 28, 1999. 14 On petition with this Court, the case was dismissed for late filing in a minute resolution (G.R. No. 140605) dated January 19, 2000. 15
Petitioner filed a motion for reconsideration but was likewise denied with finality on March 6, 2000. 16
Meanwhile, on May 20, 1998, respondent filed a claim for damages in the amount of P25 Million 17 on the attachment bond (posted by Prudential Guarantee & Assurance, Inc., under JCL(4) No. 01081, Bond No. HO-46764- 97) on account of the wrongful garnishment of his deposits. He presented evidence showing that his P150,000.00 RCBC check payable to his counsel as attorneys fees, was dishonored by reason of the garnishment of his deposits. He also testified that he is a graduate of the Ateneo de Manila University in 1982 with a double degree of Economics and Management Engineering and of the University of the Philippines in 1987 with the degree of Bachelor of Laws. Respondent likewise presented witnesses to prove that he is a well known lawyer in the business community both in the Philippines and in Hong Kong. 18 For its part, the lone witness presented by petitioner was Nepomuceno who claimed that she acted in good faith in alleging that respondent is a resident of Hong Kong. 19
On August 30, 2000, the trial court awarded damages to respondent in the amount of P25 Million without specifying the basis thereof, thus: WHEREFORE, premises above considered, and defendant having duly established his claim in the amount of P25,000,000.00, judgment is hereby rendered ordering Prudential Guarantee & [Assurance] Co., which is solidarily liable with plaintiff to pay defendant the full amount of bond under Prudential Guarantee & Assurance, Inc. JCL(4) No. 01081, [Bond No. HO-46764-97], dated 24 October 1997 in the amount of P18,798,734.69. And, considering that the amount of the bond is insufficient to fully satisfy the award for damages, plaintiff is hereby ordered to pay defendant the amount of P6,201,265.31. SO ORDERED. 20
The trial court denied petitioners motion for reconsideration on October 24, 2000. 21
Petitioner elevated the case to the Court of Appeals which affirmed the findings of the trial court. It held that in claiming that respondent was not a resident of the Philippines, petitioner cannot be said to have been in good faith considering that its knowledge of respondents Philippine residence and office address goes into the very issue of the trial courts jurisdiction which would have been defective had respondent not voluntarily appeared before it. The Court of Appeals, however, reduced the amount of damages awarded to petitioner and specified their basis. The dispositive portion of the decision of the Court of Appeals states: WHEREFORE, the appeal is PARTIALLY GRANTED and the decision appealed from is hereby MODIFIED. The award of damages in the amount of P25,000,000.00 is deleted. In lieu thereof, Prudential Guarantee & [Assurance, Inc.], which is solidarily liable with appellant [herein petitioner], is ORDERED to pay appellee [herein respondent] P2,000,000.00 as nominal damages; P5,000,000.00 as moral damages; and P1,000,000.00 as attorneys fees, to be satisfied against the attachment bond under Prudential Guarantee & Assurance, Inc. JCL (4) No. 01081. SO ORDERED. 22
Both parties moved for reconsideration. On November 21, 2006, the Court of Appeals denied petitioners motion for reconsideration but granted that of respondents by ordering petitioner to pay additional P5Million as exemplary damages. 23
Hence, the instant petition. At the outset, it must be noted that the ruling of the trial court that petitioner is not entitled to a writ of attachment because respondent is a resident of the Philippines and that his act of withdrawing his deposits with petitioner was without intent to defraud, can no longer be passed upon by this Court. More importantly, the conclusions of the court that petitioner bank misrepresented that respondent was residing out of the Philippines and suppressed the fact that respondent has a permanent residence in Metro Manila where he may be served with summons, are now beyond the power of this Court to review having been the subject of a final and executory order. Said findings were sustained by the Court of Appeals in CA-G.R. SP No. 50784 and by this Court in G.R. No. 140605. The rule on conclusiveness of judgment, which obtains under the premises, precludes the relitigation of a particular fact or issue in another action between the same parties even if based on a different claim or cause of action. The judgment in the prior action operates as estoppel as to those matters in issue or points controverted, upon the determination of which the finding or judgment was rendered. The previous judgment is conclusive in the second case, as to those matters actually and directly controverted and determined. 24 Hence, the issues of misrepresentation by petitioner and the residence of respondent for purposes of service of summons can no longer be questioned by petitioner in this case. The core issue for resolution is whether petitioner bank is liable for damages for the improper issuance of the writ of attachment against respondent. We rule in the affirmative. Notwithstanding the final judgment that petitioner is guilty of misrepresentation and suppression of a material fact, the latter contends that it acted in good faith. Petitioner also contends that even if respondent is considered a resident of the Philippines, attachment is still proper under Section 1, paragraph (f), Rule 57 of the Rules of Court since he (respondent) is a resident who is temporarily out of the Philippines upon whom service of summons may be effected by publication. Petitioners contentions are without merit. While the final order of the trial court which quashed the writ did not categorically use the word "bad faith" in characterizing the representations of petitioner, the tenor of said order evidently considers the latter to have acted in bad faith by resorting to a deliberate strategy to mislead the court. Thus In the hearings of the motion, and oral arguments of counsels before the Court, it appears that plaintiff BANK through its contracting officers Vice President Corazon B. Nepomuceno and Executive Vice President Jose Ramon F. Revilla, personally transacted with defendant mainly through defendants permanent residence in METRO-MANILA, either in defendants home address in Quezon City or his main business address at the Romulo Mabanta Buenaventura Sayoc & Delos Angeles in MAKATI and while at times follow ups were made through defendants temporary home and business addresses in Hongkong. It is therefore clear that plaintiff could not deny their personal and official knowledge that defendants permanent and official residence for purposes of service of summons is in the Philippines. In fact, this finding is further confirmed by the letter of Mr. JOHN GOKONGWEI, JR. Chairman, Executive Committee of plaintiff BANK, in his letter dated 6 October 1997 on the subject loan to defendant of the same law firm was addressed to the ROMULO LAW FIRM in MAKATI. [Anent the] second ground of attachment x x x [t]he Court finds that the amount withdrawn was not part of defendants peso deposits assigned with the bank to secure the loan and as proof that the withdrawal was not intended to defraud plaintiff as creditor is that plaintiff approved and allowed said withdrawals. It is even noted that when the Court granted the prayer for attachment it was mainly on the first ground under Section 1(f) of Rule 57 of the 1997 Rules of Civil Procedure, that defendant resides out of the Philippines. On the above findings, it is obvious that plaintiff already knew from the beginning the deficiency of its second ground for attachment [i.e.,] disposing properties with intent to defraud his creditors, and therefore plaintiff had to resort to this misrepresentation that defendant was residing out of the Philippines and suppressed the fact that defendants permanent residence is in METRO MANILA where he could be served with summons. On the above findings, and mainly on the misrepresentations made by plaintiff on the grounds for the issuance of the attachment in the verified complaint, the Court concludes that defendant has duly proven its grounds in the MOTION and that plaintiff is not entitled to the attachment. 25
Petitioner is therefore barred by the principle of conclusiveness of judgment from again invoking good faith in the application for the issuance of the writ. Similarly, in the case of Hanil Development Co., Ltd. v. Court of Appeals, 26 the Court debunked the claim of good faith by a party who maliciously sought the issuance of a writ of attachment, the bad faith of said party having been previously determined in a final decision which voided the assailed writ. Thus Apropos the Application for Judgment on the Attachment Bond, Escobar claims in its petition that the award of attorneys fees and injunction bond premium in favor of Hanil is [contrary] to law and jurisprudence. It contends that no malice or bad faith may be imputed to it in procuring the writ. Escobars protestation is now too late in the day. The question of the illegality of the attachment and Escobars bad faith in obtaining it has long been settled in one of the earlier incidents of this case. The Court of Appeals, in its decision rendered on February 3, 1983 in C.A.-G.R. No. SP- 14512, voided the challenged writ, having been issued with grave abuse of discretion. Escobars bad faith in procuring the writ cannot be doubted. Its Petition for the Issuance of Preliminary Attachment made such damning allegations that: Hanil was already able to secure a complete release of its final collection from the MPWH; it has moved out some of its heavy equipments for unknown destination, and it may leave the country anytime. Worse, its Ex Parte Motion to Resolve Petition alleged that "after personal verification by (Escobar) of (Hanils) equipment in Cagayan de Oro City, it appears that the equipments were no longer existing from their compound." All these allegations of Escobar were found to be totally baseless and untrue. Even assuming that the trial court did not make a categorical pronouncement of misrepresentation and suppression of material facts on the part of petitioner, the factual backdrop of this case does not support petitioners claim of good faith. The facts and circumstances omitted are highly material and relevant to the grant or denial of writ of attachment applied for. Finally, there is no merit in petitioners contention that respondent can be considered a resident who is temporarily out of the Philippines upon whom service of summons may be effected by publication, and therefore qualifies as among those against whom a writ of attachment may be issued under Section 1, paragraph (f), Rule 57 of the Rules of Court which provides: (f) In an action against a party x x x on whom summons may be served by publication. In so arguing, petitioner attempts to give the impression that although it erroneously invoked the ground that respondent does not reside in the Philippines, it should not be made to pay damages because it is in fact entitled to a writ of attachment had it invoked the proper ground under Rule 57. However, even on this alternative ground, petitioner is still not entitled to the issuance of a writ of attachment. The circumstances under which a writ of preliminary attachment may be issued are set forth in Section 1, Rule 57 of the Rules of Court, to wit: SEC. 1. Grounds upon which attachment may issue. At the commencement of the action or at any time before entry of judgment, a plaintiff or any proper party may have the property of the adverse party attached as security for the satisfaction of any judgment that may be recovered in the following cases: (a) In an action for the recovery of a specified amount of money or damages, other than moral and exemplary, on a cause of action arising from law, contract, quasi-contract, delict or quasi-delict against a party who is about to depart from the Philippines with intent to defraud his creditors; (b) In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an officer of a corporation or an attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty; (c) In an action to recover the possession of personal property unjustly or fraudulently taken, detained, or converted, when the property, or any part thereof, has been concealed, removed, or disposed of to prevent its being found or taken by the applicant or an authorized person; (d) In an action against a party who has been guilty of a fraud in contracting the debt or incurring the obligation upon which the action is brought, or in the performance thereof; (e) In an action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors; (f) In an action against a party who resides out of the Philippines, or on whom summons may be served by publication. The purposes of preliminary attachment are: (1) to seize the property of the debtor in advance of final judgment and to hold it for purposes of satisfying said judgment, as in the grounds stated in paragraphs (a) to (e) of Section 1, Rule 57 of the Rules of Court; or (2) to acquire jurisdiction over the action by actual or constructive seizure of the property in those instances where personal or substituted service of summons on the defendant cannot be effected, as in paragraph (f) of the same provision. 27
Corollarily, in actions in personam, such as the instant case for collection of sum of money, 28 summons must be served by personal or substituted service, otherwise the court will not acquire jurisdiction over the defendant. In case the defendant does not reside and is not found in the Philippines (and hence personal and substituted service cannot be effected), the remedy of the plaintiff in order for the court to acquire jurisdiction to try the case is to convert the action into a proceeding in rem or quasi in rem by attaching the property of the defendant. 29 Thus, in order to acquire jurisdiction in actions in personam where defendant resides out of and is not found in the Philippines, it becomes a matter of course for the court to convert the action into a proceeding in rem or quasi in rem by attaching the defendants property. The service of summons in this case (which may be by publication coupled with the sending by registered mail of the copy of the summons and the court order to the last known address of the defendant), is no longer for the purpose of acquiring jurisdiction but for compliance with the requirements of due process. 30
However, where the defendant is a resident who is temporarily out of the Philippines, attachment of his/her property in an action in personam, is not always necessary in order for the court to acquire jurisdiction to hear the case. Section 16, Rule 14 of the Rules of Court reads: Sec. 16. Residents temporarily out of the Philippines. When an action is commenced against a defendant who ordinarily resides within the Philippines, but who is temporarily out of it, service may, by leave of court, be also effected out of the Philippines, as under the preceding section. The preceding section referred to in the above provision is Section 15 which provides for extraterritorial service (a) personal service out of the Philippines, (b) publication coupled with the sending by registered mail of the copy of the summons and the court order to the last known address of the defendant; or (c) in any other manner which the court may deem sufficient. In Montalban v. Maximo, 31 however, the Court held that substituted service of summons (under the present Section 7, Rule 14 of the Rules of Court) is the normal mode of service of summons that will confer jurisdiction on the court over the person of residents temporarily out of the Philippines. Meaning, service of summons may be effected by (a) leaving copies of the summons at the defendants residence with some person of suitable discretion residing therein, or (b) by leaving copies at the defendants office or regular place of business with some competent person in charge thereof. 32 Hence, the court may acquire jurisdiction over an action in personam by mere substituted service without need of attaching the property of the defendant. The rationale in providing for substituted service as the normal mode of service for residents temporarily out of the Philippines, was expounded in Montalban v. Maximo, 33 in this wise: A man temporarily absent from this country leaves a definite place of residence, a dwelling where he lives, a local base, so to speak, to which any inquiry about him may be directed and where he is bound to return. Where one temporarily absents himself, he leaves his affairs in the hands of one who may be reasonably expected to act in his place and stead; to do all that is necessary to protect his interests; and to communicate with him from time to time any incident of importance that may affect him or his business or his affairs. It is usual for such a man to leave at his home or with his business associates information as to where he may be contacted in the event a question that affects him crops up. Thus, in actions in personam against residents temporarily out of the Philippines, the court need not always attach the defendants property in order to have authority to try the case. Where the plaintiff seeks to attach the defendants property and to resort to the concomitant service of summons by publication, the same must be with prior leave, precisely because, if the sole purpose of the attachment is for the court to acquire jurisdiction, the latter must determine whether from the allegations in the complaint, substituted service (to persons of suitable discretion at the defendants residence or to a competent person in charge of his office or regular place of business) will suffice, or whether there is a need to attach the property of the defendant and resort to service of summons by publication in order for the court to acquire jurisdiction over the case and to comply with the requirements of due process. In the instant case, it must be stressed that the writ was issued by the trial court mainly on the representation of petitioner that respondent is not a resident of the Philippines. 34 Obviously, the trial courts issuance of the writ was for the sole purpose of acquiring jurisdiction to hear and decide the case. Had the allegations in the complaint disclosed that respondent has a residence in Quezon City and an office in Makati City, the trial court, if only for the purpose of acquiring jurisdiction, could have served summons by substituted service on the said addresses, instead of attaching the property of the defendant. The rules on the application of a writ of attachment must be strictly construed in favor of the defendant. For attachment is harsh, extraordinary, and summary in nature; it is a rigorous remedy which exposes the debtor to humiliation and annoyance. 35 It should be resorted to only when necessary and as a last remedy. It is clear from the foregoing that even on the allegation that respondent is a resident temporarily out of the Philippines, petitioner is still not entitled to a writ of attachment because the trial court could acquire jurisdiction over the case by substituted service instead of attaching the property of the defendant. The misrepresentation of petitioner that respondent does not reside in the Philippines and its omission of his local addresses was thus a deliberate move to ensure that the application for the writ will be granted. In light of the foregoing, the Court of Appeals properly sustained the finding of the trial court that petitioner is liable for damages for the wrongful issuance of a writ of attachment against respondent. Anent the actual damages, the Court of Appeals is correct in not awarding the same inasmuch as the respondent failed to establish the amount garnished by petitioner. It is a well settled rule that one who has been injured by a wrongful attachment can recover damages for the actual loss resulting therefrom. But for such losses to be recoverable, they must constitute actual damages duly established by competent proofs, which are, however, wanting in the present case. 36
Nevertheless, nominal damages may be awarded to a plaintiff whose right has been violated or invaded by the defendant, for the purpose of vindicating or recognizing that right, and not for indemnifying the plaintiff for any loss suffered by him. Its award is thus not for the purpose of indemnification for a loss but for the recognition and vindication of a right. Indeed, nominal damages are damages in name only and not in fact. 37 They are recoverable where some injury has been done but the pecuniary value of the damage is not shown by evidence and are thus subject to the discretion of the court according to the circumstances of the case. 38
In this case, the award of nominal damages is proper considering that the right of respondent to use his money has been violated by its garnishment. The amount of nominal damages must, however, be reduced from P2 million to P50,000.00 considering the short period of 2 months during which the writ was in effect as well as the lack of evidence as to the amount garnished.1wphi1 Likewise, the award of attorneys fees is proper when a party is compelled to incur expenses to lift a wrongfully issued writ of attachment. The basis of the award thereof is also the amount of money garnished, and the length of time respondents have been deprived of the use of their money by reason of the wrongful attachment. 39 It may also be based upon (1) the amount and the character of the services rendered; (2) the labor, time and trouble involved; (3) the nature and importance of the litigation and business in which the services were rendered; (4) the responsibility imposed; (5) the amount of money and the value of the property affected by the controversy or involved in the employment; (6) the skill and the experience called for in the performance of the services; (7) the professional character and the social standing of the attorney; (8) the results secured, it being a recognized rule that an attorney may properly charge a much larger fee when it is contingent than when it is not. 40
All the aforementioned weighed, and considering the short period of time it took to have the writ lifted, the favorable decisions of the courts below, the absence of evidence as to the professional character and the social standing of the attorney handling the case and the amount garnished, the award of attorneys fees should be fixed not at P1 Million, but only at P200,000.00. The courts below correctly awarded moral damages on account of petitioners misrepresentation and bad faith; however, we find the award in the amount of P5 Million excessive. Moral damages are to be fixed upon the discretion of the court taking into consideration the educational, social and financial standing of the parties. 41 Moral damages are not intended to enrich a complainant at the expense of a defendant. 42 They are awarded only to enable the injured party to obtain means, diversion or amusements that will serve to obviate the moral suffering he has undergone, by reason of petitioners culpable action. Moral damages must be commensurate with the loss or injury suffered. Hence, the award of moral damages is reduced to P500,000.00. Considering petitioners bad faith in securing the writ of attachment, we sustain the award of exemplary damages by way of example or correction for public good. This should deter parties in litigations from resorting to baseless and preposterous allegations to obtain writs of attachments. While as a general rule, the liability on the attachment bond is limited to actual (or in some cases, temperate or nominal) damages, exemplary damages may be recovered where the attachment was established to be maliciously sued out. 43 Nevertheless, the award of exemplary damages in this case should be reduced from P5M to P500,000.00. Finally, contrary to the claim of petitioner, the instant case for damages by reason of the invalid issuance of the writ, survives the dismissal of the main case for sum of money. Suffice it to state that the claim for damages arising from such wrongful attachment may arise and be decided separately from the merits of the main action. 44
WHEREFORE, the petition is PARTIALLY GRANTED. The May 31, 2006 Decision of the Court of Appeals in CA-G.R. CV No. 78200 is AFFIRMED with MODIFICATIONS. As modified, petitioner Philippine Commercial International Bank is ordered to pay respondent Joseph Anthony M. Alejandro the following amounts: P50,000.00 as nominal damages, P200,000.00 as attorneys fees; and P500,000.00 as moral damages, and P500,000.00 as exemplary damages, to be satisfied against the attachment bond issued by Prudential Guarantee & Assurance Inc., 45 under JCL (4) No. 01081, Bond No. HO-46764-97. No pronouncement as to costs. SO ORDERED. MUNICIPALITY OF SAN MIGUEL, BULACAN, petitioner, vs. HONORABLE OSCAR C. FERNANDEZ, in his capacity as the Presiding Judge, Branch IV, Baliuag, Bulacan, The PROVINCIAL SHERIFF of Bulacan, MARGARITA D. VDA. DE IMPERIO, ADORACION IMPERIO, RODOLFO IMPERIO, CONRADO IMPERIO, ERNESTO IMPERIO, ALFREDO IMPERIO, CARLOS IMPERIO, JR., JUAN IMPERIO and SPOUSES MARCELO PINEDA and LUCILA PONGCO, respondents. Pascual C. Liatchko for petitioner. The Solicitor General and Marcelo Pineda for respondents.
RELOVA, J.: In Civil Case No. 604-B, entitled "Margarita D. Vda. de Imperio, et al. vs. Municipal Government of San Miguel, Bulacan, et al.", the then Court of First Instance of Bulacan, on April 28, 1978, rendered judgment holding herein petitioner municipality liable to private respondents, as follows: WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiffs and against the defendant Municipal Government of San Miguel Bulacan, represented by Mayor Mar Marcelo G. Aure and its Municipal Treasurer: 1. ordering the partial revocation of the Deed of Donation signed by the deceased Carlos Imperio in favor of the Municipality of San Miguel Bulacan, dated October 27, 1947 insofar as Lots Nos. 1, 2, 3, 4 and 5, Block 11 of Subdivision Plan Psd-20831 are concerned, with an aggregate total area of 4,646 square meters, which lots are among those covered and described under TCT No. T- 1831 of the Register of Deeds of Bulacan in the name of the Municipal Government of San Miguel Bulacan, 2. ordering the defendant to execute the corresponding Deed of Reconveyance over the aforementioned five lots in favor of the plaintiffs in the proportion of the undivided one-half () share in the name of plaintiffs Margarita D. Vda. de Imperio, Adoracion, Rodolfo, Conrado, Ernesto, Alfredo, Carlos, Jr. and Juan, all surnamed Imperio, and the remaining undivided one-half () share in favor of plaintiffs uses Marcelo E. Pineda and Lucila Pongco; 3. ordering the defendant municipality to pay to the plaintiffs in the proportion mentioned in the immediately preceding paragraph the sum of P64,440.00 corresponding to the rentals it has collected from the occupants for their use and occupation of the premises from 1970 up to and including 1975, plus interest thereon at the legal rate from January 1970 until fully paid; 4. ordering the restoration of ownership and possession over the five lots in question in favor of the plaintiffs in the same proportion aforementioned; 5. ordering the defendant to pay the plaintiffs the sum of P3,000.00 for attomey's fees; and to pay the cost of suit. The counterclaim of the defendant is hereby ordered dismissed for lack of evidence presented to substantiate the same. SO ORDERED. (pp. 11-12, Rollo) The foregoing judgment became final when herein petitioner's appeal was dismissed due to its failure to file the record on appeal on time. The dismissal was affirmed by the then Court of Appeals in CA-G.R. No. SP- 12118 and by this Court in G.R. No. 59938. Thereafter, herein private respondents moved for issuance of a writ of execution for the satisfaction of the judgment. Respondent judge, on July 27, 1982, issued an order, to wit: Considering that an entry of judgment had already been made on June 14, 1982 in G. R. No. L-59938 and; Considering further that there is no opposition to plaintiffs' motion for execution dated July 23, 1983; Let a writ of execution be so issued, as prayed for in the aforestated motion. (p. 10, Rollo) Petitioner, on July 30, 1982, filed a Motion to Quash the writ of execution on the ground that the municipality's property or funds are all public funds exempt from execution. The said motion to quash was, however, denied by the respondent judge in an order dated August 23, 1982 and the alias writ of execution stands in full force and effect. On September 13, 1982, respondent judge issued an order which in part, states: It is clear and evident from the foregoing that defendant has more than enough funds to meet its judgment obligation. Municipal Treasurer Miguel C, Roura of San Miguel, Bulacan and Provincial Treasurer of Bulacan Agustin O. Talavera are therefor hereby ordered to comply with the money judgment rendered by Judge Agustin C. Bagasao against said municipality. In like manner, the municipal authorities of San Miguel, Bulacan are likewise ordered to desist from plaintiffs' legal possession of the property already returned to plaintiffs by virtue of the alias writ of execution. Finally, defendants are hereby given an inextendible period of ten (10) days from receipt of a copy of this order by the Office of the Provincial Fiscal of Bulacan within which to submit their written compliance, (p. 24, Rollo) When the treasurers (provincial and municipal) failed to comply with the order of September 13, 1982, respondent judge issued an order for their arrest and that they will be release only upon compliance thereof. Hence, the present petition on the issue whether the funds of the Municipality of San Miguel, Bulacan, in the hands of the provincial and municipal treasurers of Bulacan and San Miguel, respectively, are public funds which are exempt from execution for the satisfaction of the money judgment in Civil Case No. 604-B. Well settled is the rule that public funds are not subject to levy and execution. The reason for this was explained in the case of Municipality of Paoay vs. Manaois, 86 Phil. 629 "that they are held in trust for the people, intended and used for the accomplishment of the purposes for which municipal corporations are created, and that to subject said properties and public funds to execution would materially impede, even defeat and in some instances destroy said purpose." And, in Tantoco vs. Municipal Council of Iloilo, 49 Phil. 52, it was held that "it is the settled doctrine of the law that not only the public property but also the taxes and public revenues of such corporations Cannot be seized under execution against them, either in the treasury or when in transit to it. Judgments rendered for taxes, and the proceeds of such judgments in the hands of officers of the law, are not subject to execution unless so declared by statute." Thus, it is clear that all the funds of petitioner municipality in the possession of the Municipal Treasurer of San Miguel, as well as those in the possession of the Provincial Treasurer of Bulacan, are also public funds and as such they are exempt from execution. Besides, Presidential Decree No. 477, known as "The Decree on Local Fiscal Administration", Section 2 (a), provides: SEC. 2. Fundamental Principles. Local government financial affairs, transactions, and operations shall be governed by the fundamental principles set forth hereunder: (a) No money shall be paid out of the treasury except in pursuance of a lawful appropriation or other specific statutory authority. xxx xxx xxx Otherwise stated, there must be a corresponding appropriation in the form of an ordinance duly passed by the Sangguniang Bayan before any money of the municipality may be paid out. In the case at bar, it has not been shown that the Sangguniang Bayan has passed an ordinance to this effect. Furthermore, Section 15, Rule 39 of the New Rules of Court, outlines the procedure for the enforcement of money judgment: (a) By levying on all the property of the debtor, whether real or personal, not otherwise exempt from execution, or only on such part of the property as is sufficient to satisfy the judgment and accruing cost, if he has more than sufficient property for the purpose; (b) By selling the property levied upon; (c) By paying the judgment-creditor so much of the proceeds as will satisfy the judgment and accruing costs; and (d) By delivering to the judgment-debtor the excess, if any, unless otherwise, directed by judgment or order of the court. The foregoing has not been followed in the case at bar. ACCORDINGLY, the petition is granted and the order of respondent judge, dated July 27, 1982, granting issuance of a writ of execution; the alias writ of execution, dated July 27, 1982; and the order of respondent judge, dated September 13, 1982, directing the Provincial Treasurer of Bulacan and the Municipal Treasurer of San Miguel, Bulacan to comply with the money judgments, are SET ASIDE; and respondents are hereby enjoined from implementing the writ of execution. SO ORDERED. VICENTE B. CHUIDIAN, petitioner, vs. SANDIGANBAYAN (Fifth Division) and the REPUBLIC OF THE PHILIPPINES, respondents. YNARES-SANTIAGO, J.: The instant petition arises from transactions that were entered into by the government in the penultimate days of the Marcos administration. Petitioner Vicente B. Chuidian was alleged to be a dummy or nominee of Ferdinand and Imelda Marcos in several companies said to have been illegally acquired by the Marcos spouses. As a favored business associate of the Marcoses, Chuidian allegedly used false pretenses to induce the officers of the Philippine Export and Foreign Loan Guarantee Corporation (PHILGUARANTEE), the Board of Investments (BOI) and the Central Bank, to facilitate the procurement and issuance of a loan guarantee in favor of the Asian Reliability Company, Incorporated (ARCI) sometime in September 1980. ARCI, 98% of which was allegedly owned by Chuidian, was granted a loan guarantee of Twenty-Five Million U.S. Dollars (US$25,000,000.00).1wphi1.nt While ARCI represented to Philguarantee that the loan proceeds would be used to establish five inter-related projects in the Philippines, Chuidian reneged on the approved business plan and instead invested the proceeds of the loan in corporations operating in the United States, more particularly Dynetics, Incorporated and Interlek, Incorporated. Although ARCI had received the proceeds of the loan guaranteed by Philguarantee, the former defaulted in the payments thereof, compelling Philguarantee to undertake payments for the same. Consequently, in June 1985, Philguarantee sued Chuidian before the Santa Clara County Superior Court, 1 charging that in violation of the terms of the loan, Chuidian not only defaulted in payment, but also misused the funds by investing them in Silicon Valley corporations and using them for his personal benefit. For his part, Chuidian claimed that he himself was a victim of the systematic plunder perpetrated by the Marcoses as he was the true owner of these companies, and that he had in fact instituted an action before the Federal Courts of the United States to recover the companies which the Marcoses had illegally wrested from him. 2
On November 27, 1985, or three (3) months before the successful people's revolt that toppled the Marcos dictatorship, Philguarantee entered into a compromise agreement with Chuidian whereby petitioner Chuidian shall assign and surrender title to all his companies in favor of the Philippine government. In return, Philguarantee shall absolve Chuidian from all civil and criminal liability, and in so doing, desist from pursuing any suit against Chuidian concerning the payments Philguarantee had made on Chuidian's defaulted loans. It was further stipulated that instead of Chuidian reimbursing the payments made by Philguarantee arising from Chuidian's default, the Philippine government shall pay Chuidian the amount of Five Million Three Hundred Thousand Dollars (US$5,300,000.00). Initial payment of Five Hundred Thousand Dollars (US$500,000.00) was actually received by Chuidian, as well as succeeding payment of Two Hundred Thousand Dollars (US$200,000.00). The remaining balance of Four Million Six Hundred Thousand Dollars (US$4,600,000.00) was to be paid through an irrevocable Letter of Credit (L/C) from which Chuidian would draw One Hundred Thousand Dollars (US$100,000.00) monthly. 3 Accordingly, on December 12, 1985, L/C No. SSD-005-85 was issued for the said amount by the Philippine National Bank (PNB). Subsequently, Chuidian was able to make two (2) monthly drawings from said L/C at the Los Angeles branch of the PNB. 4
With the advent of the Aquino administration, the newly-established Presidential Commission on Good Government (PCGG) exerted earnest efforts to search and recover money, gold, properties, stocks and other assets suspected as having been illegally acquired by the Marcoses, their relatives and cronies. Petitioner Chuidian was among those whose assets were sequestered by the PCGG. On May 30, 1986, the PCGG issued a Sequestration Order 5
directing the PNB to place under its custody, for and in behalf of the PCGG, the irrevocable L/C (No. SSD-005-85). Although Chuidian was then residing in the United States, his name was placed in the Department of Foreign Affairs' Hold Order list. 6
In the meantime, Philguarantee filed a motion before the Superior Court of Santa Clara County of California in Civil Case Nos. 575867 and 577697 seeking to vacate the stipulated judgment containing the settlement between Philguarantee and Chuidian on the grounds that: (a) Philguarantee was compelled by the Marcos administration to agree to the terms of the settlement which was highly unfavorable to Philguarantee and grossly disadvantageous to the government; (b) Chuidian blackmailed Marcos into pursuing and concluding the settlement agreement by threatening to expose the fact that the Marcoses made investments in Chuidian's American enterprises; and (c) the Aquino administration had ordered Philguarantee not to make further payments on the L/C to Chuidian. After considering the factual matters before it, the said court concluded that Philguarantee "had not carried its burden of showing that the settlement between the parties should be set aside." 7 On appeal, the Sixth Appellate District of the Court of Appeal of the State of California affirmed the judgment of the Superior Court of Sta. Clara County denying Philguarantee's motion to vacate the stipulated judgment based on the settlement agreement. 8
After payment on the L/C was frozen by the PCGG, Chuidian filed before the United States District Court, Central District of California, an action against PNB seeking, among others, to compel PNB to pay the proceeds of the L/C. PNB countered that it cannot be held liable for a breach of contract under principles of illegality, international comity and act of state, and thus it is excused from payment of the L/C. Philguarantee intervened in said action, raising the same issues and arguments it had earlier raised in the action before the Santa Clara Superior Court, alleging that PNB was excused from making payments on the L/C since the settlement was void due to illegality, duress and fraud. 9
The Federal Court rendered judgment ruling: (1) in favor of PNB excusing the said bank from making payment on the L/C; and (2) in Chuidian's favor by denying intervenor Philguarantee's action to set aside the settlement agreement. 10
Meanwhile, on February 27, 1987, a Deed of Transfer 11 was executed between then Secretary of Finance Jaime V. Ongpin and then PNB President Edgardo B. Espiritu, to facilitate the rehabilitation of PNB, among others, as part of the government's economic recovery program. The said Deed of Transfer provided for the transfer to the government of certain assets of PNB in exchange for which the government would assume certain liabilities of PNB. 12 Among those liabilities which the government assumed were unused commercial L/C's and Deferred L/C's, including SSD-005-85 listed under Dynetics, Incorporated in favor of Chuidian in the amount of Four Million Four Hundred Thousand Dollars (US$4,400,000.00). 13
On July 30, 1987, the government filed before the Sandiganbayan Civil Case No. 0027 against the Marcos spouses, several government officials who served under the Marcos administration, and a number of individuals known to be cronies of the Marcoses, including Chuidian. The complaint sought the reconveyance, reversion, accounting and restitution of all forms of wealth allegedly procured illegally and stashed away by the defendants. In particular, the complaint charged that Chuidian, by himself and/or in conspiracy with the Marcos spouses, engaged in "devices, schemes and stratagems" by: (1) forming corporations for the purpose of hiding and avoiding discovery of illegally obtained assets; (2) pillaging the coffers of government financial institutions such as the Philguarantee; and (3) executing the court settlement between Philguarantee and Chuidian which was grossly disadvantageous to the government and the Filipino people. In fine, the PCGG averred that the above-stated acts of Chuidian committed in unlawful concert with the other defendants constituted "gross abuse of official position of authority, flagrant breach of public trust and fiduciary obligations, brazen abuse of right and power, unjust enrichment, violation of the Constitution and laws" of the land. 14
While the case was pending, on March 17, 1993, the Republic of the Philippines filed a motion for issuance of a writ of attachment 15 over the L/C, citing as grounds therefor the following: (1) Chuidian embezzled or fraudulently misapplied the funds of ARCI acting in a fiduciary capacity, justifying issuance of the writ under Section 1(b), Rule 57 of the Rules of Court; (2) The writ is justified under Section 1(d) of the same rule as Chuidian is guilty of fraud in contracting the debt or incurring the obligation upon which the action was brought, or that he concealed or disposed of the property that is the subject of the action; (3) Chuidian has removed or disposed of his property with the intent of defrauding the plaintiff as justified under Section 1(c) of Rule 57; and (4) Chuidian is residing out of the country or one on whom summons may be served by publication, which justifies the writ of attachment prayed for under Section 1(e) of the same rule. The Republic also averred that should the action brought by Chuidian before the U.S. District Court of California to compel payment of the L/C prosper, inspite of the sequestration of the said L/C, Chuidian can ask the said foreign court to compel the PNB Los Angeles branch to pay the proceeds of the L/C. Eventually, Philguarantee will be made to shoulder the expense resulting in further damage to the government. Thus, there was an urgent need for the writ of attachment to place the L/C under the custody of the Sandiganbayan so the same may be preserved as security for the satisfaction of judgment in the case before said court. Chuidian opposed the motion for issuance of the writ of attachment, contending that: (1) The plaintiff's affidavit appended to the motion was in form and substance fatally defective; (2) Section 1(b) of Rule 57 does not apply since there was no fiduciary relationship between the plaintiff and Chuidian; (3) While Chuidian does not admit fraud on his part, if ever there was breach of contract, such fraud must be present at the time the contract is entered into; (4) Chuidian has not removed or disposed of his property in the absence of any intent to defraud plaintiff; (5) Chuidian's absence from the country does not necessarily make him a non-resident; and (6) Service of summons by publication cannot be used to justify the issuance of the writ since Chuidian had already submitted to the jurisdiction of the Court by way of a motion to lift the freeze order filed through his counsel. On July 14, 1993, the Sandiganbayan issued a Resolution ordering the issuance of a writ of attachment against L/C No. SSD-005-85 as security for the satisfaction of judgment. 16 The Sandiganbayan's ruling was based on its disquisition of the five points of contention raised by the parties. On the first issue, the Sandiganbayan found that although no separate affidavit was attached to the motion, the motion itself contained all the requisites of an affidavit, and the verification thereof is deemed a substantial compliance of Rule 57, Section 3 of the Rules of Court. Anent the second contention, the Sandiganbayan ruled that there was no fiduciary relationship existing between Chuidian and the Republic, but only between Chuidian and ARCI. Since the Republic is not privy to the fiduciary relationship between Chuidian and ARCI, it cannot invoke Section 1(b) of Rule 57. On the third issue of fraud on the part of Chuidian in contracting the loan, or in concealing or disposing of the subject property, the Sandiganbayan held that there was a prima facie case of fraud committed by Chuidian, justifying the issuance of the writ of attachment. The Sandiganbayan also adopted the Republic's position that since it was compelled to pay, through Philguarantee, the bank loans taken out by Chuidian, the proceeds of which were fraudulently diverted, it is entitled to the issuance of the writ of attachment to protect its rights as creditor. Assuming that there is truth to the government's allegation that Chuidian has removed or disposed of his property with the intent to defraud, the Sandiganbayan held that the writ of attachment is warranted, applying Section 1(e) of Rule 57. Besides, the Rules provide for sufficient security should the owner of the property attached suffer damage or prejudice caused by the attachment. 17
Chuidian's absence from the country was considered by the Sandiganbayan to be "the most potent insofar as the relief being sought is concerned." 18 Taking judicial notice of the admitted fact that Chuidian was residing outside of the country, the Sandiganbayan observed that: "x x x no explanation whatsoever was given by him as to his absence from the country, or as to his homecoming plans in the future. It may be added, moreover, that he has no definite or clearcut plan to return to the country at this juncture given the manner by which he has submitted himself to the jurisdiction of the court." 19
Thus, the Sandiganbayan ruled that even if Chuidian is one who ordinarily resides in the Philippines, but is temporarily living outside, he is still subject to the provisional remedy of attachment. Accordingly, an order of attachment 20 was issued by the Sandiganbayan on July 19, 1993, ordering the Sandiganbayan Sheriff to attach PNB L/C No. SSD-005-85 for safekeeping pursuant to the Rules of Court as security for the satisfaction of judgment in Sandiganbayan Civil Case No. 0027. On August 11, 1997, or almost four (4) years after the issuance of the order of attachment, Chuidian filed a motion to lift the attachment based on the following grounds: First, he had returned to the Philippines; hence, the Sandiganbayan's "most potent ground" for the issuance of the writ of preliminary attachment no longer existed. Since his absence in the past was the very foundation of the Sandiganbayan's writ of preliminary attachment, his presence in the country warrants the immediate lifting thereof. Second, there was no evidence at all of initial fraud or subsequent concealment except for the affidavit submitted by the PCGG Chairman citing mere "belief and information" and "not on knowledge of the facts." Moreover, this statement is hearsay since the PCGG Chairman was not a witness to the litigated incidents, was never presented as a witness by the Republic and thus was not subject to cross-examination. Third, Chuidian denies that he ever disposed of his assets to defraud the Republic, and there is nothing in the records that support the Sandiganbayan's erroneous conclusion on the matter. Fourth, Chuidian belied the allegation that he was also a defendant in "other related criminal action," for in fact, he had "never been a defendant in any prosecution of any sort in the Philippines." 21 Moreover, he could not have personally appeared in any other action because he had been deprived of his right to a travel document by the government. Fifth, the preliminary attachment was, in the first place, unwarranted because he was not "guilty of fraud in contracting the debt or incurring the obligation". In fact, the L/C was not a product of fraudulent transactions, but was the result of a US Court-approved settlement. Although he was accused of employing blackmail tactics to procure the settlement, the California Supreme Court ruled otherwise. And in relation thereto, he cites as a sixth ground the fact that all these allegations of fraud and wrongdoing had already been dealt with in actions before the State and Federal Courts of California. While it cannot technically be considered as forum shopping, it is nevertheless a "form of suit multiplicity over the same issues, parties and subject matter." 22 These foreign judgments constitute res judicata which warrant the dismissal of the case itself. Chuidian further contends that should the attachment be allowed to continue, he will be deprived of his property without due process. The L/C was payment to Chuidian in exchange for the assets he turned over to the Republic pursuant to the terms of the settlement in Case No. 575867. Said assets, however, had already been sold by the Republic and cannot be returned to Chuidian should the government succeed in depriving him of the proceeds of the L/C. Since said assets were disposed of without his or the Sandiganbayan's consent, it is the Republic who is fraudulently disposing of assets. Finally, Chuidian stressed that throughout the four (4) years that the preliminary attachment had been in effect, the government had not set the case for hearing. Under Rule 17, Section 3, the case itself should be dismissed for laches owing to the Republic's failure to prosecute its action for an unreasonable length of time. Accordingly, the preliminary attachment, being only a temporary or ancillary remedy, must be lifted and the PNB ordered to immediately pay the proceeds of the L/C to Chuidian. Subsequently, on August 20, 1997, Chuidian filed a motion to require the Republic to deposit the L/C in an interest bearing account. 23 Annex "D"; Rollo, pp. 77-79.23 He pointed out to the Sandiganbayan that the face amount of the L/C had, since its attachment, become fully demandable and payable. However, since the amount is just lying dormant in the PNB, without earning any interest, he proposed that it would be to the benefit of all if the Sandiganbayan requires PNB to deposit the full amount to a Sandiganbayan trust account at any bank in order to earn interest while awaiting judgment of the action. The Republic opposed Chuidian's motion to lift attachment, alleging that Chuidian's absence was not the only ground for the attachment and, therefore, his belated appearance before the Sandiganbayan is not a sufficient reason to lift the attachment. Moreover, allowing the foreign judgment as a basis for the lifting of the attachment would essentially amount to an abdication of the jurisdiction of the Sandiganbayan to hear and decide the ill gotten wealth cases lodged before it in deference to the judgment of foreign courts. In a Resolution promulgated on November 13, 1998, the Sandiganbayan denied Chuidian's motion to lift attachment. 24
On the same day, the Sandiganbayan issued another Resolution denying Chuidian's motion to require deposit of the attached L/C in an interest bearing account. 25
In a motion seeking a reconsideration of the first resolution, Chuidian assailed the Sandiganbayan's finding that the issues raised in his motion to lift attachment had already been dealt with in the earlier resolution dated July 14, 1993 granting the application for the writ of preliminary attachment based on the following grounds: First, Chuidian was out of the country in 1993, but is now presently residing in the country. Second, the Sandiganbayan could not have known then that his absence was due to the non-renewal of his passport at the instance of the PCGG. Neither was it revealed that the Republic had already disposed of Chuidian's assets ceded to the Republic in exchange for the L/C. The foreign judgment was not an issue then because at that time, said judgment had not yet been issued and much less final. Furthermore, the authority of the PCGG Commissioner to subscribe as a knowledgeable witness relative to the issuance of the writ of preliminary attachment was raised for the first time in the motion to lift the attachment. Finally, the issue of laches could not have been raised then because it was the Republic's subsequent neglect or failure to prosecute despite the passing of the years that gave rise to laches. 26
Chuidian also moved for a reconsideration of the Sandiganbayan resolution denying the motion to require deposit of the L/C into an interest bearing account. He argued that contrary to the Sandiganbayan's pronouncement, allowing the deposit would not amount to a virtual recognition of his right over the L/C, for he is not asking for payment but simply requesting that it be deposited in an account under the control of the Sandiganbayan. He further stressed that the Sandiganbayan abdicated its bounden duty to rule on an issue when it found "that his motion will render nugatory the purpose of sequestration and freeze orders over the L/C." Considering that his assets had already been sold by the Republic, he claimed that the Sandiganbayan's refusal to exercise its fiduciary duty over attached assets will cause him irreparable injury. Lastly, the Sandiganbayan's position that Chuidian was not the owner but a mere payee-beneficiary of the L/C issued in his favor negates overwhelming jurisprudence on the Negotiable Instruments Law, while at the same time obliterating his rights of ownership under the Civil Code. 27
On July 13, 1999, the Sandiganbayan gave due course to Chuidian's plea for the attached L/C to be deposited in an interest-bearing account, on the ground that it will redound to the benefit of both parties. The Sandiganbayan declared the national government as the principal obligor of the L/C even though the liability remained in the books of the PNB for accounting and monitoring purposes. The Sandiganbayan, however, denied Chuidian's motion for reconsideration of the denial of his motion to lift attachment, agreeing in full with the government's apriorisms that: x x x (1) it is a matter of record that the Court granted the application for writ of attachment upon grounds other than defendant's absence in the Philippine territory. In its Resolution dated July 14, 1993, the Court found a prima facie case of fraud committed by defendant Chuidian, and that defendant has recovered or disposed of his property with the intent of defrauding plaintiff; (2) Chuidian's belated presence in the Philippines cannot be invoked to secure the lifting of attachment. The rule is specific that it applies to a party who is about to depart from the Philippines with intent to defraud his creditors. Chuidian's stay in the country is uncertain and he may leave at will because he holds a foreign passport; and (3) Chuidian's other ground, sufficiency of former PCGG Chairman Gunigundo's verification of the complaint, has been met fairly and squarely in the Resolution of July 14, 1993. 28
Hence, the instant petition for certiorari contending that the respondent Sandiganbayan committed grave abuse of discretion amounting to lack or excess of jurisdiction when it ruled that: 1) Most of the issues raised in the motion to lift attachment had been substantially addressed in the previous resolutions dated July 14, 1993 and August 26, 1998, while the rest were of no imperative relevance as to affect the Sandiganbayan's disposition; and 2) PNB was relieved of the obligation to pay on its own L/C by virtue of Presidential Proclamation No. 50. The Rules of Court specifically provide for the remedies of a defendant whose property or asset has been attached. As has been consistently ruled by this Court, the determination of the existence of grounds to discharge a writ of attachment rests in the sound discretion of the lower courts. 29
The question in this case is: What can the herein petitioner do to quash the attachment of the L/C? There are two courses of action available to the petitioner: First. To file a counterbond in accordance with Rule 57, Section 12, which provides: SEC. 12. Discharge of attachment upon giving counterbond. At anytime after an order of attachment has been granted, the party whose property has been attached, or the person appearing on his behalf, may, upon reasonable notice to the applicant, apply to the judge who granted the order, or to the judge of the court in which the action is pending, for an order discharging the attachment wholly or in part on the security given. The judge shall, after hearing, order the discharge of the attachment if a cash deposit is made, or a counterbond executed to the attaching creditor is filed, on behalf of the adverse party, with the clerk or judge of the court where the application is made, in an amount equal to the value of the property attached as determined by the judge, to secure the payment of any judgment that the attaching creditor may recover in the action. Upon the filing of such counter-bond, copy thereof shall forthwith be served on the attaching creditor or his lawyer. Upon the discharge of an attachment in accordance with the provisions of this section the property attached, or the proceeds of any sale thereof, shall be delivered to the party making the deposit or giving the counter-bond, or the person appearing on his behalf, the deposit or counter-bond aforesaid standing in place of the property so released. Should such counterbond for any reason be found to be, or become, insufficient, and the party furnishing the same fail to file an additional counter-bond, the attaching creditor may apply for a new order of attachment.1wphi1.nt or Second. To quash the attachment on the ground that it was irregularly or improvidently issued, as provided for in Section 13 of the same Rule: SEC. 13. Discharge of attachment for improper or irregular issuance. - The party whose property has been attached may also, at any time either before or after the release of the attached property, or before any attachment shall have been actually levied, upon reasonable notice to the attaching creditor, apply to the judge who granted the order, or to the judge of the court in which the action is pending, for an order to discharge the attachment on the ground that the same was improperly or irregularly issued. If the motion be made on affidavits on the part of the party whose property has been attached, but not otherwise, the attaching creditor may oppose the same by counter-affidavits or other evidence in addition to that on which the attachment was made. After hearing, the judge shall order the discharge of the attachment if it appears that it was improperly or irregularly issued and the defect is not cured forthwith. It would appear that petitioner chose the latter because the grounds he raised assail the propriety of the issuance of the writ of attachment. By his own admission, however, he repeatedly acknowledged that his justifications to warrant the lifting of the attachment are facts or events that came to light or took place after the writ of attachment had already been implemented. More particularly, petitioner emphasized that four (4) years after the writ was issued, he had returned to the Philippines. Yet while he noted that he would have returned earlier but for the cancellation of his passport by the PCGG, he was not barred from returning to the Philippines. Then he informed the Sandiganbayan that while the case against him was pending, but after the attachment had already been executed, the government lost two (2) cases for fraud lodged against him before the U.S. Courts, thus invoking res judicata. Next, he also pointed out that the government is estopped from pursuing the case against him for failing to prosecute for the number of years that it had been pending litigation. It is clear that these grounds have nothing to do with the issuance of the writ of attachment. Much less do they attack the issuance of the writ at that time as improper or irregular. And yet, the rule contemplates that the defect must be in the very issuance of the attachment writ. For instance, the attachment may be discharged under Section 13 of Rule 57 when it is proven that the allegations of the complaint were deceptively framed, 30 or when the complaint fails to state a cause of action. 31 Supervening events which may or may not justify the discharge of the writ are not within the purview of this particular rule. In the instant case, there is no showing that the issuance of the writ of attachment was attended by impropriety or irregularity. Apart from seeking a reconsideration of the resolution granting the application for the writ, petitioner no longer questioned the writ itself. For four (4) long years he kept silent and did not exercise any of the remedies available to a defendant whose property or asset has been attached. It is rather too late in the day for petitioner to question the propriety of the issuance of the writ. Petitioner also makes capital of the two foreign judgments which he claims warrant the application of the principle of res judicata. The first judgment, in Civil Case Nos. 575867 and 577697 brought by Philguarantee before the Santa Clara Country Superior Court, denied Philguarantee's prayer to set aside the stipulated judgment wherein Philguarantee and Chuidian agreed on the subject attached L/C. On March 14, 1990, the Court of Appeal of the State of California affirmed the Superior Court's judgment. The said judgment became the subject of a petition for review by the California Supreme Court. There is no showing, however, of any final judgment by the California Supreme Court. The records, including petitioner's pleadings, are bereft of any evidence to show that there is a final foreign judgment which the Philippine courts must defer to. Hence, res judicata finds no application in this instance because it is a requisite that the former judgment or order must be final. 32
Second, petitioner cites the judgment of the United States District Court in Civil Case 86-2255 RSWL brought by petitioner Chuidian against PNB to compel the latter to pay the L/C. The said Court's judgment, while it ruled in favor of petitioner on the matter of Philguarantee's action-in- intervention to set aside the settlement agreement, also ruled in favor of PNB, to wit: Under Executive Order No. 1, the PCGG is vested by the Philippine President with the power to enforce its directives and orders by contempt proceedings. Under Executive Order No. 2, the PCGG is empowered to freeze any, and all assets, funds and property illegally acquired by former President Marcos or his close friends and business associates. On March 11, 1986, PNB/Manila received an order from the PCGG ordering PNB to freeze any further drawings on the L/C. The freeze order has remained in effect and was followed by a sequestration order issued by the PCGG. Subsequently, Chuidian's Philippine counsel filed a series of challenges to the freeze and sequestration orders, which challenges were unsuccessful as the orders were found valid by the Philippine Supreme Court. The freeze and sequestration orders are presently in effect. Thus, under the PCGG order and Executive Orders Nos. 1 and 2, performance by PNB would be illegal under Philippine Law. Therefore PNB is excused from performance of the L/C agreement as long as the freeze and sequestration orders remain in effect. (Underscoring ours) x x x x x x x x x Chuidian argues that the fact that the L/C was issued pursuant to a settlement in California, that the negotiations for which occurred in California, and that two of the payments were made at PNB/LA, compels the conclusion that the act of prohibiting payment of the L/C occurred in Los Angeles. However, the majority of the evidence and Tchacosh and Sabbatino compel the opposite conclusion. The L/C was issued in Manila, such was done at the request of a Philippine government instrumentality for the benefit of a Philippine citizen, the L/C was to be performed in the Philippines, all significant events relating to the issuance and implementation of the L/C occurred in the Philippines, the L/C agreement provided that the L/C was to be construed according to laws of the Philippines, and the Philippine government certainly has an interest in preventing the L/C from being remitted in that it would be the release of funds that are potentially illgotten gains. Accordingly, the Court finds that the PCGG orders are acts of state that must be respected by this Court, and thus PNB is excused from making payment on the L/C as long as the freeze and sequestration orders remain in effect. 33 (Underscoring ours) Petitioner's own evidence strengthens the government's position that the L/C is under the jurisdiction of the Philippine government and that the U.S. Courts recognize the authority of the Republic to sequester and freeze said L/C. Hence, the foreign judgments relied upon by petitioner do not constitute a bar to the Republic's action to recover whatever alleged ill- gotten wealth petitioner may have acquired. Petitioner may argue, albeit belatedly, that he also raised the issue that there was no evidence of fraud on record other than the affidavit of PCGG Chairman Gunigundo. This issue of fraud, however, touches on the very merits of the main case which accuses petitioner of committing fraudulent acts in his dealings with the government. Moreover, this alleged fraud was one of the grounds for the application of the writ, and the Sandiganbayan granted said application after it found a prima facie case of fraud committed by petitioner. In fine, fraud was not only one of the grounds for the issuance of the preliminary attachment, it was at the same time the government's cause of action in the main case. We have uniformly held that: x x x when the preliminary attachment is issued upon a ground which is at the same time the applicant's cause of action; e.g., "an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty," or "an action against a party who has been guilty of fraud in contracting the debt or incurring the obligation upon which the action is brought," the defendant is not allowed to file a motion to dissolve the attachment under Section 13 of Rule 57 by offering to show the falsity of the factual averments in the plaintiff's application and affidavits on which the writ was based and consequently that the writ based thereon had been improperly or irregularly issued the reason being that the hearing on such a motion for dissolution of the writ would be tantamount to a trial of the merits of the action. In other words, the merits of the action would be ventilated at a mere hearing of a motion, instead of at the regular trial. 34
(Underscoring ours) Thus, this Court has time and again ruled that the merits of the action in which a writ of preliminary attachment has been issued are not triable on a motion for dissolution of the attachment, otherwise an applicant for the lifting of the writ could force a trial of the merits of the case on a mere motion. 35
It is not the Republic's fault that the litigation has been protracted. There is as yet no evidence of fraud on the part of petitioner. Petitioner is only one of the twenty-three (23) defendants in the main action. As such, the litigation would take longer than most cases. Petitioner cannot invoke this delay in the proceedings as an excuse for not seeking the proper recourse in having the writ of attachment lifted in due time. If ever laches set in, it was petitioner, not the government, who failed to take action within a reasonable time period. Challenging the issuance of the writ of attachment four (4) years after its implementation showed petitioner's apparent indifference towards the proceedings before the Sandiganbayan. In sum, petitioner has failed to convince this Court that the Sandiganbayan gravely abused its discretion in a whimsical, capricious and arbitrary manner. There are no compelling reasons to warrant the immediate lifting of the attachment even as the main case is still pending. On the other hand, allowing the discharge of the attachment at this stage of the proceedings would put in jeopardy the right of the attaching party to realize upon the relief sought and expected to be granted in the main or principal action. It would have the effect of prejudging the main case. The attachment is a mere provisional remedy to ensure the safety and preservation of the thing attached until the plaintiff can, by appropriate proceedings, obtain a judgment and have such property applied to its satisfaction. 36 To discharge the attachment at this stage of the proceedings would render inutile any favorable judgment should the government prevail in the principal action against petitioner. Thus, the Sandiganbayan, in issuing the questioned resolutions, which are interlocutory in nature, committed no grave abuse of discretion amounting to lack or excess of jurisdiction. As long as the Sandiganbayan acted within its jurisdiction, any alleged errors committed in the exercise of its jurisdiction will amount to nothing more than errors of judgment which are reviewable by timely appeal and not by special civil action of certiorari. 37
Moreover, we have held that when the writ of attachment is issued upon a ground which is at the same time the applicant's cause of action, the only other way the writ can be lifted or dissolved is by a counterbond, in accordance with Section 12 of the same rule. 38 This recourse, however, was not availed of by petitioner, as noted by the Solicitor General in his comment. 39
To reiterate, there are only two ways of quashing a writ of attachment: (a) by filing a counterbond immediately; or (b) by moving to quash on the ground of improper and irregular issuance. 40 These grounds for the dissolution of an attachment are fixed in Rule 57 of the Rules of Court and the power of the Court to dissolve an attachment is circumscribed by the grounds specified therein. 41 Petitioner's motion to lift attachment failed to demonstrate any infirmity or defect in the issuance of the writ of attachment; neither did he file a counterbond. Finally, we come to the matter of depositing the Letter of Credit in an interest-bearing account. We agree with the Sandiganbayan that any interest that the proceeds of the L/C may earn while the case is being litigated would redound to the benefit of whichever party will prevail, the Philippine government included. Thus, we affirm the Sandiganbayan's ruling that the proceeds of the L/C should be deposited in an interest bearing account with the Land Bank of the Philippines for the account of the Sandiganbayan in escrow until ordered released by the said Court. We find no legal reason, however, to release the PNB from any liability thereunder. The Deed of Transfer, whereby certain liabilities of PNB were transferred to the national government, cannot affect the said L/C since there was no valid substitution of debtor. Article 1293 of the New Civil Code provides: Novation which consists in substituting a new debtor in the place of the original one, may be made without the knowledge or against the will of the latter, but not without the consent of the creditor. Payment by the new debtor gives him the rights mentioned in Articles 1236 and 1237. Accordingly, any substitution of debtor must be with the consent of the creditor, whose consent thereto cannot just be presumed. Even though Presidential Proclamation No. 50 can be considered an "insuperable cause", it does not necessarily make the contracts and obligations affected thereby exceptions to the above-quoted law, such that the substitution of debtor can be validly made even without the consent of the creditor. Presidential Proclamation No. 50 was not intended to set aside laws that govern the very lifeblood of the nation's commerce and economy. In fact, the Deed of Transfer that was executed between PNB and the government pursuant to the said Presidential Proclamation specifically stated that it shall be deemed effective only upon compliance with several conditions, one of which requires that: (b) the BANK shall have secured such governmental and creditors' approvals as may be necessary to establish the consummation, legality and enforceability of the transactions contemplated hereby." The validity of this Deed of Transfer is not disputed. Thus, PNB is estopped from denying its liability thereunder considering that neither the PNB nor the government bothered to secure petitioner's consent to the substitution of debtors. We are not unmindful that any effort to secure petitioner's consent at that time would, in effect, be deemed an admission that the L/C is valid and binding. Even the Sandiganbayan found that: 36 Sta. Ines Melale Forest Products Corp. v. Macaraig, Jr., 299 SCRA 491, 515 (1998). x x x Movant has basis in pointing out that inasmuch as the L/C was issued in his favor, he is presumed to be the lawful payee-beneficiary of the L/C until such time that the plaintiff successfully proves that said L/C is ill- gotten and he has no right over the same. 42
In Republic v. Sandiganbayan, 43 we held that the provisional remedies, such as freeze orders and sequestration, were not "meant to deprive the owner or possessor of his title or any right to the property sequestered, frozen or taken over and vest it in the sequestering agency, the Government or other person." Thus, until such time that the government is able to successfully prove that petitioner has no right to claim the proceeds of the L/C, he is deemed to be the lawful payee-beneficiary of said L/C, for which any substitution of debtor requires his consent. The Sandiganbayan thus erred in relieving PNB of its liability as the original debtor. WHEREFORE, in view of all the foregoing, the petition is DISMISSED. The Resolutions of the Sandiganbayan dated November 6, 1998 and July 2, 1999 are AFFIRMED. The PNB is DIRECTED to remit to the Sandiganbayan the proceeds of Letter of Credit No. SFD-005-85 in the amount of U.S. $4.4 million within fifteen (15) days from notice hereof, the same to be placed under special time deposit with the Land Bank of the Philippines, for the account of Sandiganbayan in escrow for the person or persons, natural or juridical, who shall eventually be adjudged lawfully entitled thereto, the same to earn interest at the current legal bank rates. The principal and its interest shall remain in said account until ordered released by the Court in accordance with law.1wphi1.nt No costs. SO ORDERED. SPOUSES GREGORIO and JOSEFA YU, Petitioners, vs. NGO YET TE, doing business under the name and style, ESSENTIAL MANUFACTURING, Respondent. D E C I S I O N AUSTRIA-MARTINEZ, J.: Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court assailing the March 21, 2001 Decision 1 of the Court of Appeals (CA) in CA-G.R. CV No. 52246 2 and its October 14, 2002 Resolution. 3
The antecedent facts are not disputed. Spouses Gregorio and Josefa Yu (Spouses Yu) purchased from Ngo Yet Te (Te) bars of detergent soap worth P594,240.00, and issued to the latter three postdated checks 4 as payment of the purchase price. When Te presented the checks at maturity for encashment, said checks were returned dishonored and stamped "ACCOUNT CLOSED". 5 Te demanded 6
payment from Spouses Yu but the latter did not heed her demands. Acting through her son and attorney-in-fact, Charry Sy (Sy), Te filed with the Regional Trial Court (RTC), Branch 75, Valenzuela, Metro Manila, a Complaint, 7 docketed as Civil Case No. 4061-V-93, for Collection of Sum of Money and Damages with Prayer for Preliminary Attachment. In support of her prayer for preliminary attachment, Te attached to her Complaint an Affidavit executed by Sy that Spouses Yu were guilty of fraud in entering into the purchase agreement for they never intended to pay the contract price, and that, based on reliable information, they were about to move or dispose of their properties to defraud their creditors. 8
Upon Tes posting of an attachment bond, 9 the RTC issued an Order of Attachment/Levy 10 dated March 29, 1993 on the basis of which Sheriff Constancio Alimurung (Sheriff Alimurung) of RTC, Branch 19, Cebu City levied and attached Spouses Yus properties in Cebu City consisting of one parcel of land (known as Lot No. 11) 11 and four units of motor vehicle, specifically, a Toyota Ford Fierra, a jeep, a Canter delivery van, and a passenger bus. 12
On April 21, 1993, Spouses Yu filed an Answer 13 with counterclaim for damages arising from the wrongful attachment of their properties, specifically, actual damages amounting to P1,500.00 per day; moral damages, P1,000,000.00; and exemplary damages, P50,000.00. They also sought payment of P120,000.00 as attorneys fees and P80,000.00 as litigation expenses. 14 On the same date, Spouses Yu filed an Urgent Motion to Dissolve Writ of Preliminary Attachment. 15 They also filed a Claim Against Surety Bond 16 in which they demanded payment from Visayan Surety and Insurance Corporation (Visayan Surety), the surety which issued the attachment bond, of the sum of P594,240.00, representing the damages they allegedly sustained as a consequence of the wrongful attachment of their properties. While the RTC did not resolve the Claim Against Surety Bond, it issued an Order 17 dated May 3, 1993, discharging from attachment the Toyota Ford Fierra, jeep, and Canter delivery van on humanitarian grounds, but maintaining custody of Lot No. 11 and the passenger bus. Spouses Yu filed a Motion for Reconsideration 18 which the RTC denied. 19
Dissatisfied, they filed with the CA a Petition for Certiorari, 20 docketed as CA-G.R. SP No. 31230, in which a Decision 21 was rendered on September 14, 1993, lifting the RTC Order of Attachment on their remaining properties. It reads in part: In the case before Us, the complaint and the accompanying affidavit in support of the application for the writ only contains general averments. Neither pleading states in particular how the fraud was committed or the badges of fraud purportedly committed by the petitioners to establish that the latter never had an intention to pay the obligation; neither is there a statement of the particular acts committed to show that the petitioners are in fact disposing of their properties to defraud creditors. x x x. x x x x Moreover, at the hearing on the motion to discharge the order of attachment x x x petitioners presented evidence showing that private respondent has been extending multi-million peso credit facilities to the petitioners for the past seven years and that the latter have consistently settled their obligations. This was not denied by private respondent. Neither does the private respondent contest the petitioners allegations that they have been recently robbed of properties of substantial value, hence their inability to pay on time. By the respondent courts own pronouncements, it appears that the order of attachment was upheld because of the admitted financial reverses the petitioner is undergoing. This is reversible error. Insolvency is not a ground for attachment especially when defendant has not been shown to have committed any act intended to defraud its creditors x x x. For lack of factual basis to justify its issuance, the writ of preliminary attachment issued by the respondent court was improvidently issued and should be discharged. 22
From said CA Decision, Te filed a Motion for Reconsideration but to no avail. 23
Te filed with us a Petition for Review on Certiorari 24 but we denied the same in a Resolution dated June 8, 1994 for having been filed late and for failure to show that a reversible error was committed by the CA. 25 Entry of Judgment of our June 8, 1994 Resolution was made on July 22, 1994. 26
Thus, the finding of the CA in its September 14, 1993 Decision in CA-G.R. SP No. 31230 on the wrongfulness of the attachment/levy of the properties of Spouses Yu became conclusive and binding. However, on July 20, 1994, the RTC, apparently not informed of the SC Decision, rendered a Decision, the dispositive portion of which reads: WHEREFORE, premises considered, the Court finds that the plaintiff has established a valid civil cause of action against the defendants, and therefore, renders this judgment in favor of the plaintiff and against the defendants, and hereby orders the following: 1) Defendants are hereby ordered or directed to pay the plaintiff the sum of P549,404.00, with interest from the date of the filing of this case (March 3, 1993); 2) The Court, for reasons aforestated, hereby denies the grant of damages to the plaintiff; 3) The Court hereby adjudicates a reasonable attorneys fees and litigation expenses of P10,000.00 in favor of the plaintiff; 4) On the counterclaim, this Court declines to rule on this, considering that the question of the attachment which allegedly gave rise to the damages incurred by the defendants is being determined by the Supreme Court. SO ORDERED. 27 (Emphasis ours) Spouses Yu filed with the RTC a Motion for Reconsideration 28 questioning the disposition of their counterclaim. They also filed a Manifestation 29
informing the RTC of our June 8, 1994 Resolution in G.R. No. 114700. The RTC issued an Order dated August 9, 1994, which read: x x x x (2) With regard the counter claim filed by the defendants against the plaintiff for the alleged improvident issuance of this Court thru its former Presiding Judge (Honorable Emilio Leachon, Jr.), the same has been ruled with definiteness by the Supreme Court that, indeed, the issuance by the Court of the writ of preliminary attachment appears to have been improvidently done, but nowhere in the decision of the Supreme Court and for that matter, the Court of Appeals decision which was in effect sustained by the High Court, contains any ruling or directive or imposition, of any damages to be paid by the plaintiff to the defendants, in other words, both the High Court and the CA, merely declared the previous issuance of the writ of attachment by this Court thru its former presiding judge to be improvidently issued, but it did not award any damages of any kind to the defendants, hence, unless the High Court or the CA rules on this, this Court coud not grant any damages by virtue of the improvident attachment made by this Court thru its former presiding judge, which was claimed by the defendants in their counter claim. (3) This Court hereby reiterates in toto its Decision in this case dated July 20, 1994. 30 (Emphasis ours) The RTC also issued an Order dated December 2, 1994, 31 denying the Motion for Reconsideration of Spouses Yu. 32
In the same December 2, 1994 Order, the RTC granted two motions filed by Te, a Motion to Correct and to Include Specific Amount for Interest and a Motion for Execution Pending Appeal. 33 The RTC also denied Spouses Yus Notice of Appeal 34 from the July 20, 1994 Decision and August 9, 1994 Order of the RTC. From said December 2, 1994 RTC Order, Spouses Yu filed another Notice of Appeal 35 which the RTC also denied in an Order 36 dated January 5, 1995. Spouses Yu filed with the CA a Petition 37 for Certiorari, Prohibition and Mandamus, docketed as CA-G.R. SP No. 36205, questioning the denial of their Notices of Appeal; and seeking the modification of the July 20, 1994 Decision and the issuance of a Writ of Execution. The CA granted the Petition in a Decision 38 dated June 22, 1995. Hence, Spouses Yu filed with the CA an appeal 39 docketed as CA-G.R. CV No. 52246, questioning only that portion of the July 20, 1994 Decision where the RTC declined to rule on their counterclaim for damages. 40
However, Spouses Yu did not dispute the specific monetary awards granted to respondent Te; and therefore, the same have become final and executory. Although in the herein assailed Decision 41 dated March 21, 2001, the CA affirmed in toto the RTC Decision, it nonetheless made a ruling on the counterclaim of Spouses Yu by declaring that the latter had failed to adduce sufficient evidence of their entitlement to damages. Spouses Yu filed a Motion for Reconsideration 42 but the CA denied it in the herein assailed Resolution 43 dated October 14, 2002. Spouses Yu filed the present Petition raising the following issues: I. Whether or not the appellate court erred in not holding that the writ of attachment was procured in bad faith, after it was established by final judgment that there was no true ground therefor. II. Whether or not the appellate court erred in refusing to award actual, moral and exemplary damages after it was established by final judgment that the writ of attachment was procured with no true ground for its issuance. 44
There is one preliminary matter to set straight before we resolve the foregoing issues. According to respondent Te, 45 regardless of the evidence presented by Spouses Yu, their counterclaim was correctly dismissed for failure to comply with the procedure laid down in Section 20 of Rule 57. Te contends that as Visayan Surety was not notified of the counterclaim, no judgment thereon could be validly rendered. Such argument is not only flawed, it is also specious. As stated earlier, Spouses Yu filed a Claim Against Surety Bond on the same day they filed their Answer and Urgent Motion to Dissolve Writ of Preliminary Attachment. 46 Further, the records reveal that on June 18, 1993, Spouses Yu filed with the RTC a Motion to Give Notice to Surety. 47
The RTC granted the Motion in an Order 48 dated June 23, 1993. Accordingly, Visayan Surety was notified of the pre-trial conference to apprise it of a pending claim against its attachment bond. Visayan Surety received the notice on July 12, 1993 as shown by a registry return receipt attached to the records. 49
Moreover, even if it were true that Visayan Surety was left in the proceedings a quo, such omission is not fatal to the cause of Spouses Yu. In Malayan Insurance Company, Inc. v. Salas, 50 we held that "x x x if the surety was not given notice when the claim for damages against the principal in the replevin bond was heard, then as a matter of procedural due process the surety is entitled to be heard when the judgment for damages against the principal is sought to be enforced against the suretys replevin bond." 51 This remedy is applicable for the procedures governing claims for damages on an attachment bond and on a replevin bond are the same. 52
We now proceed to resolve the issues jointly. Spouses Yu contend that they are entitled to their counterclaim for damages as a matter of right in view of the finality of our June 8, 1994 Resolution in G.R. No. 114700 which affirmed the finding of the CA in its September 14, 1993 Decision in CA-G.R. SP No. 31230 that respondent Te had wrongfully caused the attachment of their properties. Citing Javellana v. D.O. Plaza Enterprises, Inc., 53 they argue that they should be awarded damages based solely on the CA finding that the attachment was illegal for it already suggests that Te acted with malice when she applied for attachment. And even if we were to assume that Te did not act with malice, still she should be held liable for the aggravation she inflicted when she applied for attachment even when she was clearly not entitled to it. 54
That is a rather limited understanding of Javellana. The counterclaim disputed therein was not for moral damages and therefore, there was no need to prove malice. As early as in Lazatin v. Twao, 55 we laid down the rule that where there is wrongful attachment, the attachment defendant may recover actual damages even without proof that the attachment plaintiff acted in bad faith in obtaining the attachment. However, if it is alleged and established that the attachment was not merely wrongful but also malicious, the attachment defendant may recover moral damages and exemplary damages as well. 56 Either way, the wrongfulness of the attachment does not warrant the automatic award of damages to the attachment defendant; the latter must first discharge the burden of proving the nature and extent of the loss or injury incurred by reason of the wrongful attachment. 57
In fine, the CA finding that the attachment of the properties of Spouses Yu was wrongful did not relieve Spouses Yu of the burden of proving the factual basis of their counterclaim for damages. To merit an award of actual damages arising from a wrongful attachment, the attachment defendant must prove, with the best evidence obtainable, the fact of loss or injury suffered and the amount thereof. 58 Such loss or injury must be of the kind which is not only capable of proof but must actually be proved with a reasonable degree of certainty. As to its amount, the same must be measurable based on specific facts, and not on guesswork or speculation. 59 In particular, if the claim for actual damages covers unrealized profits, the amount of unrealized profits must be estalished and supported by independent evidence of the mean income of the business undertaking interrupted by the illegal seizure. 60
Spouses Yu insist that the evidence they presented met the foregoing standards. They point to the lists of their daily net income from the operation of said passenger bus based on used ticket stubs 61 issued to their passengers. They also cite unused ticket stubs as proof of income foregone when the bus was wrongfully seized. 62 They further cite the unrebutted testimony of Josefa Yu that, in the day-to-day operation of their passenger bus, they use up at least three ticket stubs and earn a minimum daily income of P1,500.00. 63
In ruling that Spouses Yu failed to adduce sufficient evidence to support their counterclaim for actual damages, the CA stated, thus: In this case, the actual damages cannot be determined. Defendant- appellant Josefa Yu testified on supposed lost profits without clear and appreciable explanation. Despite her submission of the used and unused ticket stubs, there was no evidence on the daily net income, the routes plied by the bus and the average fares for each route. The submitted basis is too speculative and conjectural. No reports regarding the average actual profits and other evidence of profitability necessary to prove the amount of actual damages were presented. Thus, the Court a quo did not err in not awarding damages in favor of defendants-appellants. 64
We usually defer to the expertise of the CA, especially when it concurs with the factual findings of the RTC. 65 Indeed, findings of fact may be passed upon and reviewed by the Supreme Court in the following instances: (1) when the conclusion is a finding grounded entirely on speculations, surmises, or conjectures; (2) when the inference made is manifestly mistaken, absurd, or impossible; (3) where there is a grave abuse of discretion in the appreciation of facts; (4) when judgment is based on a misapprehension of facts; (5) when the lower court, in making its findings, went beyond the issues of the case and such findings are contrary to the admissions of both appellant and appellee; (6) when the factual findings of the CA are contrary to those of the trial court; (7) when the findings of fact are themselves conflicting; (8) when the findings of fact are conclusions made without a 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 respondents; (10) when the findings of fact of the lower court are premised on the supposed absence of evidence and are contradicted by the evidence on record. 66 However, the present case does not fall under any of the exceptions. We are in full accord with the CA that Spouses Yu failed to prove their counterclaim. Spouses Yus claim for unrealized income of P1,500.00 per day was based on their computation of their average daily income for the year 1992. Said computation in turn is based on the value of three ticket stubs sold over only five separate days in 1992. 67 By no stretch of the imagination can we consider ticket sales for five days sufficient evidence of the average daily income of the passenger bus, much less its mean income. Not even the unrebutted testimony of Josefa Yu can add credence to such evidence for the testimony itself lacks corroboration. 68
Besides, based on the August 29, 1994 Manifestation 69 filed by Sheriff Alimurung, it would appear that long before the passenger bus was placed under preliminary attachment in Civil Case No. 4061-V-93, the same had been previously attached by the Sheriff of Mandaue City in connection with another case and that it was placed in the Cebu Bonded Warehousing Corporation, Cebu City. Thus, Spouses Yu cannot complain that they were unreasonably deprived of the use of the passenger bus by reason of the subsequent wrongful attachment issued in Civil Case No. 4061-V-93. Nor can they also attribute to the wrongful attachment their failure to earn income or profit from the operation of the passenger bus. Moreover, petitioners did not present evidence as to the damages they suffered by reason of the wrongful attachment of Lot No. 11. Nonetheless, we recognize that Spouses Yu suffered some form of pecuniary loss when their properties were wrongfully seized, although the amount thereof cannot be definitively ascertained. Hence, an award of temperate or moderate damages in the amount of P50,000.00 is in order. 70
As to moral and exemplary damages, to merit an award thereof, it must be shown that the wrongful attachment was obtained by the attachment plaintiff with malice or bad faith, such as by appending a false affidavit to his application. 71
Spouses Yu argue that malice attended the issuance of the attachment bond as shown by the fact that Te deliberately appended to her application for preliminary attachment an Affidavit where Sy perjured himself by stating that they had no intention to pay their obligations even when he knew this to be untrue given that they had always paid their obligations; and by accusing them of disposing of their properties to defraud their creditors even when he knew this to be false, considering that the location of said properties was known to him. 72
The testimony of petitioner Josefa Yu herself negates their claim for moral and exemplary damages. On cross-examination she testified, thus: Q: Did you ever deposit any amount at that time to fund the check? A: We requested that it be replaced and staggered into smaller amounts. COURT: Did you fund it or not? Atty. Ferrer: The three checks involved? Atty. Florido: Already answered. She said that they were not able to fund it. Atty. Ferrer: And as a matter of fact, you went to the bank to close your account? A: We closed account with the bank because we transferred the account to another bank. Q: How much money did you transfer from that bank to which the three checks were drawn to this new bank? A: I dont know how much was there but we transferred already to the Solid Bank. Q: Who transferred? A: My daughter, sir. 73 (Emphasis ours) Based on the foregoing testimony, it is not difficult to understand why Te concluded that Spouses Yu never intended to pay their obligation for they had available funds in their bank but chose to transfer said funds instead of cover the checks they issued. Thus, we cannot attribute malice nor bad faith to Te in applying for the attachment writ. We cannot hold her liable for moral and exemplary damages. As a rule, attorneys fees cannot be awarded when moral and exemplary damages are not granted, the exception however is when a party incurred expenses to lift a wrongfully issued writ of attachment.1awphi1.net 74
Without a doubt, Spouses Yu waged a protracted legal battle to fight off the illegal attachment of their properties and pursue their claims for damages. It is only just and equitable that they be awarded reasonable attorneys fees in the amount of P30,000.00. In sum, we affirm the dismissal of the counterclaim of petitioners Spouses Yu for actual, moral, and exemplary damages. However, we grant them temperate damages and attorneys fees. WHEREFORE, the petition is partly GRANTED. The March 21, 2001 Decision of the Court of Appeals is AFFIRMED with the MODIFICATION that petitioners counterclaim is PARTLY GRANTED. Gregorio Yu and Josefa Yu are awarded P50,000.00 temperate damages and P30,000.00 attorneys fees. No costs. SO ORDERED. ANITA MANGILA, petitioner, vs. COURT OF APPEALS and LORETA GUINA, respondents. CARPIO, J.: The Case This is a petition fore review on certiorari under Rule 45 of the Rules of Court, seeking to set aside the Decision 1 of the Court of Appeals affirming the Decision 2 of the Regional Trial Court, Branch 108, Pasay City. The trial court upheld the writ of attachment and the declaration of default on petitioner while ordering her to pay private respondent P109,376.95 plus 18 percent interest per annum, 25 percent attorneys fees and costs of suit. The Facts Petitioner Anita Mangila ("petitioner" for brevity) is an exporter of sea foods and doing business under the name and style of Seafoods Products. Private respondent Loreta Guina ("private respondent" for brevity) is the President and General Manager of Air Swift International, a single registered proprietorship engaged in the freight forwarding business. Sometime in January 1988, petitioner contracted the freight forwarding services of private respondent for shipment of petitioners products, such as crabs, prawns and assorted fishes, to Guam (USA) where petitioner maintains an outlet. Petitioner agreed to pay private respondent cash on delivery. Private respondents invoice stipulates a charge of 18 percent interest per annum on all overdue accounts. In case of suit, the same invoice stipulates attorneys fees equivalent to 25 percent of the amount due plus costs of suit. 3
On the first shipment, petitioner requested for seven days within which to pay private respondent. However, for the next three shipments, March 17, 24 and 31, 1988, petitioner failed to pay private respondent shipping charges amounting to P109, 376.95. 4
Despite several demands, petitioner never paid private respondent. Thus, on June 10, 1988, private respondent filed Civil Case No. 5875 before the Regional Trial Court of Pasay City for collection of sum of money. On August 1, 1988, the sheriff filed his Sheriffs Return showing that summons was not served on petitioner. A woman found at petitioners house informed the sheriff that petitioner transferred her residence to Sto. Nio, Guagua, Pampanga. The sheriff found out further that petitioner had left the Philippines for Guam. 5
Thus, on September 13, 1988, construing petitioners departure from the Philippines as done with intent to defraud her creditors, private respondent filed a Motion for Preliminary Attachment. On September 26, 1988, the trial court issued an Order of Preliminary Attachment 6 against petitioner. The following day, the trial court issued a Writ of Preliminary Attachment. The trial court granted the request of its sheriff for assistance from their counterparts in RTC, Pampanga. Thus, on October 28, 1988, Sheriff Alfredo San Miguel of RTC Pampanga served on petitioners household help in San Fernando, Pampanga, the Notice of Levy with the Order, Affidavit and Bond. 7
On November 7, 1988, petitioner filed an Urgent Motion to Discharge Attachment 8 without submitting herself to the jurisdiction of the trial court. She pointed out that up to then, she had not been served a copy of the Complaint and the summons. Hence, petitioner claimed the court had not acquired jurisdiction over her person. 9
In the hearing of the Urgent Motion to Discharge Attachment on November 11, 1988, private respondent sought and was granted a re- setting to December 9, 1988. On that date, private respondents counsel did not appear, so the Urgent Motion to Discharge Attachment was deemed submitted for resolution. 10
The trial court granted the Motion to Discharge Attachment on January 13, 1989 upon filing of petitioners counter-bond. The trial court, however, did not rule on the question of jurisdiction and on the validity of the writ of preliminary attachment. On December 26, 1988, private respondent applied for an alias summons, which the trial court issued on January 19, 1989. 11 It was only on January 26, 1989 that summons was finally served on petitioner. 12
On February 9, 1989, petitioner filed a Motion to Dismiss the Complaint on the ground of improper venue. Private respondents invoice for the freight forwarding service stipulates that "if court litigation becomes necessary to enforce collection xxx the agreed venue for such action is Makati, Metro Manila." 13 Private respondent filed an Opposition asserting that although "Makati" appears as the stipulated venue, the same was merely an inadvertence by the printing press whose general manager executed an affidavit 14 admitting such inadvertence. Moreover, private respondent claimed that petitioner knew that private respondent was holding office in Pasay City and not in Makati. 15 The lower court, finding credence in private respondents assertion, denied the Motion to Dismiss and gave petitioner five days to file her Answer. Petitioner filed a Motion for Reconsideration but this too was denied. Petitioner filed her Answer 16 on June 16, 1989, maintaining her contention that the venue was improperly laid. On June 26, 1989, the trial court issued an Order setting the pre-trial for July 18, 1989 at 8:30 a.m. and requiring the parties to submit their pre-trial briefs. Meanwhile, private respondent filed a Motion to Sell Attached Properties but the trial court denied the motion. On motion of petitioner, the trial court issued an Order resetting the pre- trial from July 18, 1989 to August 24, 1989 at 8:30 a.m.. On August 24, 1989, the day of the pre-trial, the trial court issued an Order 17 terminating the pre-trial and allowing the private respondent to present evidence ex-parte on September 12, 1989 at 8:30 a.m.. The Order stated that when the case was called for pre-trial at 8:31 a.m., only the counsel for private respondent appeared. Upon the trial courts second call 20 minutes later, petitioners counsel was still nowhere to be found. Thus, upon motion of private respondent, the pre-trial was considered terminated. On September 12, 1989, petitioner filed her Motion for Reconsideration of the Order terminating the pre-trial. Petitioner explained that her counsel arrived 5 minutes after the second call, as shown by the transcript of stenographic notes, and was late because of heavy traffic. Petitioner claims that the lower court erred in allowing private respondent to present evidence ex-parte since there was no Order considering the petitioner as in default. Petitioner contends that the Order of August 24, 1989 did not state that petitioner was declared as in default but still the court allowed private respondent to present evidence ex-parte.18 On October 6, 1989, the trial court denied the Motion for Reconsideration and scheduled the presentation of private respondents evidence ex-parte on October 10, 1989.1wphi1.nt On October 10, 1989, petitioner filed an Omnibus Motion stating that the presentation of evidence ex-parte should be suspended because there was no declaration of petitioner as in default and petitioners counsel was not absent, but merely late. On October 18, 1989, the trial court denied the Omnibus Motion. 19
On November 20, 1989, the petitioner received a copy of the Decision of November 10, 1989, ordering petitioner to pay respondent P109,376.95 plus 18 percent interest per annum, 25 percent attorneys fees and costs of suit. Private respondent filed a Motion for Execution Pending Appeal but the trial court denied the same. The Ruling of the Court of Appeals On December 15, 1995, the Court of Appeals rendered a decision affirming the decision of the trial court. The Court of Appeals upheld the validity of the issuance of the writ of attachment and sustained the filing of the action in the RTC of Pasay. The Court of Appeals also affirmed the declaration of default on petitioner and concluded that the trial court did not commit any reversible error. Petitioner filed a Motion for Reconsideration on January 5, 1996 but the Court of Appeals denied the same in a Resolution dated May 20, 1996. Hence, this petition. The Issues The issues raised by petitioner may be re-stated as follows: I. WHETHER RESPONDENT COURT ERRED IN NOT HOLDING THAT THE WRIT OF ATTACHMENT WAS IMPROPERLY ISSUED AND SERVED; II. WHETHER THERE WAS A VALID DECLARATION OF DEFAULT; III. WHETHER THERE WAS IMPROPER VENUE. IV. WHETHER RESPONDENT COURT ERRED IN DECLARING THAT PETITIONER IS OBLIGED TO PAY P109, 376.95, PLUS ATTORNEYS FEES. 20
The Ruling of the Court Improper Issuance and Service of Writ of Attachment Petitioner ascribes several errors to the issuance and implementation of the writ of attachment. Among petitioners arguments are: first, there was no ground for the issuance of the writ since the intent to defraud her creditors had not been established; second, the value of the properties levied exceeded the value of private respondents claim. However, the crux of petitioners arguments rests on the question of the validity of the writ of attachment. Because of failure to serve summons on her before or simultaneously with the writs implementation, petitioner claims that the trial court had not acquired jurisdiction over her person and thus the service of the writ is void. As a preliminary note, a distinction should be made between issuance and implementation of the writ of attachment. It is necessary to distinguish between the two to determine when jurisdiction over the person of the defendant should be acquired to validly implement the writ. This distinction is crucial in resolving whether there is merit in petitioners argument. This Court has long settled the issue of when jurisdiction over the person of the defendant should be acquired in cases where a party resorts to provisional remedies. A party to a suit may, at any time after filing the complaint, avail of the provisional remedies under the Rules of Court. Specifically, Rule 57 on preliminary attachment speaks of the grant of the remedy "at the commencement of the action or at any time thereafter." 21
This phrase refers to the date of filing of the complaint which is the moment that marks "the commencement of the action." The reference plainly is to a time before summons is served on the defendant, or even before summons issues. In Davao Light & Power Co., Inc. v. Court of Appeals, 22 this Court clarified the actual time when jurisdiction should be had: "It goes without saying that whatever be the acts done by the Court prior to the acquisition of jurisdiction over the person of defendant - issuance of summons, order of attachment and writ of attachment - these do not and cannot bind and affect the defendant until and unless jurisdiction over his person is eventually obtained by the court, either by service on him of summons or other coercive process or his voluntary submission to the courts authority. Hence, when the sheriff or other proper officer commences implementation of the writ of attachment, it is essential that he serve on the defendant not only a copy of the applicants affidavit and attachment bond, and of the order of attachment, as explicitly required by Section 5 of Rule 57, but also the summons addressed to said defendant as well as a copy of the complaint xxx." (Emphasis supplied.) Furthermore, we have held that the grant of the provisional remedy of attachment involves three stages: first, the court issues the order granting the application; second, the writ of attachment issues pursuant to the order granting the writ; and third, the writ is implemented. For the initial two stages, it is not necessary that jurisdiction over the person of the defendant be first obtained. However, once the implementation of the writ commences, the court must have acquired jurisdiction over the defendant for without such jurisdiction, the court has no power and authority to act in any manner against the defendant. Any order issuing from the Court will not bind the defendant. 23
In the instant case, the Writ of Preliminary Attachment was issued on September 27, 1988 and implemented on October 28, 1988. However, the alias summons was served only on January 26, 1989 or almost three months after the implementation of the writ of attachment. The trial court had the authority to issue the Writ of Attachment on September 27 since a motion for its issuance can be filed "at the commencement of the action." However, on the day the writ was implemented, the trial court should have, previously or simultaneously with the implementation of the writ, acquired jurisdiction over the petitioner. Yet, as was shown in the records of the case, the summons was actually served on petitioner several months after the writ had been implemented. Private respondent, nevertheless, claims that the prior or contemporaneous service of summons contemplated in Section 5 of Rule 57 provides for exceptions. Among such exceptions are "where the summons could not be served personally or by substituted service despite diligent efforts or where the defendant is a resident temporarily absent therefrom x x x." Private respondent asserts that when she commenced this action, she tried to serve summons on petitioner but the latter could not be located at her customary address in Kamuning, Quezon City or at her new address in Guagua, Pampanga. 24 Furthermore, respondent claims that petitioner was not even in Pampanga; rather, she was in Guam purportedly on a business trip. Private respondent never showed that she effected substituted service on petitioner after her personal service failed. Likewise, if it were true that private respondent could not ascertain the whereabouts of petitioner after a diligent inquiry, still she had some other recourse under the Rules of Civil Procedure. The rules provide for certain remedies in cases where personal service could not be effected on a party. Section 14, Rule 14 of the Rules of Court provides that whenever the defendants "whereabouts are unknown and cannot be ascertained by diligent inquiry, service may, by leave of court, be effected upon him by publication in a newspaper of general circulation x x x." Thus, if petitioners whereabouts could not be ascertained after the sheriff had served the summons at her given address, then respondent could have immediately asked the court for service of summons by publication on petitioner. 25
Moreover, as private respondent also claims that petitioner was abroad at the time of the service of summons, this made petitioner a resident who is temporarily out of the country. This is the exact situation contemplated in Section 16, 26 Rule 14 of the Rules of Civil Procedure, providing for service of summons by publication. In conclusion, we hold that the alias summons belatedly served on petitioner cannot be deemed to have cured the fatal defect in the enforcement of the writ. The trial court cannot enforce such a coercive process on petitioner without first obtaining jurisdiction over her person. The preliminary writ of attachment must be served after or simultaneous with the service of summons on the defendant whether by personal service, substituted service or by publication as warranted by the circumstances of the case. 27 The subsequent service of summons does not confer a retroactive acquisition of jurisdiction over her person because the law does not allow for retroactivity of a belated service. Improper Venue Petitioner assails the filing of this case in the RTC of Pasay and points to a provision in private respondents invoice which contains the following: "3. If court litigation becomes necessary to enforce collection, an additional equivalent (sic) to 25% of the principal amount will be charged. The agreed venue for such action is Makati, Metro Manila, Philippines." 28
Based on this provision, petitioner contends that the action should have been instituted in the RTC of Makati and to do otherwise would be a ground for the dismissal of the case. We resolve to dismiss the case on the ground of improper venue but not for the reason stated by petitioner. The Rules of Court provide that parties to an action may agree in writing on the venue on which an action should be brought. 29 However, a mere stipulation on the venue of an action is not enough to preclude parties from bringing a case in other venues. 30 The parties must be able to show that such stipulation is exclusive. Thus, absent words that show the parties intention to restrict the filing of a suit in a particular place, courts will allow the filing of a case in any venue, as long as jurisdictional requirements are followed. Venue stipulations in a contract, while considered valid and enforceable, do not as a rule supersede the general rule set forth in Rule 4 of the Revised Rules of Court. 31 In the absence of qualifying or restrictive words, they should be considered merely as an agreement on additional forum, not as limiting venue to the specified place. 32
In the instant case, the stipulation does not limit the venue exclusively to Makati. There are no qualifying or restrictive words in the invoice that would evince the intention of the parties that Makati is the "only or exclusive" venue where the action could be instituted. We therefore agree with private respondent that Makati is not the only venue where this case could be filed. Nevertheless, we hold that Pasay is not the proper venue for this case. Under the 1997 Rules of Civil Procedure, the general rule is venue in personal actions is "where the defendant or any of the defendants resides or may be found, or where the plaintiff or any of the plaintiffs resides, at the election of the plaintiff." 33 The exception to this rule is when the parties agree on an exclusive venue other than the places mentioned in the rules. But, as we have discussed, this exception is not applicable in this case. Hence, following the general rule, the instant case may be brought in the place of residence of the plaintiff or defendant, at the election of the plaintiff (private respondent herein). In the instant case, the residence of private respondent (plaintiff in the lower court) was not alleged in the complaint. Rather, what was alleged was the postal address of her sole proprietorship, Air Swift International. It was only when private respondent testified in court, after petitioner was declared in default, that she mentioned her residence to be in Better Living Subdivision, Paraaque City. In the earlier case of Sy v. Tyson Enterprises, Inc., 34 the reverse happened. The plaintiff in that case was Tyson Enterprises, Inc., a corporation owned and managed by Dominador Ti. The complaint, however, did not allege the office or place of business of the corporation, which was in Binondo, Manila. What was alleged was the residence of Dominador Ti, who lived in San Juan, Rizal. The case was filed in the Court of First Instance of Rizal, Pasig. The Court there held that the evident purpose of alleging the address of the corporations president and manager was to justify the filing of the suit in Rizal, Pasig instead of in Manila. Thus, the Court ruled that there was no question that venue was improperly laid in that case and held that the place of business of Tyson Enterpises, Inc. is considered as its residence for purposes of venue. Furthermore, the Court held that the residence of its president is not the residence of the corporation because a corporation has a personality separate and distinct from that of its officers and stockholders. In the instant case, it was established in the lower court that petitioner resides in San Fernando, Pampanga 35 while private respondent resides in Paraaque City. 36 However, this case was brought in Pasay City, where the business of private respondent is found. This would have been permissible had private respondents business been a corporation, just like the case in Sy v. Tyson Enterprises, Inc. However, as admitted by private respondent in her Complaint 37 in the lower court, her business is a sole proprietorship, and as such, does not have a separate juridical personality that could enable it to file a suit in court. 38 In fact, there is no law authorizing sole proprietorships to file a suit in court. 39
A sole proprietorship does not possess a juridical personality separate and distinct from the personality of the owner of the enterprise. 40 The law merely recognizes the existence of a sole proprietorship as a form of business organization conducted for profit by a single individual and requires its proprietor or owner to secure licenses and permits, register its business name, and pay taxes to the national government. 41 The law does not vest a separate legal personality on the sole proprietorship or empower it to file or defend an action in court. 42
Thus, not being vested with legal personality to file this case, the sole proprietorship is not the plaintiff in this case but rather Loreta Guina in her personal capacity. In fact, the complaint in the lower court acknowledges in its caption that the plaintiff and defendant are Loreta Guina and Anita Mangila, respectively. The title of the petition before us does not state, and rightly so, Anita Mangila v. Air Swift International, but rather Anita Mangila v. Loreta Guina. Logically then, it is the residence of private respondent Guina, the proprietor with the juridical personality, which should be considered as one of the proper venues for this case. All these considered, private respondent should have filed this case either in San Fernando, Pampanga (petitioners residence) or Paraaque (private respondents residence). Since private respondent (complainant below) filed this case in Pasay, we hold that the case should be dismissed on the ground of improper venue. Although petitioner filed an Urgent Motion to Discharge Attachment in the lower court, petitioner expressly stated that she was filing the motion without submitting to the jurisdiction of the court. At that time, petitioner had not been served the summons and a copy of the complaint. 43
Thereafter, petitioner timely filed a Motion to Dismiss 44 on the ground of improper venue. Rule 16, Section 1 of the Rules of Court provides that a motion to dismiss may be filed "[W]ithin the time for but before filing the answer to the complaint or pleading asserting a claim." Petitioner even raised the issue of improper venue in his Answer 45 as a special and affirmative defense. Petitioner also continued to raise the issue of improper venue in her Petition for Review 46 before this Court. We thus hold that the dismissal of this case on the ground of improper venue is warranted. The rules on venue, like other procedural rules, are designed to insure a just and orderly administration of justice or the impartial and evenhanded determination of every action and proceeding. Obviously, this objective will not be attained if the plaintiff is given unrestricted freedom to choose where to file the complaint or petition. 47
We find no reason to rule on the other issues raised by petitioner.1wphi1.nt WHEREFORE, the petition is GRANTED on the grounds of improper venue and invalidity of the service of the writ of attachment. The decision of the Court of Appeals and the order of respondent judge denying the motion to dismiss are REVERSED and SET ASIDE. Civil Case No. 5875 is hereby dismissed without prejudice to refiling it in the proper venue. The attached properties of petitioner are ordered returned to her immediately. SO ORDERED. FORT BONIFACIO DEVELOPMENT CORPORATION petitioner, vs. YLLAS LENDING CORPORATION and JOSE S. LAURAYA, in his official capacity as President, respondents. D E C I S I O N CARPIO, J.: The Case This is a petition for review on certiorari 1 of the Orders issued on 7 March 2003 2 and 3 July 2003 3 by Branch 59 of the Regional Trial Court of Makati City (trial court) in Civil Case No. 01-1452. The trial court's orders dismissed Fort Bonifacio Development Corporation's (FBDC) third party claim and denied FBDC's Motion to Intervene and Admit Complaint in Intervention. The Facts On 24 April 1998, FBDC executed a lease contract in favor of Tirreno, Inc. (Tirreno) over a unit at the Entertainment Center - Phase 1 of the Bonifacio Global City in Taguig, Metro Manila. The parties had the lease contract notarized on the day of its execution. Tirreno used the leased premises for Savoia Ristorante and La Strega Bar. Two provisions in the lease contract are pertinent to the present case: Section 20, which is about the consequences in case of default of the lessee, and Section 22, which is about the lien on the properties of the lease. The pertinent portion of Section 20 reads: Section 20. Default of the Lessee 20.1 The LESSEE shall be deemed to be in default within the meaning of this Contract in case: (i) The LESSEE fails to fully pay on time any rental, utility and service charge or other financial obligation of the LESSEE under this Contract; x x x 20.2 Without prejudice to any of the rights of the LESSOR under this Contract, in case of default of the LESSEE, the lessor shall have the right to: (i) Terminate this Contract immediately upon written notice to the LESSEE, without need of any judicial action or declaration; x x x Section 22, on the other hand, reads: Section 22. Lien on the Properties of the Lessee Upon the termination of this Contract or the expiration of the Lease Period without the rentals, charges and/or damages, if any, being fully paid or settled, the LESSOR shall have the right to retain possession of the properties of the LESSEE used or situated in the Leased Premises and the LESSEE hereby authorizes the LESSOR to offset the prevailing value thereof as appraised by the LESSOR against any unpaid rentals, charges and/or damages. If the LESSOR does not want to use said properties, it may instead sell the same to third parties and apply the proceeds thereof against any unpaid rentals, charges and/or damages. Tirreno began to default in its lease payments in 1999. By July 2000, Tirreno was already in arrears by P5,027,337.91. FBDC and Tirreno entered into a settlement agreement on 8 August 2000. Despite the execution of the settlement agreement, FBDC found need to send Tirreno a written notice of termination dated 19 September 2000 due to Tirreno's alleged failure to settle its outstanding obligations. On 29 September 2000, FBDC entered and occupied the leased premises. FBDC also appropriated the equipment and properties left by Tirreno pursuant to Section 22 of their Contract of Lease as partial payment for Tirreno's outstanding obligations. Tirreno filed an action for forcible entry against FBDC before the Municipal Trial Court of Taguig. Tirreno also filed a complaint for specific performance with a prayer for the issuance of a temporary restraining order and/or a writ of preliminary injunction against FBDC before the Regional Trial Court (RTC) of Pasig City. The RTC of Pasig City dismissed Tirreno's complaint for forum-shopping. On 4 March 2002, Yllas Lending Corporation and Jose S. Lauraya, in his official capacity as President, (respondents) caused the sheriff of Branch 59 of the trial court to serve an alias writ of seizure against FBDC. On the same day, FBDC served on the sheriff an affidavit of title and third party claim. FBDC found out that on 27 September 2001, respondents filed a complaint for Foreclosure of Chattel Mortgage with Replevin, docketed as Civil Case No. 01-1452, against Tirreno, Eloisa Poblete Todaro (Eloisa), and Antonio D. Todaro (Antonio), in their personal and individual capacities, and in Eloisa's official capacity as President. In their complaint, respondents alleged that they lent a total of P1.5 million to Tirreno, Eloisa, and Antonio. On 9 November 2000, Tirreno, Eloisa and Antonio executed a Deed of Chattel Mortgage in favor of respondents as security for the loan. The following properties are covered by the Chattel Mortgage: a. Furniture, Fixtures and Equipment of Savoia Ristorante and La Strega Bar, a restaurant owned and managed by [Tirreno], inclusive of the leasehold right of [Tirreno] over its rented building where [the] same is presently located. b. Goodwill over the aforesaid restaurant, including its business name, business sign, logo, and any and all interest therein. c. Eighteen (18) items of paintings made by Florentine Master, Gino Tili, which are fixtures in the above-named restaurant. The details and descriptions of the above items are specified in Annex "A" which is hereto attached and forms as an integral part of this Chattel Mortgage instrument. 4
In the Deed of Chattel Mortgage, Tirreno, Eloisa, and Antonio made the following warranties to respondents: 1. WARRANTIES: The MORTGAGOR hereby declares and warrants that: a. The MORTGAGOR is the absolute owner of the above named properties subject of this mortgage, free from all liens and encumbrances. b. There exist no transaction or documents affecting the same previously presented for, and/or pending transaction. 5
Despite FBDC's service upon him of an affidavit of title and third party claim, the sheriff proceeded with the seizure of certain items from FBDC's premises. The sheriff's partial return indicated the seizure of the following items from FBDC: A. FIXTURES (2) - Smaller Murano Chandeliers (1) - Main Murano Chandelier B. EQUIPMENT (13) - Uni-Air Split Type 2HP Air Cond. (2) - Uni-Air Split Type 1HP Air Cond. (3) - Uni-Air Window Type 2HP Air Cond. (56) - Chairs (1) - Table (2) - boxes - Kitchen equipments [sic] 6
The sheriff delivered the seized properties to respondents. FBDC questioned the propriety of the seizure and delivery of the properties to respondents without an indemnity bond before the trial court. FBDC argued that when respondents and Tirreno entered into the chattel mortgage agreement on 9 November 2000, Tirreno no longer owned the mortgaged properties as FBDC already enforced its lien on 29 September 2000. In ruling on FBDC's motion for leave to intervene and to admit complaint in intervention, the trial court stated the facts as follows: Before this Court are two pending incidents, to wit: 1) [FBDC's] Third-Party Claim over the properties of [Tirreno] which were seized and delivered by the sheriff of this Court to [respondents]; and 2) FBDC's Motion to Intervene and to Admit Complaint in Intervention. Third party claimant, FBDC, anchors its claim over the subject properties on Sections 20.2(i) and 22 of the Contract of Lease executed by [FBDC] with Tirreno. Pursuant to said Contract of Lease, FBDC took possession of the leased premises and proceeded to sell to third parties the properties found therein and appropriated the proceeds thereof to pay the unpaid lease rentals of [Tirreno]. FBDC, likewise filed a Motion to Admit its Complaint-in- Intervention. In Opposition to the third-party claim and the motion to intervene, [respondents] posit that the basis of [FBDC's] third party claim being anchored on the aforesaid Contract [of] Lease is baseless. [Respondents] contend that the stipulation of the contract of lease partakes of a pledge which is void under Article 2088 of the Civil Code for being pactum commissorium. x x x By reason of the failure of [Tirreno] to pay its lease rental and fees due in the amount of P5,027,337.91, after having notified [Tirreno] of the termination of the lease, x x x FBDC took possession of [Tirreno.'s] properties found in the premises and sold those which were not of use to it. Meanwhile, [respondents], as mortgagee of said properties, filed an action for foreclosure of the chattel mortgage with replevin and caused the seizure of the same properties which [FBDC] took and appropriated in payment of [Tirreno's] unpaid lease rentals. 7
The Ruling of the Trial Court In its order dated 7 March 2003, the trial court stated that the present case raises the questions of who has a better right over the properties of Tirreno and whether FBDC has a right to intervene in respondents' complaint for foreclosure of chattel mortgage. In deciding against FBDC, the trial court declared that Section 22 of the lease contract between FBDC and Tirreno is void under Article 2088 of the Civil Code. 8 The trial court stated that Section 22 of the lease contract pledges the properties found in the leased premises as security for the payment of the unpaid rentals. Moreover, Section 22 provides for the automatic appropriation of the properties owned by Tirreno in the event of its default in the payment of monthly rentals to FBDC. Since Section 22 is void, it cannot vest title of ownership over the seized properties. Therefore, FBDC cannot assert that its right is superior to respondents, who are the mortgagees of the disputed properties. The trial court quoted from Bayer Phils. v. Agana 9 to justify its ruling that FBDC should have filed a separate complaint against respondents instead of filing a motion to intervene. The trial court quoted from Bayer as follows: In other words, construing Section 17 of Rule 39 of the Revised Rules of Court (now Section 16 of the 1997 Rules on Civil Procedure), the rights of third-party claimants over certain properties levied upon by the sheriff to satisfy the judgment may not be taken up in the case where such claims are presented but in a separate and independent action instituted by the claimants. 10
The dispositive portion of the trial court's decision reads: WHEREFORE, premises considered, [FBDC's] Third Party Claim is hereby DISMISSED. Likewise, the Motion to Intervene and Admit Complaint in Intervention is DENIED. 11
FBDC filed a motion for reconsideration on 9 May 2003. The trial court denied FBDC's motion for reconsideration in an order dated 3 July 2003. FBDC filed the present petition before this Court to review pure questions of law. The Issues FBDC alleges that the trial court erred in the following: 1. Dismissing FBDC's third party claim upon the trial court's erroneous interpretation that FBDC has no right of ownership over the subject properties because Section 22 of the contract of lease is void for being a pledge and a pactum commissorium; 2. Denying FBDC intervention on the ground that its proper remedy as third party claimant over the subject properties is to file a separate action; and 3. Depriving FBDC of its properties without due process of law when the trial court erroneously dismissed FBDC's third party claim, denied FBDC's intervention, and did not require the posting of an indemnity bond for FBDC's protection. 12
The Ruling of the Court The petition has merit. Taking of Lessee's Properties without Judicial Intervention We reproduce Section 22 of the Lease Contract below for easy reference: Section 22. Lien on the Properties of the Lessee Upon the termination of this Contract or the expiration of the Lease Period without the rentals, charges and/or damages, if any, being fully paid or settled, the LESSOR shall have the right to retain possession of the properties of the LESSEE used or situated in the Leased Premises and the LESSEE hereby authorizes the LESSOR to offset the prevailing value thereof as appraised by the LESSOR against any unpaid rentals, charges and/or damages. If the LESSOR does not want to use said properties, it may instead sell the same to third parties and apply the proceeds thereof against any unpaid rentals, charges and/or damages. Respondents, as well as the trial court, contend that Section 22 constitutes a pactum commissorium, a void stipulation in a pledge contract. FBDC, on the other hand, states that Section 22 is merely a dacion en pago. Articles 2085 and 2093 of the Civil Code enumerate the requisites essential to a contract of pledge: (1) the pledge is constituted to secure the fulfillment of a principal obligation; (2) the pledgor is the absolute owner of the thing pledged; (3) the persons constituting the pledge have the free disposal of their property or have legal authorization for the purpose; and (4) the thing pledged is placed in the possession of the creditor, or of a third person by common agreement. Article 2088 of the Civil Code prohibits the creditor from appropriating or disposing the things pledged, and any contrary stipulation is void. On the other hand, Article 1245 of the Civil Code defines dacion en pago, or dation in payment, as the alienation of property to the creditor in satisfaction of a debt in money. Dacion en pago is governed by the law on sales. Philippine National Bank v. Pineda 13 held that dation in payment requires delivery and transmission of ownership of a thing owned by the debtor to the creditor as an accepted equivalent of the performance of the obligation. There is no dation in payment when there is no transfer of ownership in the creditor's favor, as when the possession of the thing is merely given to the creditor by way of security. Section 22, as worded, gives FBDC a means to collect payment from Tirreno in case of termination of the lease contract or the expiration of the lease period and there are unpaid rentals, charges, or damages. The existence of a contract of pledge, however, does not arise just because FBDC has means of collecting past due rent from Tirreno other than direct payment. The trial court concluded that Section 22 constitutes a pledge because of the presence of the first three requisites of a pledge: Tirreno's properties in the leased premises secure Tirreno's lease payments; Tirreno is the absolute owner of the said properties; and the persons representing Tirreno have legal authority to constitute the pledge. However, the fourth requisite, that the thing pledged is placed in the possession of the creditor, is absent. There is non-compliance with the fourth requisite even if Tirreno's personal properties are found in FBDC's real property. Tirreno's personal properties are in FBDC's real property because of the Contract of Lease, which gives Tirreno possession of the personal properties. Since Section 22 is not a contract of pledge, there is no pactum commissorium. FBDC admits that it took Tirreno's properties from the leased premises without judicial intervention after terminating the Contract of Lease in accordance with Section 20.2. FBDC further justifies its action by stating that Section 22 is a forfeiture clause in the Contract of Lease and that Section 22 gives FBDC a remedy against Tirreno's failure to comply with its obligations. FBDC claims that Section 22 authorizes FBDC to take whatever properties that Tirreno left to pay off Tirreno's obligations. We agree with FBDC. A lease contract may be terminated without judicial intervention. Consing v. Jamandre upheld the validity of a contractually-stipulated termination clause: This stipulation is in the nature of a resolutory condition, for upon the exercise by the [lessor] of his right to take possession of the leased property, the contract is deemed terminated. This kind of contractual stipulation is not illegal, there being nothing in the law proscribing such kind of agreement. x x x Judicial permission to cancel the agreement was not, therefore necessary because of the express stipulation in the contract of [lease] that the [lessor], in case of failure of the [lessee] to comply with the terms and conditions thereof, can take-over the possession of the leased premises, thereby cancelling the contract of sub-lease. Resort to judicial action is necessary only in the absence of a special provision granting the power of cancellation. 14
A lease contract may contain a forfeiture clause. Country Bankers Insurance Corp. v. Court of Appeals upheld the validity of a forfeiture clause as follows: A provision which calls for the forfeiture of the remaining deposit still in the possession of the lessor, without prejudice to any other obligation still owing, in the event of the termination or cancellation of the agreement by reason of the lessee's violation of any of the terms and conditions of the agreement is a penal clause that may be validly entered into. A penal clause is an accessory obligation which the parties attach to a principal obligation for the purpose of insuring the performance thereof by imposing on the debtor a special prestation (generally consisting in the payment of a sum of money) in case the obligation is not fulfilled or is irregularly or inadequately fulfilled. 15
In Country Bankers, we allowed the forfeiture of the lessee's advance deposit of lease payment. Such a deposit may also be construed as a guarantee of payment, and thus answerable for any unpaid rent or charges still outstanding at any termination of the lease. In the same manner, we allow FBDC's forfeiture of Tirreno's properties in the leased premises. By agreement between FBDC and Tirreno, the properties are answerable for any unpaid rent or charges at any termination of the lease. Such agreement is not contrary to law, morals, good customs, or public policy. Forfeiture of the properties is the only security that FBDC may apply in case of Tirreno's default in its obligations. Intervention versus Separate Action Respondents posit that the right to intervene, although permissible, is not an absolute right. Respondents agree with the trial court's ruling that FBDC's proper remedy is not intervention but the filing of a separate action. Moreover, respondents allege that FBDC was accorded by the trial court of the opportunity to defend its claim of ownership in court through pleadings and hearings set for the purpose. FBDC, on the other hand, insists that a third party claimant may vindicate his rights over properties taken in an action for replevin by intervening in the replevin action itself. We agree with FBDC. Both the trial court and respondents relied on our ruling in Bayer Phils. v. Agana 16 to justify their opposition to FBDC's intervention and to insist on FBDC's filing of a separate action. In Bayer, we declared that the rights of third party claimants over certain properties levied upon by the sheriff to satisfy the judgment may not be taken up in the case where such claims are presented, but in a separate and independent action instituted by the claimants. However, both respondents and the trial court overlooked the circumstances behind the ruling in Bayer, which makes the Bayer ruling inapplicable to the present case. The third party in Bayer filed his claim during execution; in the present case, FBDC filed for intervention during the trial. The timing of the filing of the third party claim is important because the timing determines the remedies that a third party is allowed to file. A third party claimant under Section 16 of Rule 39 (Execution, Satisfaction and Effect of Judgments) 17 of the 1997 Rules of Civil Procedure may vindicate his claim to the property in a separate action, because intervention is no longer allowed as judgment has already been rendered. A third party claimant under Section 14 of Rule 57 (Preliminary Attachment) 18 of the 1997 Rules of Civil Procedure, on the other hand, may vindicate his claim to the property by intervention because he has a legal interest in the matter in litigation. 19
We allow FBDC's intervention in the present case because FBDC satisfied the requirements of Section 1, Rule 19 (Intervention) of the 1997 Rules of Civil Procedure, which reads as follows: Section 1. Who may intervene. - A person who has a legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof may, with leave of court, be allowed to intervene in the action. The court shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and whether or not the intervenor's rights may be fully protected in a separate proceeding. Although intervention is not mandatory, nothing in the Rules proscribes intervention. The trial court's objection against FBDC's intervention has been set aside by our ruling that Section 22 of the lease contract is not pactum commissorium. Indeed, contrary to respondents' contentions, we ruled in BA Finance Corporation v. Court of Appeals that where the mortgagee's right to the possession of the specific property is evident, the action need only be maintained against the possessor of the property. However, where the mortgagee's right to possession is put to great doubt, as when a contending party might contest the legal bases for mortgagee's cause of action or an adverse and independent claim of ownership or right of possession is raised by the contending party, it could become essential to have other persons involved and accordingly impleaded for a complete determination and resolution of the controversy. Thus: A chattel mortgagee, unlike a pledgee, need not be in, nor entitled to, the possession of the property, unless and until the mortgagor defaults and the mortgagee thereupon seeks to foreclose thereon. Since the mortgagee's right of possession is conditioned upon the actual default which itself may be controverted, the inclusion of other parties, like the debtor or the mortgagor himself, may be required in order to allow a full and conclusive determination of the case. When the mortgagee seeks a replevin in order to effect the eventual foreclosure of the mortgage, it is not only the existence of, but also the mortgagor's default on, the chattel mortgage that, among other things, can properly uphold the right to replevy the property. The burden to establish a valid justification for that action lies with the plaintiff [- mortgagee]. An adverse possessor, who is not the mortgagor, cannot just be deprived of his possession, let alone be bound by the terms of the chattel mortgage contract, simply because the mortgagee brings up an action for replevin. 20 (Emphasis added) FBDC exercised its lien to Tirreno's properties even before respondents and Tirreno executed their Deed of Chattel Mortgage. FBDC is adversely affected by the disposition of the properties seized by the sheriff. Moreover, FBDC's intervention in the present case will result in a complete adjudication of the issues brought about by Tirreno's creation of multiple liens on the same properties and subsequent default in its obligations. Sheriff's Indemnity Bond FBDC laments the failure of the trial court to require respondents to file an indemnity bond for FBDC's protection. The trial court, on the other hand, did not mention the indemnity bond in its Orders dated 7 March 2003 and 3 July 2003. Pursuant to Section 14 of Rule 57, the sheriff is not obligated to turn over to respondents the properties subject of this case in view of respondents' failure to file a bond. The bond in Section 14 of Rule 57 (proceedings where property is claimed by third person) is different from the bond in Section 3 of the same rule (affidavit and bond). Under Section 14 of Rule 57, the purpose of the bond is to indemnify the sheriff against any claim by the intervenor to the property seized or for damages arising from such seizure, which the sheriff was making and for which the sheriff was directly responsible to the third party. Section 3, Rule 57, on the other hand, refers to the attachment bond to assure the return of defendant's personal property or the payment of damages to the defendant if the plaintiff's action to recover possession of the same property fails, in order to protect the plaintiff's right of possession of said property, or prevent the defendant from destroying the same during the pendency of the suit. Because of the absence of the indemnity bond in the present case, FBDC may also hold the sheriff for damages for the taking or keeping of the properties seized from FBDC. WHEREFORE, we GRANT the petition. We SET ASIDE the Orders dated 7 March 2003 and 3 July 2003 of Branch 59 of the Regional Trial Court of Makati City in Civil Case No. 01-1452 dismissing Fort Bonifacio Development Corporation's Third Party Claim and denying Fort Bonifacio Development Corporation's Motion to Intervene and Admit Complaint in Intervention. We REINSTATE Fort Bonifacio Development Corporation's Third Party Claim and GRANT its Motion to Intervene and Admit Complaint in Intervention. Fort Bonifacio Development Corporation may hold the Sheriff liable for the seizure and delivery of the properties subject of this case because of the lack of an indemnity bond. SO ORDERED. CHINA BANKING CORPORATION, petitioner, vs. ASIAN CONSTRUCTION and DEVELOPMENT CORPORATION, respondent. D E C I S I O N AUSTRIA-MARTINEZ, J.: Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court filed by petitioner China Banking Corporation (China Bank) seeking to annul the Resolution 1 dated October 14, 2002 and the Resolution 2 dated May 16, 2003 of the Court of Appeals (CA) in CA-G.R. CV No. 72175. The facts of the case: On July 24, 1996, China Bank granted respondent Asian Construction and Development Corporation (ACDC) an Omnibus Credit Line in the amount of P90,000,000.00. 3
On April 12, 1999, alleging that ACDC failed to comply with its obligations under the Omnibus Credit Line, China Bank filed a Complaint 4 for recovery of sum of money and damages with prayer for the issuance of writ of preliminary attachment before the Regional Trial Court (RTC) of Makati, Branch 138, docketed as Civil Case No. 99-796. In the Complaint, China Bank claimed that ACDC, after collecting and receiving the proceeds or receivables from the various construction contracts and purportedly holding them in trust for China Bank under several Deeds of Assignment, misappropriated, converted, and used the funds for its own purpose and benefit, instead of remitting or delivering them to China Bank. 5
On April 22, 1999, the RTC issued an Order 6 granting China Banks prayer for writ of preliminary attachment. Consequently, as shown in the Sheriffs Report 7 dated June 14, 1999, the writ of preliminary attachment was implemented levying personal properties of ACDC, i.e., vans, dump trucks, cement mixers, cargo trucks, utility vehicles, machinery, equipment and office machines and fixtures. On March 27, 2000, upon motion of China Bank, the RTC issued a Summary Judgment 8 in favor of China Bank. ACDC filed its Notice of Appeal 9 dated April 24, 2000. On June 15, 2000, China Bank filed a Motion to Take Custody of Attached Properties with Motion for Grant of Authority to Sell to the Branch Sheriff 10
with the RTC, praying that it be allowed to take custody of ACDCs properties for the purpose of selling them in an auction. 11 On June 20, 2000, ACDC filed its Opposition 12 to the June 15, 2000 Motion arguing that there can be no sale of the latters attached properties in the absence of a final and executory judgment against ACDC. On August 25, 2000, China Bank partially appealed the Summary Judgment for not awarding interest on one of its promissory notes. 13 Records of the case were elevated to the CA. 14
On April 18, 2002, China Bank filed a Motion for Leave for Grant of Authority to Sell Attached Properties 15 which the CA denied in the herein assailed Resolution dated October 14, 2002. According to the CA, selling the attached properties prior to final judgment of the appealed case is premature and contrary to the intent and purpose of preliminary attachment for the following reasons: first, the records reveal that the attached properties subject of the motion are not perishable in nature; and second, while the sale of the attached properties may serve the interest of China Bank, it will not be so for ACDC. The CA recognized China Banks apprehension that by the time a final judgment is rendered, the attached properties would be worthless. However, the CA also acknowledged that since ACDC is a corporation engaged in a construction business, the preservation of the properties is of paramount importance; and that in the event that the decision of the lower court is reversed and a final judgment rendered in favor ACDC, great prejudice will result if the attached properties were already sold. China Bank filed a Motion for Reconsideration 16 which was denied in the herein assailed CA Resolution 17 dated May 16, 2003. Hence, the present petition for review on certiorari, on the following ground: THE HONORABLE COURT OF APPEALS RENDERED THE QUESTIONED RESOLUTIONS (ANNEXES "A" and "B") IN A MANNER NOT IN ACCORD WITH THE PROVISIONS OF SECTION 11, RULE 57 OF THE RULES OF CIVIL PROCEDURE, AS IT SHELVED THE DEMANDS OF EQUITY BY ARBITRARILY DISALLOWING THE SALE OF THE ATTACHED PROPERTIES, UPHOLDING ONLY THE INTEREST OF RESPONDENT, IN UTTER PARTIALITY. 18
Considering that the herein assailed CA Resolutions are interlocutory in nature as they do not dispose of the case completely but leave something to be done upon the merits, 19 the proper remedy should have been by way of petition for certiorari under Rule 65, as provided for in Section 1 (b), Rule 41 of the Rules of Court, as amended by A.M. No. 07-7-12-SC, 20 which provides: Section 1. Subject of appeal. - An appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by these Rules to be appealable. No appeal may be taken from: x x x x (b) An interlocutory order; x x x x In any of the foregoing instances, the aggrieved party may file an appropriate special civil action as provided in Rule 65. (Emphasis supplied). The present petition for review on certiorari should have been dismissed outright. However, in many instances, the Court has treated a petition for review on certiorari under Rule 45 as a petition for certiorari under Rule 65 of the Rules of Court, such as in cases where the subject of the recourse was one of jurisdiction, or the act complained of was perpetrated by a court with grave abuse of discretion amounting to lack or excess of jurisdiction. 21 The present petition does not involve any issue on jurisdiction, neither does it show that the CA committed grave abuse of discretion in denying the motion to sell the attached property. Section 11, Rule 57 of the Rules of Court provides: Sec. 11. When attached property may be sold after levy on attachment and before entry of judgment.- Whenever it shall be made to appear to the court in which the action is pending, upon hearing with notice to both parties, that the property attached is perishable, or that the interests of all the parties to the action will be subserved by the sale thereof, the court may order such property to be sold at public auction in such manner as it may direct, and the proceeds of such sale to be deposited in court to abide the judgment in the action. (Emphasis supplied) Thus, an attached property may be sold after levy on attachment and before entry of judgment whenever it shall be made to appear to the court in which the action is pending, upon hearing with notice to both parties, that the attached property is perishable or that the interests of all the parties to the action will be subserved by the sale of the attached property. In its Memorandum, 22 China Bank argues that the CAs notion of perishable property, which pertains only to those goods which rot and decay and lose their value if not speedily put to their intended use, 23 is a strict and stringent interpretation that would betray the purpose for which the preliminary attachment was engrafted. 24 Citing Witherspoon v. Cross, 25
China Bank invokes the definition of "perishable property" laid down by the Supreme Court of California as goods which decay and lose their value if not speedily put to their intended use; but where the time contemplated is necessarily long, the term may embrace property liable merely to material depreciation in value from other causes than such decay. As stated in the Sheriffs Report 26 and Notices of Levy on Properties, 27 all of ACDCs properties which were levied are personal properties consisting of used vehicles, i.e., vans, dump trucks, cement mixers, cargo trucks, utility vehicles, machinery, equipment and office machines and fixtures. China Bank insists that the attached properties, all placed inside ACDCs stockyard located at Silang, Cavite and the branch office in Mayamot, Antipolo City, are totally exposed to natural elements and adverse weather conditions. 28 Thus, China Bank argues, that should the attached properties be allowed to depreciate, perish or rot while the main case is pending, the attached properties will continue losing their worth thereby rendering the rules on preliminary attachment nugatory. The issue hinges on the determination whether the vehicles, office machines and fixtures are "perishable property" under Section 11, Rules 57 of the Rules of Court, which is actually one of first impression. No local jurisprudence or authoritative work has touched upon this matter. This being so, an examination of foreign laws and jurisprudence, particularly those of the United States where some of our laws and rules were patterned after, is in order. 29
In Mossler Acceptance Co. v. Denmark, 30 an order of the lower court in directing the sale of attached properties, consisting of 20 automobiles and 2 airplanes, was reversed by the Supreme Court of Louisiana. In support of its contention that automobiles are perishable, Mossler offered testimony to the effect that automobile tires tend to dry-rot in storage, batteries to deteriorate, crankcases to become damaged, paint and upholstery to fade, that generally automobiles tend to depreciate while in storage. 31 Rejecting these arguments, the Supreme Court of Louisiana held that while there might be a depreciation in the value of a car during storage, depending largely on existing economic conditions, there would be no material deterioration of the car itself or any of its appurtenances if the car was properly cared for, and therefore it could not be said that automobiles were of a perishable nature within the intendment of the statute, which could only be invoked when the property attached and seized was of a perishable nature. 32
With respect to the determination of the question on whether the attached office furniture, office equipment, accessories and supplies are perishable properties, the Supreme Court of Alabama in McCreery v. Berney National Bank 33 discussed the "perishable" nature of the attached properties, consisting of shelving, stock of drygoods and a complete set of store fixtures, consisting of counters iron safe, desk and showcases, to be within the meaning of "perishable" property under the Alabama Code which authorizes a court, on motion of either party, to order the sale, in advance of judgment, of perishable property which had been levied on by a writ of attachment. 34
In McCreery, the Supreme Court of Alabama rejected the argument that the sale of the attached property was void because the term "perishable" property, as used in the statute, meant only such property as contained in itself the elements of speedy decay, such as fruits, fish, fresh meats, etc. 35
The Supreme Court of Alabama held that whatever may be the character of the property, if the court is satisfied that, either by reason of its perishable nature, or because of the expense of keeping it until the termination of the litigation, it will prove, or be likely to prove, fruitless to the creditor, and that the purpose of its original seizure will probably be frustrated, the sale of the attached property is justified. McCreery applied the doctrine in Millards Admrs. v. Hall 36 where the Supreme Court of Alabama held that an attached property is perishable "if it is shown that, by keeping the article, it will necessarily become, or is likely to become, worthless to the creditor, and by consequence to the debtor, then it is embraced by the statute. It matters not, in our opinion, what the subject matter is. It may be cotton bales, live stock, hardware provisions or dry goods." Although the statute under which Millards was decided used the words "likely to waste or be destroyed by keeping," instead of the word "perishable," the reasons given for the construction placed on the statute apply equally to the Alabama Code which uses the term "perishable." 37
In the Motion for Leave for Grant of Authority to Sell Attached Properties 38
filed before the CA, China Bank alleged that the attached properties are placed in locations where they are totally exposed to the natural elements and adverse weather conditions since their attachment in 1999; 39 that as a result, the attached properties have gravely deteriorated with corrosions eating them up, with weeds germinating and growing thereon and their engines and motors stock up; 40 and that the same holds true to the office furniture, office equipment, accessories and supplies. 41 No evidence, however, were submitted by China Bank to support and substantiate these claims before the CA. Notably, in the Petition filed before the Court, China Bank, for the first time, included as annexes, 42 photographs of the attached properties which were alleged to be recently taken, in an attempt to convince the Court of the deteriorated condition of the attached properties. The determination on whether the attached vehicles are properly cared for, and the burden to show that, by keeping the attached office furniture, office equipment and supplies, it will necessarily become, or is likely to become, worthless to China Bank, and by consequence to ACDC, are factual issues requiring reception of evidence which the Court cannot do in a petition for certiorari. Factual issues are beyond the scope of certiorari because they do not involve any jurisdictional issue. 43
As a rule, only jurisdictional questions may be raised in a petition for certiorari, including matters of grave abuse of discretion which are equivalent to lack of jurisdiction. 44 The office of the writ of certiorari has been reduced to the correction of defects of jurisdiction solely and cannot legally be used for any other purpose. 45
Certiorari is truly an extraordinary remedy and, in this jurisdiction, its use is restricted to truly extraordinary cases - cases in which the action of the inferior court is wholly void; where any further steps in the case would result in a waste of time and money and would produce no result whatever; where the parties, or their privies, would be utterly deceived; where a final judgment or decree would be nought but a snare and delusion, deciding nothing, protecting nobody, a judicial pretension, a recorded falsehood, a standing menace. It is only to avoid such results as these that a writ of certiorari is issuable; and even here an appeal will lie if the aggrieved party prefers to prosecute it. 46
Moreover, the Court held in JAM Transportation Co., Inc. v. Flores 47 that it is well-settled, too well-settled to require a citation of jurisprudence, that this Court does not make findings of facts specially on evidence raised for the first time on appeal. 48 The Court will not make an exception in the case at bar. Hence, the photographs of the attached properties presented before the Court, for the first time on appeal, cannot be considered by the Court. China Bank argues that if the CA allowed the attached properties to be sold, whatever monetary value which the attached properties still have will be realized and saved for both parties. 49 China Bank further claims that should ACDC prevail in the final judgment 50 of the collection suit, ACDC can proceed with the bond posted by China Bank. 51 The Court finds said arguments to be specious and misplaced. Section 4, Rule 57 of the Rules of Court provides: Section 4. Condition of applicants bond. - The party applying for the order must thereafter give a bond executed to the adverse party in the amount fixed by the court in its order granting the issuance of the writ, conditioned that the latter will pay all the costs which may be adjudged to the adverse party and all the damages which he may sustain by reason of the attachment, if the court shall finally adjudge that the applicant was not entitled thereto. It is clear from the foregoing provision that the bond posted by China Bank answers only for the payment of all damages which ACDC may sustain if the court shall finally adjudge that China Bank was not entitled to attachment. The liability attaches if "the plaintiff is not entitled to the attachment because the requirements entitling him to the writ are wanting," or "if the plaintiff has no right to the attachment because the facts stated in his affidavit, or some of them are untrue." 52 Clearly, ACDC can only claim from the bond for all the damages which it may sustain by reason of the attachment and not because of the sale of the attached properties prior to final judgment. Sale of attached property before final judgment is an equitable remedy provided for the convenience of the parties and preservation of the property. 53 To repeat, the Court finds that the issue of whether the sale of attached properties is for the convenience of the parties and that the interests of all the parties will be subserved by the said sale is a question of fact. Again, the foregoing issue can only be resolved upon examination of the evidence presented by both parties which the Court cannot do in a petition for certiorari under Rule 65 of the Rules of Court. WHEREFORE, the petition is DENIED. The assailed Resolutions of the Court of Appeals dated October 14, 2002 and May 16, 2003 in CA-G.R. CV No. 72175 are hereby AFFIRMED. SO ORDERED. EMMANUEL C. OATE and ECON HOLDINGS CORPORATION, petitioners, vs. HON. ZUES C. ABROGAR, as Presiding Judge of Branch 150 of the Regional Trial Court of Makati, and SUN LIFE ASSURANCE COMPANY OF CANADA, respondents. G.R. No. 107491 February 21, 1994 BRUNNER DEVELOPMENT CORPORATION, petitioner, vs. HON. ZUES C. ABROGAR, as Presiding Judge of Branch 150 of the Regional Trial Court of Makati, and SUN LIFE ASSURANCE COMPANY OF CANADA, respondents. Florante A. Bautista for petitioner in G.R. No. 107303. Andin & Andin Law Offices for Brunner Development Corporation. Quasha, Asperilla, Ancheta, Pena & Nolasco for Sun Life Assurance Company of Canada.
NOCON, J.: These are separate petitions for certiorari with a prayer for temporary restraining order filed by Emmanuel C. Oate and Econ Holdings Corporation (in G.R. No. 107303), and Brunner Development Corporation (in G.R. No. 107491), both of which assail several orders issued by respondent Judge Zues C. Abrogar in Civil Case No. 91-3506. The pertinent facts are as follows: On December 23, 1991, respondent Sun Life Assurance Company of Canada (Sun Life, for brevity) filed a complaint for a sum of money with a prayer for the immediate issuance of a writ of attachment against petitioners, and Noel L. Dio, which was docketed as Civil Case No. 91-3506 and raffled to Branch 150 of the RTC Makati, presided over by respondent Judge. The following day, December 24, 1991, respondent Judge issued an order granting the issuance of a writ of attachment, and the writ was actually issued on December 27, 1991. On January 3, 1992, upon Sun Life's ex-parte motion, the trial court amended the writ of attachment to reflect the alleged amount of the indebtedness. That same day, Deputy Sheriff Arturo C. Flores, accompanied by a representative of Sun Life, attempted to serve summons and a copy of the amended writ of attachment upon petitioners at their known office address at 108 Aguirre St., Makati but was not able to do so since there was no responsible officer to receive the same. 1 Nonetheless, Sheriff Flores proceeded, over a period of several days, to serve notices of garnishment upon several commercial banks and financial institutions, and levied on attachment a condominium unit and a real property belonging to petitioner Oate. Summons was eventually served upon petitioners on January 9, 1992, while defendant Dio was served with summons on January 16, 1992. On January 21, 1992, petitioners filed an "Urgent Motion to Discharge/Dissolve Writ of Attachment." That same day, Sun Life filed an ex-parte motion to examine the books of accounts and ledgers of petitioner Brunner Development Corporation (Brunner, for brevity) at the Urban Bank, Legaspi Village Branch, and to obtain copies thereof, which motion was granted by respondent Judge. The examination of said account took place on January 23, 1992. Petitioners filed a motion to nullify the proceedings taken thereat since they were not present. On January 30, 1992, petitioners and their co-defendants filed a memorandum in support of the motion to discharge attachment. Also on that same day, Sun Life filed another motion for examination of bank accounts, this time seeking the examination of Account No. 0041-0277-03 with the Bank of Philippine Islands (BPI) which, incidentally, petitioners claim not to be owned by them and the records of Philippine National Bank (PNB) with regard to checks payable to Brunner. Sun Life asked the court to order both banks to comply with the notice of garnishment. On February 6, 1992, respondent Judge issued an order (1) denying petitioners' and the co-defendants' motion to discharge the amended writ of attachment, (2) approving Sun Life's additional attachment, (3) granting Sun Life's motion to examine the BPI account, and (4) denying petitioners' motion to nullify the proceedings of January 23, 1992. On March 12, 1992, petitioners filed a motion for reconsideration of the February 6, 1992 order. On September 6, 1992, respondent Judge denied the motion for reconsideration. Hence, the instant petitions. Petitioners' basic argument is that respondent Judge had acted with grave abuse of discretion amounting to lack or in excess of jurisdiction in (1) issuing ex parte the original and amended writs of preliminary attachment and the corresponding notices of garnishment and levy on attachment since the trial court had not yet acquired jurisdiction over them; and (2) allowing the examination of the bank records though no notice was given to them. We find both petitions unmeritorious. Petitioners initially argue that respondent Judge erred in granting Sun Life's prayer for a writ of preliminary attachment on the ground that the trial court had not acquired jurisdiction over them. This argument is clearly unavailing since it is well-settled that a writ of preliminary attachment may be validly applied for and granted even before the defendant is summoned or is heard from. 2 The rationale behind this rule was stated by the Court in this wise: A preliminary attachment may be defined, paraphrasing the Rules of Court, as the provisional remedy in virtue of which a plaintiff or other proper party may, at the commencement of the action or any time thereafter, have the property of the adverse party taken into the custody of the court as security for the satisfaction of any judgment that may be recovered. It is a remedy which is purely statutory in respect of which the law requires a strict construction of the provisions granting it. Withal no principle, statutory or jurisprudential, prohibits its issuance by any court before acquisition of jurisdiction over the person of the defendant. Rule 57 in fact speaks of the grant of the remedy "at the commencement of the action or at any time thereafter." The phrase "at the commencement of the action," obviously refers to the date of the filing of the complaint which, as abovepointed out, its the date that marks "the commencement of the action;" and the reference plainly is to a time before summons is served on the defendant or even before summons issues. What the rule is saying quite clearly is that after an action is properly commenced by the filing of the complaint and the payment of all requisite docket and other fees the plaintiff may apply for and obtain a writ of preliminary attachment upon fulfillment of the pertinent requisites laid down by law, and that he may do so at any time, either before or after service of summons on the defendant. And this indeed, has been the immemorial practice sanctioned by the courts: for the plaintiff or other proper party to incorporate the application for attachment in the complaint or other appropriate pleading (counterclaim, cross-claim, third-party claim) and for the Trial Court to issue the writ ex-parte at the commencement of the action if it finds the application otherwise sufficient in form and substance. 3
Petitioners then contended that the writ should have been discharged since the ground on which it was issued fraud in contracting the obligation was not present. This cannot be considered a ground for lifting the writ since this delves into the very complaint of the Sun Life. As this Court stated in Cuatro v. Court of Appeals: 4
Moreover, an attachment may not be dissolved by a showing of its irregular or improper issuance if it is upon a ground which is at the same time the applicant's cause of action in the main case since an anomalous situation would result if the issues of the main case would be ventilated and resolved in a mere hearing of the motion (Davao Light and Power Co., Inc. vs. Court of Appeals, supra, The Consolidated Bank and Trust Corp. (Solidbank) vs. Court of Appeals, 197 SCRA 663 [1991]). In the present case, one of the allegation in petitioner's complaint below is that the defendant spouses induced the plaintiff to grant the loan by issuing postdated checks to cover the installment payments and a separate set of postdated checks for payment of the stipulated interest (Annex "B"). The issue of fraud, then, is clearly within the competence of the lower court in the main action. 5
The fact that a criminal complaint for estafa filed by Sun Life against the petitioners was dismissed by the Provincial Prosecutor of Rizal for Makati on April 21, 1992 and was upheld by the Provincial Prosecutor on July 13, 1992 is of no moment since the same can be indicative only of the absence of criminal liability, but not of civil liability. Besides, Sun Life had elevated the case for review to the Department of Justice, where the case is presently pending. Finally, petitioners argue that the enforcement of the writ was invalid since it undisputedly preceded the actual service of summons by six days at most. Petitioners cite the decisions in Sievert vs. Court of Appeals, et al. 6
and BAC Manufacturing and Sales Corp. vs. Court of Appeals, et al., 7
wherein this Court held that enforcement of the writ of attachment can not bind the defendant in view of the failure of the trial court to acquire jurisdiction over the defendant through either summons or his voluntary appearance. We do not agree entirely with petitioners. True, this Court had held in a recent decision that the enforcement of writ of attachment may not validly be effected until and unless proceeded or contemporaneously accompanied by service of summons. 8
But we must distinguish the case at bar from the Sievert and BAC Manufacturing cases. In those two cases, summons was never served upon the defendants. The plaintiffs therein did not even attempt to cause service of summons upon the defendants, right up to the time the cases went up to this Court. This is not true in the case at bar. The records reveal that Sheriff Flores and Sun Life did attempt a contemporaneous service of both summons and the writ of attachment on January 3, 1992, but we stymied by the absence of a responsible officer in petitioners' offices. Note is taken of the fact that petitioners Oate and Econ Holdings admitted in their answer 9 that the offices of both Brunner Development Corporation and Econ Holdings were located at the same address and that petitioner Oate is the President of Econ Holdings while petitioner Dio is the President of Brunner Development Corporation as well as a stockholder and director of Econ Holdings. Thus, an exception to the established rule on the enforcement of the writ of attachment can be made where a previous attempt to serve the summons and the writ of attachment failed due to factors beyond the control of either the plaintiff or the process server, provided that such service is effected within a reasonable period thereafter. Several reasons can be given for the exception. First, there is a possibility that a defendant, having been alerted of plaintiffs action by the attempted service of summons and the writ of attachment, would put his properties beyond the reach of the plaintiff while the latter is trying to serve the summons and the writ anew. By the time the plaintiff may have caused the service of summons and the writ, there might not be any property of the defendant left to attach. Second, the court eventually acquired jurisdiction over the petitioners six days later. To nullify the notices of garnishment issued prior thereto would again open the possibility that petitioners would transfer the garnished monies while Sun Life applied for new notices of garnishment. Third, the ease by which a writ of attachment can be obtained is counter- balanced by the ease by which the same can be discharged: the defendant can either make a cash deposit or post a counter-bond equivalent to the value of the property attached. 10 The petitioners herein tried to have the writ of attachment discharged by posting a counter-bond, the same was denied by respondent Judge on the ground that the amount of the counter-bond was less than that of Sun Life's bond. II. Petitioners' second ground assail the acts of respondent Judge in allowing the examination of Urban Banks' records and in ordering that the examination of the bank records of BPI and PNB as invalid since no notice of said examinations were ever given them. Sun Life grounded its requests for the examination of the bank accounts on Section 10, Rule 57 of the Rules of Court, which provided, to wit: Sec. 10. Examination of party whose property is attached and persons indebted to him or controlling his property; delivery of property to officer. Any person owing debts to the party whose property is attached or having in his possession or under his control any credit or other personal property belonging to such party, may be required to attend before the court in which the action is pending, or before a commissioner appointed by the court and be examined on oath respecting the same. The party whose property is attached may also be required to attend for the purpose of giving information respecting his property, and may be examined on oath. The court may, after such examination, order personal property capable of manual delivery belonging to him, in the possession of the person so required to attend before the court, to be delivered to the clerk or court, sheriff, or other proper officer on such terms as may be just, having reference to any lien thereon or claim against the same, to await the judgment in the action. It is clear from the foregoing provision that notice need only be given to the garnishee, but the person who is holding property or credits belonging to the defendant. The provision does not require that notice be furnished the defendant himself, except when there is a need to examine said defendant "for the purpose of giving information respecting his property. Furthermore, Section 10 Rule 57 is not incompatible with Republic Act No. 1405, as amended, "An Act Prohibiting Disclosure or Inquiry Into, Deposits With Any Banking Institution and Providing Penalty Therefore," for Section 2 therefore provides an exception "in cases where the money deposited or invested is the subject matter of the litigation." The examination of the bank records is not a fishing expedition, but rather a method by which Sun Life could trace the proceeds of the check it paid to petitioners. WHEREFORE, the instant petitions are hereby DISMISSED. The temporary restraining order issued on June 28, 1993 is hereby lifted. SO ORDERED.
THOMAS PEPPERELL, Plaintiff-Appellee, v. B.F. TAYLOR, Defendant- Appellant.
P.Q. Rothrock, for Appellant.
T.L. McGirr and C.H. Gest, for Appellee.
SYLLABUS 1. CIVIL PROCEDURE; ATTACHMENT. An affidavit for attachment which states that the defendant has disposed of his property or is about to dispose of it with intent to defraud his creditors, is not defective.
2. ID.; ID. Section 426 of the Code of Civil Procedure, which prohibits an attachment when there is other sufficient security, had no application to a case where the attachment is levied upon the property upon which the security exists and in an action to recover the debt so secured.
3. ID.; ID. Section 510 of the Code of Civil Procedure, relating to interest on judgments, does not apply to a case where the obligations sued on bears interest. In such a case a judgment which provides for interest from the maturity of the obligation until final payment is proper.
D E C I S I O N
WILLARD, J. :
This is an ordinary action on a promissory note to recover the sum of $1,150, United States currency, with interest thereon at the rate of 25 per cent annum from September 14, 1903, the date of the note, until its payment. The action was commenced on the 21st of April, 1904, and on the 25th of April the plaintiff procured an attachment of the property of the defendant under the provisions of section 424 and following sections of the Code of Civil Procedure.
The affidavit for attachment stated that the defendant had disposed of his property or is about to dispose of his property with intent to defraud his creditors. By virtue of the writ of attachment the sheriff levied upon the launch Scotia, the property of the defendant. The defendant moved in the court below to dissolve the attachment, which motion was denied, and to the order denying it he took an exception. The case was tried in the court below, and judgment entered for the plaintiff for the face of the note with interest at the rate of 25 per cent annum from the 14th day of September, 1903, until the debt was paid. The defendant has brought the case here by bill of exceptions, and makes two assignments of errors.
The first relates to the sufficiency of the affidavit upon which the attachment was granted. The claim of the defendant is that the affidavit was insufficient because the allegation as to the transfer of property was in the alternative.
An affidavit which stated in the alternative two reasons for the attachment, one of which was by the statute a ground therefore and the other was not, would be bad, because, while it stated that one or the other ground existed, it did not state which one, and the one that did in fact exist might be the one which was not sufficient to authorize the issuance of the writ. In such a case it could be truthfully said that the affidavit did not state the existence of any ground for attachment. That, however, can not be said where the affidavit states in the alternative, as it does in this case, two grounds, either one of which would justify the attachment. If one does not exist the other must. It therefore states positively the existence of a ground for attachment. The objection that could be made to such an affidavit is not that it does not state a ground for attachment, but that it is indefinite in not stating positively which one of several grounds alleged exists. This ought not to be sufficient to render the attachment void. In some cases, as in this, it might be impossible to state truthfully which one of the two grounds did in fact exist. The plaintiff might have information that the defendant was attempting to dispose of his property with intent to defraud his creditors. At the time when he swears to the affidavit, which must necessarily be some time after he acquires the information, he can not know just how far the defendant has proceeded in his attempt. At that precise time the fraudulent sale contemplated may have been actually consummated, without the plaintiff knowing it. In such a case he would be justified in making the affidavit in the alternative. In some, perhaps in a majority, of the States of the United States such an affidavit as the one in this case would be held had. There are other courts of the United States, however, in which it would be held good.
With the motion to dissolve the attachment the defendant presented his affidavit to the effect that he had not disposed of and did not intend to dispose of his property for the purpose of defrauding his creditors. Upon this question of fact we do not think that the preponderance of the evidence is against the decision of the trial court. At the hearing of this motion plaintiff, in addition to the affidavit on which the attachment was granted, presented a supporting affidavit in which he gave the source of his information as to the proposed sale.
Section 426 of the Code of Civil Procedure provides, among other things, that the judge shall grant an order of attachment when it appears "that the case is one of those mentioned in section four hundred and twenty-four, and that there is no other sufficient security for the claim sought to be enforced by the action."cralaw virtua1aw library
It appears that the plaintiff at the time that the launch Scotia was attached in this proceeding had what is known in the United States as a chattel mortgage on the said launch to secure the note sued on in this case, and other notes. The claim of the appellant is that this so-called chattel mortgage constituted other security within the meaning of section 426, and that the attachment was therefore void. The plaintiffs answer to this claim is that his so-called chattel mortgage was void under the laws in force in these Islands, and therefore there was no security at all.
We do not find it necessary to pass upon the validity of this instrument. The object of the statute was to prevent the creditor, who already had security on certain goods, from attaching other goods to secure the same debt. It was not, in our opinion, intended to apply to a case where the plaintiff caused his attachment to be levied upon the very article upon which the security existed, and in an action to recover the debt which was so secured. In fact, under the Spanish law of civil procedure, in an action to recover a debt thus secured the property first to be attached is that upon which the security rested. What the effect of this attachment upon the security is we do not decide. We simply hold that section 426 does not prevent an attachment of the article upon which the security rests for the debt this secured.
The question raised by the assignment of error in regard to the interest has been decided adversely to the appellant in the case of the Banco Espaol Filipino v. Donaldson Sim & Co., No. 2422. 1 On motion for a rehearing in that case it was held that a judgment of a Court of First Instance which directed the payment of interest from the date of default until the final payment of the judgment was authorized by the law, and that section 510 of the Code of Civil Procedure did not apply to such a case.
The judgment of the court below is affirmed, with the costs of this instance against the appellant, and after the expiration of twenty days judgment should be entered in accordance herewith and the case remanded to the court below for execution of said judgment. So ordered.
RICARDO CUARTERO, petitioner, vs. COURT OF APPEALS, ROBERTO EVANGELISTA and FELICIA EVANGELISTA, respondents. Abesamis, Medialdea & Abesamis for petitioner. Eufemio Law Offices for private respondent.
GUTIERREZ, JR., J.: This is a petition for review on certiorari seeking to annul the decision of the Court of Appeals promulgated on June 27, 1991 as well as the subsequent resolution dated October 22, 1991 denying the motion for reconsideration in CA-G.R. SP No. 23199 entitled "Spouses Roberto and Felicia Evangelista v. Honorable Cezar C. Peralejo, Presiding Judge Regional Trial Court of Quezon City, Branch 98, and Ricardo Cuartero," which nullified the orders of the trial court dated August 24, 1990 and October 4, 1990 and cancelled the writ of preliminary attachment issued on September 19, 1990. Following are the series of events giving rise to the present controversy. On August 20, 1990, petitioner Ricardo Cuartero filed a complaint before the Regional Trial Court of Quezon City against the private respondents, Evangelista spouses, for a sum of money plus damages with a prayer for the issuance of a writ of preliminary attachment. The complaint was docketed as Civil Case No. Q-90-6471. On August 24, 1990, the lower court issued an order granting ex-parte the petitioner's prayer for the issuance of a writ of preliminary attachment. On September 19, 1990, the writ of preliminary attachment was issued pursuant to the trial court's order dated August 24, 1990. On the same day, the summons for the spouses Evangelista was likewise prepared. The following day, that is, on September 20, 1990, a copy of the writ of preliminary attachment, the order dated August 24, 1990, the summons and the complaint were all simultaneously served upon the private respondents at their residence. Immediately thereafter, Deputy Sheriff Ernesto L. Sula levied, attached and pulled out the properties in compliance with the court's directive to attach all the properties of private respondents not exempt from execution, or so much thereof as may be sufficient to satisfy the petitioner's principal claim in the amount of P2,171,794.91. Subsequently, the spouses Evangelista filed motion to set aside the order dated August 24, 1990 and discharge the writ of preliminary attachment for having been irregularly and improperly issued. On October 4, 1990, the lower court denied the motion for lack of merit. Private respondents, then, filed a special civil action for certiorari with the Court of Appeals questioning the orders of the lower court dated August 24, 1990 and October 4, 1990 with a prayer for a restraining order or writ of preliminary injunction to enjoin the judge from taking further proceedings below. In a Resolution dated October 31, 1990, the Court of Appeals resolved not to grant the prayer for restraining order or writ of preliminary injunction, there being no clear showing that the spouses Evangelista were entitled thereto. On June 27, 1991, the Court of Appeals granted the petition for certiorari and rendered the questioned decision. The motion for reconsideration filed by herein petitioner Cuartero was denied for lack of merit in a resolution dated October 22, 1991. Hence, the present recourse to this Court. The petitioner raises the following assignment of errors: I THE COURT OF APPEALS ERRED AND COMMITTED A GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OF JURISDICTION WHEN IT HELD THAT THE REGIONAL TRIAL COURT DID NOT ACQUIRE JURISDICTION OVER RESPONDENT SPOUSES. II THE COURT OF APPEALS ERRED AND ACTED WITH GRAVE ABUSE OF DISCRETION WHEN IT HELD THAT THE REGIONAL TRIAL COURT COULD NOT VALIDLY ISSUE THE SUBJECT WRIT OF PRELIMINARY ATTACHMENT WHICH IS AN ANCILLARY REMEDY. (Rollo, p. 13) The Court of Appeals' decision is grounded on its finding that the trial court did not acquire any jurisdiction over the person of the defendants (private respondents herein). It declared that: . . . the want of jurisdiction of the trial court to proceed in the main case as well as the ancillary remedy of attachment is quite clear. It is not disputed that neither service of summons with a copy of the complaint nor voluntary appearance of petitioners was had in this case before the trial court issued the assailed order dated August 24, 1990, as well as the writ of preliminary attachment dated September 19, 1990. This is reversible error and must be corrected on certiorari. (Rollo, p. 24) The appellate tribunal relied on the case of Sievert v. Court of Appeals, 168 SCRA 692 (1988) in arriving at the foregoing conclusion. It stated that: Valid service of summons and a copy of the complaint vest jurisdiction in the court over the defendant both for the purpose of the main case and for purposes of the ancillary remedy of attachment and a court which has not acquired jurisdiction over the person of defendant, cannot bind the defendant whether in the main case or in any ancillary proceeding such as attachment proceedings (Sievert v. Court of Appeals, 168 SCRA 692). (Rollo, p. 24) The private respondents, in their comment, adopted and reiterated the aforementioned ruling of the Court of Appeals. They added that aside from the want of jurisdiction, no proper ground also existed for the issuance of the writ of preliminary attachment. They stress that the fraud in contracting the debt or incurring the obligation upon which the action is brought which comprises a ground for attachment must have already been intended at the inception of the contract. According to them, there was no intent to defraud the petitioner when the postdated checks were issued inasmuch as the latter was aware that the same were not yet funded and that they were issued only for purposes of creating an evidence to prove a pre-existing obligation. Another point which the private respondents raised in their comment is the alleged violation of their constitutionally guaranteed right to due process when the writ was issued without notice and hearing. In the later case of Davao Light and Power Co., Inc. v. Court of Appeals, G.R. No. 93262, November 29, 1991, we had occasion to deal with certain misconceptions which may have arisen from our Sievert ruling. The question which was resolved in the Davao Light case is whether or not a writ of preliminary attachment may issue ex-parte against a defendant before the court acquires jurisdiction over the latter's person by service of summons or his voluntary submission to the court's authority. The Court answered in the affirmative. This should have clarified the matter but apparently another ruling is necessary. A writ of preliminary attachment is defined as a provisional remedy issued upon order of the court where an action is pending to be levied upon the property or properties of the defendant therein, the same to be held thereafter by the sheriff as security for the satisfaction of whatever judgment might be secured in said action by the attaching creditor against the defendant (Adlawan v. Tomol, 184 SCRA 31 [1990] citing Virata v. Aquino, 53 SCRA 30-31 [1973]). Under section 3, Rule 57 of the Rules of Court, the only requisites for the issuance of the writ are the affidavit and bond of the applicant. As has been expressly ruled in BF Homes, Inc. v. Court of Appeals, 190 SCRA 262 (1990), citing Mindanao Savings and Loan Association, Inc. v. Court of Appeals, 172 SCRA 480 (1989), no notice to the adverse party or hearing of the application is required inasmuch as the time which the hearing will take could be enough to enable the defendant to abscond or dispose of his property before a writ of attachment issues. In such a case, a hearing would render nugatory the purpose of this provisional remedy. The ruling remains good law. There is, thus, no merit in the private respondents' claim of violation of their constitutionally guaranteed right to due process. The writ of preliminary attachment can be applied for and granted at the commencement of the action or at any time thereafter (Section 1, Rule 57, Rules of Court). In Davao Light and Power, Co., Inc. v. Court of Appeals, supra, the phrase "at the commencement of the action" is interpreted as referring to the date of the filing of the complaint which is a time before summons is served on the defendant or even before summons issues. The Court added that . . . after an action is properly commenced by filing of the complaint and the payment of all requisite docket and other fees the plaintiff may apply and obtain a writ of preliminary attachment upon the fulfillment of the pertinent requisites laid down by law, and that he may do so at any time, either before or after service of summons on the defendant. And this, indeed, has been the immemorial practice sanctioned by the courts: for the plaintiff or other proper party to incorporate the application for attachment in the complaint or other appropriate pleading (counter-claim, cross-claim, third- party-claim) and for the Trial Court to issue the writ ex- parte at the commencement of the action if it finds the application otherwise sufficient in form and substance. The Court also pointed out that: . . . It is incorrect to theorize that after an action or proceeding has been commenced and jurisdiction over the person of the plaintiff has been vested in the Court, but before acquisition of jurisdiction over the person of the defendant (either by service of summons or his voluntary submission to the Court's authority), nothing can be validly done by the plaintiff or the Court. It is wrong to assume that the validity of acts done during the period should be dependent on, or held in suspension until, the actual obtention of jurisdiction over the defendants person. The obtention by the court of jurisdiction over the person of the defendant is one thing; quite another is the acquisition of jurisdiction over the person of the plaintiff or over the subject matter or nature of the action, or the res or object thereof. It is clear from our pronouncements that a writ of preliminary attachment may issue even before summons is served upon the defendant. However, we have likewise ruled that the writ cannot bind and affect the defendant. However, we have likewise ruled that the writ cannot bind and affect the defendant until jurisdiction over his person is eventually obtained. Therefore, it is required that when the proper officer commences implementation of the writ of attachment, service of summons should be simultaneously made. It must be emphasized that the grant of the provisional remedy of attachment practically involves three stages: first, the court issues the order granting the application; second, the writ of attachment issues pursuant to the order granting the writ; and third, the writ is implemented. For the initial two stages, it is not necessary that jurisdiction over the person of the defendant should first be obtained. However, once the implementation commences, it is required that the court must have acquired jurisdiction over the defendant for without such jurisdiction, the court has no power and authority to act in any manner against the defendant. Any order issuing from the Court will not bind the defendant. In Sievert v. Court of Appeals, supra, cited by the Court of Appeals in its questioned decision, the writ of attachment issued ex-parte was struck down because when the writ of attachment was being implemented, no jurisdiction over the person of the defendant had as yet been obtained. The court had failed to serve the summons to the defendant. The circumstances in Sievert are different from those in the case at bar. When the writ of attachment was served on the spouses Evangelista, the summons and copy of the complaint were also simultaneously served. It is appropriate to reiterate this Court's exposition in the Davao Light and Power case cited earlier, to wit: . . . writs of attachment may properly issue ex-parte provided that the Court is satisfied that the relevant requisites therefore have been fulfilled by the applicant, although it may, in its discretion, require prior hearing on the application with notice to the defendant, but that levy on property pursuant to the writ thus issued may not be validly effected unless preceded, or contemporaneously accompanied by service on the defendant of summons, a copy of the complaint (and of the appointment of guardian ad litem, if any), the application for attachment (if not incorporated in but submitted separately from the complaint), the order of attachment, and the plaintiff's attachment bond. The question as to whether a proper ground existed for the issuance of the writ is a question of fact the determination of which can only be had in appropriate proceedings conducted for the purpose (Peroxide Philippines Corporation V. Court of Appeals, 199 SCRA 882 [1991]). It must be noted that the spouses Evangelista's motion to discharge the writ of preliminary attachment was denied by the lower court for lack of merit. There is no showing that there was an abuse of discretion on the part of the lower court in denying the motion. Moreover, an attachment may not be dissolved by a showing of its irregular or improper issuance if it is upon a ground which is at the same time the applicant's cause of action in the main case since an anomalous situation would result if the issues of the main case would be ventilated and resolved in a mere hearing of a motion (Davao Light and Power Co., Inc. v. Court of Appeals, supra, The Consolidated Bank and Trust Corp. (Solidbank) v. Court of Appeals, 197 SCRA 663 [1991]). In the present case, one of the allegations in petitioner's complaint below is that the defendant spouses induced the plaintiff to grant the loan by issuing postdated checks to cover the installment payments and a separate set of postdated cheeks for payment of the stipulated interest (Annex "B"). The issue of fraud, then, is clearly within the competence of the lower court in the main action. WHEREFORE, premises considered, the Court hereby GRANTS the petition. The challenged decision of the Court of Appeals is REVERSED, and the order and writ of attachment issued by Hon. Cezar C. Peralejo, Presiding Judge of Branch 98, Regional Trial Court of Quezon City against spouses Evangelista are hereby REINSTATED. No pronouncement as to costs. SO ORDERED. PHILIPPINE ECONOMIC ZONE AUTHORITY, represented herein by DIRECTOR GENERAL LILIA B. DE LIMA, Petitioner, vs. JOSEPH JUDE CARANTES, ROSE CARANTES, and all the other HEIRS OF MAXIMINO CARANTES, Respondents. D E C I S I O N VILLARAMA, JR., J.: This petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended, seeks to reverse and set aside the Decision 1
dated October 26, 2007 of the Court of Appeals (CA) in CA-G.R. CV No. 73230. The Court of Appeals had affirmed the Order 2 dated October 2, 2001 of the Regional Trial Court (RTC), Branch 5, Baguio City in Civil Case No. 4339-R, granting the respondents Petition 3 for injunction. The facts are gathered from the records of the case. Respondents Joseph Jude Carantes, Rose Carantes and the heirs of Maximino Carantes are in possession of a 30,368-square meter parcel of land located in Loakan Road, Baguio City. On June 20, 1997, they obtained Certificate of Ancestral Land Claim (CALC) No. CAR-CALC-022 4 over the land from the Department of Environment and Natural Resources (DENR). On the strength of said CALC, respondents secured a building permit 5 and a fencing permit 6 from the Building Official of Baguio City, Teodoro G. Barrozo. Before long, they fenced the premises and began constructing a residential building thereon. Soon, respondents received a letter 7 dated February 9, 1999 from Digna D. Torres, the Zone Administrator of the Philippine Economic Zone Authority (PEZA), informing them that the house they built had overlapped PEZAs territorial boundary. Torres advised respondents to demolish the same within sixty (60) days from notice. Otherwise, PEZA would undertake its demolition at respondents expense. Without answering PEZAs letter, respondents filed a petition for injunction, with prayer for the issuance of a temporary restraining order (TRO) and writ of preliminary injunction before the RTC of Baguio City. By Order 8 dated April 8, 1999, the RTC of Baguio City issued a TRO, which enjoined PEZA to cease and desist from threatening respondents with the demolition of their house before respondents prayer for a writ of preliminary injunction can be heard. On September 19, 2001, the RTC likewise issued an Order, 9 which directed the parties to maintain the status quo pending resolution of the case. On October 2, 2001, the RTC granted respondents petition and ordered the issuance of a writ of injunction against PEZA, thus: WHEREFORE, the petition is herein GRANTED and a writ of injunction is hereby issued enjoining the respondents, their agents, representatives or anybody acting in their behalf from dispossessing, notifying or disturbing in any [manner] the peaceful possession and occupation of the land by the petitioners. SO ORDERED. 10
The trial court ruled that respondents are entitled to possess, occupy and cultivate the subject lots on the basis of their CALC. The court a quo explained that by the very definition of an ancestral land under Republic Act (R.A.) No. 8371 11 or the Indigenous Peoples Rights Act of 1997, said lots have been segregated from lands of the public domain. As such, the rights of respondents to the land are already vested in them and cannot be disturbed by Proclamation No. 1825, 12 which included said land within the export processing zone of Baguio City. On appeal, the CA affirmed the RTC ruling. In the assailed Decision dated October 26, 2007, the appellate court echoed the trial courts declaration that the subject lots have been set aside from the lands of the public domain. On February 1, 2008, the Office of the Solicitor General (OSG), as counsel for petitioner PEZA, filed a Motion to Admit 13 petition, with the present Petition 14 attached. Petitioner challenges the CA decision on two (2) issues: I. WHETHER OR NOT IT IS THE PETITIONER OR THE CITY ENGINEER OF BAGUIO CITY WHO HAS THE LEGAL AUTHORITY TO ISSUE BUILDING AND FENCING PERMITS FOR CONSTRUCTIONS WITHIN THE PEZA-BCEZ. II. WHETHER OR NOT RESPONDENTS CALC IS SUFFICIENT TO DISREGARD THE PROVISIONS OF THE NATIONAL BUILDING CODE OF THE PHILIPPINES. 15
Amplified, the issue for our determination is whether petitioner can require respondents to demolish the structures they had built within the territory of PEZA-BCEZ (Baguio City Economic Zone). The OSG, at the outset, explains the delay in appealing the CA decision. It attributes the delay to the inadvertence of Senior State Solicitor Rodolfo Geronimo M. Pineda, the temporarily-designated officer-in-charge (OIC) of Division XV, who took over the case when State Solicitor Maricar S.A. Prudon-Sison went on maternity leave. Pineda allegedly merely noted receipt of the CA decision without noticing that it was adverse to PEZA. The OSG adds that the sparse complement of three (3) lawyers left at the time could not tackle at once the horde of cases assigned to the division. On substantive grounds, petitioner claims exclusive authority to issue building and fencing permits within ecozones under Section 6 16 of Presidential Decree (P.D.) No. 1716, 17 amending P.D. No. 66. 18 Alongside, petitioner asserts concurrent authority to require owners of structures without said permits to remove or demolish such structures under Section 14 (i) 19 of R.A. No. 7916. 20
For their part, respondents rely on CAR-CALC-022 for their right to fence the lots and build a house thereon. They insist that the function of issuing building and fencing permits, even within the Baguio City Economic Zone, pertains to the Office of the City Mayor and the Building Official of Baguio City, respectively. Respondents likewise assail the petition for being filed late, stressing that it was filed only after almost three (3) months from petitioners receipt of the CA decision. We grant the petition. It is settled that an appeal must be perfected within the reglementary period provided by law; otherwise, the decision becomes final and executory. 21 Before the Supreme Court, a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended, must be filed within fifteen (15) days from notice of the judgment or final order or resolution appealed from, or of the denial of the petitioners motion for new trial or reconsideration filed in due time after notice of the judgment. Even then, review is not a matter of right, but of sound judicial discretion, and may be granted only when there are special and important reasons therefor. In the case at bar, the Docket Division of the OSG received a copy of the CA decision on November 7, 2007. It was not until February 1, 2008 or almost three (3) months however, that the OSG, for petitioner, filed a petition for review on certiorari with this Court. The OSG pleads for understanding considering the scarcity of its lawyers and the inadvertence of the temporarily-designated OIC of Division XV in overlooking that the CA decision was adverse to PEZA. While the Court realizes the OSGs difficulty in having only three (3) lawyers working full time on its cases, the OSG could have easily asked for an extension of time within which to file the petition. More importantly, as the government agency tasked to represent the government in litigations, the OSG should perform its duty with promptness and utmost diligence. However, upon careful consideration of the merits of this case, the Court is inclined to overlook this procedural lapse in the interest of substantial justice. Although a party is bound by the acts of its counsel, including the latters mistakes and negligence, a departure from this rule is warranted where such mistake or neglect would result in serious injustice to the client. Indeed, procedural rules may be relaxed for persuasive reasons to relieve a litigant of an injustice not commensurate with his failure to comply with the prescribed procedure. 22 More so, when to allow the assailed decision to go unchecked would set a precedent that will sanction a violation of substantive law. Such is the situation in this case. Injunction is a judicial writ, process or proceeding whereby a party is directed either to do a particular act, in which case it is called a mandatory injunction or to refrain from doing a particular act, in which case it is called a prohibitory injunction. As a main action, injunction seeks to permanently enjoin the defendant through a final injunction issued by the court and contained in the judgment. Section 9, Rule 58 of the 1997 Rules of Civil Procedure, as amended, provides, SEC. 9. When final injunction granted. If after the trial of the action it appears that the applicant is entitled to have the act or acts complained of permanently enjoined, the court shall grant a final injunction perpetually restraining the party or person enjoined from the commission or continuance of the act or acts or confirming the preliminary mandatory injunction. Two (2) requisites must concur for injunction to issue: (1) there must be a right to be protected and (2) the acts against which the injunction is to be directed are violative of said right. 23 Particularly, in actions involving realty, preliminary injunction will lie only after the plaintiff has fully established his title or right thereto by a proper action for the purpose. To authorize a temporary injunction, the complainant must make out at least a prima facie showing of a right to the final relief. Preliminary injunction will not issue to protect a right not in esse. 24 These principles are equally relevant to actions seeking permanent injunction. At the onset, we must stress that petitioner does not pose an adverse claim over the subject land. Neither does petitioner dispute that respondents hold building and fencing permits over the lots. For petitioner, the question that must be answered is whether respondents may build structures within the Baguio City Economic Zone on the basis of their CAR-CALC-022, and the building and fencing permits issued by the City Building Official. We rule in the negative. In the parallel case of Philippine Economic Zone Authority (PEZA) v. Borreta, 25 Benedicto Carantes invoked CAR-CALC-022, the same CALC invoked by respondents in this case, to put up structures in the land subject of said case. The Court, speaking through Justice Angelina Sandoval-Gutierrez, refused to recall the writ of demolition issued by the trial court therein. We held that Carantes is a mere applicant for the issuance of a certificate of ownership of an ancestral land who has yet to acquire a vested right as owner thereof so as to exclude the land from the areas under PEZA. We perceive no good reason to depart from this ruling as we find respondents herein to be similarly situated. As holders of a CALC, respondents possess no greater rights than those enumerated in Par. 1, Section 2, Article VII of DENR Department Administrative Order (DAO) No. 02, Series of 1993: SECTION 2. Rights and Responsibilities of Ancestral Land Claimants 1. Rights 1. The right to peacefully occupy and cultivate the land, and utilize the natural resources therein, subject to existing laws, rules and regulations applicable thereto; 2. The right of the heirs to succeed to the claims subject to existing rules and regulations; 3. The right to exclude from the claim any other person who does not belong to the family or clan; and 4. The right to utilize trees and other forest products inside the ancestral land subject to these rules as well as customary laws. (Emphasis supplied.) Respondents being holders of a mere CALC, their right to possess the subject land is limited to occupation in relation to cultivation. Unlike No. 1, 26 Par. 1, Section 1, Article VII of the same DENR DAO, which expressly allows ancestral domain claimants to reside peacefully within the domain, nothing in Section 2 grants ancestral land claimants a similar right, much less the right to build permanent structures on ancestral lands an act of ownership that pertains to one (1) who has a recognized right by virtue of a Certificate of Ancestral Land Title. On this score alone, respondents action for injunction must fail. Yet, even if respondents had established ownership of the land, they cannot simply put up fences or build structures thereon without complying with applicable laws, rules and regulations. In particular, Section 301 of P.D. No. 1096, otherwise known as the National Building Code of the Philippines mandates: SECTION 301. Building Permits No person, firm or corporation, including any agency or instrumentality of the government shall erect, construct, alter, repair, move, convert or demolish any building or structure or cause the same to be done without first obtaining a building permit therefor from the Building Official assigned in the place where the subject building is located or the building work is to be done. Supplementary to a building permit, a fencing permit must also be secured from the Building Official concerned before fences may be installed in the premises. In the present case, petitioner refuses to honor the building and fencing permits issued by the City Building Official to respondents. Petitioner PEZA maintains that the function of administering and enforcing the provisions of P.D. No. 1096 within the areas owned and administered by it, pertains to PEZA. Hence, it is PEZA, and not the local Building Official of Baguio City, which may properly issue building and fencing permits within PEZA. On this point, Section 205 of P.D. No. 1096 is pertinent: SECTION 205. Building Officials Except as otherwise provided herein, the Building Official shall be responsible for carrying out the provisions of this Code in the field as well as the enforcement of orders and decisions made pursuant thereto. Due to the exigencies of the service, the Secretary may designate incumbent Public Works District Engineers, City Engineers and Municipal Engineers to act as Building Officials in their respective areas of jurisdiction. The designation made by the Secretary under this Section shall continue until regular positions of Building Official are provided or unless sooner terminated for causes provided by law or decree.1avvphi1 The position of Building Official is a regular item in the organizational structure of the local government. Only in case of urgent necessity may the Secretary of Public Works designate the incumbent District Engineer, Municipal Engineer or City Engineer, as the case may be. This was the applicable law even for areas covered by the Export Processing Zone Authority (EPZA) until P.D. No. 1716 was enacted on August 21, 1980. P.D. No. 1716 further amended P.D. No. 66, 27 the law creating the EPZA, by creating the PEZA. Section 11 of R.A. No. 7916 provides that the existing EPZA created under P.D. No. 66 shall evolve into and be referred to as the PEZA in accordance with the guidelines and regulations set forth in an executive order issued for the purpose. Thus, on October 30, 1995, Executive Order No. 282 28 was enacted. Under Section 1 thereof, all the powers, functions and responsibilities of EPZA under P.D. No. 66, as amended, insofar as they are not inconsistent with the powers, functions and responsibilities of the PEZA, under R.A. No. 7916, shall be assumed and exercised by PEZA. Among such powers is the administration and enforcement of the National Building Code of the Philippines in all zones and areas owned or administered by EPZA, as expressly provided in Section 6 of P.D. No. 1716: SEC. 6. The administration and enforcement of the provisions of Presidential Decree No. 1096, otherwise known as the National Building Code of the Philippines in all zones and areas owned or administered by the Authority shall be vested in the Administrator or his duly authorized representative. He shall appoint such EPZA qualified personnel as may be necessary to act as Building Officials who shall be charged with the duty of issuing Building Permits in the different zones. All fees and dues collected by the Building Officials under the National Building Code shall accrue to the Authority. (Emphasis supplied.) This function, which has not been repealed and does not appear to be inconsistent with any of the powers and functions of PEZA under R.A. No. 7916, subsists. Complimentary thereto, Section 14 (i) of R.A. No. 7916 states: SEC. 14. Powers and Functions of the Director General. - The director general shall be the overall [coordinator] of the policies, plans and programs of the ECOZONES. As such, he shall provide overall supervision over and general direction to the development and operations of these ECOZONES. He shall determine the structure and the staffing pattern and personnel complement of the PEZA and establish regional offices, when necessary, subject to the approval of the PEZA Board. In addition, he shall have the following specific powers and responsibilities: x x x x (i) To require owners of houses, buildings or other structures constructed without the necessary permit whether constructed on public or private lands, to remove or demolish such houses, buildings, structures within sixty (60) days after notice and upon failure of such owner to remove or demolish such house, building or structure within said period, the director general or his authorized representative may summarily cause its removal or demolition at the expense of the owner, any existing law, decree, executive order and other issuances or part thereof to the contrary notwithstanding; (Emphasis supplied.) By specific provision of law, it is PEZA, through its building officials, which has authority to issue building permits for the construction of structures within the areas owned or administered by it, whether on public or private lands. Corollary to this, PEZA, through its director general may require owners of structures built without said permit to remove such structures within sixty (60) days. Otherwise, PEZA may summarily remove them at the expense of the owner of the houses, buildings or structures. As regards the issuance of fencing permits on ancestral lands, particularly within Baguio City and the rest of the Cordilleras, DENR-Circular No. 03-90 (Rules on the Acceptance, Identification, Evaluation, and Delineation of Ancestral Land Claims by the Special Task Force Created by the Virtue of DENR Special Order Nos. 31 and 31-A both Series of 1990) prescribes in Section 12: SEC. 12. The Regional Land Management Services or the CENROs, through their respective Provincial Environment and Natural Resources Officer (PENRO), shall prepare and submit to the Special Task Force a report on each and every application surveyed and delineated. Thereafter, the Special Task Force after evaluating the reports, shall endorse valid ancestral land claims to the Secretary through the Indigenous Community Affairs Division, Special Concerns Office for the issuance of a Certificate of Ancestral Land Claim. As soon as ancestral land claim is found to be valid and in meritorious cases, the Special Task Force may recommend to the City/Municipal Mayors Office the issuance of a fencing permit to the applicant over areas actually occupied at the time of filing. (Emphasis supplied.) This is the general rule. Considering, however, that in this case, a fencing permit is issued complementary to a building permit and that within the premises of PEZA, it is the Authority that may properly issue a building permit, it is only fitting that fencing permits be issued by the Authority. From the foregoing disquisition, it clearly appears that respondents likewise failed to satisfy the second requisite in order that an injunction may issue: that the acts against which the injunction is to be directed, are violative of said right. PEZA acted well within its functions when it demanded the demolition of the structures which respondents had put up without first securing building and fencing permits from the Authority. WHEREFORE, the Petition is GRANTED. The Decision dated October 26, 2007 of the Court of Appeals in CA-G.R. CV No. 73230 affirming the Order dated October 2, 2001 of the court a quo in Civil Case No. 4339-R is REVERSED and SET ASIDE. Respondents are hereby DIRECTED to demolish the residential building they had built within the premises of PEZA within sixty (60) days from notice. No costs. SO ORDERED. ROMAN CATHOLIC ARCHBISHOP OF SAN FERNANDO, PAMPANGA represented herein by the incumbent Archbishop, Petitioner,
- versus -
G.R. No. 153829
EDUARDO SORIANO, JR., EDNA YALUN, EVANGELINA ABLAZA, FELICIDAD Y. URBINA, FELIX SALENGA, REYNALDO I. MALLARI, MARCIANA B. BARCOMA, BIENVENIDO PANGANIBAN, BRIGIDA NAVARRO, EUFRANCIA T. FLORES, VICTORIA B. SUDSOD, EUFRONIO CAPARAS, CRISANTO MANANSALA, LILY MASANGCAY, BENJAMIN GUINTO, JR., MARTHA G. CASTRO and LINO TOLENTINO,
CORONA, C.J., Chairperson, LEONARDO-DE CASTRO, BERSAMIN, DEL CASTILLO, and VILLARAMA, JR., JJ. ROMAN CATHOLIC ARCHBISHOP OF SAN FERNANDO, PAMPANGA represented herein by the incumbent Archbishop,
VILLARAMA, JR., J.: Before this Court are two petitions for resolution: the first, a Petition for Review on Certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended, filed by the Roman Catholic Archbishop (RCA) of San Fernando, Pampanga, assailing the March 18, 2002 Decision 28[2] and the May 30, 2002 Resolution 29[3] of the Court of Appeals (CA) in CA-G.R. SP No. 66974; and the second, a Petition for Injunction under Rule 58, filed by Benjamin Guinto, Jr. (Guinto), seeking to enjoin the implementation of the
Writ of Execution 30[4] dated October 14, 2003, issued by the Municipal Circuit Trial Court (MCTC) of Macabebe-Masantol, Pampanga in Civil Case No. 2000(23). The facts follow: The RCA of San Fernando, Pampanga, represented by Most Rev. Paciano B. Aniceto, D.D., claimed that it is the owner of a vast tract of land located near the Catholic Church at Poblacion, Macabebe, Pampanga and covered by Original Certificate of Title (OCT) No. 17629 issued by the Registry of Deeds of San Fernando on February 21, 1929. 31[5] The RCA alleged that several individuals unlawfully occupied the subject land and refused to vacate despite repeated demands. Having no other recourse, the RCA filed an ejectment case, docketed as Civil Case No. 2000(23), before the MCTC of Macabebe-Masantol, Pampanga against the alleged intruders, namely, Leocadio and Rufina Reyes, Jose Balagtas, Marcial and Victoria Balagtas, Levita Naluz, Dionisio Barcoma, Felicidad Urbina, Justiniano Reyes, Lawrence Muniz, Eduardo Soriano, Cosmer Vergara, Perlita Bustos, Brigida Navarro, Leonoda Cruz, Leonida Manansala,
Angelito Juliano, Eduardo Ibay, Edna Yalung, Reynaldo Mallari, Lily Masangcay, Evangelina Ablaza, Crisanto Manansala, Feliza Esguerra, Gloria Manansala, Bienvenido and Felicisima Panganiban, Ofroneo Caparas, Tino Enriquez, Elizabeth and Benjamin Guinto, Felix Salenga, Eleno and Rosala Salenga, Luisa and Domingo Sison, Francia Flores, Eduardo and Rosita Gutierrez, Zosima and Ener Basilio, Andy and Loreto Bonifacio, Peter and Felicisima Villajuan. 32[6]
On the other hand, defendants countered that the RCA has no cause of action against them because its title is spurious. They contended that the subject land belonged to the State, but they have already acquired the same by acquisitive prescription as they and their predecessors-in- interest have been in continuous possession of the land for more than thirty (30) years. After considering the pleadings submitted by the parties, the MCTC rendered decision on September 28, 2001 in favor of the RCA. The trial court held that OCT No. 17629 in the name of the RCA remains valid and binding against the whole world until it is declared void by a court of competent jurisdiction. Thus, defendants were ordered to vacate the
premises and to pay reasonable monthly rentals from August 15, 2000 until they shall have finally vacated the premises. 33[7]
Defendants appealed to the Regional Trial Court (RTC). However, the appeal was dismissed because of their failure to file the appeal memorandum. When defendants elevated the case to the CA, their petition for certiorari was not given due course for failure to file the same within the extended period. Hence, the decision ejecting the defendants from the premises became final. Pursuant to Section 21, 34[8] Rule 70 of the 1997 Rules of Civil Procedure, as amended, the RCA filed an Urgent Motion for Immediate Issuance of a Writ of Execution, which the MCTC granted in an Order 35[9]
dated February 10, 2003, as follows: WHEREFORE, on the basis of the rules and jurisprudence aforecited, the Motion for Execution filed
by plaintiff is hereby granted. Let a writ of execution be issued in connection with this case which is a ministerial duty of the Court. Defendants Motion for Inhibition is denied for lack of merit. SO ORDERED. 36[10]
Thereafter, the MCTC issued another Order dated October 6, 2003, the pertinent portion of which states: Let a writ of execution be issued to implement the Decision dated September 28, 2001. No further defendants motion to stay execution shall be entertained. SO ORDERED. 37[11]
Accordingly, a writ of execution 38[12] was issued commanding the sheriff or his deputies to implement the MCTC Decision. Thus, Sheriff
Edgar Joseph C. David sent the defendants a Notice to Vacate 39[13] dated December 8, 2003. Seeking to enjoin the implementation of the writ of execution and the notice to vacate, Guinto filed the instant Petition for Injunction with Prayer for Issuance of a Temporary Restraining Order (TRO), 40[14] docketed as G.R. No. 160909. Meanwhile, during the pendency of the ejectment case at the MCTC, some of the defendants therein, namely, Eduardo Soriano, Jr., Edna Yalun, Evangelina Ablaza, Felicidad Y. Urbina, Felix Salenga, Reynaldo I. Mallari, Marciana B. Barcoma, Bienvenido Panganiban, Brigida Navarro, Eufrancia T. Flores, Victoria B. Sodsod, Eufronio Caparas, Crisanto Manansala, Lily Masangcay, Benjamin Guinto, Jr., Martha G. Castro and Lino Tolentino filed Civil Case No. 01-1046(M) against the RCA for Quieting of Title and Declaration of Nullity of Title before the RTC of Macabebe, Pampanga.41[15] They claimed
that they are in actual possession of the land in the concept of owners and alleged that OCT No. 17629 in the name of RCA is spurious and fake. Before filing its Answer, the RCA moved to dismiss the case on grounds of noncompliance with a condition precedent, laches, and for being a collateral attack on its title. The RCA likewise later filed a supplement to its motion to dismiss. In an Order42[16] dated June 4, 2001, the RTC denied the motion to dismiss reasoning that when the rules speak of noncompliance with a condition precedent, it could refer only to the failure of a party to secure the appropriate certificate to file action under the Local Government Code, or the failure to exert earnest efforts towards an amicable settlement when the suit involves members of the same family. The RTC also found that plaintiffs have a cause of action. Furthermore, the trial court held that RCAs argument that the property cannot be acquired by prescription because it has title over it is a matter of evidence which may be established during the trial on the merits.
Aggrieved, the RCA filed a motion for reconsideration, which the trial court denied in an Order 43[17] dated July 24, 2001. Thereafter, the RCA filed with the CA a petition for certiorari with prayer for preliminary injunction. 44[18]
On March 18, 2002, the CA promulgated the assailed Decision,45[19] the dispositive portion of which reads: WHEREFORE, for lack of merit, the petition is hereby DISMISSED. SO ORDERED.46[20] A motion for reconsideration47[21] of the Decision was filed by the RCA. However, in the Resolution48[22] dated May 30, 2002, the CA
denied the motion for lack of merit. Hence, the RCA filed the present petition for review on certiorari,49[23] docketed as G.R. No. 153829, assailing the Decision of the CA, as well as its Resolution denying the motion for reconsideration. On January 14, 2004, we resolved to consolidate G.R. Nos. 160909 and 153829. 50[24] Subsequently, the Court resolved to treat the petition for injunction with prayer for the issuance of a TRO in G.R. No. 160909 as a motion for the issuance of a TRO and/or writ of preliminary injunction in G.R. No. 153829. 51[25]
The RCA raises the following issues: (A) WHETHER OR NOT CIVIL CASE NO. 01-1046(M) FOR QUIETING OF TITLE AND DECLARATION OF NULLITY OF TITLE IS LEGALLY DISMISSIBLE FOR VIOLATION OF THE VARIOUS PROVISIONS OF THE RULES OF COURT; and (B) WHETHER OR NOT THE CIVIL ACTION (THE ABOVE MENTIONED CIVIL CASE NO. 01-1046[M]) FILED BY PRIVATE RESPONDENTS CONSTITUTES A COLLATERAL ATTACK ON PETITIONER'S TITLE. 52[26]
Essentially, the issue before us is whether the CA erred in not holding that the RTC committed grave abuse of discretion in denying the motion to dismiss filed by the RCA. We affirm the ruling of the CA. Well-entrenched in our jurisdiction is the rule that the trial courts denial of a motion to dismiss cannot be questioned in a certiorari proceeding under Rule 65 of the 1997 Rules of Civil Procedure, as amended. This is because a certiorari writ is a remedy designed to correct errors of jurisdiction and not errors of judgment. The appropriate course of
action of the movant in such event is to file an answer and interpose as affirmative defenses the objections raised in the motion to dismiss. If, later, the decision of the trial judge is adverse, the movant may then elevate on appeal the same issues raised in the motion. 53[27]
The only exception to this rule is when the trial court gravely abused its discretion in denying the motion. 54[28] This exception is, nevertheless, applied sparingly, and only in instances when there is a clear showing that the trial court exercised its judicial power in an arbitrary or despotic manner by reason of passion or personal hostility. 55[29] Further, the abuse of the court's discretion must be so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform the duty enjoined by, or to act at all in contemplation of, law. 56[30]
Here, in dismissing the petition for certiorari, the CA did not find grave abuse of discretion on the part of the RTC. The appellate court was not convinced with the RCAs argument that plaintiffs failed to comply with the condition precedent provided in Article 477 57[31] of the Civil Code because they allegedly did not have legal or equitable title to, or interest in the real property. The CA explained that the requirement stated in Article 477 is not a condition precedent before one can file an action for quieting of title. Rather, it is a requisite for an action to quiet title to prosper and the existence or nonexistence of the requisite should be determined only after trial on the merits. The CA also agreed with the trial court in ruling that the RCA cannot raise in a motion to dismiss the ground that the complaint is already barred by laches for it still remains to be established during trial how long the plaintiffs have slept on their rights, if such be the case. Evidently, the CA is correct in finding that the denial by the RTC of the RCAs motion to dismiss is not tainted with grave abuse of discretion. Next, the RCA submits that an action for quieting of title is a special civil action covered by Rule 63, while an action for declaration of nullity of title is governed by ordinary rules. Thus, it contends that these cases should have been dismissed for violation of the rule on joinder of actions under Section 5, Rule 2 of the 1997 Rules of Civil Procedure, as amended, which requires that the joinder shall not include special civil
actions governed by special rules. Such contention, however, is utterly bereft of merit and insufficient to show that the CA erred in upholding the trial courts decision. Section 6 of Rule 2 explicitly provides that misjoinder of causes of action is not a ground for dismissal of an action. The RCA likewise asserts that the case for quieting of title is a collateral attack on its title which is prohibited by law. However, we agree with the CA in holding that the complaint against the RCA does not amount to a collateral attack because the action for the declaration of nullity of OCT No. 17629 is a clear and direct attack on its title. An action is deemed an attack on a title when its objective is to nullify the title, thereby challenging the judgment pursuant to which the title was decreed. The attack is direct when the objective is to annul or set aside such judgment, or enjoin its enforcement. On the other hand, the attack is indirect or collateral when, in an action to obtain a different relief, an attack on the judgment is nevertheless made as an incident thereof. 58[32]
The complaint filed with the RTC pertinently alleged that the claim of ownership by the RCA is spurious as its title, denominated as OCT No. 17629, is fake for the following reasons: (1) that the erasures are very
apparent and the title itself is fake; (2) it was made to appear under Memorandum of Encumbrance Entry No. 1007 that the title is a reconstituted title when in truth, it is not; and (3) the verification reveals that there was no petition filed before any court where an order was issued for the reconstitution and re-issuance of an owners duplicate copy.59[33] It is thus clear from the foregoing that the case filed questioning the genuineness of OCT No. 17629 is a direct attack on the title of the RCA. As regards the petition docketed as G.R. No. 160909 which this Court treated as motion for the issuance of a TRO and/or writ of preliminary injunction, Guinto insists that there is a need to enjoin the sheriff from enforcing the writ of execution as it would cause grave and irreparable damage to Guinto, while the RCA would not suffer any damage if it would later be proved that indeed its title is genuine. We disagree. Section 3, Rule 58 of the 1997 Rules of Civil Procedure, as amended, enumerates the grounds for the issuance of preliminary injunction, viz:
SEC. 3. Grounds for issuance of preliminary injunction. A preliminary injunction may be granted when it is established: (a) That the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts, either for a limited period or perpetually; (b) That the commission, continuance or nonperformance of the act or acts complained of during the litigation would probably work injustice to the applicant; or (c) That a party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual. And as clearly explained in Ocampo v. Sison Vda. de Fernandez: 60[34]
To be entitled to the injunctive writ, the applicant must show that there exists a right to be protected which is directly threatened by an act sought to be enjoined. Furthermore, there must be a showing that the invasion of the right is material and substantial and that there is an urgent and paramount necessity for
the writ to prevent serious damage. The applicants right must be clear and unmistakable. In the absence of a clear legal right, the issuance of the writ constitutes grave abuse of discretion. Where the applicants right or title is doubtful or disputed, injunction is not proper. The possibility of irreparable damage without proof of an actual existing right is not a ground for injunction. A clear and positive right especially calling for judicial protection must be shown. Injunction is not a remedy to protect or enforce contingent, abstract, or future rights; it will not issue to protect a right not in esse and which may never arise, or to restrain an act which does not give rise to a cause of action. There must exist an actual right. There must be a patent showing by the applicant that there exists a right to be protected and that the acts against which the writ is to be directed are violative of said right. In this case, the defendants in the ejectment case possess no such legal rights that merit the protection of the courts through the writ of preliminary injunction. The MCTC has already rendered a decision in favor of the RCA and ordered the defendants therein to vacate the premises. Their appeal to the RTC was dismissed and the decision has become final. Evidently, their right to possess the property in question has already been declared inferior or inexistent in relation to the right of the RCA in the MCTC decision which has already become final and executory. 61[35]
WHEREFORE, the petition in G.R. No. 153829 is DENIED. The Decision dated March 18, 2002 and the Resolution dated May 30, 2002 of the Court of Appeals in CA-G.R. SP No. 66974 are AFFIRMED. The motion for the issuance of a TRO and/or writ of preliminary injunction to enjoin the sheriff from enforcing the writ of execution in Civil Case No. 2000(23) is likewise DENIED for lack of merit. No costs. CHINA BANKING CORPORATION, Petitioner, vs. SPS. HARRY CIRIACO and ESTHER CIRIACO, Respondents. D E C I S I O N BRION, J.: We resolve the petition for review on certiorari 1 filed by China Banking Corporation (petitioner) to challenge the April 15, 2005 decision 2 and the October 10, 2005 resolution 3 of the Court of Appeals (CA) in CA-G.R. SP No. 64349. The CA decision denied the petitioners petition for certiorari for lack of merit. The CA resolution denied the petitioners subsequent motion for reconsideration. FACTUAL BACKGROUND On March 11, 1996, Spouses Harry and Esther Ciriaco (respondents) obtained a P1,500,000.00 loan 4 from the petitioner, secured by a real estate mortgage 5 over their 526-square meter land in La Trinidad, Benguet, covered by Transfer Certificate of Title (TCT) No. T-21710. 6
When the respondents defaulted in the payment of their loan, the petitioner extrajudicially foreclosed 7 the mortgaged property and sold it at public auction where the petitioner emerged as the highest bidder. The Sheriff executed a Certificate of Sale 8 in the petitioners favor on March 11, 1998. The Register of Deeds annotated the Certificate of Sale on TCT No. T- 21710 on March 24, 1998. 9
On March 23, 1999, a day before the expiration of the redemption period, the respondents filed a complaint with the Regional Trial Court (RTC) of La Trinidad, Benguet, Branch 8, for Injunction to enjoin the consolidation of title in the petitioners favor, assailing the redemption price of the foreclosed property. 10
On July 26, 1999, the RTC dismissed the complaint for being moot due to the consolidation of title in the petitioners favor on March 31, 1999, "without prejudice to the filing of an appropriate action." 11
On August 17, 1999, the respondents filed a complaint with the RTC of La Trinidad, Benguet, Branch 63, for Cancellation of Consolidation of Ownership over a Real Property, Specific Performance, and Damages. 12
They again questioned the redemption price of the foreclosed property. On September 23, 1999, the petitioner filed its Answer with Compulsory Counterclaim, denying the allegations of the respondents complaint. 13
On March 16, 2000, the respondents filed an Omnibus Motion for Leave to Amend Complaint and to Admit Attached Amended Complaint as well as Motion for Hearing on the Issuance of a Writ of Preliminary Injunction and/or Temporary Restraining Order (TRO), with a notice of hearing on the omnibus motion scheduled on March 22, 2000. 14 The respondents sought to amend the complaint to allege further that fraud attended the consolidation of title in the petitioners favor and to include a prayer for the issuance of a writ of preliminary injunction and/or TRO to enjoin the petitioner from disposing of the foreclosed property or taking possession thereof. At the March 22, 2000 hearing, the RTC gave the petitioner ten (10) days within which to file its comment to the respondents omnibus motion, and set the hearing on the omnibus motion on April 24, 2000. 15
The petitioner subsequently filed its Opposition to the omnibus motion, 16
arguing that the respondents further allegation of fraud changes the theory of the case which is not allowed, and that the respondents failed to show that they have a clear right in esse that should be protected by an injunctive relief. At the April 24, 2000 hearing on the omnibus motion, the RTC gave the respondents ten (10) days to file their comment to the petitioners opposition, and gave the petitioner ten (10) days to file its reply to the respondents comment. 17 The respondents did not file a reply to the petitioners opposition. THE RTCs RULING In its August 1, 2000 order, the RTC admitted the amended complaint and directed the petitioner to file an answer. It noted that the 1997 Rules of Civil Procedure relaxed the rule on amendments to pleadings, subject only to the limitation that they are not dilatory. It also granted the respondents application for the issuance of a writ of preliminary injunction and/or TRO, since the respondents were entitled to prove their claim of fraud, and their claim that the interests and penalty charges imposed by the bank had no factual basis. 18
The RTC denied 19 the petitioners subsequent motion for reconsideration. 20
On August 24, 2000, the RTC issued a writ of preliminary injunction, restraining the petitioner from disposing of the foreclosed property or taking possession thereof. 21
The petitioner then filed a Rule 65 petition for certiorari with the CA, arguing that the RTC gravely abused its discretion in precipitately granting the respondents application for the issuance of a writ of preliminary injunction without any hearing. 22
THE CAs RULING In its April 15, 2005 decision, the CA denied the petition. It found that the RTC did not commit any grave abuse of discretion since it gave the parties ample opportunity to present their respective positions on the propriety of an injunctive writ during the hearings on March 22, 2000 and April 24, 2000, and that the petitioner was also heard on its motion for reconsideration of the August 1, 2000 order. 23
When the CA denied 24 the petitioners motion for reconsideration, 25 the latter filed the present petition. 26
THE PETITION The petitioner argues that the RTC granted the respondents application for the issuance of a writ of preliminary injunction and/or TRO, despite the lack of a hearing thereon; the RTC conducted hearings on the respondents omnibus motion only, not on the respondents application for the issuance of a writ of preliminary injunction and/or TRO, which has not yet been set for hearing. THE CASE FOR THE RESPONDENTS The respondents submit that the RTC gave the petitioner ample opportunity to be heard on his opposition to the respondents application for the issuance of a writ of preliminary injunction and/or TRO at the March 22, 2000 and April 24, 2000 hearings, and on the petitioners motion for reconsideration of the August 1, 2000 order. THE ISSUE The core issue boils down to whether the CA erred in finding that the RTC did not commit any grave abuse of discretion in granting the respondents application for the issuance of a writ of preliminary injunction and/or TRO. OUR RULING We find merit in the petition. A preliminary injunction is an order granted at any stage of an action prior to the judgment or final order requiring a party or a court, agency or a person to refrain from a particular act or acts. 27 It is the "strong arm of equity," 28 an extraordinary peremptory remedy that must be used with extreme caution, 29 affecting as it does the respective rights of the parties. 30
Sections 3 and 5, Rule 58 of the 1997 Rules of Civil Procedure on preliminary injunction, pertinent to this case, provide the requirements for the issuance of a writ of preliminary injunction or a TRO: SEC. 3. Grounds for issuance of preliminary injunction. - A preliminary injunction may be granted when it is established: (a) That the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts, either for a limited period or perpetually; (b) That the commission, continuance or non-performance of the act or acts complained of during the litigation would probably work injustice to the applicant; or (c) That a party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual. SEC. 5. Preliminary injunction not granted without notice; exception. - No preliminary injunction shall be granted without hearing and prior notice to the party or persons sought to be enjoined. If it shall appear from facts shown by affidavits or by the verified application that great or irreparable injury would result to the applicant before the matter can be heard on notice, the court to which the application for preliminary injunction was made, may issue ex parte a temporary restraining order to be effective only for a period of twenty (20) days from service on the party or person sought to be enjoined, except as herein provided. Within the twenty-day period, the court must order said party or person to show cause at a specified time and place, why the injunction should not be granted. The court shall also determine, within the same period, whether or not the preliminary injunction shall be granted, and accordingly issue the corresponding order. However, subject to the provisions of the preceding sections, if the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury, the executive judge of a multiple-sala court or the presiding judge of a single-sala court may issue ex parte a temporary restraining order effective for only seventy-two (72) hours from issuance but shall immediately comply with the provisions of the next preceding section as to service of summons and the documents to be served therewith. Thereafter, within the aforesaid seventy-two (72) hours, the judge before whom the case is pending shall conduct a summary hearing to determine whether the temporary restraining order shall be extended until the application for preliminary injunction can be heard. In no case shall the total period of effectivity of the temporary restraining order exceed twenty (20) days, including the original seventy-two hours provided herein. 31
From the provisions, it appears clearly that before a writ of preliminary injunction may be issued, a clear showing must be made that there exists a right to be protected and that the acts against which the writ is to be directed are violative of an established right. 32 The holding of a hearing, where both parties can introduce evidence and present their side, is also required before the courts may issue a TRO or an injunctive writ. 33
Generally, an RTC's decision to grant or to deny injunctive relief will not be set aside on appeal, unless the trial court abused its discretion. In granting or denying injunctive relief, a court abuses its discretion when it lacks jurisdiction; fails to consider and make a record of the factors relevant to its determination; relies on clearly erroneous factual findings; considers clearly irrelevant or improper factors; clearly gives too much weight to one factor; relies on erroneous conclusions of law or equity; or misapplies its factual or legal conclusions. 34
In this case, we find that the RTC abbreviated the proceedings and precipitately granted the respondents application for injunctive relief. The RTC did not conduct a hearing for reception of a "sampling" of the parties respective evidence to give it an idea of the justification for its issuance pending the decision of the case on the merits. 35 It failed to make any factual finding to support the issuance of the writ of preliminary injunction since it did not conduct any hearing on the application for the issuance of the writ of preliminary injunction or TRO. The RTC conducted the March 22, 2000 and April 24, 2000 hearings on the respondents omnibus motion only whether to admit the amended complaint and whether to hold a hearing on the respondents application for a writ of preliminary injunction.1wphi1 In fact, a perusal of the August 1, 2000 order shows that the RTC granted the respondents application for a writ of preliminary injunction based only on the respondents unsubstantiated allegations, thus: Going now to the application for a writ of preliminary injunction and/or temporary restraining order, the plaintiffs aver that a writ should issue forbidding the defendant bank from taking possession of the subject property and disposing of the same beyond recovery by them tending to make any favorable judgment in their favor ineffective. The Complaint alleges that had defendant bank not committed fraud, plaintiffs could have redeemed the property subject matter hereof. Furthermore, considering that the redemption price of the property foreclosed appears to have been bloated, thereby making it difficult for plaintiffs to redeem their property, to deny the application would in effect be condoning the act of the defendant bank in imposing interests and penalty charges which plaintiffs claim as not having been agreed upon by them. In view of the foregoing, plaintiffs are entitled to prove their claim of fraud and their claim that the interests and penalty charges imposed by the bank have no factual basis. 36
Clearly, the respondents right to injunctive relief has not been clearly and unmistakably demonstrated. The respondents have not presented evidence, testimonial or documentary, other than the bare allegations contained in their pleadings, to support their claim of fraud that brings about the irreparable injury sought to be avoided by their application for injunctive relief. Thus, the RTCs grant of the writ of preliminary injunction in favor of the respondents, despite the lack of any evidence of a clear and unmistakable right on their part, constitutes grave abuse of discretion amounting to lack of jurisdiction. Every court should remember that an injunction is a limitation upon the freedom of the defendants action and should not be granted lightly or precipitately. It should be granted only when the court is fully satisfied that the law permits it and the emergency demands it; 37 no power exists whose exercise is more delicate, which requires greater caution and deliberation, or is more dangerous in a doubtful case, that the issuance of an injunction. 38
WHEREFORE, the petition is GRANTED. The April 15, 2005 decision and the October 10, 2005 resolution of the Court of Appeals in CA-G.R. SP No. 64349 are REVERSED and SER ASIDE. The August 1, 2000 and March 7, 2001 orders of the Regional Trial Court of La Trinidad, Benguet, Branch 63 are MODIFIED. The Writ of Preliminary Injunction issued in Civil Case No. 99-CV-1395 is declared VOID and is therefore SET ASIDE. Costs against the respondents. SO ORDERED. DOLMAR REAL ESTATE DEVELOPMENT CORPORATION, MARIANO K. TAN, SR., MARIANO JOHN L. TAN, JR. and PHILIP L. TAN, petitioners, vs. COURT OF APPEALS, FIFTH DIVISION, REGIONAL TRIAL COURT, BRANCH 211, MANDALUYONG CITY, and SPOUSES PHILIP & NANCY YOUNG, respondents. D E C I S I O N SANDOVAL-GUTIERREZ, J.: Before us is a petition for certiorari (with an application for a temporary restraining order [TRO] and a writ of preliminary injunction) 1 assailing the Resolution dated January 25, 2006 2 and Resolution dated April 24, 2006 3 of the Court of Appeals (Fifth Division) in CA-G.R. SP No. 91869. On June 1, 2005, spouses Philip and Nancy Young, respondents, filed with the Regional Trial Court, Branch 211, Mandaluyong City a complaint for specific performance and damages against Dolmar Real Estate Development Corporation, Mariano K. Tan, Sr., Mariano John L. Tan, Jr., and Philip L. Tan, petitioners, docketed as SEC Case No. MC05-093. The complaint also prayed that a TRO and a preliminary injunction be issued ordering petitioners to: (a) cease and desist from further violating the provisions of the Memorandum of Agreement (MOA) dated March 4, 2003 and the Shareholders' Agreement dated May 16, 2003 executed by the parties; (b) comply with their obligations and duties stipulated in the said agreements by restoring to respondents-spouses Young their authority to manage the corporation; (c) abide by the quorum and consensus rules established in the said agreements governing the exercise of corporate acts and powers; and (d) desist from holding the meeting of the Board of Directors of the corporation scheduled on June 3, 2005. On June 2, 2005, the trial court issued a 72-hour restraining Order preventing the holding of the Board of Directors' meeting on June 3, 2005. 4
On June 17, 2005, after a summary hearing, the trial court issued the TRO prayed for by respondents-spouses Young and set the hearing on the prayer for a writ of preliminary injunction on June 21, 2005. The trial court likewise approved the bond in the amount of P100,000.00 posted by said respondents. 5
On October 14, 2005, the trial court issued an Order 6 directing inter alia that: (1) the status quo ante, meaning the situation of the contending parties prior to December 13, 2004, must be maintained; (2) there is a need to observe the four-director quorum and consensus rules; (3) it is necessary to observe the rule on counter-signature by spouses Young on the checks issued by Festive Foods International, Inc. and in banking transactions of the corporation; and (4) the parties shall mutually comply with their respective duties and responsibilities under the MOA and Shareholders' Agreement. 7 The dispositive portion of the Order reads: FOREGOING CONSIDERED and in the interest of justice and equity, the court hereby declares a status quo ante and the temporary restraining order bond shall remain in full force for the purpose stated therein. The Sheriff of this Court is hereby designated to enforce compliance thereof. SO ORDERED. Petitioners then filed with the Court of Appeals a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended, assailing the status quo ante Order for having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction. On November 15, 2005, the appellate court issued a Resolution 8 dismissing the petition for being "fatally defective" as it does not contain the certification of non-forum shopping; its verification merely refers to an answer with counterclaim and not to the petition itself; and the material portions of the record referred to in the petition are not attached to the said petition. However, upon petitioners' filing of a Motion for Reconsideration with Motion to Admit Attached Amended Petition (with an application for a TRO and a writ of preliminary injunction) dated November 21, 2005, 9 the appellate court, in its Resolution dated December 7, 2005, 10 granted the motion and reinstated the case. On January 25, 2006, the Court of Appeals issued a Resolution denying petitioners' application for a writ of preliminary injunction, thus: This is a petition x x x to nullify the Order of the RTC x x x which declared a status quo among the parties to mutually observe and comply with their respective duties under their MOA and Shareholders' Agreement during the pendency of the case before it. The case is one for specific performance filed by the private respondents to compel the petitioners to comply with their obligations under the said agreements. Dolmar has filed an application for preliminary injunction with us to enjoin the respondents from implementing the Order of October 14, 2005. In effect, it would like to disturb what the lower court has found to be the status quo ante. A comment was filed stating in essence that a writ of preliminary injunction may be resorted to only when there is a pressing necessity to avoid injurious consequences which cannot be remedied under any standard compensation. The lower court's assailed Order of October 14, 2005 has the effect of allowing the company to be run in accordance with the existing agreements of the parties during the pendency of the case below. We find no compelling reason to interfere with the prevailing state of affairs as ordered by the trial court. None of the grounds mentioned in Section 3 of Rule 58 for the issuance of a preliminary injunction exists. The application is denied. SO ORDERED. (Underscoring supplied) Petitioners filed a motion for reconsideration but it was denied for lack of merit in a Resolution dated April 24, 2006. Hence, the instant petition. Petitioners contend that the Court of Appeals, in issuing the assailed Resolutions, acted with grave abuse of discretion amounting to lack or excess of jurisdiction. They bewail the appellate court's simplistic manner of resolving their application for a TRO or a writ of preliminary injunction by "simply stating that the respondent appellate court 'found no compelling reason to interfere with the prevailing state of affairs as ordered by the trial court. None of the grounds mentioned in Section 3 of Rule 58 for the issuance of a preliminary injunction exists.' On the other hand, the Resolution denying their motion for reconsideration simply stated that the said motion lacked merit." 11
In their comment, respondents countered that the petition be denied for lack of merit. The petition must fail. The sole object of a writ of preliminary injunction, whether prohibitory or mandatory, is to preserve the status quo and prevent further injury on the applicant until the merits of the main case can be heard. The status quo is the last actual peaceable uncontested status which preceded the controversy. The injunctive writ may only be resorted to by a litigant for the preservation and protection of his rights or interests during the pendency of the principal action. The grant or denial of an application for a writ of preliminary injunction rests upon the sound discretion of the issuing court. 12
For grave abuse of discretion to exist as a valid ground for the nullification of the grant or denial of the injunctive writ, as contemplated by Rule 65 of the 1997 Rules of Civil Procedure, as amended, there must be capricious and whimsical exercise of judgment as is equivalent to lack or excess of jurisdiction, or where the power is exercised in an arbitrary manner by reason of passion, prejudice or personal hostility, and it must be so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law. 13
Here, the appellate court upheld the trial court's exercise of sound discretion in issuing the status quo ante Order because it found "no compelling reason to interfere with the prevailing state of affairs as ordered by the trial court." It further ruled that petitioners failed to establish the existence of any of the grounds mentioned in Section 3 of Rule 58 to justify the issuance of the injunctive writ, namely, that they have a clear and unmistakable right to be entitled to the relief demanded, and that the acts sought to be enjoined would probably work injustice to them during the pendency of the case. We find nothing capricious, whimsical or arbitrary in the Court of Appeals' challenged Resolution denying petitioners' application for a writ of preliminary injunction. We are not impressed by petitioners' contention that it is too simplistic or insufficient as it does not contain a full discussion of its findings and the applicable rule or law in support of its conclusion. It bears stressing that there is no definite or stringent rule on how a Resolution denying an application for a TRO or a writ of preliminary injunction is framed. The manner the Resolution was written did not diminish the legal significance of the denial so decreed by the appellate court. What is clear from the challenged Resolution is that the Court of Appeals stated the proper basis for its ruling. In United Coconut Planters Bank v. United Alloy Philippines Corporation, 14
we held: An order granting a preliminary injunction, whether mandatory or prohibitory, is interlocutory and unappealable. However, it may be challenged by a petition for certiorari under Rule 65 of the Rules of Court. Being preliminary, such an order need not strictly follow Section 5 of Rule 51 requiring that "every decision of final resolution of the Court in appealed cases shall clearly and distinctly state the findings of fact and conclusions of law on which it is based x x x." x x x x x x, the Resolution issued below was merely interlocutory, not a final resolution or decision disposing of the case. It was based on a preliminary determination of the status quo and petitioner's entitlement to the Writ. x x x. After a hearing on an application for a writ of preliminary injunction, the findings of fact and the opinions of a court have an interlocutory nature, and vital facts that may not have been presented during the trial. Thus, the Rules as regards the form of decisions are not applicable to that of resolutions disposing of application for an injunctive writ. Note that even this Court issues status quo or temporary restraining orders without narrating at length the complete facts and applicable laws required by the Rules on the issuance of decisions and final orders. x x x. (Underscoring supplied) Indeed, we cannot disturb the sound discretion exercised by the Court of Appeals sustaining the trial court's status quo ante Order, unless there is a patent abuse of discretion, which is not present here. As this Court stated in Land Bank of the Philippines v. Continental Watchman Agency, Incorporated: 15
Significantly, the rule is well-entrenched that the issuance of the writ of preliminary injunction rests upon the sound discretion of the trial court. It bears reiterating that Section 4 of Rule 58 gives generous latitude to the trial courts in this regard for the reason that conflicting claims in an application for a provisional writ more often that not involve a factual determination which is not the function of the appellate courts. Hence, the exercise of sound judicial discretion by the trial court in injunctive matters must not be interfered with except when there is manifest abuse, which is wanting in the present case. In fine, the Court of Appeals, in issuing the assailed Resolutions, did not act with grave abuse of discretion. WHEREFORE, we DISMISS the instant petition for lack of merit. Costs against petitioners. SO ORDERED. EDUARDO F. HERNANDEZ, MA. ENCARBACION R. LEGASPI, JAIME BLANCO, JR., ENRIQUE BELO, CARLOS VIAPLANA, CARL FURER, VIVENCIO TINIO, MICHAEL BRIGGS, ROSA CARAM, FAUSTO PREYSLER, ROBERT KUA, GEORGE LEE, GUILLERMO LUCHANGCO, PETER DEE, LUISA MARQUEZ, ANGELITA LILLES, JUAN CARLOS, HOMER GO, AMADEO VALENZUELA, EMILIO CHING, ANTONIO CHAN, MURLI SABNANI, MARCOS ROCES, RAYMUNDO FELICIANO, NORMA GAFFUD, ALF HOLST, LOURDES P. ROQUE, MANUEL DY, RAUL FERNANDEZ, VICTORIA TENGCO, CHI MO CHENG, BARANGAY DASMARIAS, and HON. FRANCISCO B. IBAY, petitioners vs. NATIONAL POWER CORPORATION, respondent D E C I S I O N CHICO-NAZARIO, J.: Although Presidential Decree No. 1818 prohibits any court from issuing injunctions in cases involving infrastructure projects, the prohibition extends only to the issuance of injunctions or restraining orders against administrative acts in controversies involving facts or the exercise of discretion in technical cases. On issues clearly outside this dimension and involving questions of law, this Court declared that courts could not be prevented from exercising their power to restrain or prohibit administrative acts. 1 In such cases, let the hammer fall and let it fall hard. With health risks linked to exposure to electromagnetic radiation as their battle cry, petitioners, all residents of Dasmarias Village, are clamoring for the reversal of the decision 2 dated 3 May 2000 of the Court of Appeals in CA-G.R. SP No. 57849 as well as the resolution dated 27 September 2000, denying their motion for reconsideration. The assailed decision 3 of the Court of Appeals reversed the order of the Regional Trial Court of Makati, issuing a writ of preliminary injunction against respondent National Power Corporation (NAPOCOR) to stay the latter from energizing and transmitting high voltage electric current through its cables erected from Sucat, Paraaque to Araneta Ave., Quezon City. But, first, the facts: Sometime in 1996, NAPOCOR began the construction of 29 decagon- shaped steel poles or towers with a height of 53.4 meters to support overhead high tension cables in connection with its 230 Kilovolt Sucat- Araneta-Balintawak Power Transmission Project. Said transmission line passes through the Sergio Osmea, Sr. Highway (South Superhighway), the perimeter of Fort Bonifacio, and Dasmarias Village proximate to Tamarind Road, where petitioners homes are. Said project later proved to be petitioners bane of existence. Alarmed by the sight of the towering steel towers, petitioners scoured the internet on the possible adverse effects that such a structure could cause to their health and well-being. Petitioners got hold of published articles and studies linking the incidence of a fecund of illnesses to exposure to electromagnetic fields. These illnesses range from cancer to leukemia. Petitioners left no stones unturned to address their malady. They aired this growing concern to the NAPOCOR, which conducted a series of meetings with them. NAPOCOR received flak from Representative Francis Joseph G. Escudero, who in his Privilege Speech dated 10 May 1999, denounced the cavalier manner with which Napocor ignored safety and consultation requirements in the questioned project. Petitioners brought their woes to the attention of Rep. Arnulfo Fuentebella, Chairman of the House Committee on Energy, wherein NAPOCOR was asked to shed light on the petitioners problem. In a letter dated 8 November 1999, Napocor President Federico Puno stated that NAPOCOR was still in the process of coming up with a "win-win" solution to the concerns of the Dasmarias Village and Forbes Park residents. 4
In a letter dated 10 August 1999 addressed to Congressman Arnulfo P. Fuentebella, NAPOCORs President wrote: We have discussed the matter with the Dasmarias and Forbes residents and we have come up with four (4) options on how to address the problem, to wit: Option Cost Option 1: Transfer the line to Lawton Avenue P 111.84 million (proposal of Dasmarias/Forbes) Option 2: Maintain 12 meters distance along P 77.60 million the village Option 3: Construct an underground line P 482.00 million Option 4: Reroute along C-5 and South Luzon P 1,018.83 million Expressway (combination of overhead and underground) 5
Negotiations between petitioners and the NAPOCOR reached an impass, with petitioners vying for the relocation of the transmission lines to Fort Bonifacio on one hand, and the NAPOCOR insisting on a 12-meter easement widening, on the other. 6
Thus, petitioners, on 9 March 2000 filed a Complaint 7 for Damages with Prayer for the Issuance of a Temporary Restraining Order and/or a Writ of Preliminary Injunction against NAPOCOR. Harping on the hazardous effects of exposure to electromagnetic radiation to the health and safety to themselves and their families, petitioners, through the instant case, sought what they had failed to achieve through amicable means with NAPOCOR and prayed, inter alia, for damages and the relocation of the transmission lines to Lawton Avenue, Fort Bonifacio. On 13 March 2000, Judge Francisco B. Ibay issued an order 8 in Civil Case No. 00-352, which temporarily restrained the respondent from energizing and transmitting high voltage electric current through the said project. The pertinent portion of the said order reads: Acting on the plaintiffs "Urgent Omnibus Motion," it appearing that the subject area will be energized by midnight tonight based on a report taken from Representative Joker P. Arroyo by plaintiffs counsel, so as not to render moot and academic the instant case, as prayed for, defendant National Power Corporation is ordered to maintain the status quo and/or be enjoined from energizing and transmitting high voltage electric current through its cables for forty eight (48) hours starting 4 oclock in the afternoon today and ending 4 oclock in the afternoon of 15 March 2000. 9
By order 10 of 15 March 2000, the trial court extended the restraining order for 18 more days. NAPOCOR filed a Petition for Certiorari with Prayer for Temporary Restraining Order and Preliminary Injunction with the Court of Appeals assailing the above order by the trial court. Alluding to Presidential Decree No. 1818 (1981), "Prohibiting Courts from Issuing Restraining Orders or Preliminary Injunctions in Cases Involving Infrastructure and Natural Resource Development Projects of, and Public Utilities Operated by, the Government," particularly Sec. 1, NAPOCOR stalwartly sought the dismissal of the case on the ground of lack jurisdiction. Presidential Decree No. 1818 provides: Section 1. No Court in 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, or a mining, fishery, forest or other natural resource development project of the government, or any public utility operated by the government, including among other public utilities for transport of the goods or commodities, stevedoring and arrastre contracts, to prohibit any person or persons, entity or government official from proceeding with or continuing the execution or implementation of any such project, or the operation of such public utility or pursuing any lawful activity necessary for such execution, implementation or operation. In the interregnum, by order dated 3 April 2000, the trial court ordered the issuance of a writ of preliminary injunction against NAPOCOR. 11 The trial court articulated that an injunction was necessary to stay respondent NAPOCORs activation of its power lines due to the possible health risks posed to the petitioners. Asserting its jurisdiction over the case, 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. The trial court, thus, enjoined the NAPOCOR from further preparing and installing high voltage cables to the steel pylons erected near petitioners homes and from energizing and transmitting high voltage electric current through said cables while the case is pending final adjudication, upon posting of the bond amounting to P5,000,000.00 executed to the effect that petitioners will pay all the damages the NAPOCOR may sustain by reason of the injunction if the Court should finally decide that the petitioners are not entitled thereto. 12
In light of the foregoing order of the trial court, the petition which NAPOCOR filed with the Court of Appeals was later amended to include the prayer for the nullification and injunction of the Order dated 3 April 2000 of the trial court. In the challenged decision of 3 May 2000, the Court of Appeals reversed the trial courts order, with the following fallo: WHEREFORE, premises considered, the instant petition for certiorari is hereby GRANTED. The assailed orders of the respondent court, dated March 13, 2000 and April 3, 2000, are hereby REVERSED and SET ASIDE. 13
In the Court of Appeals rationale, the proscription on injunctions against infrastructure projects of the government is clearly mandated by the above-quoted Section 1 of Presidential Decree No. 1818, as reiterated by the Supreme Court in its Circulars No. 2-91 and No. 13-93, dated 15 March 1991 and 5 March 1993, respectively. As their motion for reconsideration was met with similar lack of success, petitioners, in a last attempt at vindication, filed the present petition for review on the following arguments: I. Temporary restraining orders and preliminary injunctions were purposely designed to address matters of extreme urgency where there is probability of grave injustice and irreparable injury. 14
II. The rule on preliminary injunction merely requires that unless restrained, the act complained of will probably work injustice to the applicant or probably violate his rights and tends to render the judgment ineffectual. 15
(Emphasis in the original.) Fundamental to the resolution of the instant petition is the issue of whether or not the trial court may issue a temporary restraining order and preliminary injunction to enjoin the construction and operation of the 29 decagon-shaped steel poles or towers by the NAPOCOR, notwithstanding Presidential Decree No. 1818. Petitioners clutch on their stand that Presidential Decree No. 1818 could not be construed to apply to cases of extreme urgency as in the present case when no less than the rights of the petitioners to health and safety hangs on the balance. We find the petition to be imbued with merit. Presidential Decree No. 1818 was issued on 16 January 1981, prohibiting judges from issuing restraining orders against government infrastructure projects. In part, the decree says, "No court in the Philippines shall have jurisdiction to issue any restraining order, preliminary injunction or preliminary order, preliminary mandatory injunction in any case, dispute or controversy involving an infrastructure project." Realizing the importance of this decree, this Tribunal had issued different circulars to implement this particular law. Presidential Decree No. 1818 16 prohibits courts from issuing injunctions against government infrastructure projects. In Garcia v. Burgos, 17
Presidential Decree No. 1818 was held to prohibit courts from issuing an injunction against any infrastructure project in order not to disrupt or hamper the pursuit of essential government projects or frustrate the economic development effort of the nation. While its sole provision would appear to encompass all cases involving the implementation of projects and contracts on infrastructure, natural resource development and public utilities, this rule, however, is not absolute as there are actually instances when Presidential Decree No. 1818 should not find application. In a spate of cases, this Court declared that although Presidential Decree No. 1818 prohibits any court from issuing injunctions in cases involving infrastructure projects, the prohibition extends only to the issuance of injunctions or restraining orders against administrative acts in controversies involving facts or the exercise of discretion in technical cases. On issues clearly outside this dimension and involving questions of law, this Court declared that courts could not be prevented from exercising their power to restrain or prohibit administrative acts. 18
In the case at bar, petitioners sought the issuance of a preliminary injunction on the ground that the NAPOCOR Project impinged on their right to health as enshrined in Article II, Section 15 of the 1987 Constitution, which provides: Sec. 15. The State shall protect and promote the right to health of the people and instill consciousness among them. To boot, petitioners, moreover, harp on respondents failure to conduct prior consultation with them, as the community affected by the project, in stark violation of Section 27 of the Local Government Code which provides: "no project or program shall be implemented by government authorities unless the consultations mentioned are complied with, and prior approval of the Sanggunian concerned is observed." From the foregoing, whether there is a violation of petitioners constitutionally protected right to health and whether respondent NAPOCOR had indeed violated the Local Government Code provision on prior consultation with the affected communities are veritable questions of law that invested the trial court with jurisdiction to issue a TRO and subsequently, a preliminary injunction. As such, these questions of law divest the case from the protective mantle of Presidential Decree No. 1818. 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 which provides: Sec. 3. Grounds for issuance of preliminary injunction. - A preliminary injunction may be granted when it is established: (a) That the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts, either for a limited period or perpetually; (b) That the commission, continuance or non-performance of the act or acts complained of during the litigation would probably work injustice to the applicant; or (c) That a party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual. (3a) (Emphasis supplied.) 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. Petitioners adduced in evidence copies of studies linking the incidence of illnesses such as cancer and leukemia to exposure to electromagnetic fields. The records bear out, to boot, a copy of a brochure of NAPOCOR regarding its Quezon Power Project from which will be supplying NAPOCOR with the power which will pass through the towers subject of the controversy. The NAPOCOR brochure provides that because of the danger concomitant with high voltage power, Philippine laws mandate that the power lines should be located within safe distances from residences. And the Quezon Power Project mandates an easement of 20 meters to the right and 20 meters to the left which falls short of the 12-meter easement that NAPOCOR was proposing to petitioners. Likewise on record, are copies of letters of Napocor President Federico Puno to Rep. Arnulfo Fuentebella, Chairman of the House Committee on Energy, stating updates on the negotiations being undertaken by the NAPOCOR and the Dasmarias Village and Forbes Park residents. Also on file is the Privilege Speech dated 10 May 1999 of Representative Francis Joseph G. Escudero, who denounced the cavalier manner with which Napocor ignored safety and consultation requirements in the questioned project. With a member of Congress denouncing the subject project of NAPOCOR because of the very same health and safety ills that petitioners now hew to in this petition, and with documents on record to show that NAPOCOR made representations to petitioners that they are looking into the possibility of relocating the project, added to the fact that there had been series of negotiations and meetings between petitioners and NAPOCOR as well as related agencies, there is ample indicia to suggest to the mind of the court that the health concerns of the petitioners are, at the very least, far from imaginary. Indeed, if there is no cause for concern, NAPOCOR would not have been stirred to come up with options to address the woes of petitioners, nor would Congressman Escudero have fired away those strong words of censure, assailing what to Congressman Escudero smacks of a "cavalier manner by which the NAPOCOR has responded to earnest pleas for a review of its practice of installing massive pylons supporting high tension cables in densely populated areas." 19
True, the issue of whether or not the transmission lines are safe is essentially evidentiary in nature, and pertains to the very merits of the action below. In fact, petitioners recognize that the conclusiveness of their life, health and safety concerns still needs to be proved in the main case below and they are prepared to do so especially in the light of some studies cited by respondent that yield contrary results in a disputed subject. Despite the parties conflicting results of studies made on the issue, the possibility that the exposure to electromagnetic radiation causes cancer and other disorders is still, indeed, within the realm of scientific scale of probability. Equally important, we take judicial notice that the area alluded to as location of the NAPOCOR project is a fragile zone being proximate to local earthquake faults, particularly the Marikina fault, among other zones. This is not to mention the risks of falling structures caused by killer tornadoes and super typhoons, the Philippines, especially Central Luzon, being situated along the typhoon belt. Moreover, the Local Government Code, requires conference with the affected communities of a government project. NAPOCOR, palpably, made a shortcut to this requirement. In fact, there appears a lack of exhaustive feasibility studies on NAPOCORs part before making a go with the project on hand; otherwise, it should have anticipated the legal labyrinth it is now caught in. These are facts, which the trial court could not ignore, and form as sufficient basis to engender the cloud of doubt that the NAPOCOR project could, indeed, endanger the lives of the petitioners. A preliminary injunction is likewise justified prior to a final determination of the issues of whether or not NAPOCOR ignored safety and consultation requirements in the questioned project. Indeed, the court could, nay should, grant the writ of preliminary injunction if the purpose of the other party is to shield a wrongdoing. A ruling to the contrary would amount to an erosion of judicial discretion. After all, for a writ of preliminary injunction to be issued, the Rules do not require that the act complained of be in violation of the rights of the applicant. Indeed, what the Rules require is that the act complained of be probably in violation of the rights of the applicant. Under the Rules of Court, probability is enough basis for injunction to issue as a provisional remedy, which is different from injunction as a main action where one needs to establish absolute certainty as basis for a final and permanent injunction. Pending the final determination of the trial court on the main case for damages, of whether or not the NAPOCOR Project infringes on petitioners substantive right to health and pending determination of the question of whether there was non-observance of the prior-consultation proviso under the Local Government Code, it is prudent to preserve the status quo. In Phil. Ports Authority v. Cipres Stevedoring & Arrastre, Inc., 20 we held: A preliminary injunction is an order granted at any stage of an action prior to judgment of final order, requiring a party, court, agency, or person to refrain from a particular act or acts. It is a preservative remedy to ensure the protection of a partys substantive rights or interests pending the final judgment in the principal action. A plea for an injunctive writ lies upon the existence of a claimed emergency or extraordinary situation which should be avoided for otherwise, the outcome of a litigation would be useless as far as the party applying for the writ is concerned. At times referred to as the "Strong Arm of Equity," we have consistently ruled that there is no power the exercise of which is more delicate and which calls for greater circumspection than the issuance of an injunction. It should only be extended in cases of great injury where courts of law cannot afford an adequate or commensurate remedy in damages; "in cases of extreme urgency; where the right is very clear; where considerations of relative inconvenience bear strongly in complainants favor; where there is a willful and unlawful invasion of plaintiffs right against his protest and remonstrance, the injury being a continuing one, and where the effect of the mandatory injunction is rather to reestablish and maintain a preexisting continuing relation between the parties, recently and arbitrarily interrupted by the defendant, than to establish a new relation." (Emphasis supplied.) What is more, contrary to respondents assertion, there is not a single syllable in the circulars issued by this Court enjoining the observance of Presidential Decree No. 1818, which altogether and absolutely, ties the hands of the courts from issuing a writ of preliminary injunction. What Circular 2-91 21 dated 15 March 1991 seeks to enjoin is the indiscriminate issuance of court injunctions. The same holds for Circular 13-93 22 dated 5 March 1993 and Circular 68-94. 23 And, in Circular No. 7-99, judges are enjoined to observe utmost caution, prudence and judiciousness in the issuance of temporary restraining order and in the grant of writs of preliminary injunction to avoid any suspicion that its issuance or grant was for consideration other than the strict merits of the case. 24
There is not a hint from the foregoing circulars suggesting an unbridled prohibition against the issuance of temporary restraining orders or preliminary injunctions. In sum, what Presidential Decree No. 1818 aims to avert is the untimely frustration of government infrastructure projects, particularly by provisional remedies, to the detriment of the greater good by disrupting the pursuit of essential government projects or frustrate the economic development effort of the nation. Presidential Decree No. 1818, however, was not meant to be a blanket prohibition so as to disregard the fundamental right to health, safety and well-being of a community guaranteed by the fundamental law of the land. 25
Lest we be misconstrued, this decision does not undermine the purpose of the NAPOCOR project which is aimed towards the common good of the people. But, is the promotion of the general welfare at loggerheads with the preservation of the rule of law? We submit that it is not. 26
In the present case, the far-reaching irreversible effects to human safety should be the primordial concerns over presumed economic benefits per se as alleged by the NAPOCOR. Not too long ago, the Court, in Metropolitan Manila Development Authority (MMDA) v. Bel-Air Village Association, Inc., 27 upheld the validity of the writ of preliminary injunction issued by the Court of Appeals enjoining the implementation of the Metropolitan Manila Development Authoritys proposed action of opening of the Neptune Street to public vehicular traffic. We were categorical - Not infrequently, the government is tempted to take legal shortcuts to solve urgent problems of the people. But even when government is armed with the best of intention, we cannot allow it to run roughshod over the rule of law. Again, we let the hammer fall and fall hard on the illegal attempt of the MMDA to open for public use a private road in a private subdivision. While we hold that the general welfare should be promoted, we stress that it should not be achieved at the expense of the rule of law. 28
In hindsight, if, after trial, it turns out that the health-related fears that petitioners cleave on to have adequate confirmation in fact and in law, the questioned project of NAPOCOR then suffers from a paucity of purpose, no matter how noble the purpose may be. For what use will modernization serve if it proves to be a scourge on an individuals fundamental right, not just to health and safety, but, ostensibly, to life preservation itself, in all of its desired quality? WHEREFORE, the petition is granted. The decision dated 3 May 2000 of the Court of Appeals in CA-G.R. SP No. 57849 is REVERSED as well as the resolution dated 27 September 2000. The Order dated 3 April 2000 of the Regional Trial Court of Makati in Civil Case No. 00-352 is hereby REINSTATED. No pronouncement as to costs SO ORDERED. JAIME HERNANDEZ, petitioner-appellant, vs. DELFIN ALBANO, HERMOGENES CONCEPCION, JR., City Fiscal of Manila and CARLOS C. GONZALES, Second Assistant City Fiscal of Mania, respondents-appellees. San Juan, Africa & Benedicto for petitioner-appellant. City Fiscal Hermogenes Concepcion, Jr. and Assistant Fiscal E. S. Arguelles for and in their own behalf. Valera Law Office for respondent-appellee Albano. SANCHEZ, J.: This case has its roots in a complaint lodged with the Office of the City Fiscal of Manila, by respondent Delfin Albano, quondam Congressman for the lone district of Isabela, against petitioner Jaime Hernandez, then the Secretary of Finance and Presiding Officer of the Monetary Board of the Central Bank for violation of Article 216 of the Revised Penal Code, Commonwealth Act 626 1 or Republic Act 265. 2 The complaint revolves around petitioner's alleged shareholdings in the University of the East, Bicol Electric Co., Rural Bank of Nueva Caceres, DMG inc., and University of Nueva Caceres and the claim that said corporations obtained dollar allocations from the Central Bank, through the Monetary Board, during petitioner's incumbency as presiding officer thereof. The charges involved were docketed in the City Fiscal's Office, as I.S. No. 11379 re petitioner's holdings in Rural Bank of Nueva Caceres; I.S. No. 11380 re petitioner's holdings in the University of Nueva Caceres; I.S. No. 11381 re petitioner's holdings in the Bicol Electric Co.; I.S. No. 11382 re petitioner's holdings in the University of the East; and I.S. No. 11383 re petitioner's holdings in the DMG, Inc. At the joint investigation of the foregoing charges before respondent Carlos C. Gonzales, the investigating Fiscal, complainant moved to exclude therefrom the alleged violation of Article 216 of the Revised Penal Code because the applicability of this statute was in issue of Solidum, et al. vs. Hernandez, L-16570, at the time pending before this Court, but which had since been resolved by us February 28, 1963 adversely to Hernandez. Fiscal Gonzales granted the motion. Then, petitioner sought the dismissal of the remaining charges upon the averment that (a) violation of Article VII, Section 11, subsection (2) of the Constitution, punishable under Commonwealth Act 626, should be prosecuted at the domicile of the private enterprises affected there by; and that (b) violation of Section 13 of Republic Act 265 is not criminal in nature. Dismissal was denied; reconsideration thereof failed. To restrain the respondent Fiscals from continuing the investigation, petitioner went to the Court of First Instance of Manila on certiorari and prohibition with a prayer for preliminary injunction. 3 The decision dated October 13, 1961, reached upon a stipulation of facts, dismissed the petition, with costs. Petitioner appealed. 1. Stripped of inconsequential issues, the forefront question thrust upon us is whether the prosecuting arm of the City of Manila should be restrained from proceeding with the investigation of the charges levelled against petitioner. By statute, the prosecuting officer of the City of Manila and his assistants are empowered to investigate crimes committed within the city's territorial jurisdiction. Not a mere privilege, it is the sworn duty of a Fiscal to conduct an investigation of a criminal charge filed with his office. The power to investigate postulates the other obligation on the part of the Fiscal to investigate promptly and file the case of as speedily. Public interest the protection of society so demands. Agreeably to the foregoing, a rule now of long standing and frequent application was formulated that ordinarily criminal prosecution may not be blocked by court prohibition or injunction. 4 Really, if at every turn investigation of a crime will be halted by a court order, the administration of criminal justice will meet with an undue setback. 5 Indeed, the investigative power of the Fiscal may suffer such a tremendous shrinkage that it may end up in hollow sound rather than as a part and parcel of the machinery of criminal justice. We are not to be understood, however, as saying that the heavy hand of a prosecutor may not be shackled under all circumstances. The rule is not an invariable one. Extreme cases may, and actually do, exist where relief in equity may be availed of to stop a purported enforcement of a criminal law where it is necessary (a) for the orderly administration of justice; (b) to prevent the use of the strong arm of the law in an oppressive and vindictive manner; (c) to avoid multiplicity of actions; 6 (d) to afford adequate protection to constitutional rights; 7 and (e) in proper cases, because the statute relied upon is unconstitutional, or was "held invalid." 8
With the foregoing guidelines, we come to grips with the legal problems of whether a. Violation of Art. VII, Section 11, Subsection (2) of the Constitution punishable under C.A. 626, should be prosecuted at the domicile of the private enterprise affected by the violation; and b. Violation of Section 13 of Republic Act 265 is criminal in nature. 2. The constitutional prescription allegedly violated, Article VII, Section 11(2), reads: (2) The heads of departments and chiefs of bureaus or offices and their assistants shall not, during their continuance engage in the practice of any profession, or intervene, directly or indirectly, in the management or control of any private which in any way may be affected by the function of their office; nor shall they directly or indirectly, be financially interested in any contract with the Government, or any subdivision or instrumentality thereof. Commonwealth Act 626 provides the penal sanction for a violation of this constitutional precept, i.e., a fine of not than P5,000 or imprisonment of not more than 2 years, or both. The legal mandate in Section 14, Rule 110 of the Rules of the Court is that "[i]n all criminal prosecutions the action shall be instituted and tried in the court of the municipality or province wherein the offense was committed or any one of the essential ingredients thereof took place." 9 This principle is fundamental. 10 Thus, where an offense is wholly committed outside the territorial limits wherein the court operates, said court is powerless to try the case. For, "the rule is that one cannot be held to answer for any crime committed by him except in the jurisdiction where it was committed." 11
Similarly, the City Fiscal of Manila and his assistants as such may not investigate a crime committed within the exclusive confines of, say, Camarines Norte. This proposition offers no area for debate. Because, said prosecuting officers would then be overreaching the territorial limits of their jurisdiction, and, in the process, step on the shoes of those who, by statute, are empowered and obligated to perform that task. They cannot unlawfully encroach upon powers and prerogatives of the Fiscals of the province aforesaid. Petitioner seeks to bar respondent Fiscals from investigating the constitutional violation charged. His claim is that except for his holdings in Manila's University of the East the Manila Fiscals are powerless to investigate him. His reason is that the essence of the crime is his possession of prohibited interests in corporations domiciled in Naga City (Rural Bank of Nueva Caceres, University of Nueva Caceres and Bicol Electric Co.,) and in Mandaluyong, Rizal (DMG Inc.); and that the place where the crime is to be prosecuted is "the situs of such shares." In effect, petitioner asks us to carve out an exception to the rule that said Fiscals may not be enjoined from conducting the inquiry aforesaid. We would not hesitate to state that, if it clearly appears that the crime or any essential ingredient thereof was committed outside the boundaries of the City of Manila, petitioner's argument should merit serious consideration. For, orderly administration of justice so demands; multiplicity of criminal actions is to be obviated; the long arm of the law cannot be used in an oppressive or vindictive manner. But let us take a look at the admitted facts of this case. Petitioner himself concedes that he stands "charged with allegedly having shareholdings in the Bicol Electric Co., Rural Bank of Nueva Caceres, University of Nueva Caceres, DMG Inc., and the University of the East, and a that the said corporations purportedly obtained doll or allocations from the Central Bank thru the Monetary Board during the incumbency of respondent as presiding officer thereof." 12
Petitioner relies on Black Eagle Mining Co. vs. Conroy et al., 221 Pac. 425, 426, thus Shares of stock are a peculiar kind of personal property, and are unlike other classes of personal property in that the property right of shares of stock can only be exercised or enforced where the corporation is organized and has its place of business and can exist only as an incident to and connected with the corporation, and this class of property is inseparable from the domicile of the corporation itself. By no stretch can the cited case be taken as germane to the controversial point here. It speaks of property right to shares of stock which can only be enforced in the corporation's domicile. In the case at bar, the charges are not directed against the corporations. Not mere ownership of or title to shares is involved. Possession of prohibited interests is but one of the essential components of the offense. As necessary an ingredient thereof is the fact that petitioner was head of a department Secretary of Finance. So also, the fact that while head of department and chairman of the Monetary Board he allegedly was financially interested in the corporations aforesaid which so the dollar allocations, and that he had to act officially, in his dual capacity, not in Camarines Sur, but in Manila where he held his office. Since criminal action must be instituted and tried in the place where the crime or an essential ingredient there of, took place, it stands to reason to say that the Manila under the facts obtained here, have jurisdiction to investigate the violation complained of. 3. The other argument pressed upon us that a violation of Section 13 of Republic Act 265 is not criminal in nature furnishes no better foundation. Section 13 of Republic Act 265, allegedly violated by petitioner, recites: SEC. 13. Withdrawal of persons having a personal interest. Whenever any person attending a meeting of the Monetary Board has a personal interest of any sort in the discussion or resolution of any given matter, or any of his business associates or any of his relatives within the fourth degree of consanguinity or second degree of affinity has such an interest, said person may not participate in the discussion or resolution of the matter and must retire from the meeting during the deliberations thereon. The minutes of the meeting shall note the withdrawals of the member concerned. The gravamen of petitioner's argument is that for a violation of Section 13 of the law aforesaid, Section 15 of the same statute provides "only for a civil sanction." "not a criminal sanction." Said Section 15 reads: SEC. 15. Responsibility. Any member of the Monetary Board or officer or employee of the Central Bank who willfully violates this Act or who is guilty of gross negligence in the performance of his duties shall be held liable for any loss or injury suffered by the Bank as a result of such violation or negligence. ... The nonsequitur is at once apparent. For, Section 34 of the same Republic Act 265, in terms clear and certain and free from the taint of ambiguity, provides the penal sanction. 13 thus SEC. 34. Proceedings upon violation of laws and regulations. Whenever any person or entity willfully violates this Act or any order, instruction, rule or regulation legally issued by the Monetary Board, the person or persons responsible for such violation shall be punished by a fine of not more than twenty thousand pesos and by imprisonment of not more than five years. ... But, petitioner draws attention to the fact that Sections 13 and 15 both fall under "Article II The Monetary Board," of Chapter 1. "Establishment and Organization of the Central Bank of the Philippines," whereas Section 34 comes under the heading "B. Department Supervision and Examination" of "Article IV. Departments of the Central Bank." From this, petitioner puts forth the claim that the penal provisions in Section 34 are "to be restricted to the matters encompassed in that topic, that is, the supervision of banking institutions." 14 We are unable to join petitioner in this ipse dixit pronouncement. And, for a number of reasons. First, because while Section 15 provides for the civil liability "for any loss or injury suffered by the (Central) Bank as a result of such violation," Section 34 prescribes the penalty for the willful violation of "this Act," irrespective of whether the bank suffered any loss or not. Second, the entire statute is not in piecemeal style but as a whole. Effort be exerted "to make every part effective, harmonious sensible." 15 And so construing we find that the one refers to the civil liability at the same time that the other specifies a separate criminal liability. Indeed, it could well be said that the penal sanction in Section 34 is an "additional incentive toward obedience of the mandates of the law." 16 One does not preclude the other. Third, We observe that the penal provisions of Republic Act 265 were placed in three successive sections thereof, Sections 32, 33 and 34. Section 32 penalizes any owner, agent, manager or other officers in charge of any banking who willfully refuses to file the required reports to have the bank's affairs examined. Section 33 penalizes the making of a false statement to the Monetary Board. Section 34 provides for the penalty to be imposed upon any person who violates, among others, the provisions of said Act. This grouping of penalties obviously was intended to present a clearer picture of the liabilities which the Central Bank Act specifies, and thus avoid confusion. 17
All else failing, petitioner summons to his aid the Congressional Record on the deliberations on House Bill 1704 (which later became Republic Act 265), to wit: Mr. Topacio Nueno. On page 6, Section 13 - prohibiting relatives from transacting business. I should like to insert a punishment, a penal clause. On line 11, add the following: "Violation of this section is punishable by dismissal and fine of from five thousand to ten thousand pesos." The Speaker. What does the Committee say? Mr. Roy. We cannot accept the amendment. The Speaker. When we come to the provision with regard to the penalties, the gentleman from Manila may propose that amendment, in order that they may be included in the same section. Mr. Topacio Nueno I reserve that amendment later on. x x x x x x x x x Mr. Laurel. May we be informed which of the three offenses mentioned in Sections 32, 33, and 34 is regarded to be the most serious? I am asking this question because I notice that the penalties imposed are not the same. Which of the three offenses covered by the three sections I have mentioned is the most serious? Mr. Roy. Under Section 32, the offenses intended to be punishable are specified. It is in Section 34 where the law is very broad. It provides: 'Whenever any person or entity willfully violates this Act or any order, instruction, rule or regulation legally issued by the Monetary Board, ....' I think the court will determine the gravity of the offense. Mr. Speaker, because there are many provisions of law; and the rules and regulations of the Monetary Board will vary in their importance and in the seriousness of the consequences of the violation. So we will leave to the Court the determination of the gravity of the offense. That is why the range of penalties provided under Section 34 is not more than ten thousand pesos and by imprisonment of not more than five years. ... Congressional Record, First Congress, Third Session, Vol. 3, pp. 1259, 1281. Petitioner notes the failure of Congressman Topacio Nueno to reiterate his proposed amendment to Section 13 by providing therein a penal clause. Paying full respect to the congressional intent as it may be reflected in the debates, nonetheless it seems to us that nothing in the quoted transcript of the congressional record may be reasonably deemed as foreclosing criminal action. That the announced amendment was not submitted, is perfectly understandable. There was no need therefor. For, as Congressman Roy aptly puts it (in the aforesaid record), "Under Section 32 the offenses intended to be punishable are specified. It is under section 34 where the law is very broad, which simply means that any person and this includes the Chairman of the Monetary Board who "wilfully violates this Act," shall be punished. The respondent Fiscals, indeed justifiably relied or Section 34 in pursuing their investigation for a violation Section 13. For Section 15 is not intended to write off from the said Section 34. To do so is to sanction pointless rigidity in statutory construction. In the light of the considerations, we vote to affirm the judgment under review. Costs against petitioner. So ordered. WILLELMO C. FORTUN, petitioner, vs. RUFINO O. LABANG, in his capacity as City Fiscal of Pagadian City; Attorney MARTIN VERA CRUZ; and Attorneys ANDRES BERSALES, PABLITO PIELAGO GLICERIO CARPIO, SANTIAGO EISMA, and LEONARDO ZULUETA, as President, Vice-President, Secretary, Treasurer, and Director, respectively, of the Zamboanga del Sur and Pagadian City Chapter of the Integrated Bar of the Philippines, respondents.
FERNANDO, C.J.:1wph1.t The decisive issue in this prohibition and certiorari proceeding, filed on March 20, 1974 by Judge Willelmo C. Fortun, then the incumbent District Judge of the Court of First Instance of Zamboanga del Sur and Pagadian City, Branch III, is the applicability of the basic principle that while this Tribunal in the exercise of its equitable powers will not restrain any action taken in the enforcement of a criminal statute, an exception is made, and prohibition lies, as set forth in the leading case of Dimayuga and Fajardo v. Fernandez, 1 "where it is necessary for the orderly administration of justice, or to prevent the use of the strong arm of the law in an oppressive or vindictive manner, or a multiplicity of actions." 2 As was pointed out in the opinion, this doctrine is traceable to the earlier decision of Kwong Sing v. City of Manila, 3 with Justice Malcolm as ponente , In brief, petitioner Judge was accused by a member of the bar 4 and a former employee 5 in a letter complaint of a possible irregularity in his claim for gasoline allowance, originally considered by them sufficing to hold him liable administratively. Five of the nine members of the Board of Directors of the provincial chapter of the Integrated Bar endorsed such administrative charge to the Board of Governors of the Integrated Bar of the Philippines, retired Justice J. B. L. Reyes being the President at that time. After four months, such letter-complaint with the affidavit was endorsed to the City Fiscal, respondent Rufino O. Labang. 6 Then came these crucial allegations: " 10. On February 16, 1974, respondent City Fiscal, acting with precipitate haste and without exercising the utmost care and prudence which the case required, considering the seriousness of the charge and the sensitive nature of petitioner's office, and without bothering to comply with the mandatory provisions of Section 1 (a) of Presidential Decree No. 77, dated December 6, 1972, namely, that the statement of the complainant or his witnesses should be sworn to before him as investigating fiscal, and without taking into account Paragraphs 2 and 6 of Executive Order No. 264, dated October 6, 1970 in conjunction with Rule 140 of the Revised Rules of Court, which require that complaints against CFI Judges should be filed with the Supreme Court, peremptorily gave due course to said complaint and its supporting papers by immediately issuing a subpoena (I.S. Nos. 392-403-74) requiring petitioner to file and serve his answer or counter-affidavits and other supporting papers thereto. 11. On the morning of February 18, 1974, just as petitioner was about to ascend the rostrum to start the first session in his Court, after 6 months absence therefrom due to his detail as CFI Judge of Tarlac, Branch I, said subpoena was served upon him in a jampacked courtroom, filled with practitioners and spectators who were not there for any case but to witness the reaction of petitioner to the service of said subpoena, in further disregard of the spirit behind Section 6 of Rule 140, Revised Rules of Court, on the confidentiality of proceedings against judges." 7 Petitioner Judge contested the legality of the issuance of said subpoena and asked for the dismissal of the complaint, but he was unsuccessful. Hence, this petition before this Tribunal. The petition on its face being indicative of a possible harrassment to which Judge Fortun was subjected by reason of his official action, the letter- complaint coming from a member of the bar who had lost six of the nine cases in petitioner's sala 8 and the supporting affidavit coming from a disgruntled former employee, 9 this Court issued a temporary restraining order, and, in the same resolution of March 25, 1974, require comment from the respondents. Only respondent City Fiscal filed a comment on May 6, 1974. There was no explicit denial of certain allegations indicative of the hostility manifested towards petitioner Judge. Instead, the ten-page comment relied on what was considered to be applicable decisions. There was no effort to refute the allegation that there was a failure to abide by the requirements of Presidential Decree No. 77, but, it was argued that there was substantial compliance. Also, there was a misreading of the opinion of this Court in Tecson v. Salas, 10 concerning the broad scope of the power of the President over executive officials. It certainly lacks the necessary persuasiveness to justify the lifting of the restraining order. Petitioner Judge saw the opportunity to file a reply, and on June 27, 1974, did so. After noting that the other private respondents failed to contest the petition, the reply stressed that the pattern of harrassment was quite obvious. Thus "Under date of September 17th, 1973, Atty. Martin Vera Cruz, a disgruntled barrister who lost 6 out of the 9 cases he filed before petitioner's sala, sent a letter, not to the City Fiscal, but to Atty. Andres Bersales, President of the Zamboanga del Sur Chapter of the Integrated Bar, asking, in effect, that administrative charges be initiated against petitioner for alleged misuse of his travel allowances. What did Atty. Bersales do? He convened the Board of Directors of the local IBP chapter and out of its 9-man membership, 5 attended, as follows: 1) Atty. Andres Bersales, its President and the Provincial Board Secretary, who lost all his cases before petitioner's sala. 2) Atty. Pablito Pielago, who works with Atty. Bersales in the Governor's Office. 3) Atty. Glicerio Carpio, who works also with Atty. Bersales in the Governor's Office. 4) Atty. Santiago Eisma Provincial Treasurer who, in the first place, officially approved in such capacity payment of all the disbursements of petitioner now being questioned. 5) Atty. Leonardo Zulueta, who lost all except one of the cases he handles before petitioner's sala. The five of them, without the concurrence or attendance of the remaining 4 members of the 9-man Board of Directors of the Integrated Bar Chapter of Zamboanga del Sur on so important a subject, peremptorily passed resolution no. 7 resolving to file not only administrative but criminal charges against petitioner. The resolution discloses 2 things: first, it is not reflective of the collective will of the IBP Chapter concerned because it was a divided Board that acted on it and, second, the five members who voted for it without the participation of the 4 others have 'axes to grind' against petitioner. Two of them, Atty. Bersales and Zulueta, invariably lost their cases before petitioner's sala while Atty. Pielago and Carpio are subordinates of Atty. Bersales in the Governor's Office." 11
To indicate that the complaint was filed as a manifestation of vindictiveness and for the humiliation of petitioner judge, the reply characterized the resolution of the Integrated Bar of the Philippines chapter as having been "railroaded," petitioner not having been given a chance to explain his side contrary to procedural due process. He strengthened his petition by quoting the full text of the answer of retired Justice J. B. L. Reyes, then President of the Integrated Bar of the Philippines rejecting the plea of such chapter to support the criminal case filed with the respondent City Fiscal. 12 Such letter of Justice J. B. L. Reyes should be quoted in full: "We have just received copy of Resolution No. 10 of your Chapter, recommending that administrative and criminal charges be filed against Judge Willelmo Fortun of the Court of First Instance of Zamboanga del Sur and Pagadian City and requesting the preventive suspension of said Judge. One thing that immediately attracted our attention is that nowhere in the resolution is there any indication that the respondent Judge was informed of the charges studied by the Grievance Committee, nor does it appear that said respondent was given an opportunity to present his side before the Grievance Committee or the Board of Officers adopted said Resolution No. 10. It is thus manifest that the action of the Chapter officers violated the cardinal principles of fairness and due process that underlie the Rule of Law. Not only this, but the Chapter's action in this case has disregarded the fact that the integration of the Bar sought to make it possible not only to protect lawyers and litigants and to discipline and/or remove incompetent and unworthy judges, but also to '(4) Shield the judiciary which traditionally cannot defend itself except within its own forum, from the assaults that politics and self-interest may level at it, and assist it to maintain its integrity, impartiality and independence.' ... The unseemly haste with which the Chapter appears to have acted, referring the charges to the City Fiscal's office, without notice to the respondent nor giving him opportunity to present his side before taking action, precludes this national office from supporting the aforesaid Resolution No. 10. Not only this, but in the absence of adequate explanation for such one-sided action on the part of your Chapter, it will become the unavoidable duty of this Office to oppose the suspension asked for. It is unfortunate that lawyers who have taken an oath to support and defend the law and the Constitution should choose to ignore the fundamental principle of due process. It is therefore requested that you remit to this Office a full report of the proceedings of the Grievance Committee and the adoption of its recommendations by the Board of Officers, as soon as possible. Pending receipt thereof, we have asked the Honorable Supreme Court to withhold action on your Chapter's request for preventive suspension. The Board of Governors of the Integrated Bar is due to meet on March 23, 1974. It would be best if your report is received by this Office before said date." 13
No effort was made either by respondent City Fiscal or any of the private respondents to dispel in any way the grave doubts raised as to the bona fides in the filing of this complaint against petitioner. A memorandum was submitted by petitioner. Respondents maintained their silence. The only explanation appears to be their realization that the petition is meritorious. So we find. Prohibition lies. 1. At the outset, reference was made to the invocation by petitioner-judge of the leading Dimayuga decision. Seven years after its promulgation, in 1930 to be precise, it was relied upon in Tong v. Santamaria & Standard Oil Co. 14 Justice Villamor as ponente stressed that "the remedy of prohibition is somewhat sui generis, and is one more or less of legal discretion, and is intended to prevent the oppressive exercise of legal authority." 15 Such categorical enunciation of one of the most highly valued principles of equity ought to have cautioned respondent City Fiscal against, in the language of then President of the Integrated Bar of the Philippines, retired Justice J. B. L. Reyes, acting with "unseemly haste." This is one occasion then that calls for the exercise of the equitable powers of this Court to repudiate what was clearly an "oppressive exercise of legal authority." It only remains to be added that Dimayuga has been cited with approval in a number of cases subsequent to Tong v. Santamaria. 16
2. The sad and lamentable spectacle that this case presents, a judge being subjected to harrassment and humiliation, fortunately is not typical. It can diminish public confidence in the courts. At the very least, it minimizes the respect properly owing an occupant of the bench. Whatever be the motive of respondent City Fiscal, the impression yielded is that such excessive zeal was not prompted solely by obedience to his oath of office. The appearance, hopefully not the reality, could only be that of sheer vindictiveness or oppressive exercise of state authority. He was oblivious of the fact that the judiciary and the prosecution service are both essential agencies in the enforcement of penal statutes, not antagonists. At times it has been said, and with reason, that the rights of an accused person could be emasculated even rendered nugatory, if a judge and the prosecuting fiscal are on the most amicable terms. Respondent City Fiscal in this case erred on the other extreme. He was the first to lend himself to a scheme that could have no other purpose than to place petitioner-judge in contempt and disrepute. Such conduct calls for vigorous condemnation. The Constitution cannot be any more explicit: "Public office is a public trust." 17 A public official must keep uppermost in his mind that the sole guide in the performance of his duties is the paramount need of the public service. 3. The petition made reference to an Executive Order outlining the procedure on complaints charging government officials and employees with commission of irregularities. 18 It is therein provided that complaints against presidential appointees, and judges are included among them, "shall be filed with the Office of the President or the Department Head having direct supervision or control over the official involved." 19 At present, the department head is the Supreme Court, the Constitution having expressly vested the power of supervision over all courts to this Tribunal. 20 The removal of such power in the Department of Justice in 1973, now the Ministry of Justice, is a recognition of the need to preserve unimpaired the independence of the judiciary, especially so at present, where to all intents and purposes, there is a fusion between the executive and the legislative branches. Many are the ways by which such independence could be eroded. While the present instance is a rare aberration, it could happen again. When such a case occurs, this Court must act and promptly to set matters right. This is what the Court did in its resolution immediately issuing a temporary restraining order upon the petition being filed. It cannot be too strongly emphasized that a judge of an inferior court is deserving of the full protection of this 'Tribunal against any form of vexation, inconvenience, or harrassment, the more so when, as is quite evident, haste and recklessness marked the conduct of respondent City Fiscal. Let there be no misunderstanding. Our ruling does not signify that this Tribunal is averse to a judge facing charges against him, if presented in the manner provided for by law and with bona fides. The power of administrative supervision precisely has been granted to this Court to assure that malefactors on the bench suffer for their misdeeds. Conversely, however, when, as did happen here, a complaint was utilized to embarrass and humiliate a member of the judiciary, it is broad enough to include such remedial action in aid of a judge, who, to all the appearances is the victim of a deliberate attempt to impugn his good name and reputation. The judicial power constitutionally granted to this Court, independently of the grant of supervisory authority, justifies the intervention of this Court in a case like to present. 4. The characterization by retired Justice J. B. L. Reyes, then President of the Integrated Bar of the Philippines, of the "unseemly haste" that marked the actuation of respondent members of the Board of Directors of the Integrated Bar Chapter of Zamboanga del Sur, Pagadian City Chapter, appears to be rather mild all things considered. He pointed out that there was a violation of the cardinal principles of fairness and due process that underlie the Rule of Law. Petitioner-Judge was not heard; he was denied the opportunity to defend himself against the accusation. There was, on the part of private respondents then, a failure to abide by a Resolution of the Integrated Bar stressing that precisely integration could shield "the judiciary which traditionally cannot defend itself except within its own forum, from the assaults that politics and self- interest may level at it, and assist it to maintain its integrity impartiality and independence.'" 21 A greater sense of responsibility, not to say a more adequate grasp of the cardinal requirements of due process as well as of the applicable procedural rules, ought to have been displayed by private respondents. Moreover, they did not even make any effort to dispute the accuracy of the imputation of being disgruntled members of the bar with a record of losing cases. That apparently was the motive for their accusation. They paid no attention to the norm of conduct that lawyers should observe as officers of the Court. The then officers of the Integrated Bar, included as private respondents, have an even greater responsibility. Clearly, they were recreant to the trust reposed on them. The penalty of censure is imposed on each and everyone of the private respondents. WHEREFORE, the writ of prohibition is granted restraining respondent City Fiscal or any one acting in his place from enforcing the subpoena dated February 16, 1974 in I.S. Nos. 392- 403-74 and from proceeding with the preliminary investigation based on the letter-complaint of respondent Martin Vera Cruz to the President of the Integrated Bar of the Philippines of Zamboanga del Sur Chapter and Pagadian City. The writ of certiorari is likewise granted annulling the order of February 22, 1974 issued by respondent City Fiscal denying the motion to dismiss filed by petitioner. The complaint against petitioner is dismissed. The restraining order is hereby made permanent. Let a copy of this decision be spread on the record of private respondents Martin Vera Cruz, Andres Bersales, Pablito Pielago, Glicerio Carpio, Santiago Eisma and Leonardo Zulueta. This decision is without prejudice to a bona fide investigation of the charges against petitioner, Judge Willelmo C. Fortun, who has since then been appointed to the Court of First Instance of Lingayen, Branch I. Let a copy of this decision be furnished the Ministry of Justice and the Tanodbayan Costs against respondents. CARMEN PLANAS, Petitioner, v. JOSE GIL, Commissioner of Civil Service, Respondent.
Juan Sumulong, Vicente Sotto, Godofredo Reyes, Wenceslao Q. Vinzons, Lorenzo Sumulong and Jose de Leon for Petitioner. LAUREL, J.:
This is an original action of prohibition instituted in this court by which the petitioner seeks to enjoin the respondent Commissioner of Civil Service from conducting the investigation ordered by authority of the President of the Philippines. The case arose as a result of the publication in one of the local dailies of a statement in which the petitioner, then and now a member of the municipal board of the City of Manila, criticized the acts of certain government officials in connection with the general election for Assemblymen held on November 8, 1938. The statement as published in the issue of La Vanguardia of November 17, 1938, is translated as follows:jgc:chanrobles.com.ph
"All opposition efforts in the country are useless just as all movement toward the unification of the opposition as long as in the opposition group there are people who present their candidacies and then speculate on these candidacies, offering them to the highest bidder. In Manila, the opposition should have won the November 8 elections, but lost instead because of a disastrous division due to people who commercialized their candidacies.
"The Constitution prohibits the reelection of the President precisely so that the President may devote all his time to the administration of public affairs for the welfare of the people, but the President was the first to play politics, publicly expressing his preference for candidates of his liking; and with the President all other officials of the government also moved, taking part in electoral campaigns.
"With the government machinery feverishly functioning to flatten the opposition and prevent candidates supported by the people from going to the National Assembly, and with frauds and violations of all rules of the civil service to push to victory the candidates of the Nacionalista Party and the administration. all constructive opposition in the country is useless. In past elections, all the municipal an l city mayors have been mobilized to insure the victory of the candidates of the administration, depriving the people of their right to vote for the candidates of their own choosing.
"Even members of the cabinet moved, one of them, the Hon. Eulogio Rodriguez going to the extent of speaking at meetings in the Province of Rizal to counteract the avalanche, of votes for the opposition, instead of staying in his office in the government. The opposition is struggling within the law, but the party in power uses means that are not worthy of gentlemen in order that it may predominate in the government forever; never has it tried to fight fairly.
"It may be said that the President of the United States is also making electoral campaigns, but the situation in the United States is different. There the President is allowed to run for reelection while in the Philippines the Constitution wisely provides against the reelection of the President. It is reasonable to believe that the President i8 from this moment paving the way for his reelection. It is to be feared that the new National Assembly will change this wise provision of our Constitution to permit the reelection of President Manuel L. Quezon."cralaw virtua1aw library
On November 18, 1938, the day following the publication of the foregoing statement, the petitioner received a letter, Annex A, signed as follows: "By authority of the President: Jorge B. Vargas, Secretary to the President," in which letter the statement is quoted in full and the petitioner is informed thus:jgc:chanrobles.com.ph
"In the above statement, you appear to make the following charges: (1) That the President of the Philippines has violated the Constitution in that he has taken part in politics, expressing his preference for the candidates of the Nacionalista Party; (2) That the whole government machinery has been put in action to prevent the election to the National Assembly of the candidates of the people; (3) That the candidates of the Nacionalista Party and of the administration have won the election through frauds and violations of the civil service rules; (4) That the administration does not permit the people to freely elect the candidates of their choice.
"You are hereby directed to appear before the Commissioner of Civil Service, either alone or accompanied by counsel, at 9 oclock a. m., on November the 22nd, to prove the statements made by you. Failure to sustain your charges or to prove that they have been made in, good faith will be considered sufficient cause for your suspension or removal from office."cralaw virtua1aw library
At the appointed time, the petitioner, accompanied by her counsel, appeared at the office of the respondent and delivered to him a letter, Annex B, in which she voiced objection to the authority of the respondent to conduct the investigation. The respondent Commissioner did not desist from proceeding with the investigation, but announced before adjourning the hearing of November 22nd that he would decide the question raised as to his jurisdiction on November 26, 1938. It was at this state of the investigation that the petitioner filed in this court her original petition for prohibition of November 25, 1938, in which she at the same time prayed for the issuance of a writ of preliminary injunction enjoining the respondent commissioner from continuing with the investigation. The petition for the issuance of a writ of preliminary injunction was denied by resolution of this court dated November 25,1938. The next day the petitioner requested the respondent, in writing (Annex D), to refrain from making any ruling on the question of his jurisdiction to investigate the petitioner and to abstain from taking any further step in connection with said investigation until the jurisdictional issue could be finally passed upon by this court. On the same day, the request of the petitioner was denied and the respondent ruled that he had jurisdiction to proceed with the investigation (Annex E.) The respondent also notified the petitioner to appear before him on Saturday, December 3, 1938, and to testify in her behalf and produce such other evidence as she might desire to present in support of the charges contained in her statement of November 17, 1938. The original petition of November 25th was amended by another of December 2nd. The amendent was allowed by this court. The Solicitor- General filed his amended answer accordingly.
Petitioner contends in her amended petition:jgc:chanrobles.com.ph
"(a) That the respondent is absolutely without jurisdiction to investigate petitioner with a view to her suspension or removal in connection with her statement of November 17th;
"(b) That the said investigation with a view to petitioners suspension or removal is against Article VII, sec. 11 (1) of the Constitution of the Philippines and is not warranted by any statutory provision;
"(c) That even under the statutes in force before the approval of the Constitution of the Philippines, Petitioner, as Councilor of the City of Manila, cannot be investigated administratively with a view to her suspension or removal except for acts or conduct connected with the discharge of her official functions;
"(d) That petitioner, as an elective official, is accountable for her political acts to her constituency alone, unless such acts constitute offenses punishable under our penal laws, and not to executive officials belonging to a party opposed to that to which petitioner is affiliated;"
(e) That petitioners statement of November 17th made by her as a private citizen and in the exercise of her right to discuss freely political questions cannot properly be the subject of an administrative investigation had with a view to her suspension or removal, and is only cognizable by our courts of justice in case the contents of said statement infringe any provision of our Penal Code;
"(f) That if petitioners statement of November 17th, as asserted in the Vargas letter of November 21st Annex C, constitute sedition or any other criminal offense in that said statement tends to create general discontent, and hatred among the people against their government, to make them lose faith in the effectiveness of lawful processes to secure a change in the control of the government, and to present the next National Assembly as an illegal body, constituted by men who have been elected through wholesale frauds and violations of the civil service rules, then petitioners responsibility is a matter that should be heard and decided by the competent courts in a trial publicly and impartially conducted, and should not be the subject of an administrative investigation with a view to suspension or removal held behind closed doors, with the power of final decision resting in the hands of the very officials imputing seditious or other criminal utterances to the petitioner;
"(g) That the authority sought to be conferred on respondent by means of the two letters Annexes A and C both signed By authority of the President: Jorge B. Vargas, Secretary. to the President is without any force or effect, since the powers and prerogatives vested in the President of the Philippines by our Constitution and by our laws can be exercised by the President alone, and cannot be delegated to Mr. Jorge B. Vargas or to any other person;
"(h) That the proposed investigation with a view to petitioners suspension or removal by this Honorable Court, would constitute an exercise of arbitrary, inquisitorial, an- lawful, and oppressive powers on the part of respondent, tending to the suppression of the constitutional right of petitioner, as a citizen, to express freely and without fear of political persecution her honest opinions concerning the policies and political conduct of government officials."cralaw virtua1aw library
Petitioner prays:jgc:chanrobles.com.ph
"(1) That a writ of preliminary injunction be forthwith issued directing the respondent Commissioner of Civil Service to desist from the investigation sought to be conducted by him of petitioner, with a view to her suspension or removal, in connection with her statement published November 17th, until further orders of this Honorable Court;
"(2) That upon due hearing the respondent be permanently prohibited from proceeding further in connection with said investigation;
"(3) That the orders contained in the two letters of Mr. Jorge B. Vargas (Annexes A and C) and the respondents resolution dated November 26, 1938 (Annex E), under which respondent seeks to undertake the investigation 80 many times referred to herein, be declared arbitrary and unconstitutional, and therefore without any force or effect;
"(4) For costs of the petitioner and for such other remedy as to this Honorable Court may seem just and equitable."cralaw virtua1aw library
Upon the other hand, the Solicitor-General contends in his amended answer:chanrob1es virtual 1aw library
(a) That respondent not only has jurisdiction but is in duty bound to investigate the charges contained in the petitioners statement published on November 17, 1938, by virtue of and pursuant to the order of His Excellency, the President of the Philippines (par. 3);
(b) That the power to order an investigation is vested in the President of the Philippines by section 11 (1) of Article VII of the Constitution and section 64 (c) of the Revised Administrative Code (Id.);
(c) That the question of whether or not the good of the public service requires the investigation in question is a matter on which the opinion of the Chief Executive is Conclusive and not subject to review by the courts (par. 4, [b]);
(d) That an administrative investigation of any act or conduct of any person in the government service is independent and exclusive of any judicial action that the interested parties may institute arising from the same act or conduct (par. 4, [c]);
(e) That petitioners theory that an elected provincial or municipal official is accountable to his or her constituency alone and is not subject to any administrative investigation but only to a criminal prosecution in court, has no basis either in law or in precedent (par. 5, [a]);
(f) That such investigation is neither arbitrary nor unlawful nor inquisitorial because sanctioned by the Constitution and statutory provisions (par. 5, [b]);
(g) That the petition does not state a cause of action nor does it appear that petitioner has suffered any grievance that calls for the courts intervention, for it is not alleged that petitioner has been removed or suspended from office or that she has in any way been deprived of any civil or political right (par. 7, [a]);
(h) That the present action is premature and that there is no justification for the court to entertain the same (par 9); and
(i) That this court has no jurisdiction over the case under the doctrine of separation of powers (par. 10).
The Solicitor-General, under the last paragraph (par. 10) of his amended answer, raises the question of jurisdiction of this court over the acts of the Chief Executive. He contends that "under the separation of powers marked by the Constitution, the court has no jurisdictions to review the orders of the Chief Executive, evidenced by Annex A and Annex C of the petition, which are of purely administrative character." Reliance is had on the previous decisions of this court: Severino v. Governor-General ([1910], 16 Phil., 366); Abueva v. Wood ([1924], 45 Phil., 612); and Alejandrino v. Quezon ([1924], 46 Phil., 83). Although this is the last point raised by the Government in its answer, it should, for reasons that are apparent, be first to be considered. If this court does not have jurisdiction to entertain these proceedings, then, the same should be dismissed as a matter of course; otherwise, the merits of the controversy should be passed upon and determined.
It must be conceded that the acts of the Chief Executive performed within the limits of his jurisdiction are his official acts and courts will neither direct nor restrain executive action in such cases. The rule is non- interference. But from this legal premise, it does not necessarily follow that we are precluded from making an inquiry into the validity or constitutionality of his acts when these are properly challenged in an appropriate legal proceeding. The classical separation of governmental powers, whether viewed in the light of the political philosophy of Aristotle, Locke, or contesquieu, or of the postulations of Mabini, Madison, or Jefferson, is a relative theory of government. There is more truism and actuality in interdependence than in independence and separation of powers, for as observed by Justice Holmes in a case of Philippine origin, we cannot lay down "with mathematical precision and divide the branches into watertight compartments" not only because "the great ordinances of the Constitution do not establish and divide fields of black and white" but also because "even the more specific of them are found to terminate in a penumbra shading gradually from one extreme to the other." (Springer vs Government [1928], 277 U. S., 189; 72 Law. ed., 845, 852.) As far as the judicially is concerned, while it holds neither the sword nor the purse" it is by constitutional placement the organ called upon to allocate constitutional boundaries, and to the Supreme court is entrusted expressly or by necessary implication the obligation of determining in appropriate cases the constitutionality or validity of any treaty, law, ordinance, or executive order or regulation. (Sec. 2 [1], Art. VIII, Constitution of the Philippines.) In this sense and to this extent, the judiciary restrains the other departments of the government and this result is one of the necessary corollaries of the "system of checks and balances" of the government established.
In the present case, the President is not a party to the proceeding. He is neither compelled nor restrained to act in a particular way. The Commissioner of Civil Service is the party respondent and the theory is advanced by the Government that because an investigation undertaken by him is directed by authority of the President of the Philippines, this court has no jurisdiction over the present proceedings instituted by the petitioner, Carmen Planas. The argument is farfetched. A mere plea that a subordinate officer of the government is acting under orders from the Chief Executive may be an important averment, but is neither decisive nor conclusive upon this court. Like the dignity of his high office, the relative immunity of the Chief Executive from judicial interference is not in the nature of a sovereign passport for all the subordinate official and employees of the executive Department to the extent that at the mere invocation of the authority that it purports the jurisdiction of this court to inquire into the validity or legality of an executive order is necessarily abated or suspended. The facts in Severino v. Governor-General, supra, Abueva v. Wood, supra, and Alejandrino v. Quezon, supra, are different, and the doctrines laid down therein must be confined to the facts and legal environment involved and whatever general observations night have been made in elaboration of the views therein expressed but which are not essential to the determination of the issues presented are mere abiter dicta.
While generally, prohibition as an extraordinary legal writ will not issue to restrain or control the performance of other judicial or quasi-judicial functions (50 C. J., 658), its issuance and enforcement are regulated by statute and in this jurisdiction it may issue to any inferior tribunal, corporation, board, or person, whether exercising functions judicial or ministerial, whose acts are without or in excess of jurisdiction. (Secs. 516 and 226, Code of Civil Procedure.) The terms "judicial" and "ministerial" used with reference to "functions" in the statute are undoubtedly comprehensive and include the challenged investigation by the respondent commissioner of Civil Service, which investigation if unauthorized and is violative of the Constitution as contended is a fortiori without or in excess of jurisdiction. The statutory rule in this jurisdiction is that the writ of prohibition is not confined exclusively to courts or tribunals to keep them within the limits of their own jurisdiction and to prevent them from encroaching upon the jurisdiction of other tribunals, but will issue, in appropriate cases, to an officer or person whose acts are without or in excess of his authority. Not infrequently, "the writ is granted, where it is necessary for the orderly administration of justice, or to prevent the use of the strong arm of the law in an oppressive or vindictive manner, or a multiplicity of actions." (Dimayuga and Fajardo v. Fernandez [1922], 43 Phil., 304, 307; Aglipay v. Ruiz [1937], 35 Off. Gaz., 2164.) This court, therefore, has jurisdiction over the instant proceedings and will accordingly proceed to determine the merits of, the present controversy.
As is seen from the foregoing relation of facts various legal questions are propounded. Reducing, however, the issues to what is considered is the fundamental legal proposition presented, we are asked in these proceedings to prohibit the respondent Commissioner of Civil Service from conducting or continuing with the investigation ordered by authority of the President of the Philippines. It is not denied that the President did authorize the issuance of the order, but it is contended "that the said investigation with a view to petitioners suspension or removal is against Article VII, sec. 11 (1) of the Constitution of the Philippines and is not warranted by any statutory provision." (Par. XV [b], amended petition.) It, therefore, becomes necessary to inquire into the constitutional and legal authority of the President to order the investigation which has given rise to the present controversy.
A perusal of our Constitution will show that extensive authority over the public service is granted the President of the Philippines. Article VII of the Constitution begins in its section 1 with the declaration that "The Executive power shall be vested in a President of the Philippines." All executive authority is thus vested in him, and upon him devolves the constitutional duty of seeing that the laws are "faithfully executed." (Art. VII, sec. 11, subsec. 1, last clause.) In the fulfillment of this duty which he cannot evade, he is granted specific and express powers and functions. (Art. VII, sec. 11.) In addition to these specific and express powers and functions, he may also exercise those necessarily implied and included in them. (Myers v. United States [1926], 272 U. S., 52; 71 Law. ed., 160; 47 Sup. Ct. Rep., 21; Willoughby, Constitution of the United States, sec. 953, citing Tafts Our Chief Magistrate and His Powers, p. 139.) The National Assembly may not enact laws which either expressly or impliedly diminish the authority conferred upon the President of the Constitution. (Cf. Concepcion v. Paredes [1921], 42 Phil., 599.) The Constitution provides that the President "shall have control of all the executive departments, bureaus, and offices" (Art. VII, sec. 11 [1], first clause) and shall "exercise general supervision over all local governments as may be provided by law" (Ibid, second clause). This power of control and supervision is an important constitutional grant. The President in the exercise of the executive power under the Constitution may act through the heads of the executive departments. The heads of the executive departments are his authorized assistants and agents in the performance of his executive duties, and their official acts, promulgated in the regular course of business, are presumptively his acts. (Runkle v. United States [1887], 122 U. S., 543; 30 Law. ed., 1167; 7 Sup. Ct. Rep., 1141. See also U. S. v. Eliason [1839], 16 Pet., 291; 10 Law. ed., 968; Jones v. U. S. [1890], 137 U. S., 202; 34 Law. ed., 691; 11 Sup. Ct., Rep., 80; Wolsey v. Chapman [1880], 101 U. S., 755; 25 Law. ed., 915; Wilcox v. Jackson [1836], 13 Pet., 498; 10 Law. ed., 264.) The power of removal which the President may exercise directly and the practical necessities of efficient government brought about by administrative centralization easily make the President the head of the administration. (Willoughby, Constitution of the United States, Vol. II, 2nd ed., sec. 959.) Independently of any statutory provision authorizing the President to conduct an investigation of the nature involved in this proceeding, and in view of the nature and character of the executive authority with which the President of the Philippines is invested, the constitutional grant to him of power to exercise general supervision over all local governments and to take care that the laws be faithfully executed must be construed to authorize him to order an investigation of the act or conduct of the petitioner herein. Supervision is not a meaningless thing. It is an active power. It is certainly not without limitation, but it at least implies authority to inquire into facts and conditions in order to render the power real and effective. If supervision is to be conscientious and rational, and not automatic and brutal, it must be founded upon a knowledge of actual facts and conditions disclosed after careful study and investigation.
Viewed from the totality of powers conferred upon the Chief Executive by our Constitution, we should be reluctant to yield to the proposition that the President of the Philippines who is endowed with broad and extraordinary powers by our Constitution, and who is expected to govern with a firm and steady hand without vexatious or embarrassing interference and much less dictation from any source, is yet devoid of the power to order the investigation of the petitioner in this case. We should avoid that result.
Our attention has been directed to the fact that, with reference to local governments, the Constitution speaks of general supervision which is distinct from the control given to the President over executive departments, bureaus and offices. This is correct. But, aside from the fact that this distinction is not important insofar as the power of the President to order the investigation is concerned, as hereinabove indicated, the deliberations of the Constitutional Convention show. that the grant of the supervisory authority to Chief Executive in this regard was in the nature of a compromise resulting from the conflict of views in that body, mainly between the historical view which recognizes the right of local self- government (People ex rel. Le Roy v. Hurlbut [1871], 24 Mich., 44) and the legal theory which sanctions the possession by the state of absolute control over local governments (Booten v. Pinson, L. R. A. [N. S., 1917-A], 1244; 77 W. Va., 412 [1915]) The result was the recognition of the power of supervision and all its implications and the rejection of what otherwise would be an imperium in imperio to the detriment of a strong national government.
Apart from the constitutional aspect, we find that section 64 of the Administrative Code of 1917 provides as follows:jgc:chanrobles.com.ph
"In addition to his general supervisory authority, the Governor-General (President) shall have such specific powers and duties as are expressly conferred or imposed on him by law and also, in particular, the powers and duties set forth in this chapter.
"Among such special powers and duties shall be:chanrob1es virtual 1aw library x x x
"(c) To order, when in his opinion the good of the public service so requires, an investigation of any action or the conduct of any person in the Government service, and in connection therewith to designate the official, committee, or person by whom such investigation shall be conducted."cralaw virtua1aw library
This provision of the law, in existence before the taking effect of the Constitution, still subsists. It is not inconsistent with the Constitution and has not been abrogated or repealed by the National Assembly. (See sec. 2, Art. XV, Constitution.)
It is next urged that assuming the power of the President to order the investigation, that investigation should be in accordance with law; that the petitioner as an elective official can be proceeded against administratively only on the grounds specifically stated in the law, namely, disloyalty, dishonesty, oppression, misconduct, or maladministration in office; and that as an elective official she is responsible for her political acts to her constituency alone. At the risk of repetition, it should be observed that in the letter addressed by Secretary Vargas, by authority of the President, to Miss Planas, the latter is informed as follows: "In the above statement, you appear to make the following charges: (1) That the President of the Philippines has violated the Constitution in that he has taken part in politics, expressing his preference for the candidates of the Nacionalista Party; (2) That the whole government machinery has been put in action to prevent the election to the National Assembly of the candidates of the people; (3) That the candidates of the Nacionalista Party and of the administration have won the election through frauds and violations of the civil service rules; (4) That the administration does not permit the people to freely elect the candidates of their choice" ; and in that letter she is directed to appear before the Commissioner of Civil service to prove the statement made by her. In the letter designating the respondent commissioner as investigator of the petitioner, it is stated: "The charges contained in the foregoing statement tend to create general discontent, and hatred among the people against their government, to make them lose faith in the effectiveness of lawful processes to secure a change in the control of the government, and to present the next National Assembly as an illegal body, constituted by men who have been elected through wholesale frauds and violations of the civil service rules. The interest of the public service requires that these charges be investigated, so that, if found to be true, appropriate action may be taken against the parties alleged to have been guilty of illegal acts, and if found untrue and made without justifiable motives, the party making them may be proceeded against in accordance with section 2440, in connection, with section, 2078, of the Revised Administrative Code." Assuming that this is not one of the grounds provided by law for which the petitioner may be investigated administratively (sec. 2078, Rev. Adm. Code), there is weight in the argument that the investigation would still be in order if for no other purpose than to cause a full and honest disclosure of all the facts so that, if found proper and justified, appropriate action may be taken against the parties alleged to have been guilty of the illegal acts charged. This is essential to render effective the authority vested in the President by the Constitution to "take care that the laws be faithfully executed." (Sec. 11, par. 1, Art. VII.) The enforcement of the law and the maintenance of peace and order are primarily an executive obligation. The declaration that the President should "take care that the laws be faithfully executed" is more an imposition of an obligation than a conferment of power. His oath requires him to "faithfully and conscientiously fulfill" his duties as President, "preserve and defend" the Constitution and "execute" the law. This duty of the Executive to see that the laws be faithfully executed is not limited to the enforcement of legislative acts or the express terms of the Constitution but also includes the due enforcement of rights, duties, obligations, prerogatives and immunities growing out of the Constitution itself and of the protection implied by the nature of the government under the Constitution. (Cunningham v. Neagle, 135 U. S., 1; 34 Law. ed., 55.)
Petitioner contends that she has not abused the right of free speech, and in this connection directs our attention to the provisions of section 1 (pars. 1 and 8) of the Bill of Rights. She also urges that "in the supposition that the statement in question is libelous . . ., the corresponding criminal or civil action should be brought in the courts of justice at the initiative, not of the government, but of the individuals claiming to have been defamed by the statement." (P. 11, printed memorandum of the petitioner.) We are vigilantly alive to the necessity of maintaining and protecting the constitutional guaranty of freedom of speech and of the press, no less than the right of assembly and petition which, according to Stimson (The American Constitution As It Protects Private Rights, 152), is its origin rather than its derivation. We do not forget that when repression of political and religious discussion became intense when censorship of the press was resorted to most vigorously by the Long Parliament in England John Milton, that great historiographer of Cromwell, in his Areopagitica, denounced the suppression of truth and appealed for "the liberty to know, to utter, and to argue freely according to conscience, above all liberties" ("Areopagitica", 73, 74, Amblers Reprint). And this court has had occasion to vindicate this right, and it is now a settled doctrine that the official conduct and the policies of public officials can be criticized (U. S. v. Bustos, 37 Phil., 731), and that criticism of the constitution and legislation, of government measures or policies cannot be suppressed or prevented (U. S. v. Perfecto, 43 Phil., 225), unless the intention be to incite rebellion and civil war (Cooley, Constitutional Limitations, 614). In the present case, however, the petitioner is not denied the right, nor is she being investigated because she had exercised that right. She has a perfect right to criticize the Government, its administration, its policies and officials, but she may not, on the plea of freedom of speech and of the press, impute violations of law and the commission of frauds and thereafter fold her arms and decline to face an investigation conducted to elicit the truth or falsity of the charges formulated by her. Otherwise, the guarantee which, in the language of Wendell Phillips, is "at once the instrument, and the guarantee, and the bright consummate flower of all liberty" would degenerate into an unbridled license, and render the Government powerless to act.
The petition is hereby dismissed, with costs against the petitioner. So ordered.
YU CONG ENG et al. v. TRINIDAD, Collector of Internal Revenue, et al. This case comes here on a writ of certiorari to review a decision of the Supreme Court of the Philippine Islands denying an original petition for prohibition against the enforcement by criminal prosecution of Act No. 2972 of the Philippine Legislature, known as the Chinese Bookkeeping Act, on the ground of its invalidity. The petitioner, Yu Cong Eng, was charged by information in the court of first instance of Manila, with its violation. He was arrested, his books were seized, and the trial was about to proceed, when he and the other petitioner, Co Liam, on their own behalf, and on behalf of all the other Chinese merchants in the Philippines, filed the petition against the fiscal, or prosecuting attorney of Manila, and the collector of internal revenue engaged in the prosecution, and against the judge presiding. By the Code of Civil Procedure of the Philippine Islands, 516, the Philippine Supreme Court is granted concurrent jurisdiction in prohibition with courts of first instance over inferior tribunals or persons, and original jurisdiction over courts of first instance, when such courts are exercising functions without or in excess of their jurisdiction. It has been held by that court that the question of the validity of a criminal statute must usually be raised by a defendant in the trial court and be carried regularly in review to the Supreme Court. Cadwallader-Gibson Lumber Company v. Del Rosario, 26 Philippine Reports, 192. But in this case, where a new act seriously affected numerous persons and extensive property rights, and was likely to cause a multiplicity of actions, the Supreme Court exercised its discretion to bring the issue of the act's validity promptly before it and decide it in the interest of the orderly administration of justice. The court relied by analogy upon the cases of Ex parte Young, 209 U. S. 123, 28 S. Ct. 441, 52 L. Ed. 714, 13 L. R. A. (N. S.) 932, 14 Ann. Cas. 764, Truax v. Raich, 239 U. S. 33, 36 S. Ct. 7, 60 L. Ed. 131, L. R. A. 1916D, 545, Ann. Cas. 1917B, 283, and Wilson v. New, 243 U. S. 332, 37 S. Ct. 298, 61 L. Ed. 755, L. R. A. 1917E, 938, Ann. Cas. 1918A, 1024. Although objection to the jurisdiction was raised by demurrer to the petition, this is now disclaimed on behalf of the respondents, and both parties ask a decision on the merits. In view of broad powers in prohibition granted to that court under the Island Code, we acquiesce in the desire of the parties. Act No. 2972, the validity of which is attacked, was passed by the Philippine Legislature, and approved February 21, 1921. It reads as follows: 'No. 2972. An act to provide in what languages account books shall be kept, and to establish penalties for its violation. 'Be it enacted by the Senate and House of Representatives of the Philippines in Legislature assembled and by the authority of the same: 'Section 1. It shall be unlawful for any person, company, or partnership or corporation engaged in commerce, industry or any other activity for the purpose of profit in the Philippine Islands, in accordance with existing law, to keep its account books in any language other than English, Spanish or any local dialect. 'Sec. 2. Any person violating the provisions of this act shall, upon conviction, be punished by a fine of not more than ten thousand pesos, or by imprisonment for not more than two years, or both. 'Sec. 3. This act shall take effect on November 1st, nineteen hundred and twenty-one.' This was amended as to its date by a subsequent act and it did not take effect until January 1, 1923. Various efforts were made to repeal the act or amend it, but they were defeated. The petition, after setting out the prosecution in the court of first instance, and the text of the act, avers that the petitioner Yu Cong Eng is a chinese merchant engaged in the wholesale lumber business in Manila; that he neither reads, writes nor understands the English or Spanish language or any local dialect; that he keeps the books of account of his business in Chinese characters; that by reason of his ignorance of the English and Spanish languages and of all local dialects he is unable to keep his books in any other language than his own; that, even if he should employ a bookkeeper capable of keeping his books in the English or Spanish language, he would have no means of personally revising or ascertaining the contents or correctness of the books thus kept; that the employment of such a bookkeeper, unless he should be a linguist, would entail as a necessary consequence the employment of a translator or interpreter familiar with the Chinese language and the language or dialect in which such books might be kept, in order to enable the petitioner to ascertain by hearsay the contents thereof; that he would be completely at the mercy of such employees, who, if dishonest, might cheat and defraud him of the proceeds of his business, and involve him in criminal or civil liability in its conduct; that under the provisions of the act he is prohibited from even keeping a duplicate set of accounts in his own language, and would, in the event of the enforcement of the law, be compelled to remain in total ignorance of the status of his business; and that the enforcement of the act would drive the petitioner and many other Chinese merchants in the Philippines who do 60 per cent. of the business of the Islands and who are in like circumstance, out of business. The petition avers that the other petitioner in this case, Co Liam, is a Chinese person and conducts a small general merchandise business in Manila, commonly known in the Philippines as a Chinese tienda; that he carries a stock of goods of about 10,000 pesos, or $5,000; that his sales taxes amount to from 40 to 60 pesos per quarter; that he neither reads, writes, nor understands the English or Spanish language or any local dialect; that he keeps books of account of his small business in Chinese, the only language known to him, without the assistance of a bookkeeper; that he has been losing money for some time in the operation of his business, but that even in prosperous times his profits could never be sufficient to justify the employment of a Filipino bookkeeper, and that without the opportunity to keep Chinese books, be would be kept completely ignorant of the changing condition of his business, were he compelled to keep his books in English, Spanish, or a local dialect; and that the enforcement of the act would drive him and all the small merchants or tienda keepers in the Islands who are Chinese out of business. The petitioners aver that the act, if enforced, will deprive the petitioners, and the 12,000 Chinese merchants whom they represent, of their liberty and property without due process of law, and deny them the equal protection of the laws, in violation of the Philippine Autonomy Act of Congress of August 29, 1916, c. 416, 3, 39 Stat. 546 (Comp. St. 3810). An amendment to the petition set up the rights of the petitioners under the treaty now in force between the United States and China, alleging that under it the petitioners are entitled to the same rights, privileges, and immunities as the citizens and subjects of Great Britain and Spain, and that the treaty has the force and effect of a law of Congress, which this law violates. An answer was filed by the fiscal, which is a general denial of the averments of the petition as to the effect of the law. He avers that the law is valid and necessary, and is only the exercise of proper legislative power, because the government of the Philippine Islands depends upon the taxes and imposts which it may collect in order to carry out its functions, and the determination of whether the mercantile operations of the merchants are or are not subject to taxation, as well as the fixing of its amount, cannot and ought not to be left to the mercy of those who are to bear it; that due to the inability of the officials of the internal revenue to revise and check up properly the correctness of the books of account which the Chinese merchants keep in their own language, the public treasury loses every year very large sums. Evidence was taken on the issues made. A majority of the Supreme Court held that, if the act were construed and enforced literally, it would probably be invalid, but by giving it an interpretation different from the usual meaning of the words employed it could stand. Two of the justices dissented, on the ground that the court had exceeded its powers and by legislation made it a different act. There are two tax laws from which a substantial part of the revenue of the Islands is derived. There is a sales tax of 1 1/2 per cent. on the gross sales of businesses and occupations for which a quarterly return is required. Administrative Code, 1453, et seq., Act 3065. There is also an income tax. The annual revenue accruing from the sales tax is roughly 10,000,000 pesos, and that from the income tax about 2,000,000 pesos. Another statute is the so-called Code of Commerce, brought over from the Spanish Code, the thirty-third article of which provides that all merchants shall keep a book of inventories and balances, a day book, a ledger, a copy book of telegrams, letters, etc., and such other books as may be required by special laws. Under the provisions of that Code and the internal revenue law, the colector of internal revenue is authorized to require the keeping of daily records of sales, and makes regulations prescribing the manner in which the proper books, invoices and other papers should be kept and entries made therein by the persons subject to the sales tax. R. 1164, Act No. 2339, 5, 6; Administrative Code, 1424(j). Chinese merchants are said to have been in the Philippines even before the arrival of the Spaniards in 1520. The Chinese written language is an ancient language, with a literature and with characters quite different from those used in European languages. There are many different native dialects in the Philippines. Forty-three is said to be the number; but there are less than a dozen of these which may be regarded as important-the Tagalog, the Visayan, with two distinct main dialects, the Ilocano, the Bical, the Pampangan, the Ibanag, the Pangasananian, and the Moro. Perhaps from 7 to 10 per cent. of the Filipinos speak Spanish. A great many (how large the percentage one cannot tell) of the younger people in the Islands speak English. It is a polygot situation, and presents many difficulties in government. Comparatively few of the Chinese speak English or Spanish, or the native dialects, with any facility at all, and less are able to write or to read either. But with capacity and persistence in trade, by signs and by a patois, they communicate with the Filipinos and others with whom they do business, making their calculations with the abacus, an instrument for mechanical calculation, and keeping their books in Chinese characters in ink, applied by a brush to strong paper, securely bound. They have a scientific system of double entry bookkeeping. There are 85,000 merchants in the Philippines to whom the bookkeeping law applies. Of these, 71,000 are Filipinos, who may use their own dialects; 1,500 are Americans, or British or Spanish subjects; 500 are of other foreign nationalities, most of whom know the Spanish or English language. The remainder, some 12,000 in number, are Chinese. The aggregate commercial business transacted by these is about 60 per cent. of the total business done by all the merchants in the Islands. The total amount of their sales in 1923 was more than 320 millions of pesos, distributed among 3,335 wholesale merchants, of whom 50 did a business of 1,000,000 pesos each, 150 of 500,000 each, 400 of 100,000 each, and 2,735 of 40,000 each. There were 8,445 retail merchants, whose annual incomes on the average would not exceed 500 pesos each. In 1913, certain revenue statistics were reported by the then collector of internal revenue to the court of first instance in the case of Young v. Rafferty, 33 Philippine Reports, 556, in which the validity of an order by the collector requiring the keeping of certain books by taxpayers in Spanish and English was at issue. The figures given above are based on this report. The report showed that Chinese merchants paid about 60 per cent. of the taxes, but this is now in dispute, and evidence was introduced by the present collector to show that the proportion of taxes paid by them in 1918 and 1922 was much less, and that examination of the books of 400 Chinese taxpayers showed a very considerable loss, probably due to evasion and fraud. The evidence of the president of the largest company in the Philippine Islands, an American who has been 21 years in business in the Philippines, as to the business activities of the Chinese, was accepted by the court below as reliable. He says that the Chinese system of distribution covers the Philippine Islands through the medium of middlemen in the principal centers, and then by the small Chinese storekeepers, throughout the Islads, extending even to the remotest barrios or small settlements. The Chinese are the principal distributing factors in the Philippines of imported goods, and the principal gatherers of goods for exportation in the same remote places. He said that if they were driven out of business there would be no other system of distribution available throughout the Islands, for the reason that there are not Filipino merchants sufficiently numerous, with resources and experience, to provide a substitute. The Chinese consul general testified that not more than eight Chinese merchants in the Islands can read or write proficiently in any other language than Chinese, and that the great majority of them could not comply with the act. The merchants' establishments are made up of young Chinese persons, who come from China, begin at the beginning, and are promoted from time to time to become the head of the business. The books are always kept in the Chinese language, and each Chinese establishment is completely separated from the native mode of living. Apparently there has always been some complaint in respect to the avoidance of taxes by the Chinese, because of the difficulty of determining what their sales tax should be. There has always been a sales tax in the Philippines. It is a method of taxation to which the people are used. Dr. Pardo de Tavera, the Philippine librarian and historian, testified in this case that efforts to enforce such a law as this in the Spanish times against the Chinese failed and became a dead letter. Governor General Harrison made a general recommendation looking to a law requiring the Chinese to keep books in other than Chinese language, so that their business might be investigated, saying that, until it was done, taxes would be evaded. Since the passage of the law in 1921, as already said, its enforcement has been postponed. Governor General Wood has sought to have the law repealed or changed in such a way that exceptions might be made to it, or that the books of the Chinese should be kept on stamped paper with the pages registered, for the purpose of making it difficult for the Chinese taxpayer to change the records of his business. Protests from the Chinese government, from members of the insular committee of the House of Representatives, from Chambers of Commerce in the United States and elsewhere, were brought to the attention of the Philippine Legislature, and the repeal or modification of the law came up for discussion, but all proposed changes were defeated. The great weight of the evidence sustains the view that the enforcement by criminal punishment of an inhibition against the keeping of any Chinese books of account by Chinese merchants in the Islands would seriously embarrass all of them and would drive out of business a great number. Nor is there any doubt that the act as a fiscal measure was chiefly directed against the Chinese merchants. The discussion over its repeal in the Philippine Legislature leaves no doubt on this point. So far as the other merchants in the Islands are concerned, its results would be negligible and would operate without especial burden on other classes of foreign residents. The Supreme Court in its opinion in this case refers to the act as popularly known as the Chinese Bookkeeping Act. Evidence was introduced on behalf of the defendants to show the difficulty of securing competent Chinese bookkeepers who could act as inspectors of Chinese books for the tax collecting authorities, and while the failure of the government to employ a sufficient number was charged to the fact that sufficient salaries were not paid to secure them, it is undoubtedly true that a lack of proper and reliable Chinese accountants presents a real difficulty in the examination of Chinese merchants' books. The majority of the Philippine court in its opinion, after quoting a number of authorities showing the duty of a court in determining whether a law is unconstitutional or not, first to give every intendment possible to its validity, and second to reach a reasonable construction by which it may be preserved, said: 'We come to the last question suggested, a construction of Act No. 2972 which allows the court legally to approve it. 'A literal application of the law would make it unlawful for any Chinese merchant to keep his account books in any language other than English, Spanish, or a local dialect. The petitioners say the law is susceptible of that interpretation. But such interpretation might, and probably would, cause us to hold the law unconstitutional. 'A second interpretation is that the Chinese merchant, while permitted to keep his books of account in Chinese, must also keep another set of books in either English, Spanish, or a native dialect. The respondents claim the law is susceptible of such construction. It occurs to us, however, that this construction might prove as unsatisfactory as the first. Fraud is possible in any language. As approximation to governmental convenience and an approximation to equality in taxation is the most which may be expected. 'A third construction, which is permissible in view of the history of the legislation and the wording of the statute, is that the law only intended to require the keeping of such books as were necessary in order to facilitate governmental inspection for tax purposes. It has not escaped our notice that the law does not specify what books shall be kept. It is stated by competent witnesses that a cash book, a journal, and a ledger are indispensable books of account for an efficient system of accounting, and that, in the smaller shops, even simpler entries showing merely the daily records of sales and record of purchases of merchandise would be sufficient. The keeping of records of sales, and possibly further records of purchases, in English, Spanish, or a native dialect, and the filling out of the necessary forms would serve the purpose of the government while not being oppressive. Actually, notations in English, Spanish, or a dialect of all sales in sales books, and of data in other specified forms are insisted upon by the Bureau of Internal Revenue, although as appears from Exhibit 2, it is doubtful if all Chinese merchants have complied with these regulations. The faithful observance of such rules by the Chinese is not far removed from the offer of co-operation oft made for them by the petitioners of the 'translation of the account books' oft mentioned and explained by the respondents. 'The law, in speaking of any person, company, partnership or corporation, makes use of the expression 'its account books.' Does the phrase 'its account books' mean that all the account books of the person, company, partnership or corporation must be kept exclusively in English, Spanish, or any local dialect? The petitioners argue that the law has this meaning. Or does the phrase 'its account books' mean that the persons, company, partnership, or corporation shall keep duplicate sets of account books, one set in Chinese and the other a translation into English, Spanish or any local dialect? Counsel for the respondents urge this construction of the law upon the court. Or does the phrase 'its account books' mean that the person, company, partnership, or corporation must keep such account books as are necessary for taxation purposes? This latter interpretation occurs to us as a reasonable one, and as best safeguarding the rights of the accused.' The court in effect concludes that what the Legislature meant to do was to require the keeping of such account books in English, Spanish, or the Filipino dialects as would be reasonably adapted to the needs of the taxing officers in preventing and detecting evasion of taxes, and that this might be determined from the statutes and regulations then in force. What the court really does is to change the law from one which by its plain terms forbids the Chinese merchants to keep their account books in any language except English, Spanish, or the Filipino dialects, and thus forbids them to keep account books in the Chinese, into a law requiring them to keep certain undefined books in the permitted languages. This is to change a penal prohibitive law to a mandatory law of great indefiniteness, to conform to what the court assumes was, or ought to have been, the purpose of the Legislature, and which in the change would avoid a conflict with constitutional restriction. It would seem to us, from the history of the legislation and the efforts for its repeal or amendment, that the Philippine Legislature knew the meaning of the words it used, and intended that the act as passed should be prohibitory, and should forbid the Chinese merchants from keeping the account books of their business in Chinese. Had the Legislature intended only what the Supreme Court has construed it to mean, why should it not have amended it accordingly? Apparently the Legislature thought the danger to the revenue was in the secrecy of the Chinese books, and additional books in the permitted languages would not solve the difficulty. We fully concede that it is the duty of a court in considering the validity of an act to give it such reasonable construction as can be reached to bring it within the fundamental law. But it is very clear that amendment may not be substituted for construction, and that a court may not exercise legislative functions to save the law from conflict with constitutional limitation. One of the strongest reasons for not making this law a nose of wax, to be changed from that which the plain language imports, is the fact that it is a highly penal statute authorizing sentence of one convicted under it to a fine of not more than 10,000 pesos, or by imprisonment for not more than two years, or both. If we change it to meet the needs suggested by other laws and fiscal regulations and by the supposed general purpose of the legislation, we are creating by construction a vague requirement, and one objectionable in a criminal statute. We are likely thus to trespass on the provision of the Bill of Rights that the accused is entitled to demand the nature and cause of the accusation against him, and to violate the principle that a statute which requires the doing of an act so indefinitely described that men must guess at its meaning, violates due process of law. Connally v. Construction Co., (decided January 4, 1926) 269 U. S. 385, 46 S. Ct. 126, 70 L. Ed. 322; United States v. Cohen Grocery Co., 255 U. S. 81, 41 S. Ct. 298, 65 L. Ed. 516, 14 A. L. R. 1045; International Harvester Co. v. Kentucky, 234 U. S. 216, 34 S. Ct. 853, 58 L. Ed. 1284; United States v. Reese, 92 U. S. 214, 219, 23 L. Ed. 563. The main objection to the construction given to the act by the court below is that in making the act indefinitely mandatory instead of broadly prohibitory it creates a restriction upon its operation to make it valid that is not in any way suggested by its language. In several cases this court has pointed out that such strained construction, in order to make a law conform to a constitutional limitation, cannot be sustained. In United States v. Reese, 92 U. S. 214, 23 L. Ed. 563, the question for decision arose on a demurrer to an indictment against inspectors of municipal election for refusing to receive and count the vote of a colored man. The power of Congress to forbid such an act was confined under the Fifteenth Amendment to a refusal to receive such a vote from a colored man on account of his race, color, or previous condition of servitude, but the section under which the indictment was brought did not specifically confine the offense to a refusal for such a reason or to such discrimination, although in previous sections of the act there was a general purpose disclosed in the act to enforce the Fifteenth Amendment. The demurrer was sustained on the ground that the section was invalid. Chief Justice Waite, in delivering the opinion of the court, said at page 221: 'We are therefore directly called upon to decide whether a penal statute enacted by Congress, with its limited powers, which is in general language broad enough to cover wrongful acts without as well as within the constitutional jurisdiction, can be limited by judicial construction so as to make it operate only on that which Congress may rightfully prohibit and punish. For this purpose, we must take these sections of the statute as they are. We are not able to reject a part which is unconstitutional, and retain the remainder, because it is not possible to separate that which is unconstitutional, if there be any such, from that which is not. The proposed effect is not to be attained by striking out or disregarding words that are in the section, but by inserting those that are not now there. Each of the sections must stand as a whole, or fall altogether. The language is plain. There is no room for construction, unless it be as to the effect of the Constitution. The question then to be determined is whether we can introduce words of limitation into a penal statute, so as to make it specific, when, as expressed, it is general only. It would certainly be dangerous if the Legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of the government.' And again the Chief Justice said: 'To limit this statute in the manner now asked for would be to make a new law, not to enforce an old one. This is no part of our duty.' The same principle was laid down, and this language approved by this court in the Trade-Mark Cases, 100 U. S. 82, 25 L. Ed. 550, in which, to save the validity of a general statute providing for trade-marks, the court was asked to construe the statute to apply only to trade-marks in interstate commerce. It was held this could not be done. Mr. Justice Miller, speaking for the court, at page 98, said: 'It has been suggested that, if Congress has power to regulate trade-marks used in commerce with foreign nations and among the several states, these statutes shall be held valid in that class of cases, if no further. To this there are two objections: First, the indictments in these cases do not show that the trade-marks which are wrongfully used were trade-marks used in that kind of commerce; secondly, while it may be true that when one part of a statute is valid and constitutional, and another part is unconstitutional and void, the court may enforce the valid part where they are distinctly separable so that each can stand alone, it is not within the judicial province to give to the words used by Congress a narrower meaning than they are manifestly intended to bear in order that crimes may be punished which are not described in language that brings them within the constitutional power of that body.' The case of Butts v. Merchants' & Miners' Transportation Co., 230 U. S. 126, 33 S. Ct. 964, 57 L. Ed. 1422, concerned the application of the Civil Rights Act of March 1, 1875 (Comp. St. 3926-3930), to vessels of the United States engaged in the coastwise trade. In the Civil Rights Cases, 109 U. S. 3, 3 S. Ct. 18, 27 L. Ed. 835, it was held that the Civil Rights Act of 1875, to protect all citizens in their civil and legal rights, and in accordance with the terms of which a defendant was indicted for denying the privileges and accommodations of a theater in a state to a person on account of her color, was unconstitutional because power to enact and enforce such legislation in a state was in the state legislature only. The declaration in the Butts Case was brought to recover penalties for violation of the act against a corporation engaged in the transportation of passengers and freight between Boston, Mass., and Norfolk, Va., and the discrimination occurred on the high seas and in the jurisdiction of the United States, and not within any state. It was contended that the federal Civil Rights Act could, therefore, apply in such a case. The court pointed out the all-inclusive words of the act of Congress and held that they could not be cut down to include only what was strictly within the federal jurisdiction. The court said: 'Only by reason of the general words indicative of the intended uniformity can it be said that there was a purpose to embrace American vessels upon the high seas, the District of Columbia and the territories. But how can the manifest purpose to establish an uniform law for the entire jurisdiction of the United States be converted into a purpose to create a law for only a small fraction of that jurisdiction? How can the use of general terms denoting an intention to enact a law which should be applicable alike in all places within that jurisdiction be said to indicate a purpose to make a law which should be applicable to a minor part of that jurisdiction and inapplicable to the major part? Besides, it is not to be forgotten that the intended law is both penal and criminal'-citing the case of United States v. Reese, and the Trade-Mark Cases, supra, as well as United States v. Harris, 106 U. S. 629, 642, 1 S. Ct. 601, 27 L. Ed. 290; Baldwin v. Franks, 120 U. S. 678, 685, 7 S. Ct. 656, 763, 30 L. Ed. 766; James v. Bowman, 190 U. S. 127, 140, 23 S. Ct. 678, 47 L. Ed. 979; United States v. Ju Toy, 198 U. S. 253, 262, 25 S. Ct. 644, 49 L. Ed. 1040; Illinois Central Railroad Co. v. McKendree, 203 U. S. 514, 529-530, 27 S. Ct. 153, 51 L. Ed. 298; Karem v. United States, 121 F. 250, 259, 57 C. C. A. 486, 61 L. R. A. 437. The effect of the authorities we have quoted is clear to the point that we may not in a criminal statute reduce its generally inclusive terms so as to limit its application to only that class of cases which it was within the power of the Legislature to enact, and thus save the statute from invalidity. What it is proposed to do here is much more radical, for it is to ignore and hold for naught a plain prohibition of the keeping of account books in Chinese and insert in the act an affirmative requirement that account books not definitely determined which are adapted to the needs of the taxing officials be kept in the permitted languages. This is quite beyond the judicial power. The suggestion has been made in argument that we should accept the construction put upon a statute of the Philippine Islands by their Supreme Court as we would the construction of a state court in passing upon the federal constitutionality of a state statute. The analogy is not complete. The Philippines are within the exclusive jurisdiction of the United States government, with complete power of legislation in Congress over them, and when the interpretation of a Philippine statute comes before us for review, we may, if there be need therefor, re-examine it for ourselves as the court of last resort on such a question. It is very true that with respect to questions turning on questions of local law, or those properly affected by custom inherited from the centuries of Spanish control, we defer much to the judgment of the Philippine or Porto Rican courts. Cami v. Central Victoria, Ltd., 268 U. S. 469, 45 S. Ct. 570, 69 L. Ed. 1056; Diaz v. Gonzales, 261 U. S. 102, 43 S. Ct. 286, 67 L. Ed. 550. But on questions of statutory construction, as of the Philippine Code of Procedure adopted by the United States Philippine Commission, this court may exercise an independent judgment. In Philippine Sugar Co. v. Philippine Islands, 247 U. S. 385, at page 390, 38 S. Ct. 513, 515 (62 L. Ed. 1177), involving the effect of section 285 of that Code, this court said: 'It is also urged that, since the construction of section 285 is a matter of purely local concern, we should not disturb the decision of the Supreme Court of the Philippine Islands. This court is always disposed to accept the construction which the highest court of a territory or possession has placed upon a local statute. Phoenix Ry. Co. v. Landis, 231 U. S. 578 (34 S. Ct. 179, 58 L. Ed. 377). But that disposition may not be yielded to, where the lower court has clearly erred. Carrington v. United States, 208 U. S. 1 (28 S. Ct. 203, 52 L. Ed. 367).' The question of applying American constitutional limitations to a Philippine or Porto Rican statute, dealing, with the rights of persons living under the government established by the United States, is not a local one, especially when the persons affected are subjects of another sovereignty, with which the United States has made a treaty promising to make every effort to protect their rights. The fundamental law we administer in the Philippine bill of rights was a marked change from that which prevailed in the Islands before we took them over, and is to be enforced in the light of the construction by this court of such limitations as it has recognized them since the foundation of our own government. In its application here, we must determine for ourselves the necessary meaning of a statute officially enacted in English and its conformity with fundamental limitations. We cannot give any other meaning to the Bookkeeping Act than that which its plain language imports, making it a crime for any one in the Philippine Islands engaged in business to keep his account books in Chinese. This brings us to the question whether the law thus construed to mean what it says is invalid. The Philippine Bill of Rights, already referred to, provides that: 'No law shall be enacted in said Islands which shall deprive any person of life, liberty, or property without due process of law, or deny to any person therein the equal protection of the laws.' In Serra v. Mortiga, 204 U. S. 470, at page 474, 27 S. Ct. 343, 345 (51 L. Ed. 571), this court said: 'It is settled that by virtue of the Bill of Rights, enacted by Congress for the Philippine Islands ( 32 Stat. 691, 692), that guaranties equivalent to the due process and equal protection of the law clause of the Fourteenth Amendment, the twice in jeopardy clause of the Fifth Amendment, and the substantial guaranties of the Sixth Amendment, exclusive of the right to trial by jury, were extended to the Philippine Islands. It is further settled that the guaranties which Congress has extended to the Philippine Islands are to be interpreted as meaning what the like provisions meant at the time when Congress made them applicable to the Philippine Islands. Kepner v. United States, 195 U. S. 100 (24 S. Ct. 797, 49 L. Ed. 114, 1 Ann. Cas. 655). 'For the purpose, therefore, of passing on the errors assigned we must test the correctness of the action of the court below by substantially the same criteria which we would apply to a case arising in the United States and controlled by the bill of rights expressed in the amendments to the Constitution of the United States.' In view of the history of the Islands and of the conditions there prevailing, we think the law to be invalid, because it deprives Chinese persons situated as they are, with their extensive and important business long established, of their liberty and property without due process of law, and denies them the equal protection of the laws. Of course the Philippine government may make every reasonable requirement of its taxpayers to keep proper records of their business transactions in English or Spanish or Filipino dialect by which an adequate measure of what is due from them in meeting the cost of government can be had. How detailed those records should be we need not now discuss, for it is not before us. But we are clearly of opinion that it is not within the police power of the Philippine Legislature, because it would be oppressive and arbitrary, to prohibit all Chinese merchants from maintaining a set of books in the Chinese language, and in the Chinese characters, and thus prevent them from keeping advised of the status of their business and directing its conduct. As the petitioner, Yu Cong Eng, well said in his examination, the Chinese books of those merchants who know only Chinese and do not know English and Spanish (and they constitute a very large majority of all of them in the Islands,) are their eyes in respect of their business. Without them such merchants would be a prey to all kinds of fraud and without possibility of adopting any safe policy. It would greatly and disastrously curtail their liberty of action, and be oppressive and damaging in the preservation of their property. We agree with the Philippine Supreme Court in thinking that the statute construed as we think it must be construed is invalid. In Lawton v. Steele, 152 U. S. 133, 137, 14 S. Ct. 499, 501 (38 L. Ed. 385), the court said: 'To justify the state in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, requires such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. The Legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations. In other words, its determination as to what is a proper exercise of its police powers is not final or conclusive, but is subject to the supervision of the courts.' In Holden v. Hardy, 169 U. S. 366, 398, 18 S. Ct. 383, 390 (42 L. Ed. 780), the court said: 'The question in each case is whether the legislature has adopted the statute in exercise of a reasonable discretion, or whether its action be a mere excuse for an unjust discrimination, or the oppression or spoliation of a particular class.' In the case of Meyer v. Nebraska, 262 U. S. 390, 43 S. Ct. 625, 67 L. Ed. 1042, 29 A. L. R. 1446, this court considered the validity of state legislation making it unlawful to teach a foreign language to children, adopted on the theory that the state had the right to protect children likely to become citizens from study of a particular language, in which they might read and learn doctrine inimical to the Constitution of the United States and to the nation, and forbidding the teachers of the language from pursuing their occupation on this account, and held it invalid. The court said: 'While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. * * * The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the state to effect. Determination by the Legislature of what constitutes proper exercise of police power is not final or conclusive but is subject to supervision by the courts.' The same principle is laid down in Pierce v. Society of Sisters, 268 U. S. 510, 45 S. Ct. 571, 69 L. Ed. 1070, 39 A. L. R. 468, in Truax v. Raich, 239 U. S. 33, 36 S. Ct. 7, 60 L. Ed. 131, L. R. A. 1916D, 545, Ann. Cas. 1917B, 283, and in Adams v. Tanner, 244 U. S. 590, 37 S. Ct. 662, 61 L. Ed. 1336, L. R. A. 1917F, 1163, Ann. Cas. 1917D, 973, in which this court has held legislative attempts arbitrary and oppressively to interfere with the liberty of the individual in the pursuit of lawful occupations to involve a lack of due process. In Adams v. Tanner, supra, an act to restrict the maintenance of employment agencies by forbidding the collection of fees from those seeking work, to avoid the extortion to which such workers were often subjected, was held unconstitutional. The court said at page 594 (37 S. Ct. 664): 'Because abuses may, and probably do, grow up in connection with this business, is adequate reason for hedging it about by proper regulations. But this is not enough to justify destruction of one's right to follow a distinctly useful calling in an upright way. Certainly there is no profession, possibly no business, which does not offer peculiar opportunities for reprehensible practices; and as to every one of them, no doubt, some can be found quite ready earnestly to maintain that its suppression would be in the public interest. Skillfully directed agitation might also bring about apparent condemnation of any one of them by the public. Happily for all, the fundamental guaranties of the Constitution cannot be freely submerged if and whenever some ostensible justification is advanced and the police power invoked.' In Truax v. Raich, supra, the people of the state of Arizona adopted an act, entitled 'An act to protect the citizens of the United States in their employment against noncitizens of the United States,' and provided that an employer of more than five workers at any one time in that state should not employ less than 80 per cent. qualified electors or native-born citizens, and that any employer who did so should be subject upon conviction to the payment of a fine and imprisonment. It was held that such a law denied aliens an opportunity of earning a livelihood and deprived them of their liberty without due process of law, and denied them the equal protection of the laws. As against the Chinese merchants of the Philippines, we think the present law which deprives them of something indispensable to the carrying on of their business, and is obviously intended chiefly to affect them as distinguished from the rest of the community, is a denial to them of the equal protection of the laws. We hold the law in question to be invalid. Judgment reversed. THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LAUREANO SANGALANG, accused-appellant. Office of the Solicitor General Felix Q. Antonio, Assistant Solicitor General Octavio R. Ramirez and Solicitor Ma. Rosario Quetulio Losa for plaintiff- appellee. Narciso V. Cruz, Jr. for accused-appellant.
AQUINO, J.:p This is a murder case. The testimonies of the two prosecution eyewitnesses disclose that at around six o'clock in the morning of June 9, 1968 Ricardo Cortez left his nipa hut located at Sitio Adlas, Barrio Biluso, Silang, Cavite to gather tuba from a coconut tree nearby. Flora Sarno, his wife, was left inside the hut. While he was on top of the tree gathering tuba, he was struck by a volley of shots. He fell to the ground at the base of the coconut tree. His wife Flora heard three successive shot coming south of the hut. She went outside the hut. From a distance of about twenty-five meters, she saw five men, each armed with a long firearm, firing at her husband. He was already wounded and was lying on the ground at the foot of the coconut tree. His assailants were about five meters away from him. She recognized Laureano Sangalang as one of the five armed men who were firing at her husband. She and her brother Ricardo had known Sangalang since their childhood. She also recognized Conrado Gonzales, Irineo Canuel, Perino Canuel and Eleuterio Cuyom as the other malefactors. Flora ran towards the place where her husband had fallen. She shouted, "Bakit ninyo pinagbabaril ang aking asawa". The five persons fired at her. She was then about twenty meters away from them. She retreated to the hut for cover. She heard some more shots. After the lapse of about five minutes, Laureano Sangalang and his companions left the place. When Flora returned to the spot where her husband was prostrate, he was already dead. On the occasion already described, Ricardo Sarno, twenty-seven years old, a brother of Flora, was inside his own nipa hut which was about ten meters away from Flora's hut. He was drinking coffee. His wife and children were eating breakfast. He heard several shots. He came out of his hut. He saw his brother-in-law being shot by Laureano Sangalang, Eleuterio Cuyom, Perino Canuel, Irineo Canuel and Conrado Gonzales. He saw Sangalang using a Garand carbine in shooting his brother-in-law. The latter fell from the top of the coconut tree after he was shot (10 tsn). His sister Flora was trying to approach her husband but she had to flee to her hut when Sangalang and his companions fired at her. He wanted to join her but he was likewise fired upon by the five men. So, he retired and took refuge in his own hut. Later, Sarno saw his sister Flora, sitting inside her hut. He followed her after she left the hut and went to see her dead husband, who was lying on the ground, face up, at the base of the coconut tree. When he noticed that his brother-in-law was already dead, he gathered his children and brought them to Sitio Biga, which was more or less thirty meters away from his hut in Sitio Adlas. Ricardo reported the killing to the chief of police who went to the scene of the crime with some policemen and Constabularymen. The necropsy report shows that the twenty-five-year-old Cortez sustained twenty-three gunshot wounds on the different parts of the body, fourteen of which were entrance-wounds, and nine were exit-wounds (Exh. A and B). He died due to the multiple gunshot wounds (Exh. C). On June 10, 1968 or on the day following the killing, Flora and Ricardo were interrogated by the Silang police. They executed sworn statements before the Municipal Judge pointing to Laureano Sangalang, Conrado Gonzales, Irineo Canuel, Perino Canuel and Eleuterio Cuyom as the assassins of Ricardo Cortez. Flora said in her statement that she knew those persons because from time to time they used to pass by her place. They resided at Barrio Capitula, Dasmarias, which is near Barrio Adlas. On the basis of those statements, the police filed on June 10 in the Municipal Court a complaint for murder against the five aforenamed persons. Sangalang was arrested. He posted bail in the sum of P50,000 on June 13. He waived the second stage of the preliminary investigation. The other accused have not been apprehended. On August 8, 1968 the Provincial Fiscal filed an information for murder against Sangalang. After trial, the Court of First Instance of Cavite, Tagaytay City Branch, rendered a judgment convicting Sangalang of murder, sentencing him to reclusion perpetua and ordering him to pay the heirs of Ricardo Cortez an indemnity of twelve thousand pesos and to pay his widow moral damages in the sum of ten thousand pesos (Criminal Case No. TG-162). Sangalang appealed. The appellant, a fifty-six-year old farmer, admitted that he knew Cortez and that he knows his wife, Flora Sarno. He pleaded an alibi. He declared that in the afternoon of June 8, 1968 he and Crispulo Mendoza went to the house of Julian Gatdula at Dapitan Street, Sampaloc, Manila. He arrived at Gatdula's place at six o'clock. He wanted to borrow money from Gatdula to defray the matriculation fees of his children. As Gatdula had no money at that time, he advised Sangalang to wait until morning. He would try to raise the sum of two hundred pesos which Sangalang desired to borrow. Sangalang and Mendoza agreed. They allegedly slept in Gatdula's house on the night of June 8th. The next morning, they breakfasted in that house. At about ten o'clock on June 9, Gatdula delivered the two hundred pesos to Sangalang. He and Mendoza then went to the Central Market in Manila and then to Quiapo. They returned to Cavite and arrived at seven o'clock in the evening of June 9 in Barrio Capdula. Gatdula and Mendoza corroborated Sangalang's alibi. In this appeal Sangalang insists on his alibi and impugns the credibility of the prosecution eyewitnesses, Mrs. Cortez and the victim's brother-in-law, Ricardo Sarno. The basic issue is whether their eyewitness-testimony that they saw appellant Sangalang as one of the five armed persons, who riddled Cortez with fourteen gunshot wounds of entry, is sufficient to overcome his alibi. In essence, the case projects the ever recurring conflict in criminal jurisprudence between positive identification and alibi. The trial court rejected appellant's alibi. It noted that although his witnesses, Mendoza and Gatdula, learned of his arrest, and Mendoza even visited him in the municipal jail, Sangalang and his witnesses did not interpose the defense of alibi when he was investigated by the police and when he was summoned at the preliminary investigation. Sangalang points to certain discrepancies in the declarations of Mrs. Cortez and her brother Ricardo Sarno. Those inconsistencies, which are not glaring, strengthen their credibility and show that their testimonies were not coached nor rehearsed. The discrepancies may be attributed to deficiencies in observation and recollection, or misapprehension of the misleading and confusing questions during cross-examination, or to the defective translation of the questions and answers but they do not necessarily indicate a wilful attempt to commit falsehood (People vs. Selfaison, 110 Phil. 839; People vs. Resayaga, L-23234, December 26, 1973, 54 SCRA 350). The controlling fact is that Mrs. Cortez and Sarno clearly and consistently testified that they saw Sangalang, a person already well-known to them, among the five armed persons who shot Ricardo Cortez. That unwavering identification negates appellant's alibi. The prosecution did not prove the motive for the killing. On the other hand, Sangalang did not show that Mrs. Cortez and Sarno were impelled by a malicious desire to falsely incriminate him. . Counsel de oficio meticulously examined the contradictions and deficiencies in the evidence for the prosecution. He made a spirited defense of the appellant. However, his efforts failed to cast any reasonable doubt on Sangalang's complicity in the killing. The victim was shot while he was gathering tuba on top of a coconut tree. He was unarmed and defenseless. He was not expecting to be assaulted. He did not give any immediate provocation. The deliberate, surprise attack shows that Sangalang and his companions employed a mode of execution which insured the killing without any risk to them arising from any defense which the victim could have made. The qualifying circumstance of treachery (alevosia), which was alleged in the information, was duly established (See art. 14[16], Revised Penal Code). Hence, the killing can be categorized as murder (See People vs. Sedenio, 94 Phil. 1046). Treachery absorbs the aggravating circumstance of band(U. S. vs. Abelinde, 1 Phil. 568). Evident premeditation, which was alleged in the information, was not proven. The trial court correctly imposed the penalty of reclusion perpetua on Sangalang (Arts. 64[1] and 248, Revised Penal Code). Finding no error in its judgment, the same is affirmed with costs against the appellant. SO ORDERED. ANGELINA MEJIA LOPEZ, AURORA MEJIA VILLASOR, ROY P. VILLASOR, petitioners, vs. THE CITY JUDGE, CESAR L. PARAS, TRINIDAD T. LAZATIN, and TERRA DEVELOPMENT CORPORATION, respondents. San Juan, Africa and Benedicto and Antonio C. Amor and Associates for petitioners. Quasha, Asperilla, Blanco, Zafra and Tayag for respondents. DIZON, J.: In the month of February 1964, petitioners Roy P. Villasor, as administrator of the intestate estate of the spouses Manuel M. Mejia and Gloria Lazatin (Special Proceedings No. 48181 of the Court of First Instance of Manila), together with his co-petitioners Angelina Mejia Lopez and Aurora Mejia Villasor and other heirs of said spouses, entered into a contract with respondent Trinidad T. Lazatin for the development and subdivision of three parcels of land belonging to said intestate estate. Subsequently Lazatin transferred his rights under the contract to the Terra Development Corporation. Months later, petitioners and other co-heirs filed an action in the Court of First Instance of Quezon City (Civil Case No. Q-8344) for the rescission of said contract for alleged gross and willful violation of its terms. Thereafter, Lazatin and the Terra Development Corporation, in turn, filed with the Fiscal's Office of the City of Angeles a complaint against petitioners for an alleged violation of the provisions of Article 172 in relation to those of Article 171, paragraph 4, of the Revised Penal Code. After conducting a preliminary examination in connection therewith, the City Fiscal of Angeles filed with the Court of said City an information charging petitioners with the crime of falsification of a private document upon the allegation that they made it appear in the contract mentioned heretofore that Aurora M. Villasor was the "guardian" of the minor George L. Mejia and that Angelina M. Lopez was similarly the "guardian" of the minor Alexander L. Mejia, when in truth and in fact they knew that they were not the guardians of said minors on the date of the execution of the document (Criminal Case No. C-2268). Upon petition of the parties thus charged, the City Fiscal of Angeles reinvestigated the case on March 7, 1965 to give them an opportunity to present exculpatory evidence, and after the conclusion of the reinvestigation the parties charged moved for the dismissal of the case mainly on the ground that the City Court of Angeles had no jurisdiction over the offense because the private document that contained the alleged false statement of fact was signed by them outside the territorial limits of said city. As the resolution of this motion to dismiss was delayed and in the meantime the City Court had set Criminal Case No. C-2268 for arraignment, the defendants secured from said court several postponements of the arraignment. Finally, in view of the City Fiscal's continued failure to act on the motion to dismiss the case, petitioners filed on November 26, 1965 with the City Court a motion to quash upon the ground that said court had no jurisdiction over the offense charged. The complainants in the case with the conformity of the City Fiscal filed an opposition thereto, and on February 3, 1966 the respondent judge denied said motion to quash and reset the arraignment of all the defendants on March 5 of the same year. In view thereof, petitioners filed the present action for certiorari and prohibition. Upon the foregoing facts the only question to be resolved is whether or not the City Court of Angeles City has jurisdiction to try and decide Criminal Case No. C-2268 for alleged falsification of a private document by the parties named in the information. It is clear that petitioners are not charged with having used a falsified document, in violation of the last paragraph of Article 172 of the Revised Penal Code. The charge against them is that of having falsified a private document by knowingly and willfully stating therein that Aurora M. Villasor and Angelina M. Lopez were the "guardians" of their minor brothers George and Alexander, respectively, when in fact they knew that, at the time they made such written statement, it was Carolina M. de Castro who was the judicial guardian of said minors. It is settled law in criminal actions that the place where the criminal offense was committed not only determines the venue of the action but is an essential element of jurisdiction (U.S. vs. Pagdayuman 5 Phil. 265). Thus, under the provisions of Section 86 of the Judiciary Act of 1948, municipal courts have original jurisdiction only over criminal offenses committed within their respective territorial jurisdiction. In the present case, it is the claim of petitioners a claim supported by the record that Angelina M. Lopez and Aurora M. Villasor signed the private document wherein they are alleged to have made a false statement of fact, the first within the territorial jurisdiction of Makati, and the second within the territorial jurisdiction of Quezon City, both within the province of Rizal. We now come to consider the question of when and where is the offense of falsification of a private document deemed consummated or committed. Upon this point, We have ruled clearly and definitely in U.S. vs. Infante, 36 Phil. 146, that the crime of falsification of a private document defined and penalized by Article 304 of the Penal Code (now paragraph 2, Article 172 of the Revised Penal Code) is consummated when such document is actually falsified with the intent to prejudice a third person, whether such falsified document is or is not thereafter put to the illegal use for which it was intended. Again in U.S. vs. Barretto, 36 Phil. p. 207, We said: . . . The contention of counsel would seem to be that the information was defective, in that it fails to set forth expressly the place where improper and illegal use was made of the falsified document, an allegation which counsel for appellant insists was absolutely essential for the proper determination of the court clothed with jurisdiction over the alleged offense. But under the definition of the crime of falsification of a private document as set forth in Article 304 of the Penal Code, the offense is consummated at the time when and at the place where the document is falsified to the prejudice of or with the intent to prejudice a third person, and this whether the falsified document is or is not put to the improper or illegal use for which it was intended. It is evident, therefore, that the place where the crime is committed is the place where the document is actually falsified, and that the improper or illegal use of the document thereafter is in no wise a material or essential element of the crime of falsification of a private document; . . . . Applying the above ruling to the facts before Us, it would appear that if the private document subject of the information was falsified by the persons therein charged, the act of falsification the signing of the document and the coetaneous intent to cause damage was committed and consummated outside the territorial jurisdiction of the City of Angeles, and that whether the falsified private document was thereafter put or not put to the illegal use for which it was intended, or was signed by the other contracting party within the territorial jurisdiction of the City of Angeles is in no wise a material or essential element of the crime of falsification of the private document, nor could it in any way change the fact that the act of falsification charged was committed outside the territorial jurisdiction of Angeles City. Thus, that the City Court of Angeles has, no jurisdiction over the offense charged is beyond question. Respondents, however, contend that the motion to quash filed by the defendants necessarily assumes the truth of the allegation of the information to the effect that the offense was committed within the territorial jurisdiction of Angeles City and that they may not be allowed to disprove this at this early stage of the proceedings. This is not exactly the law on the matter at present. It was the law applicable to a demurrer now obsolete to an information. The motion to quash now provided for in Rule 117 of the Rules of Court is manifestly broader in scope than the demurrer, as it is not limited to defects apparent upon the face of the complaint or information but extends to issues arising out of extraneous facts, as shown by the circumstance that, among the grounds for a motion to quash, Section 2 of said Rule provides for former jeopardy or acquittal, extinction of criminal action or liability, insanity of the accused etc., which necessarily involve questions of fact in the determination of which a preliminary trial is required. In the present case, the portion of the record of the reinvestigation which was submitted to the respondent judge for consideration in connection with the resolution of the motion to quash filed by the defendants shows beyond question that the offense charged was committed far beyond the territorial jurisdiction of Angeles City. On the propriety of the writs prayed for, it may be said that, as a general rule, a court of equity will not issue a writ of certiorari to annul an order of a lower court denying a motion to quash, nor issue a writ of prohibition to prevent said court from proceeding with the case after such denial, it being the rule that upon such denial the defendant should enter his plea of not guilty and go to trial and, if convicted, raise on appeal the same legal questions covered by his motion to quash. In this as well as in other jurisdictions however, this is no longer the hard and fast rule. The writs of certiorari and prohibition, as extra-ordinary legal remedies, are, in the ultimate analysis, intended to annul void proceedings; to prevent the unlawful and oppressive exercise of legal authority and to provide for a fair and orderly administration of justice. Thus, in Yu Kong Eng vs. Trinidad, 47 Phil. 385, We took cognizance of a petition for certiorari and prohibition although the accused in the case could have appealed in due time from the order complained of, our action in the premises being based on the public welfare and the advancement of public policy. In Dimayuga vs. Fajardo, 43 Phil. 304, We also admitted a petition to restrain the prosecution of certain chiropractors although, if convicted, they could have appealed. We gave due course to their petition for the orderly administration of justice and to avoid possible oppression by the strong arm of the law. And in Arevalo vs. Nepomuceno, 63 Phil. 627, the petition for certiorari challenging the trial court's action admitting an amended information was sustained despite the availability of appeal at the proper time. More recently, We said the following in Yap vs. the Hon. D. Lutero, etc., G.R. No. L-12669, April 30, 1959: Manifestly, the denial, by respondent herein, of the motion to quash the information in case No. 16443, may not be characterized as "arbitrary" or "despotic", or to be regarded as amounting to "lack of jurisdiction". The proper procedure, in the event of denial of a motion to quash, is for the accused, upon arraignment, to plead not guilty and reiterate his defense of former jeopardy, and, in case of conviction, to appeal therefrom, upon the ground that he has been twice put in jeopardy of punishment, either for the same offense, or for the same act, as the case may be. However, were we to require adherence to this pretense, the case at bar would have to be dismissed and petitioner required to go through the inconvenience, not to say the mental agony and torture, of submitting himself to trial on the merits in case No. 16443, apart from the expenses incidental thereto, despite the fact that his trial and conviction therein would violate one of his constitutional rights, and that, on appeal to this Court, we would, therefore, have to set aside the judgment of conviction of the lower court. This would, obviously, be most unfair and unjust. Under the circumstances obtaining in the present case, the flaw in the procedure followed by petitioner herein may be overlooked, in the interest of a more enlightened and substantial justice. Indeed, the lack of jurisdiction of the City Court of Angeles over the criminal offense charged being patent, it would be highly unfair to compel the parties charged to undergo trial in said court and suffer all the embarrassment and mental anguish that go with it. WHEREFORE, judgment is hereby rendered declaring that the offense charged in the information filed in Criminal Case No. C-2268 of the City Court of Angeles City is not within the jurisdiction of said court and that, therefore, said court is hereby restrained and prohibited from further proceedings therein. Costs against the private respondents. THE PEOPLE OF THE PHILIPPINE ISLANDS, through the complainant and offended party J. S. RUSTIA, petitioner, vs. BUENAVENTURA OCAMPO, accused, and C. M. VILLA-REAL and SOTERO RODAS, Judges of the Court of First Instance of Bulacan, respondents. The petitioner in his own behalf. E. P. Revilla for accused Ocampo. No appearance for the respondent Judges. VILLA-REAL, J.: This is an original petition for mandamus instituted by the petitioner J. S. Rustia against C. M. Villareal and Sotero Rodas, Judges of the Court of First Instance of Bulacan, Seventh Judicial District, praying that said respondent judges be ordered to immediately forward to this court the record of the proceedings and the evidence in criminal case No. 6717 of the Court of First Instance of Bulacan, entitled "The People of the Philippine Islands vs. Buenaventura Ocampo", by virtue of the appeal taken by said petitioner J. S. Rustia; that upon receipt thereof, the orders denying the appeal and the motions for reconsideration of October 23, and December 28, 1935, respectively, be reviewed and annulled; and that said appeal be allowed in accordance with law until the final determination thereof, with costs to the respondent Buenaventura Ocampo. The pertinent facts necessary for the determination of the question raised in this petition are as follows: On September 30, 1935, the herein petitioner, as offended party, filed a sworn criminal complaint for dereliction of duty ( prevaricacion) against the respondent Buenaventura Ocampo, docketed as criminal case No. 6717 in the Court of First Instance of Bulacan, copy of which is made an integral part of the petition and marked Exhibit A. On October 7, 1935, the respondent Judge C. M. Villareal, having been designated to receive the preliminary evidence in support of the petitioner's complaint, prior to the issuance of the warrant for the arrest of the accused in conformity with section 13 of General Orders, No. 58, proceeded in open court to receive said evidence, oral and documentary, and an affidavit of the clerk of this court, Vicente Albert. On October 15, 1935, said respondent judge, as investigator, entered a resolution to the effect that "the warrant of arrest is denied and the complaint dismissed", of which the herein petitioner was notified on the 17th of said month and year, and copy of which is attached to this petition and marked Exhibit B. On said date, October 17, 1935, the petitioner excepted to the resolution in question and filed an application for an appeal. Said respondent Judge C. M. Villareal, in his order of October 23, 1935, denied the appeal interposed by the offended-petitioner and refused to forward the record of the proceedings to this court. For the purposes of this petition, the petitioner, on October 26, 1935, filed a motion for reconsideration of the order denying the appeal, which motion was denied by other respondent Judge Sotero Rodas to which denial the petitioner excepted on the 30th of the said month and year. The only question to be decided in this petition is whether or not appeal lies from the resolution of the respondent Judge C. M. Villareal refusing to issue the warrant of arrest and dismissing the complaint filed against Buenaventura Ocampo. The English text of section 13 of General Orders, No. 58 is as follows: SEC. 13. When a complaint or information alleging the commission of a crime is laid before a magistrate, he must examine, on oath, the informant or prosecutor and the witnesses produced, and take their depositions in writing, causing them to be subscribed by the parties making them. If the magistrate be satisfied from the investigation that the crime complained of has been committed, and that there is reasonable ground to believe that the party charged has committed it, he must issue an order for his arrest. If the offense be bailable, and the defendant offers a sufficient security, he shall be admitted to bail; otherwise he shall be committed to prison. It will be seen that the above quoted section requires the justice of the peace, before issuing a warrant of arrest, to examine, on oath, the complaint and his witnesses, taking their depositions in writing and causing them to subscribe the same. Said section provides no appeal from an order of the justice of the peace court denying the issuance of a warrant of arrest. Appeal is provided for by section 14 of said General Orders, No. 58 in case the justice of the peace, after hearing the evidence presented at the preliminary investigation conducted by him after the arrest of the accused, should declare that the crime has not been committed and should order the release of the accused. In the case at bar, the complaint was not filed in the justice of the peace court but in the Court of First Instance, under the provisions of section 37 of Act No. 1627, from whose decision, in preliminary investigations of crimes denounced to it, no appeal to this court is provided. The appeal provided for in section 14 is from resolutions of justices of the peace ordering the release of an accused after conducting the corresponding preliminary investigation, but not from resolutions of Courts of First Instance ordering said release. Inasmuch as the right to appeal is not inherent in every accused, but granted by the constitution of law, appeal does not lie from a resolution of a Court of First Instance refusing to issue a warrant of arrest and dismissing a complaint. For the foregoing considerations, we are of the opinion and so hold that the appeal does not lie from a resolution of a judge of a Court of First Instance denying the issuance of a warrant of arrest and dismissing the complaint, after having heard the statements of the complainant and his witnesses, as provided by section 13 of General Orders, No. 58. Wherefore, the petition for mandamus is denied and the same dismissed, with costs to the petitioner. So ordered. TEOFISTO GUINGONA, JR., ANTONIO I. MARTIN, and TERESITA SANTOS, petitioners, vs. THE CITY FISCAL OF MANILA, HON. JOSE B. FLAMINIANO, ASST. CITY FISCAL FELIZARDO N. LOTA and CLEMENT DAVID, respondents.
MAKASIAR, Actg. C.J.:+.wph!1 This is a petition for prohibition and injunction with a prayer for the immediate issuance of restraining order and/or writ of preliminary injunction filed by petitioners on March 26, 1982. On March 31, 1982, by virtue of a court resolution issued by this Court on the same date, a temporary restraining order was duly issued ordering the respondents, their officers, agents, representatives and/or person or persons acting upon their (respondents') orders or in their place or stead to refrain from proceeding with the preliminary investigation in Case No. 8131938 of the Office of the City Fiscal of Manila (pp. 47-48, rec.). On January 24, 1983, private respondent Clement David filed a motion to lift restraining order which was denied in the resolution of this Court dated May 18, 1983. As can be gleaned from the above, the instant petition seeks to prohibit public respondents from proceeding with the preliminary investigation of I.S. No. 81-31938, in which petitioners were charged by private respondent Clement David, with estafa and violation of Central Bank Circular No. 364 and related regulations regarding foreign exchange transactions principally, on the ground of lack of jurisdiction in that the allegations of the charged, as well as the testimony of private respondent's principal witness and the evidence through said witness, showed that petitioners' obligation is civil in nature. For purposes of brevity, We hereby adopt the antecedent facts narrated by the Solicitor General in its Comment dated June 28,1982, as follows:t.hqw On December 23,1981, private respondent David filed I.S. No. 81-31938 in the Office of the City Fiscal of Manila, which case was assigned to respondent Lota for preliminary investigation (Petition, p. 8). In I.S. No. 81-31938, David charged petitioners (together with one Robert Marshall and the following directors of the Nation Savings and Loan Association, Inc., namely Homero Gonzales, Juan Merino, Flavio Macasaet, Victor Gomez, Jr., Perfecto Manalac, Jaime V. Paz, Paulino B. Dionisio, and one John Doe) with estafa and violation of Central Bank Circular No. 364 and related Central Bank regulations on foreign exchange transactions, allegedly committed as follows (Petition, Annex "A"):t.hqw "From March 20, 1979 to March, 1981, David invested with the Nation Savings and Loan Association, (hereinafter called NSLA) the sum of P1,145,546.20 on nine deposits, P13,531.94 on savings account deposits (jointly with his sister, Denise Kuhne), US$10,000.00 on time deposit, US$15,000.00 under a receipt and guarantee of payment and US$50,000.00 under a receipt dated June 8, 1980 (au jointly with Denise Kuhne), that David was induced into making the aforestated investments by Robert Marshall an Australian national who was allegedly a close associate of petitioner Guingona Jr., then NSLA President, petitioner Martin, then NSLA Executive Vice-President of NSLA and petitioner Santos, then NSLA General Manager; that on March 21, 1981 N LA was placed under receivership by the Central Bank, so that David filed claims therewith for his investments and those of his sister; that on July 22, 1981 David received a report from the Central Bank that only P305,821.92 of those investments were entered in the records of NSLA; that, therefore, the respondents in I.S. No. 81-31938 misappropriated the balance of the investments, at the same time violating Central Bank Circular No. 364 and related Central Bank regulations on foreign exchange transactions; that after demands, petitioner Guingona Jr. paid only P200,000.00, thereby reducing the amounts misappropriated to P959,078.14 and US$75,000.00." Petitioners, Martin and Santos, filed a joint counter- affidavit (Petition, Annex' B') in which they stated the following.t.hqw "That Martin became President of NSLA in March 1978 (after the resignation of Guingona, Jr.) and served as such until October 30, 1980, while Santos was General Manager up to November 1980; that because NSLA was urgently in need of funds and at David's insistence, his investments were treated as special- accounts with interest above the legal rate, an recorded in separate confidential documents only a portion of which were to be reported because he did not want the Australian government to tax his total earnings (nor) to know his total investments; that all transactions with David were recorded except the sum of US$15,000.00 which was a personal loan of Santos; that David's check for US$50,000.00 was cleared through Guingona, Jr.'s dollar account because NSLA did not have one, that a draft of US$30,000.00 was placed in the name of one Paz Roces because of a pending transaction with her; that the Philippine Deposit Insurance Corporation had already reimbursed David within the legal limits; that majority of the stockholders of NSLA had filed Special Proceedings No. 82- 1695 in the Court of First Instance to contest its (NSLA's) closure; that after NSLA was placed under receivership, Martin executed a promissory note in David's favor and caused the transfer to him of a nine and on behalf (9 1/2) carat diamond ring with a net value of P510,000.00; and, that the liabilities of NSLA to David were civil in nature." Petitioner, Guingona, Jr., in his counter-affidavit (Petition, Annex' C') stated the following:t.hqw "That he had no hand whatsoever in the transactions between David and NSLA since he (Guingona Jr.) had resigned as NSLA president in March 1978, or prior to those transactions; that he assumed a portion o; the liabilities of NSLA to David because of the latter's insistence that he placed his investments with NSLA because of his faith in Guingona, Jr.; that in a Promissory Note dated June 17, 1981 (Petition, Annex "D") he (Guingona, Jr.) bound himself to pay David the sums of P668.307.01 and US$37,500.00 in stated installments; that he (Guingona, Jr.) secured payment of those amounts with second mortgages over two (2) parcels of land under a deed of Second Real Estate Mortgage (Petition, Annex "E") in which it was provided that the mortgage over one (1) parcel shall be cancelled upon payment of one-half of the obligation to David; that he (Guingona, Jr.) paid P200,000.00 and tendered another P300,000.00 which David refused to accept, hence, he (Guingona, Jr.) filed Civil Case No. Q- 33865 in the Court of First Instance of Rizal at Quezon City, to effect the release of the mortgage over one (1) of the two parcels of land conveyed to David under second mortgages." At the inception of the preliminary investigation before respondent Lota, petitioners moved to dismiss the charges against them for lack of jurisdiction because David's claims allegedly comprised a purely civil obligation which was itself novated. Fiscal Lota denied the motion to dismiss (Petition, p. 8). But, after the presentation of David's principal witness, petitioners filed the instant petition because: (a) the production of the Promisory Notes, Banker's Acceptance, Certificates of Time Deposits and Savings Account allegedly showed that the transactions between David and NSLA were simple loans, i.e., civil obligations on the part of NSLA which were novated when Guingona, Jr. and Martin assumed them; and (b) David's principal witness allegedly testified that the duplicate originals of the aforesaid instruments of indebtedness were all on file with NSLA, contrary to David's claim that some of his investments were not record (Petition, pp. 8-9). Petitioners alleged that they did not exhaust available administrative remedies because to do so would be futile (Petition, p. 9) [pp. 153-157, rec.]. As correctly pointed out by the Solicitor General, the sole issue for resolution is whether public respondents acted without jurisdiction when they investigated the charges (estafa and violation of CB Circular No. 364 and related regulations regarding foreign exchange transactions) subject matter of I.S. No. 81-31938. There is merit in the contention of the petitioners that their liability is civil in nature and therefore, public respondents have no jurisdiction over the charge of estafa. A casual perusal of the December 23, 1981 affidavit. complaint filed in the Office of the City Fiscal of Manila by private respondent David against petitioners Teopisto Guingona, Jr., Antonio I. Martin and Teresita G. Santos, together with one Robert Marshall and the other directors of the Nation Savings and Loan Association, will show that from March 20, 1979 to March, 1981, private respondent David, together with his sister, Denise Kuhne, invested with the Nation Savings and Loan Association the sum of P1,145,546.20 on time deposits covered by Bankers Acceptances and Certificates of Time Deposits and the sum of P13,531.94 on savings account deposits covered by passbook nos. 6-632 and 29-742, or a total of P1,159,078.14 (pp. 15-16, roc.). It appears further that private respondent David, together with his sister, made investments in the aforesaid bank in the amount of US$75,000.00 (p. 17, rec.). Moreover, the records reveal that when the aforesaid bank was placed under receivership on March 21, 1981, petitioners Guingona and Martin, upon the request of private respondent David, assumed the obligation of the bank to private respondent David by executing on June 17, 1981 a joint promissory note in favor of private respondent acknowledging an indebtedness of Pl,336,614.02 and US$75,000.00 (p. 80, rec.). This promissory note was based on the statement of account as of June 30, 1981 prepared by the private respondent (p. 81, rec.). The amount of indebtedness assumed appears to be bigger than the original claim because of the added interest and the inclusion of other deposits of private respondent's sister in the amount of P116,613.20. Thereafter, or on July 17, 1981, petitioners Guingona and Martin agreed to divide the said indebtedness, and petitioner Guingona executed another promissory note antedated to June 17, 1981 whereby he personally acknowledged an indebtedness of P668,307.01 (1/2 of P1,336,614.02) and US$37,500.00 (1/2 of US$75,000.00) in favor of private respondent (p. 25, rec.). The aforesaid promissory notes were executed as a result of deposits made by Clement David and Denise Kuhne with the Nation Savings and Loan Association. Furthermore, the various pleadings and documents filed by private respondent David, before this Court indisputably show that he has indeed invested his money on time and savings deposits with the Nation Savings and Loan Association. It must be pointed out that when private respondent David invested his money on nine. and savings deposits with the aforesaid bank, the contract that was perfected was a contract of simple loan or mutuum and not a contract of deposit. Thus, Article 1980 of the New Civil Code provides that:t.hqw Article 1980. Fixed, savings, and current deposits of- money in banks and similar institutions shall be governed by the provisions concerning simple loan. In the case of Central Bank of the Philippines vs. Morfe (63 SCRA 114,119 [1975], We said:t.hqw It should be noted that fixed, savings, and current deposits of money in banks and similar institutions are hat true deposits. are considered simple loans and, as such, are not preferred credits (Art. 1980 Civil Code; In re Liquidation of Mercantile Batik of China Tan Tiong Tick vs. American Apothecaries Co., 66 Phil 414; Pacific Coast Biscuit Co. vs. Chinese Grocers Association 65 Phil. 375; Fletcher American National Bank vs. Ang Chong UM 66 PWL 385; Pacific Commercial Co. vs. American Apothecaries Co., 65 PhiL 429; Gopoco Grocery vs. Pacific Coast Biscuit CO.,65 Phil. 443)." This Court also declared in the recent case of Serrano vs. Central Bank of the Philippines (96 SCRA 102 [1980]) that:t.hqw Bank deposits are in the nature of irregular deposits. They are really 'loans because they earn interest. All kinds of bank deposits, whether fixed, savings, or current are to be treated as loans and are to be covered by the law on loans (Art. 1980 Civil Code Gullas vs. Phil. National Bank, 62 Phil. 519). Current and saving deposits, are loans to a bank because it can use the same. The petitioner here in making time deposits that earn interests will respondent Overseas Bank of Manila was in reality a creditor of the respondent Bank and not a depositor. The respondent Bank was in turn a debtor of petitioner. Failure of the respondent Bank to honor the time deposit is failure to pay its obligation as a debtor and not a breach of trust arising from a depositary's failure to return the subject matter of the deposit (Emphasis supplied). Hence, the relationship between the private respondent and the Nation Savings and Loan Association is that of creditor and debtor; consequently, the ownership of the amount deposited was transmitted to the Bank upon the perfection of the contract and it can make use of the amount deposited for its banking operations, such as to pay interests on deposits and to pay withdrawals. While the Bank has the obligation to return the amount deposited, it has, however, no obligation to return or deliver the same money that was deposited. And, the failure of the Bank to return the amount deposited will not constitute estafa through misappropriation punishable under Article 315, par. l(b) of the Revised Penal Code, but it will only give rise to civil liability over which the public respondents have no- jurisdiction. WE have already laid down the rule that:t.hqw In order that a person can be convicted under the above- quoted provision, it must be proven that he has the obligation to deliver or return the some money, goods or personal property that he received Petitioners had no such obligation to return the same money, i.e., the bills or coins, which they received from private respondents. This is so because as clearly as stated in criminal complaints, the related civil complaints and the supporting sworn statements, the sums of money that petitioners received were loans. The nature of simple loan is defined in Articles 1933 and 1953 of the Civil Code.t.hqw "Art. 1933. By the contract of loan, one of the parties delivers to another, either something not consumable so that the latter may use the same for a certain time- and return it, in which case the contract is called a commodatum; or money or other consumable thing, upon the condition that the same amount of the same kind and quality shall he paid in which case the contract is simply called a loan or mutuum. "Commodatum is essentially gratuitous. "Simple loan may be gratuitous or with a stipulation to pay interest. "In commodatum the bailor retains the ownership of the thing loaned while in simple loan, ownership passes to the borrower. "Art. 1953. A person who receives a loan of money or any other fungible thing acquires the ownership thereof, and is bound to pay to the creditor an equal amount of the same kind and quality." It can be readily noted from the above-quoted provisions that in simple loan (mutuum), as contrasted to commodatum the borrower acquires ownership of the money, goods or personal property borrowed Being the owner, the borrower can dispose of the thing borrowed (Article 248, Civil Code) and his act will not be considered misappropriation thereof' (Yam vs. Malik, 94 SCRA 30, 34 [1979]; Emphasis supplied). But even granting that the failure of the bank to pay the time and savings deposits of private respondent David would constitute a violation of paragraph 1(b) of Article 315 of the Revised Penal Code, nevertheless any incipient criminal liability was deemed avoided, because when the aforesaid bank was placed under receivership by the Central Bank, petitioners Guingona and Martin assumed the obligation of the bank to private respondent David, thereby resulting in the novation of the original contractual obligation arising from deposit into a contract of loan and converting the original trust relation between the bank and private respondent David into an ordinary debtor-creditor relation between the petitioners and private respondent. Consequently, the failure of the bank or petitioners Guingona and Martin to pay the deposits of private respondent would not constitute a breach of trust but would merely be a failure to pay the obligation as a debtor. Moreover, while it is true that novation does not extinguish criminal liability, it may however, prevent the rise of criminal liability as long as it occurs prior to the filing of the criminal information in court. Thus, in Gonzales vs. Serrano ( 25 SCRA 64, 69 [1968]) We held that:t.hqw As pointed out in People vs. Nery, novation prior to the filing of the criminal information as in the case at bar may convert the relation between the parties into an ordinary creditor-debtor relation, and place the complainant in estoppel to insist on the original transaction or "cast doubt on the true nature" thereof. Again, in the latest case of Ong vs. Court of Appeals (L-58476, 124 SCRA 578, 580-581 [1983] ), this Court reiterated the ruling in People vs. Nery ( 10 SCRA 244 [1964] ), declaring that:t.hqw The novation theory may perhaps apply prior to the filling of the criminal information in court by the state prosecutors because up to that time the original trust relation may be converted by the parties into an ordinary creditor-debtor situation, thereby placing the complainant in estoppel to insist on the original trust. But after the justice authorities have taken cognizance of the crime and instituted action in court, the offended party may no longer divest the prosecution of its power to exact the criminal liability, as distinguished from the civil. The crime being an offense against the state, only the latter can renounce it (People vs. Gervacio, 54 Off. Gaz. 2898; People vs. Velasco, 42 Phil. 76; U.S. vs. Montanes, 8 Phil. 620). It may be observed in this regard that novation is not one of the means recognized by the Penal Code whereby criminal liability can be extinguished; hence, the role of novation may only be to either prevent the rise of criminal habihty or to cast doubt on the true nature of the original basic transaction, whether or not it was such that its breach would not give rise to penal responsibility, as when money loaned is made to appear as a deposit, or other similar disguise is resorted to (cf. Abeto vs. People, 90 Phil. 581; U.S. vs. Villareal, 27 Phil. 481). In the case at bar, there is no dispute that petitioners Guingona and Martin executed a promissory note on June 17, 1981 assuming the obligation of the bank to private respondent David; while the criminal complaint for estafa was filed on December 23, 1981 with the Office of the City Fiscal. Hence, it is clear that novation occurred long before the filing of the criminal complaint with the Office of the City Fiscal. Consequently, as aforestated, any incipient criminal liability would be avoided but there will still be a civil liability on the part of petitioners Guingona and Martin to pay the assumed obligation. Petitioners herein were likewise charged with violation of Section 3 of Central Bank Circular No. 364 and other related regulations regarding foreign exchange transactions by accepting foreign currency deposit in the amount of US$75,000.00 without authority from the Central Bank. They contend however, that the US dollars intended by respondent David for deposit were all converted into Philippine currency before acceptance and deposit into Nation Savings and Loan Association. Petitioners' contention is worthy of behelf for the following reasons: 1. It appears from the records that when respondent David was about to make a deposit of bank draft issued in his name in the amount of US$50,000.00 with the Nation Savings and Loan Association, the same had to be cleared first and converted into Philippine currency. Accordingly, the bank draft was endorsed by respondent David to petitioner Guingona, who in turn deposited it to his dollar account with the Security Bank and Trust Company. Petitioner Guingona merely accommodated the request of the Nation Savings and loan Association in order to clear the bank draft through his dollar account because the bank did not have a dollar account. Immediately after the bank draft was cleared, petitioner Guingona authorized Nation Savings and Loan Association to withdraw the same in order to be utilized by the bank for its operations. 2. It is safe to assume that the U.S. dollars were converted first into Philippine pesos before they were accepted and deposited in Nation Savings and Loan Association, because the bank is presumed to have followed the ordinary course of the business which is to accept deposits in Philippine currency only, and that the transaction was regular and fair, in the absence of a clear and convincing evidence to the contrary (see paragraphs p and q, Sec. 5, Rule 131, Rules of Court). 3. Respondent David has not denied the aforesaid contention of herein petitioners despite the fact that it was raised. in petitioners' reply filed on May 7, 1982 to private respondent's comment and in the July 27, 1982 reply to public respondents' comment and reiterated in petitioners' memorandum filed on October 30, 1982, thereby adding more support to the conclusion that the US$75,000.00 were really converted into Philippine currency before they were accepted and deposited into Nation Savings and Loan Association. Considering that this might adversely affect his case, respondent David should have promptly denied petitioners' allegation. In conclusion, considering that the liability of the petitioners is purely civil in nature and that there is no clear showing that they engaged in foreign exchange transactions, We hold that the public respondents acted without jurisdiction when they investigated the charges against the petitioners. Consequently, public respondents should be restrained from further proceeding with the criminal case for to allow the case to continue, even if the petitioners could have appealed to the Ministry of Justice, would work great injustice to petitioners and would render meaningless the proper administration of justice. While as a rule, the prosecution in a criminal offense cannot be the subject of prohibition and injunction, this court has recognized the resort to the extraordinary writs of prohibition and injunction in extreme cases, thus:t.hqw On the issue of whether a writ of injunction can restrain the proceedings in Criminal Case No. 3140, the general rule is that "ordinarily, criminal prosecution may not be blocked by court prohibition or injunction." Exceptions, however, are allowed in the following instances:t.hqw "1. for the orderly administration of justice; "2. to prevent the use of the strong arm of the law in an oppressive and vindictive manner; "3. to avoid multiplicity of actions; "4. to afford adequate protection to constitutional rights; "5. in proper cases, because the statute relied upon is unconstitutional or was held invalid" ( Primicias vs. Municipality of Urdaneta, Pangasinan, 93 SCRA 462, 469-470 [1979]; citing Ramos vs. Torres, 25 SCRA 557 [1968]; and Hernandez vs. Albano, 19 SCRA 95, 96 [1967]). Likewise, in Lopez vs. The City Judge, et al. ( 18 SCRA 616, 621-622 [1966]), We held that:t.hqw The writs of certiorari and prohibition, as extraordinary legal remedies, are in the ultimate analysis, intended to annul void proceedings; to prevent the unlawful and oppressive exercise of legal authority and to provide for a fair and orderly administration of justice. Thus, in Yu Kong Eng vs. Trinidad, 47 Phil. 385, We took cognizance of a petition for certiorari and prohibition although the accused in the case could have appealed in due time from the order complained of, our action in the premises being based on the public welfare policy the advancement of public policy. In Dimayuga vs. Fajardo, 43 Phil. 304, We also admitted a petition to restrain the prosecution of certain chiropractors although, if convicted, they could have appealed. We gave due course to their petition for the orderly administration of justice and to avoid possible oppression by the strong arm of the law. And in Arevalo vs. Nepomuceno, 63 Phil. 627, the petition for certiorari challenging the trial court's action admitting an amended information was sustained despite the availability of appeal at the proper time. WHEREFORE, THE PETITION IS HEREBY GRANTED; THE TEMPORARY RESTRAINING ORDER PREVIOUSLY ISSUED IS MADE PERMANENT. COSTS AGAINST THE PRIVATE RESPONDENT. SO ORDERED. JOVITO R. SALONGA, petitioner, vs. HON. ERNANI CRUZ PAO, Presiding Judge of the Court of First Instance of Rizal Branch XVIII (Quezon City), HON. JUDGE RODOLFO ORTIZ, Presiding Judge of the Court of First Instance of Rizal, Branch XXXI (Quezon City) CITY FISCAL SERGIO APOSTOL of Quezon City; COL. BALBINO DIEGO and COL. ROMAN MADELLA, respondents.
GUTIERREZ, JR., J.: The petitioner invokes the constitutionally protected right to life and liberty guaranteed by the due process clause, alleging that no prima facie case has been established to warrant the filing of an information for subversion against him. Petitioner asks this Court to prohibit and prevent the respondents from using the iron arm of the law to harass, oppress, and persecute him, a member of the democratic opposition in the Philippines. The background of this case is a matter of public knowledge. A rash of bombings occurred in the Metro Manila area in the months of August, September and October of 1980. On September 6, 1980, one Victor Burns Lovely, Jr., a Philippine-born American citizen from Los Angeles, California, almost killed himself and injured his younger brother, Romeo, as a result of the explosion of a small bomb inside his room at the YMCA building in Manila. Found in Lovely's possession by police and military authorities were several pictures taken sometime in May, 1980 at the birthday party of former Congressman Raul Daza held at the latter's residence in a Los Angeles suburb. Petitioner Jovito R. Salonga and his wife were among those whose likenesses appeared in the group pictures together with other guests, including Lovely. As a result of the serious injuries he suffered, Lovely was brought by military and police authorities to the AFP Medical Center (V. Luna Hospital) where he was placed in the custody and detention of Col. Roman P. Madella, under the over-all direction of General Fabian Ver, head of the National Intelligence and Security Authority (NISA). Shortly afterwards, Mr. Lovely and his two brothers, Romeo and Baltazar Lovely were charged with subversion, illegal possession of explosives, and damage to property. On September 12, 1980, bombs once again exploded in Metro Manila including one which resulted in the death of an American lady who was shopping at Rustan's Supermarket in Makati and others which caused injuries to a number of persons. On September 20, 1980, the President's anniversary television radio press conference was broadcast. The younger brother of Victor Lovely, Romeo, was presented during the conference. In his interview, Romeo stated that he had driven his elder brother, Victor, to the petitioner's house in Greenhills on two occasions. The first time was on August 20, 1980. Romeo stated that Victor did not bring any bag with him on that day when he went to the petitioner's residence and did not carry a bag when he left. The second time was in the afternoon of August 31, 1980 when he brought Victor only to the gate of the petitioner's house. Romeo did not enter the petitioner's residence. Neither did he return that day to pick up his brother. The next day, newspapers came out with almost Identical headlines stating in effect that petitioner had been linked to the various bombings in Metro Manila. Meanwhile, on September 25, 1980, Lovely was taken out of the hospital's intensive care unit and transferred to the office of Col. Madella where he was held incommunicado for some time. On the night of October 4, 1980, more bombs were reported to have exploded at three big hotels in Metro Manila, namely: Philippine Plaza, Century Park Sheraton and Manila Peninsula. The bombs injured nine people. A meeting of the General Military Council was called for October 6, 1980. On October 19, 1980, minutes after the President had finished delivering his speech before the International Conference of the American Society of Travel Agents at the Philippine International Convention Center, a small bomb exploded. Within the next twenty-four hours, arrest, search, and seizure orders (ASSOs) were issued against persons who were apparently implicated by Victor Lovely in the series of bombings in Metro Manila. One of them was herein petitioner. Victor Lovely offered himself to be a "state witness" and in his letter to the President, he stated that he will reveal everything he knows about the bombings. On October 21, 1980, elements of the military went to the hospital room of the petitioner at the Manila Medical Center where he was confined due to his recurrent and chronic ailment of bronchial asthma and placed him under arrest. The arresting officer showed the petitioner the ASSO form which however did not specify the charge or charges against him. For some time, the petitioner's lawyers were not permitted to visit him in his hospital room until this Court in the case of Ordoez v. Gen. Fabian Ver, et al., (G.R. No. 55345, October 28, 1980) issued an order directing that the petitioner's right to be visited by counsel be respected. On November 2, 1980, the petitioner was transferred against his objections from his hospital arrest to an isolation room without windows in an army prison camp at Fort Bonifacio, Makati. The petitioner states that he was not informed why he was transferred and detained, nor was he ever investigated or questioned by any military or civil authority. Subsequently, on November 27, 1980, the petitioner was released for humanitarian reasons from military custody and placed "under house arrest in the custody of Mrs. Lydia Salonga" still without the benefit of any investigation or charges. On December 10, 1980, the Judge Advocate General sent the petitioner a "Notice of Preliminary Investigation" in People v. Benigno Aquino, Jr., et al. (which included petitioner as a co-accused), stating that "the preliminary investigation of the above-entitled case has been set at 2:30 o'clock p.m. on December 12, 1980" and that petitioner was given ten (10) days from receipt of the charge sheet and the supporting evidence within which to file his counter-evidence. The petitioner states that up to the time martial law was lifted on January 17, 1981, and despite assurance to the contrary, he has not received any copies of the charges against him nor any copies of the so-called supporting evidence. On February 9, 1981, the records of the case were turned over by the Judge Advocate General's Office to the Ministry of Justice. On February 24, 1981, the respondent City Fiscal filed a complaint accusing petitioner, among others of having violated Republic Act No. 1700, as amended by P.D. 885 and Batas Pambansa Blg. 31 in relation to Article 142 of the Revised Penal Code. The inquest court set the preliminary investigation for March 17, 1981. On March 6, 1981, the petitioner was allowed to leave the country to attend a series of church conferences and undergo comprehensive medical examinations of the heart, stomach, liver, eye and ear including a possible removal of his left eye to save his right eye. Petitioner Salonga almost died as one of the principal victims of the dastardly bombing of a Liberal Party rally at Plaza Miranda on August 20, 1971. Since then, he has suffered serious disabilities. The petitioner was riddled with shrapnel and pieces still remain in various parts of his body. He has an AV fistula caused by a piece of shrapnel lodged one millimeter from his aorta. The petitioner has limited use of his one remaining hand and arms, is completely blind and physical in the left eye, and has scar like formations in the remaining right eye. He is totally deaf in the right ear and partially deaf in the left ear. The petitioner's physical ailments led him to seek treatment abroad. On or around March 26, 1981, the counsel for petitioner was furnished a copy of an amended complaint signed by Gen. Prospero Olivas, dated March 12, 1981, charging the petitioner, along with 39 other accused with the violation of R.A. 1700, as amended by P.D. 885, Batas Pambansa Blg. 31 and P.D. 1736. Hearings for preliminary investigation were conducted. The prosecution presented as its witnesses Ambassador Armando Fernandez, the Consul General of the Philippines in Los Angeles, California, Col. Balbino Diego, PSC/NISA Chief, Investigation and Legal Panel of the Presidential Security Command and Victor Lovely himself. On October 15, 1981, the counsel for petitioner filed a motion to dismiss the charges against petitioner for failure of the prosecution to establish a prima facie case against him. On December 2, 1981, the respondent judge denied the motion. On January 4, 1982, he issued a resolution ordering the filing of an information for violation of the Revised Anti-Subversion Act, as amended, against forty (40) people, including herein petitioner. The resolutions of the respondent judge dated December 2, 1981 and January 4, 1982 are now the subject of the petition. It is the contention of the petitioner that no prima facie case has been established by the prosecution to justify the filing of an information against him. He states that to sanction his further prosecution despite the lack of evidence against him would be to admit that no rule of law exists in the Philippines today. After a painstaking review of the records, this Court finds the evidence offered by the prosecution utterly insufficient to establish a prima facie case against the petitioner. We grant the petition. However, before going into the merits of the case, we shall pass upon a procedural issue raised by the respondents. The respondents call for adherence to the consistent rule that the denial of a motion to quash or to dismiss, being interlocutory in character, cannot be questioned by certiorari; that since the question of dismissal will again be considered by the court when it decides the case, the movant has a plain, speedy and adequate remedy in the ordinary course of law; and that public interest dictates that criminal prosecutions should not be enjoined. The general rule is correctly stated. However, the respondents fail to appreciate or take into account certain exceptions when a petition for certiorari is clearly warranted. The case at bar is one such exception. In the case of Mead v. Angel (115 SCRA 256) the same contentions were advanced by the respondents to wit: xxx xxx xxx ... Respondents advert to the rule that when a motion to quash filed by an accused in a criminal case shall be denied, the remedy of the accused-movant is not to file a petition for certiorari or mandamus or prohibition, the proper recourse being to go to trial, without prejudice to his right to reiterate the grounds invoked in his motion to quash if an adverse judgment is rendered against him, in the appeal that he may take therefrom in the manner authorized by law. (Mill v. People, et al., 101 Phil. 599; Echarol v. Purisima, et al., 13 SCRA 309.) On this argument, we ruled: There is no disputing the validity and wisdom of the rule invoked by the respondents. However, it is also recognized that, under certain situations, recourse to the extraordinary legal remedies of certiorari, prohibition or mandamus to question the denial of a motion to quash is considered proper in the interest of "more enlightened and substantial justice", as was so declared in "Yap v. Lutero, G.R. No. L-12669, April 30, 1969." Infinitely more important than conventional adherence to general rules of criminal procedure is respect for the citizen's right to be free not only from arbitrary arrest and punishment but also from unwarranted and vexatious prosecution. The integrity of a democratic society is corrupted if a person is carelessly included in the trial of around forty persons when on the very face of the record no evidence linking him to the alleged conspiracy exists. Ex-Senator Jovito Salonga, himself a victim of the still unresolved and heinous Plaza Miranda bombings, was arrested at the Manila Medical Center while hospitalized for bronchial asthma. When arrested, he was not informed of the nature of the charges against him. Neither was counsel allowed to talk to him until this Court intervened through the issuance of an order directing that his lawyers be permitted to visit him (Ordonez v. Gen. Fabian Ver, et al., G.R. No. 55345, October 28, 1980). Only after four months of detention was the petitioner informed for the first time of the nature of the charges against him. After the preliminary investigation, the petitioner moved to dismiss the complaint but the same was denied. Subsequently, the respondent judge issued a resolution ordering the filing of an information after finding that a prima facie case had been established against an of the forty persons accused. In the light of the failure to show prima facie that the petitioner was probably guilty of conspiring to commit the crime, the initial disregard of petitioner's constitutional rights together with the massive and damaging publicity made against him, justifies the favorable consideration of this petition by this Court. With former Senator Benigno Aquino, Jr. now deceased, there are at least 38 other co-accused to be tried with the petitioner. The prosecution must present proof beyond reasonable doubt against each and every one of the 39 accused, most of whom have varying participations in the charge for subversion. The prosecution's star witness Victor Lovely and the only source of information with regard to the alleged link between the petitioner and the series of terrorist bombings is now in the United States. There is reason to believe the petitioner's citation of international news dispatches * that the prosecution may find it difficult if not infeasible to bring him back to the Philippines to testify against the petitioner. If Lovely refused to testify before an American federal grand jury how could he possibly be made to testify when the charges against the respondent come up in the course of the trial against the 39 accused. Considering the foregoing, we find it in the interest of justice to resolve at this stage the issue of whether or not the respondent judge gravely abused his discretion in issuing the questioned resolutions. The respondents contend that the prosecution will introduce additional evidence during the trial and if the evidence, by then, is not sufficient to prove the petitioner's guilt, he would anyway be acquitted. Yes, but under the circumstances of this case, at what cost not only to the petitioner but to the basic fabric of our criminal justice system? The term "prima facie evidence" denotes evidence which, if unexplained or uncontradicted, is sufficient to sustain the proposition it supports or to establish the facts, or to counter-balance the presumption of innocence to warrant a conviction. The question raised before us now is: Were the evidences against the petitioner uncontradicted and if they were unexplained or uncontradicted, would they, standing alone, sufficiently overcome the presumption of innocence and warrant his conviction? We do not think so. The records reveal that in finding a case against the petitioner, the respondent judge relied only on the testimonies of Col. Balbino Diego and Victor Lovely. Ambassador Armando Fernandez, when called upon to testify on subversive organizations in the United States nowhere mentioned the petitioner as an organizer, officer or member of the Movement for Free Philippines (MFP), or any of the organizations mentioned in the complaint. Col. Diego, on the other hand, when asked what evidence he was able to gather against the petitioner depended only on the statement of Lovely "that it was the residence of ex-Senator Salonga where they met together with Renato Taada, one of the brains of the bombing conspiracy ... and the fact that Sen. Salonga has been meeting with several subversive personnel based in the U.S.A. was also revealed to me by Victor Burns Lovely; 11 and on the group pictures taken at former Congressman Raul Daza's birthday party. In concluding that a conspiracy exists to overthrow by violent means the government of the Philippines in the United States, his only bases were "documentary as well as physical and sworn statements that were referred to me or taken by me personally," which of course negate personal knowledge on his part. When asked by the court how he would categorize petitioner in any of the subversive organizations, whether petitioner was an organizer, officer or a member, the witness replied: A. To categorize former Senator Salonga if he were an organizer, he is an officer or he is a member, your Honor, please, we have to consider the surrounding circumstances and on his involvement: first, Senator Salonga wanted always to travel to the United States at least once a year or more often under the pretext of to undergo some sort of operation and participate in some sort of seminar. (t.s.n., April 21, 1981, pp- 14-15) Such testimony, being based on affidavits of other persons and purely hearsay, can hardly qualify as prima facie evidence of subversion. It should not have been given credence by the court in the first place. Hearsay evidence, whether objected to or not, -has no probative value as the affiant could not have been cross-examined on the facts stated therein. (See People v. Labinia, 115 SCRA 223; People v. Valero, 112 SCRA 661). Moreover, as Victor Lovely, himself, was personally examined by the court, there was no need for the testimony of Col. Diego. Thus, the inquest judge should have confined his investigation to Victor Burns Lovely, the sole witness whose testimony had apparently implicated petitioner in the bombings which eventually led to the filing of the information. Lovely's account of the petitioner's involvement with the former's bombing mission is found in his sworn statement made before Col. Diego and Lt. Col. Madella and taken on October 17, 1980 at the AFP Medical Center. Lovely was not presented as a prosecution or state witness but only as a defense witness for his two younger brothers, Romeo and Baltazar, who were both included in the complaint but who were later dropped from the information. Victor Lovely was examined by his counsel and cross- examined by the fiscal. In the process, he Identified the statement which he made before Col. Diego and Lt. Col. Madella. After Lovely's testimony, the prosecution made a manifestation before the court that it was adopting Lovely as a prosecution witness. According to Lovely's statement, the following events took place: 36. Q. Did Psinakis tell you where to stay? A. Yes, at first he told me to check-in at Manila Hotel or the Plaza Hotel where somebody would come to contact me and give the materials needed in the execution of my mission. I thought this was not safe so I disagreed with him. Mr. Psinakis changed the plan and instead told me to visit the residence of Ex-Sen. Jovito Salonga as often as I can and someone will meet me there to give the materials I needed to accomplish my mission 37. Q. Did you comply as instructed? A. Yes, I arrived in Manila on August 20, 1980 and stayed at the residence of Mr. Johnny Chua, husband of my business partner, then I went to the Hospital where I visited my mother and checked-in at Room 303 of the YMCA at Concepcion Street, Manila. 38. Q. Did you visit the residence of former Senator Jovito Salonga as directed by Psinakis? A. I visited Sen. Salonga's place three (3) times, the first visit was August 20 or 21, and the last was 4:00 P.M. of August 31, 1980. In addition to these visits, I TALKED to him on the phone about three or four times. On my first visit, I told him "I am expecting an attache case from somebody which will be delivered to your house," for which Sen. Salonga replied "Wala namang nagpunta dito at wala namang attache case para sa iyo." However, if your attache case arrives, I'll just call you." I gave him my number. On my second visit, Salonga said, "I'll be very busy so just come back on the 31st of August at 4 P.M." On that date, I was with friends at Batulao Resort and had to hurry back to be at Salonga's place for the appointment. I arrived at Salonga's place at exactly 4 P.M. 39. Q. What happened then? A. I was ushered to the sala by Mrs. Salonga and after five minutes, Sen. Salonga joined me in the sala. Sen. Salonga informed me that somebody will be coming to give me the attache case but did not tell me the name. 40. Q. Are there any subject matters you discuss while waiting for that somebody to deliver your materials? A. Yes, Salonga asked if Sen. Aquino and I have met, I explained to him the efforts of Raul Daza in setting up that meeting but I have previous business commitments at Norfolk, Virginia. I told him, however, that through the efforts of Raul Daza, I was able to talk with Ninoy Aquino in the airport telephone booth in San Francisco. He also asked about Raul Daza, Steve Psinakis and the latest opposition group activities but it seems he is well informed. 41. Q. How long did you wait until that somebody arrived? A. About thirty (30) minutes. 41. Q. What happened when the man arrived? A. This man arrived and I was greatly surprised to see Atty. Renato Taada Jovy Salonga was the one who met him and as I observed parang nasa sariling bahay si Taada nung dumating. They talked for five (5) minutes in very low tones so I did not hear what they talked about. After their whispering conversations, Sen. Salonga left and at this time Atty. "Nits" Taada told me "Nasa akin ang kailangan mo, nasa kotse." 43. Q. Were the materials given to you? A. When Sen. Salonga came back, we asked to be permitted to leave and I rode in Atty. "Nits" Taadas old Pontiac car colored dirty brown and proceeded to Broadway Centrum where before I alighted, Atty. Taada handed me a "Puma" bag containing all the materials I needed. xxx xxx xxx 45. Q. What were the contents of the Puma bag? A. Ten (10) pieces of Westclox pocket watch with screw and wirings, ten (10) pieces electrical blasting caps 4" length, ten (10) pieces non-electrical blasting caps 1 " length, nine (9) pieces volts dry cell battery, two (2) improvised electrical testers. ten (10) plastic packs of high explosive about 1 pound weight each. However, in his interview with Mr. Ronnie Nathanielz which was aired on Channel 4 on November 8, 1980 and which was also offered as evidence by the accused, Lovely gave a different story which negates the above testimony insofar as the petitioner's participation was concerned: xxx xxx xxx Q. Who were the people that you contacted in Manila and for what purpose? A. Before I left for the Philippines, Mr. Psinakis told me to check in at the Manila Hotel or the Plaza Hotel, and somebody would just deliver the materials I would need. I disapproved of this, and I told him I would prefer a place that is familiar to me or who is close to me. Mr. Psinakis suggested the residence of Sen. Salonga. And so, I arrived in Manila on August 20, 1980, 1 made a call to Sen. Salonga, but he was out. The next day I made a call again. I was able to contact him. I made an appointment tsee him. I went to Sen. Salonga's house the following day. I asked Sen. Salonga if someone had given him an attache case for me. He said nobody. Afterwards, I made three calls to Sen. Salonga. Sen. Salonga told me "call me again on the 31st of August. I did not call him, I just went to his house on the 31st of August at 4 P.M. A few minutes after my arrival Atty. Renato Taada arrived. When he had a chance to be near me, he (Atty. Tanada) whispered to me that he had the attache case and the materials I needed in his car. These materials were given to me by Atty. Tanada When I alighted at the Broadway Centrum. (Emphasis supplied) During the cross-examination, counsel for petitioner asked Lovely about the so-called destabilization plan which the latter mentioned in his sworn statement: Q. You mentioned in your statement taken on October 17, 1980, marked Exhibit "G" about the so-called destabilization plan of Aquino. When you attended the birthday party of Raul Daza wherein Jovito Salonga was also present, was this destabilization plan as alleged by you already formulated? WITNESS: A. Not to my knowledge. COURT TO WITNESS: Q. Mr. Witness, who invited you to the party? A. Raul Daza, your Honor. Q. Were you told that Mr. Salonga would be present in the party. A. I am really not quite sure, your Honor. Q. Alright. You said initially it was social but then it became political. Was there any political action taken as a result of the party? A. Only political discussion, your Honor. (TSN, July 8, 1981, pp. 69-84). Counsel for petitioner also asked Lovely whether in view of the latter's awareness of the physical condition of petitioner, he really implicated petitioner in any of the bombings that occurred in Metro Manila. The fiscal objected without stating any ground. In sustaining the objection, the Court said: Sustained . . . The use of the word 'implicate' might expand the role of Mr. Salonga. In other words, you are widening the avenue of Mr. Salonga's role beyond the participation stated in the testimony of this witness about Mr. Salonga, at least, as far as the evidence is concerned, I supposed, is only being in the house of Mr. Salonga which was used as the contact point. He never mentions Mr. Salonga about the bombings. Now these words had to be put in the mouth of this witness. That would be unfair to Mr. Salonga. (TSN. July 8, 1981, p. 67) Respondent judge further said: COURT: As the Court said earlier, the parts or portions affecting Salonga only refers to the witness coming to Manila already then the matter of . . . I have gone over the statement and there is no mention of Salonga insofar as activities in the United States is concerned. I don't know why it concerns this cross-examination. ATTY. YAP: Because according to him, it was in pursuance of the plan that he came to Manila. COURT: According to him it was Aquino, Daza, and Psinakis who asked him to come here, but Salonga was introduced only when he (Lovely) came here. Now, the tendency of the question is also to connect Salonga to the activities in the United States. It seems to be the thrust of the questions. COURT: In other words, the point of the Court as of the time when you asked him question, the focus on Salonga was only from the time when he met Salonga at Greenhills. It was the first time that the name of Salonga came up. There was no mention of Salonga in the formulation of the destabilization plan as affirmed by him. But you are bringing this up although you are only cross-examining for Salonga as if his (Lovely's) activities in the United States affected Salonga. (TSN. July 8, 1981, pp. 73-74). Apparently, the respondent judge wanted to put things in proper perspective by limiting the petitioner's alleged "participation" in the bombing mission only to the fact that petitioner's house was used as a "contact point" between Lovely and Taada, which was all that Lovely really stated in his testimony. However, in the questioned resolution dated December 2, 1981, the respondent judge suddenly included the "activities" of petitioner in the United States as his basis for denying the motion to dismiss: On the activities of Salonga in the United States, the witness, Lovely, in one of his statements declared: 'To the best of my recollection he mentioned of some kind of violent struggle in the Philippines being most likely should reforms be not instituted by President Marcos immediately. It is therefore clear that the prosecution's evidence has established facts and circumstances sufficient for a finding that excludes a Motion to Dismiss by respondent Salonga. The Movement for Free Philippines is undoubtedly a force born on foreign soil it appears to rely on the resources of foreign entities, and is being (sic) on gaining ascendancy in the Philippines with the use of force and for that purpose it has linked itself with even communist organizations to achieve its end. It appears to rely on aliens for its supporters and financiers. The jump from the "contact point" theory to the conclusion of involvement in subversive activities in the United States is not only inexplicable but without foundation. The respondents admit that no evidence was presented directly linking petitioner Salonga to actual acts of violence or terrorism. There is no proof of his direct participation in any overt acts of subversion. However, he is tagged as a leader of subversive organizations for two reasons- (1) Because his house was used as a "contactpoint"; and (2) Because "he mentioned some kind of violent struggle in the Philippines being most likely should reforms be not instituted by President Marcos immediately." The "contact point" theory or what the petitioner calls the guilt by visit or guilt by association" theory is too tenuous a basis to conclude that Senator Salonga was a leader or mastermind of the bombing incidents. To indict a person simply because some plotters, masquerading as visitors, have somehow met in his house or office would be to establish a dangerous precedent. The right of citizens to be secure against abuse of governmental processes in criminal prosecutions would be seriously undermined. The testimony of Victor Lovely against petitioner Salonga is full of inconsistencies. Senator Salonga and Atty. Renato Taada could not have whispered to one another because the petitioner is almost totally deaf. Lovely could not have met Senator Salonga at a Manglapus party in Washington, D.C. in 1977 because the petitioner left for the United States only on November, 1978. Senator Salonga denies having known Mr. Lovely in the United States or in the Philippines. He states that he has hundred of visitors from week to week in his residence but cannot recall any Victor Lovely. The presence of Lovely in a group picture taken at Mr. Raul Daza's birthday party in Los Angeles where Senator Salonga was a guest is not proof of conspiracy. As stated by the petitioner, in his many years in the turbulent world of politics, he has posed with all kinds of people in various groups and various places and could not possibly vouch for their conduct. Commenting on the matter, newspaper columnist Teodoro Valencia stated that Filipinos love to pose with important visitors and the picture proves nothing. It is likewise probable that a national figure and former politician of Senator Salonga's stature can expect guests and visitors of all kinds to be visiting his home or office. If a rebel or subversive happens to pose with the petitioner for a group picture at a birthday party abroad, or even visit him with others in his home, the petitioner does not thereby become a rebel or subversive, much less a leader of a subversive group. More credible and stronger evidence is necessary for an indictment. Nonetheless, even if we discount the flaws in Lovely's testimony and dismiss the refutations and arguments of the petitioner, the prosecution evidence is still inadequate to establish a prima facie finding. The prosecution has not come up with even a single iota of evidence which could positively link the petitioner to any proscribed activities of the Movement for Free Philippines or any subversive organization mentioned in the complaint. Lovely had already testified that during the party of former Congressman Raul Daza which was alleged to have been attended by a number of members of the MFP, no political action was taken but only political discussion. Furthermore, the alleged opinion of the petitioner about the likelihood of a violent struggle here in the Philippines if reforms are not instituted, assuming that he really stated the same, is nothing but a legitimate exercise of freedom of thought and expression. No man deserves punishment for his thoughts. Cogitationis poenam memo meretur. And as the late Justice Oliver W. Holmes stated in the case of U.S. v. Schwimmer, 279 U.S. 644, " ... if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought not free thought for those who agree with us but freedom for the thought that we hate." We have adopted the concept that freedom of expression is a "preferred" right and, therefore, stands on a higher level than substantive economic or other liberties. The primacy, the high estate accorded freedom of expression is a fundamental postulate of our constitutional system. (Gonzales v. Commission on Elections, 29 SCRA 835). As explained by Justice Cardozo in Palko v. Connecticut (302 U.S. 319) this must be so because the lessons of history, both political and legal, illustrate that freedom of thought and speech is the indispensable condition of nearly every other form of freedom. Protection is especially mandated for political discussions. This Court is particularly concerned when allegations are made that restraints have been imposed upon mere criticisms of government and public officials. Political discussion is essential to the ascertainment of political truth. It cannot be the basis of criminal indictments. The United States Supreme Court in Noto v. United States (367 U.S. 290) distinguished between the abstract teaching of the moral propriety or even moral necessity for a resort to force and violence and speech which would prepare a group for violent action and steel it to such action. In Watts v. United States (394 U.S. 705), the American court distinguished between criminal threats and constitutionally protected speech. It stated: We do not believe that the kind of political hyperbole indulged in by petitioner fits within that statutory term. For we must interpret the language Congress chose against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. New York Times Co. v. Sullivan (376 U.S. 254). The language of the political arena, like the language used in labor disputed is often vituperative abusive, and inexact. We agree with petitioner that his only offense was a kind of very crude offensive method of stating a political opposition to the President. In the case before us, there is no teaching of the moral propriety of a resort to violence, much less an advocacy of force or a conspiracy to organize the use of force against the duly constituted authorities. The alleged remark about the likelihood of violent struggle unless reforms are instituted is not a threat against the government. Nor is it even the uninhibited, robust, caustic, or unpleasantly sharp attack which is protected by the guarantee of free speech. Parenthetically, the American case of Brandenburg v. Ohio (395 U.S. 444) states that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. The words which petitioner allegedly used according to the best recollections of Mr. Lovely are light years away from such type of proscribed advocacy. Political discussion even among those opposed to the present administration is within the protective clause of freedom of speech and expression. The same cannot be construed as subversive activities per se or as evidence of membership in a subversive organization. Under Presidential Decree No. 885, Section 3, paragraph 6, political discussion will only constitute, prima facie evidence of membership in a subversive organization if such discussion amounts to: (6) Conferring with officers or other members of such association or organization in furtherance of any plan or enterprise thereof. As stated earlier, the prosecution has failed to produce evidence that would establish any link between petitioner and any subversive organization. Even if we lend credence to Lovely's testimony that a political discussion took place at Daza's birthday party, no proof whatsoever was adduced that such discussion was in furtherance of any plan to overthrow the government through illegal means. The alleged opinion that violent struggle is likely unless reforms are instituted by no means shows either advocacy of or incitement to violence or furtherance of the objectives of a subversive organization. Lovely also declared that he had nothing to do with the bombing on August 22, 1980, which was the only bombing incident that occurred after his arrival in Manila on August 20, and before the YMCA explosion on September 6, 1980. (See TSN, pp. 63-63, July 8, 1981). He further testified that: WITNESS: Actually, it was not my intention to do some kind of bombing against the government. My bombing mission was directed against the particular family (referring to the Cabarrus family [TSN, p. 11, July 9, 1981] [Rollo, p. 10]. Such a statement wholly negates any politically motivated or subversive assignment which Lovely was supposed to have been commissioned to perform upon the orders of his co- accused and which was the very reason why they answer charged in the first place. The respondent judge also asked Lovely about the possible relation between Cabarrus and petitioner: COURT: Q. Did you suspect any relation between Cabarrus and Jovito Salonga, why did you implicate Jovito Salonga? A. No, your Honor. I did not try to implicate Salonga. It should be noted that after Lovely's testimony, the prosecution manifested to the court that it was adopting him as a prosecution witness. Therefore, the prosecution became irreversively bound by Lovely's disclaimers on the witness stand, that it was not his intention "to do some kind of bombing against the government" and that he "did not try to implicate Salonga", especially since Lovely is the sole witness adopted by the prosecution who could supposedly establish the link between the petitioner and the bombing incidents. The respondent court should have taken these factors into consideration before concluding that a prima facie case exists against the petitioner. Evidence must not only proceed from the mouth of a credible witness but it must be credible in itself such as the common experience and observation of mankind can approve as probable under the circumstances. (People v. Dayad, 56 SCRA 439). In the case at bar, the prosecution cannot even present a credible version of the petitioner's role in the bombings even if it ignores the subsequent disclaimers of Lovely and without relying on mere affidavits including those made by Lovely during his detention. The resolution dated January 4, 1982 suffers from the same defect. In this resolution, Lovely's previous declarations about the bombings as part of the alleged destabilization plan and the people behind the same were accorded such credibility by the respondent judge as if they had already been proved beyond reasonable doubt. The purpose of a preliminary investigation is to secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of crime, from the trouble, expense and anxiety of a public trial, and also to protect the state from useless and expensive trials. (Trocio v. Manta, 118 SCRA 241; citing Hashim v. Boncan, 71 Phil. 216). The right to a preliminary investigation is a statutory grant, and to withhold it would be to transgress constitutional due process. (See People v. Oandasa, 25 SCRA 277) However, in order to satisfy the due process clause it is not enough that the preliminary investigation is conducted in the sense of making sure that a transgressor shall not escape with impunity. A preliminary investigation serves not only the purposes of the State. More important, it is a part of the guarantees of freedom and fair play which are birthrights of all who live in our country. It is, therefore, imperative upon the fiscal or the judge as the case may be, to relieve the accused from the pain of going through a trial once it is ascertained that the evidence is insufficient to sustain a prima facie case or that no probable cause exists to form a sufficient belief as to the guilt of the accused. Although there is no general formula or fixed rule for the determination of probable cause since the same must be decided in the light of the conditions obtaining in given situations and its existence depends to a large degree upon the finding or opinion of the judge conducting the examination, such a finding should not disregard the facts before the judge nor run counter to the clear dictates of reasons (See La Chemise Lacoste, S.A. v. Fernandez, 129 SCRA 391). The judge or fiscal, therefore, should not go on with the prosecution in the hope that some credible evidence might later turn up during trial for this would be a flagrant violation of a basic right which the courts are created to uphold. It bears repeating that the judiciary lives up to its mission by vitalizing and not denigrating constitutional rights. So it has been before. It should continue to be so. Mercado v. Court of First Instance of Rizal, 116 SCRA 93). The Court had already deliberated on this case, a consensus on the Court's judgment had been arrived at, and a draft ponencia was circulating for concurrences and separate opinions, if any, when on January 18, 1985, respondent Judge Rodolfo Ortiz granted the motion of respondent City Fiscal Sergio Apostol to drop the subversion case against the petitioner. Pursuant to instructions of the Minister of Justice, the prosecution restudied its evidence and decided to seek the exclusion of petitioner Jovito Salonga as one of the accused in the information filed under the questioned resolution. We were constrained by this action of the prosecution and the respondent Judge to withdraw the draft ponencia from circulating for concurrences and signatures and to place it once again in the Court's crowded agenda for further deliberations. Insofar as the absence of a prima facie case to warrant the filing of subversion charges is concerned, this decision has been rendered moot and academic by the action of the prosecution. Respondent Fiscal Sergio Apostol correctly points out, however, that he is not precluded from filing new charges for the same acts because the petitioner has not been arraigned and double jeopardy does not apply. in that sense, the case is not completely academic. Recent developments in this case serve to focus attention on a not too well known aspect of the Supreme Court's functions. The setting aside or declaring void, in proper cases, of intrusions of State authority into areas reserved by the Bill of Rights for the individual as constitutionally protected spheres where even the awesome powers of Government may not enter at will is not the totality of the Court's functions. The Court also has the duty to formulate guiding and controlling constitutional principles, precepts, doctrines, or rules. It has the symbolic function of educating bench and bar on the extent of protection given by constitutional guarantees. In dela Camara v. Enage (41 SCRA 1), the petitioner who questioned a P1,195,200.00 bail bond as excessive and, therefore, constitutionally void, escaped from the provincial jail while his petition was pending. The petition became moot because of his escape but we nonetheless rendered a decision and stated: The fact that the case is moot and academic should not preclude this Tribunal from setting forth in language clear and unmistakable, the obligation of fidelity on the part of lower court judges to the unequivocal command of the Constitution that excessive bail shall not be required. In Gonzales v. Marcos (65 SCRA 624) whether or not the Cultural Center of the Philippines could validly be created through an executive order was mooted by Presidential Decree No. 15, the Center's new charter pursuant to the President's legislative powers under martial law. Stan, this Court discussed the constitutional mandate on the preservation and development of Filipino culture for national Identity. (Article XV, Section 9, Paragraph 2 of the Constitution). In the habeas corpus case of Aquino, Jr., v. Enrile, 59 SCRA 183), during the pendency of the case, 26 petitioners were released from custody and one withdrew his petition. The sole remaining petitioner was facing charges of murder, subversion, and illegal possession of firearms. The fact that the petition was moot and academic did not prevent this Court in the exercise of its symbolic function from promulgating one of the most voluminous decisions ever printed in the Reports. In this case, the respondents agree with our earlier finding that the prosecution evidence miserably fails to establish a prima facie case against the petitioner, either as a co-conspirator of a destabilization plan to overthrow the government or as an officer or leader of any subversive organization. They have taken the initiative of dropping the charges against the petitioner. We reiterate the rule, however, that this Court will not validate the filing of an information based on the kind of evidence against the petitioner found in the records. WHEREFORE, the petition is DISMISSED for having become moot and academic. SO ORDERED.