G.R. No.

144180 January 30, 2006

COCA COLA BOTTLERS PHILS., INC., NATALE J. DICOSMO, STEVE HEATH, MARY CHUA,
ALBERTO FAJARDO, JESS BANGSIL, LITO GARCIA, NOEL ROXAS, CHITO ENRIQUEZ, FREDERICK
KERULF, ARMANDO CANLAS and DANILO DAUZ, Petitioners,
vs.
RODOLFO CABALO, JUANITO GERONA, LUIS GERONA, LUIS DE OCAMPO and MARIO NILO
MECUA, Respondents.

DECISION

CHICO-NAZARIO, J.:

Before Us is a petition for review on certiorari questioning the Resolution 1 of the Court of
Appeals dated 25 April 2000 which dismissed petitioners’ original action of certiorari filed
therein. Being questioned as well is the Resolution2 dated 12 July 2000 which dismissed
petitioners’ motion for reconsideration.

The present controversy finds its genesis in an illegal dismissal case filed by herein respondents
against petitioners, the facts of which are narrated by the Labor Arbiter in his Decision dated 26
November 1998, viz:

Complainants aver that they have been under the employ of respondent company for more
than ten (10) to thirteen (13) years as follows:

NAME DATE HIRED DATE DISMISSED

1. Rodolfo G. Cabalo June 6, 1983 June 16, 1996

2. Juanito E. Gerona May 15, 1983 Oct. 2, 1996

3. Luis T. Ocampo May 1, 1984 July 10, 1996

4. Mario Nilo Mecua July 30, 1985 Dec. 16, 1995

as route helper, cargadors or pahinantes, accompanying the salesmen/drivers in their deliveries

to sari-sari stores, restaurants, groceries, supermarkets that they were all under the supervision
and control of respondent Company which provided them with the tools, equipment and other
working material; that they worked exclusively at the plants, sales offices, delivery truck and/or
respondent Company’s premises.

Respondent Company maintains that being one of the largest softdrink manufacturer in the
country, it employs a sizeable workforce all over the country; that due to the fluctuating and
variable conditions in the market, e.g., unusually high volume of work and unexpected
shortages in manpower complement, the Company at times is constrained to augment its
workforce so as to cope with operational needs; that in order to meet its fluctuating
operational needs, the Company engages the services of workers apart from its regular
workforce for its different plants; that the engagement of such services is necessarily on a
temporary basis due to the temporary nature of the operational needs of the Company lasting
for a limited period; that if, for example, the Company anticipates or actually experiences an
unusually high volume of work or an unexpected shortage of manpower in any of its plants or
sales offices arising from variable economic factors, it engages the services of outside workers
to temporarily complement its regular workforce in the said plants or sales offices; that as part
of its adaptive operational measures, the Company engaged the services of workers on a
temporary basis for a limited period of five (5) months; that pursuant to the workers’
arrangement with the Company, their services were automatically terminated upon the
expiration of the five-month period agreed upon by the parties. Hence, the said workers’
employment with the Company ceased thereafter; that complainants have now filed the
present Complaint claiming that they worked in the Company and should, therefore, have
achieved regular employment status in the Company; that however, other than their self-
serving assertions, there is no document on record that will support complainants’ alleged
service periods with the Company.3

The case before the Labor Arbiter was decided in favor of herein petitioners for lack of evidence
as to the existence of an employer-employee relationship. The dispositive portion of the
decision reads:

WHEREFORE, complainants having failed to establish their claimed employer-employee

relationship with the respondent corporation by CLEAR and CONVINCING competent evidence,
the Complaint is hereby ordered DISMISSED.4

On appeal to the National Labor Relations Commission (NLRC) by the respondents, the NLRC
declared that any decision it will render on the matter will border on prematurity as "there is
dearth of evidence on both sides of the fence to allow this forum to judiciously decide the case
meritoriously."5 It added that "(t)he issue of employer-employee relationship has not been fully
threshed out in the proceedings a quo,"6 thus, under the circumstances, it was "left with no
option except to remand this case to the Labor Arbiter a quo for further proceedings with the
sole objective of fully threshing out the issue of employer-employee relationship."7 The
dispositive portion of the NLRC decision states:

PREMISES CONSIDERED, the appealed decision is hereby SET ASIDE and the records of this case
is hereby REMANDED to the Arbitration Branch of origin for further proceedings to thresh out
the issue of employer-employee relationship. In this regard, exhaustive efforts should be
exerted to serve summons on Lipercon Services, Inc., being co-respondent.8

Petitioners moved for reconsideration of the aforequoted decision which motion was denied by
the NLRC on 29 December 1999.9
Aggrieved, petitioners sought relief before the Court of Appeals via a petition for certiorari
dated 26 March 2000. In a Resolution dated 25 April 2000, the Seventh Division of the Court of
Appeals dismissed the petition. It held:

For failure to comply with Sec. 11, Rule 13 of the 1997 Rules of Civil Procedure and for failure to
attach certified true copy of the assailed NLRC Resolution dated December 29, 1999 as required
under Sec. 1, Rule 65 of the Rules of Court, the petition is DISMISSED.10

Petitioners’ motion for reconsideration was denied on 12 July 2000, the Court of Appeals
holding that:

Petitioners contend that they faithfully complied with Section 1, Rule 65 of the Rules of Court
which requires the petition to be accompanied by a certified true copy of the judgment, order
or resolution subject thereof. However, a review of the records indubitably shows that this
requirement had not been complied with regarding the assailed NLRC Resolution dated
December 29, 1999 which was neither a certified true copy nor a duplicate original thereof, but
a mere photocopy.

WHEREFORE, there being no cogent reason or basis to reconsider Our previous Resolution, the
Motion for Reconsideration is hereby DENIED.11

Petitioners are now before us on petition for review, assigning as errors the following:

I.

THE COURT OF APPEALS SERIOUSLY ERRED AND COMMITTED GRAVE ABUSE OF DISCRETION IN
DISMISSING THE C.A. PETITION NOTWITHSTANDING THE FACTS THAT:

A. PETITIONERS REQUESTED FOR CERTIFIED TRUE COPIES OF THE 30 SEPTEMBER 1999

DECISION AND 29 DECEMBER 1999 RESOLUTION BOTH ISSUED BY THE NLRC BUT ONLY
CERTIFIED XEROX COPIES WERE GIVEN

B. PETITIONERS REQUESTED THE HONORABLE COURT OF APPEALS TO FURNISH THEM

WITH CERTIFIED TRUE COPIES OF THE QUESTIONED FIRST AND SECOND RESOLUTIONS
BUT LIKE THE NLRC, THE HONORABLE COURT OF APPEALS ONLY GAVE CERTIFIED XEROX
COPIES.

II.

THE COURT OF APPEALS DEPARTED FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL
PROCEEDINGS IN THAT IT ISSUED THE FIRST AND SECOND RESOLUTIONS IN VIOLATION OF THE
RULE ON LIBERAL CONSTRUCTION OF THE RULES OF COURT

On The First Issue:

The Court of Appeals based its denial of the petition on Section 1, Rule 65 of the Rules of Court
which provides that any petition filed under Rule 65 should be accompanied by a certified true
copy of the judgment, order or resolution subject thereof and that, in this particular case, the
petition was not so accompanied by a certified true copy of the NLRC resolution dated 29
December 1999 but only by a "mere photocopy."

The problem presented is not novel. In fact, it is a fairly recurrent one in petitions for certiorari
of NLRC decisions as it seems to be the practice of the NLRC to issue certified "xerox copies"
only instead of certified "true copies."12 We have, however, put an end to this issue in Quintano
v. NLRC13 when we declared that there is no substantial distinction between a photocopy or a
"Xerox copy" and a "true copy" for as long as the photocopy is certified by the proper officer of
the court, tribunal, agency or office involved or his duly-authorized representative and that the
same is a faithful reproduction of the original. We held therein:

The submission of the duplicate original or certified true copy of judgment, order, resolution or
ruling subject of a petition for certiorari is essential to determine whether the court, body or
tribunal, which rendered the same, indeed, committed grave abuse of discretion. The provision
states that either a legible duplicate original or certified true copy thereof shall be submitted. If
what is submitted is a copy, then it is required that the same is certified by the proper officer of
the court, tribunal, agency or office involved or his duly-authorized representative. The purpose
for this requirement is not difficult to see. It is to assure that such copy is a faithful
reproduction of the judgment, order, resolution or ruling subject of the petition.

xxxx

Indeed, for all intents and purposes, a "certified Xerox copy" is no different from a "certified
true copy" of the original document. The operative word in the term "certified true copy" under
Section 3, Rule 46 of the Rules of Court is "certified". The word means "made certain." It comes
from the Latin word certificare – meaning, to make certain. Thus, as long as the copy of the
assailed judgment, order, resolution or ruling submitted to the court has been certified by the
proper officer of the court, tribunal, agency or office involved or his duly-authorized
representative and that the same is a faithful reproduction thereof, then the requirement of
the law has been complied with. It is presumed that, before making the certification, the
authorized representative had compared the Xerox copy with the original and found the same a
faithful reproduction thereof.14

A perusal of the attached NLRC Decision easily discloses that it is not a "mere photocopy" but is,
in fact, a certified photocopy of said decision. Each page of the decision has been certified by
the NLRC Third Division’s Deputy Clerk of Court, Atty. Catalino R. Laderas, who is undoubtedly a
proper officer to make the said certification.15 Moreover, there seems to be no question that
the attached copy of the NLRC decision is a faithful reproduction thereof.

The Court of Appeals, however, zeroed in on the copy of the NLRC Resolution denying
petitioners’ motion for reconsideration. As correctly pointed out by it, said copy is neither a
certified true copy nor a certified photocopy of the NLRC resolution but seems to be a mere
photocopy of the duplicate original copy sent to petitioners’ counsel.

On The Second Issue:

The petition filed before the Court of Appeals did not contain an explanation as to why service
upon the Office of the Solicitor General (0SG) and Atty. Omar M.C. Alam, counsel for
respondents, was not made personally, albeit an affidavit of service by registered mail was
attached thereto. The failure to make such written explanation, in violation of Section 11, Rule
13 of the 1997 Rules of Court, was the second ground for the dismissal of the petition.

Section 11, Rule 13 states:

SEC. 11. Priorities in modes of service and filing. – Whenever practicable, the service and filing
of pleadings and other papers shall be done personally. Except with respect to papers
emanating from the court, a resort to other modes must be accompanied by a written
explanation why the service or filing was not done personally. A violation of this Rule may be
cause to consider the paper as not filed.

The requirement for personal service is mandatory such that Section 11, Rule 13 gives the court
the discretion to consider a pleading or paper as not filed if the other modes of service of filing
were resorted to and no written explanation was made as to why personal service was not
done.16 In the seminal case of Solar Team Entertainment, Inc. v. Judge Ricafort,17 we stressed
that strictest compliance with Section 11 of Rule 13 is mandated beginning one (1) month from
the promulgation of said decision; i.e. one month from 05 August 1998.

The subject petition was filed on 26 March 2000. Petitioners explain, however, that their
omission was due to inadvertence and was not a product of any malevolent scheme to
prejudice respondents in any way. Thus, the evil sought to be avoided by the requirement of an
explanation – to curb the practice of delaying the receipt of a pleading by a party through the
simple expedient of serving the same by mail – was not present. Petitioners thus pray for a
liberal construction of the provision in question following Section 6, Rule 1 of the Rules of
Court.18

We are not persuaded.

In Solar,19 as reiterated in the recent case of Ello v. Court of Appeals,20 we explained that the
court’s discretionary power to consider a pleading or paper as not filed for violation of Section
11, Rule 13 must be exercised properly and reasonably, taking into account the following
factors: (1) the practicability of personal service; (2) the importance of the subject matter of the
case or the issues involved therein; and (3) the prima facie merit of the pleading sought to be
expunged for violation of Section 11.
We find that the Court of Appeals did not err in dismissing the petition for failure to observe
the requirement of a written explanation why service was not made personally to the OSG and
to Atty. Omar M.C. Alam, counsel for respondents.

First, it cannot be said that serving the petition on the OSG and Atty. Alam through personal
service was not practical nor realistic under the circumstances. We note that the office of
petitioners’ counsel, the firm of Bocobo Rondain Mendiola Cruz and Formoso, is in Pasig City
while that of the OSG is in Makati City and that of Atty. Alam is in Quezon City. Considering that
the law firm has for its client one of the biggest corporations in the country, it is safe to
presume – precisely because of the absence of an explanation why service was not made
personally – that the Pasig firm has in its employ enough people to effect personal service.
Moreover, the NLRC Resolution denying petitioners’ motion for reconsideration was received
by their counsel on 10 February 2000.21 Petitioners, therefore, had until 11 April 2000 within
which to file their petition for certiorari. From the records of the case, the petition was filed as
early as 29 March 2000. Thus, petitioners had all the time in the world to serve their petition
upon the OSG and respondents’ counsel by personal service and their failure to do so becomes
inexcusable under the circumstances.

We have also considered the fact that the issue presented before the Court of Appeals is not
one of first impression nor is it of such importance as to justify the relaxation of the rules of
court on the ground of inadvertence. Likewise, from a reading of the petition, it does not
appear that petitioners have a prima facie case. It is to be recalled that the sole issue presented
by the Court of Appeals is whether or not the NLRC, under the facts of the case, gravely abused
its discretion in vacating and setting aside the decision of the Labor Arbiter and remanding the
case to the arbitral branch of origin for further proceedings. In Sevillana v. I.T. (International)
Corp.,22 we had already enunciated that the NLRC is not precluded by the rules to allow the
parties to submit additional evidence to prove their respective claims even on appeal or to
order the remand of the case to the administrative agency concerned for further study and
investigation upon such issues.

IN SUM, we stress that petitioners’ claim of inadvertence as their reason for their failure to
provide a written explanation why service of their petition was not made personally cannot and
does not justify its omission. Such inadvertence does not constitute excusable negligence
especially since said rule had already been in effect for three years before petitioners filed their
petition before the Court of Appeals.23 That petitioners blithely expect this Court to turn a blind
eye to their procedural blunder underscores their utter disregard of the requirement in Section
11, Rule 13. Verily, such disregard of the rule cannot justly be rationalized by harking on the
policy of liberal construction and substantial compliance.24 To paraphrase Solar, if any
controversy regarding a violation of Section 11 of Rule 13 were to be indiscriminately resolved
under Section 6 of Rule 1 or Alonso v. Villamor25 and other analogous cases, then Section 11
would become meaningless and its sound purpose negated.26

WHEREFORE, premises considered, the instant petition is DENIED. The Resolutions of the Court
of Appeals dated 25 April 2000 and 12 July 2000, respectively, are AFFIRMED. With costs.
SO ORDERED.

G.R. No. 168973 August 24, 2011

CITY OF DUMAGUETE, herein Represented by City Mayor, Agustin R. Perdices, Petitioner,

vs.
PHILIPPINE PORTS AUTHORITY,Respondent.

DECISION

LEONARDO-DE CASTRO, J.:

Before Us is a Petition for Review under Rule 45 of the Rules of Court assailing the Decision 1
dated March 4, 2005 and Resolution2 dated June 6, 2005 of the Court Appeals in CA-G.R. SP No.
64379, which granted the Petition for Certiorari and Prohibition of respondent Philippine Ports
Authority and set aside the Orders dated December 7, 2000 and February 20, 2001 of the
Regional Trial Court (RTC), Branch 44 of the City of Dumaguete in LRC Case No. N-201.

The antecedent facts are as follows:

On October 14, 1998, petitioner City of Dumaguete, through Mayor Felipe Antonio B. Remollo
(Remollo), filed before the RTC an Application for Original Registration of Title over a parcel of
land with improvements, located at Barangay Looc, City of Dumaguete (subject property),
under the Property Registration Decree. The application was docketed as LRC Case No. N-201.

Petitioner alleged in support of its application:

1. That the applicant, City of Dumaguete through its Honorable Mayor Felipe Antonio B.
Remollo, is the owner of the land subject of this application with all improvements and
buildings comprising the Engineer’s Compound where it is now situated and has been in
continuous occupation and possession of the same for more than 30 years or from the
year 1960 (Affidavit of Ownership executed by Felipe Antonio G. Remollo, the City
Mayor, dated August 21, 1998 herein attached as ANNEX A). The said land consist of
5,410 square meters and is situated and bounded and described as shown on the plan
(true and photostatic copies of the original plan marked Psu-07-006805 approved by the
Regional Technical Director of the [Department of Environment and Natural Resources]
DENR, Regional Office, Cebu City herein attached as ANNEX B) and technical
descriptions attached hereto (technical description attached as ANNEX C) and made a
part hereof;

2. That said land at the last assessment for taxation was assessed at ₱676,250,
Philippine currency, with market value of ₱1,352,500.00, Philippine currency.
 (Declaration of Real Property with the assessed and market values attached as ANNEX
D);

3. That to the best of my knowledge and belief, there is no mortgage or encumbrance of

any kind whatsoever affecting said land, nor another person having any estate or
interest therein, legal or equitable, in possession, remainder, reversion or expectancy;

4. That the land was acquired by possessory title in open, continuous, adverse
occupation and possession in the concept of owner for more than thirty years since
1960 (please refer to ANNEX A);

5. That the land is adjoined by the following:

NorthWest

NorthEast

SouthEast

All along line 1-2-3-4-5-6-7-8-9-10 by Flores Avenue, City Road and the
Dumaguete Port Road

SouthWest – along line 10-1 by Plan Msi-V-20453

xxxx

8. That the land included is bounded on the West by Flores Avenue and on the North by
the City Road, all public highways and on the East by the Dumaguete Port Road, a
private road made part of the Port Zone.3

In an Order4 dated October 23, 1998, the RTC noted that:

A perusal of the records of the case shows that the annexes lack the following copies:

a) two blue print copies of the approved plan;

b) two copies of the technical description of the lot sought to be registered;

c) two copies of the Surveyor’s certificate;

d) a certificate in quadruplicate of the City Assessor of the assessed value of the land;

e) all original muniments of title in the possession of the applicant which prove
ownership of the land;
 f) two copies of the petition/application.

Further, the application did not state the number of the lot sought to be registered, the number
of parcels applied for, the improvements found thereon, and indicate whether it claims a
portion of the road which serves as a boundary line.

All these must be alleged in the petition so that the Court will know the nature of the property.

The RTC explained that the extra copies submitted by petitioner shall be forwarded by the RTC
Clerk of Court to the Land Registration Commission (LRC) in Manila for comment. Only
thereafter would the RTC set the application for hearing.

Petitioner filed its Compliance5 with the above-mentioned Order, submitting additional copies
of the required documents and clarifying thus:

1. The approved plan does not state the number of lot sought to be registered because
it is a public land, thus, only PSU-07-006805 appears on the plan which is being applied
for registration;

2. Only one (1) parcel of land is applied for by petitioners which consist of five thousand
four hundred ten (5,410) square meters, more or less;

3. The City Engineer’s Building within the City Engineer’s compound are the only
improvement found thereon; and

4. Petitioners do not claim any portion of the road which serves as a boundary line.

The RTC accordingly set the initial hearing of LRC Case No. N-201 on April 12, 1999, and sent
notices to the parties.

The Republic of the Philippines, represented by the Director of Lands, and respondent,
represented by the Office of the Government Corporate Counsel, filed separate Oppositions 6
to the application for registration of petitioner. Both the Republic and respondent averred that
petitioner may not register the subject property in its name since petitioner had never been in
open, continuous, exclusive, and notorious possession of the said property for at least 30 years
immediately preceding the filing of the application; and the subject property remains to be a
portion of the public domain which belongs to the Republic.

After several postponements of the scheduled hearings, petitioner presented the testimony of
its first witness, Engineer Rilthe P. Dorado (Engr. Dorado), on January 14, 2000. Engr. Dorado’s
examination on the witness stand was terminated on April 7, 2000. The presentation of the
other witnesses of petitioner was then scheduled to continue on June 2, 2000. 7
However, before the next hearing, respondent filed a Motion to Dismiss,8 seeking the dismissal
of LRC Case No. N-201 on the ground that the RTC lacked jurisdiction to hear and decide the
case. Respondent argued that Section 14(1) of Presidential Decree No. 1529, otherwise known
as the Property Registration Decree, refers only to alienable and disposable lands of the public
domain under a bona fide claim of ownership. The subject property in LRC Case No. N-201 is
not alienable and disposable, since it is a foreshore land, as explicitly testified to by petitioner’s
own witness, Engr. Dorado. A foreshore land is not registerable. This was precisely the reason
why, respondent points out, that the subject property was included in Presidential
Proclamation No. 1232 (delineating the territorial boundaries of the Dumaguete Port Zone), so
that the same would be administered and managed by the State, through respondent, for the
benefit of the people.

In its Terse Opposition to Oppositor’s Motion to Dismiss, petitioner claimed that the subject
property was a swamp reclaimed about 40 years ago, which it occupied openly, continuously,
exclusively, and notoriously under a bona fide claim of ownership. The technical description
and approved plan of the subject property showed that the said property was not bounded by
any part of the sea. Petitioner invoked Republic Act No. 1899,9 which authorizes chartered
cities and municipalities to undertake and carry out, at their own expense, the reclamation of
foreshore lands bordering them; and grants said chartered cities and municipalities ownership
over the reclaimed lands. Presidential Proclamation No. 1232 is immaterial to the present
application for registration because it merely authorizes respondent to administer and manage
the Dumaguete Port Zone and does not confer upon respondent ownership of the subject
property.10

Respondent filed a Reply/Rejoinder (To Applicant’s Opposition to Oppositor’s Motion to

Dismiss), 11 asserting that there are no factual or legal basis for the claim of petitioner that the
subject property is reclaimed land. Petitioner sought the original registration of its title over the
subject property acquired through alleged continuous possession for 30 years under Section
14(1) of the Property Registration Decree, and not through the reclamation of the said property
at its own expense under Republic Act No. 1899. The present claim of petitioner that the
subject property is reclaimed land should not be allowed for it would improperly change the
earlier theory in support of the application for registration. Respondent reiterated that the
subject property is foreshore land which cannot be registered; and that Presidential
Proclamation No. 1232 is very material to LRC Case No. N-201 because it confirms that areas
within the Dumaguete Port Zone, including the subject property, are not alienable and
disposable lands of the public domain.1avvphi1

On September 7, 2000, the RTC issued an Order12 granting the Motion to Dismiss of respondent
based on the following ratiocination:

The Court agrees with [herein respondent] Philippine Ports Authority that the basis of the
[herein petitioner’s] application for original registration of the subject lot is Section 14 of the
Presidential Decree No. 1529, otherwise known as the Property Registration Decree. A
circumspect scrutiny of said Section readily shows that it refers to alienable and disposable
lands of the public domain as proper subjects of registration, provided the applicant has met
the other requirements such as open, continuous, exclusive and notorious possession for at
least thirty (30) years under a bona fide claim of ownership.

It having been shown by [petitioner’s] own evidence that the lot subject of the application for
original registration is a foreshore land, and therefore not registerable (Dizon, et al. vs. Bayona,
et al., 98 SCRA 942, 944), the application must be denied.

Again as correctly argued by [respondent], [petitioner’s] reliance on Republic Act 1899 which
authorizes all municipalities and chartered cities to undertake and carry out the reclamation by
dredging, filling or other means of any foreshore lands bordering them and which confers
ownership on them of the lands so reclaimed, is misplaced, as such has never been alleged in
the application. It is fundamental that a party cannot prove what it has not alleged in his
complaint or application, as in this case.

The admission by Engr. Dorado that there is no formal declaration from the executive branch of
government or law passed by Congress that the land in question is no longer needed for public
use or special industries x x x further militates against the application.

Moreover, the authority granted to municipalities and chartered cities to undertake and carry
out at their own expense the reclamation by dredging, filling, or other means, of any foreshore
lands bordering them is for the purpose of establishing, providing, constructing, maintaining,
and repairing proper and adequate docking and harbor facilities as such municipalities and
chartered cities may determine in consultation with the Secretary of Finance and the Secretary
of Public Works and Communications.

By its own evidence, [petitioner] has utilized the subject property allegedly reclaimed by it as
Office of the City Engineer and not as docking and harboring facilities. [Petitioner] has failed to
show that such reclamation was undertaken by it in consultation with the Secretary of Finance
and the Secretary of Public Works and Communications.13

The RTC decreed in the end that "the instant application for original registration is dismissed for
lack of merit."14

In its Motion for Reconsideration15 and Supplemental Motion for Reconsideration,16 petitioner
contended that the dismissal of its application was premature and tantamount to a denial of its
right to due process. It has yet to present evidence to prove factual matters in support of its
application, such as the subject property already being alienable and disposable at the time it
was occupied and possessed by petitioner.

Petitioner also pointed out that its witness, Engr. Dorado, "testified only as to the physical
status of the land in question at the time when the cadastral survey of Dumaguete was made
sometime in 1916."17 In fact, Engr. Dorado expressly testified that the subject property was
"part of the shore or foreshore a long time ago[;]"18 and he did not testify at all that the subject
property was a foreshore lot at the time petitioner occupied and possessed the same. The
physical state of the subject property had already changed since 1916. It is now within the
"alienable and disposable area as per the Land Classification Map No. 674, Project No. 1-D, BL
C-6, certified on July 3, 1927, of the Bureau of Lands, now Land Management Sector of the
Department of Environment and Natural Resources[,]"19 as verified and certified by the Chief of
the Map Projection Section, Land Management Sector, DENR Regional Office in Cebu City, who
has yet to take the witness stand before the RTC.

Petitioner insisted that the RTC should continue with the hearing of LRC Case No. N-201 and
allow petitioner to present evidence that the subject property is reclaimed land. Petitioner
sufficiently alleged in its application for registration that it has been in "open, continuous,
exclusive, and notorious possession of the [subject property] for more than thirty (30) years
under a bona fide claim of ownership."20 In support of such allegation, petitioner must
necessarily prove that the subject property was previously a swampy area, which had to be
filled or reclaimed before the construction of the City Engineer’s Office building thereon.

Respondent based its Opposition (To Applicant’s Motion for Reconsideration dated September
28, 2000)21 and Opposition (To Applicant’s Supplemental Motion for Reconsideration)22 on
technical and substantive grounds.

According to respondent, the Motion for Reconsideration of petitioner violated Sections 4

(Hearing of motion), 5 (Notice of hearing), and 6 (Proof of service necessary), Rule 15 of the
Rules of Court. Petitioner did not set its Motion for Reconsideration for hearing even when the
said Motion could not be considered as non-litigable. The RTC could not hear the motion for
reconsideration ex parte as they are prejudicial to the rights of respondent. Petitioner also
failed to comply with Section 11, Rule 13 of the Rules of Court when it did not attach to the
Motion for Reconsideration a written explanation why it did not resort to personal service of
the said Motion. Thus, respondent averred that the Motion for Reconsideration of petitioner
should be treated as a mere scrap of paper with no legal effect. It did not interrupt the
reglementary period to appeal and the RTC Order dated September 7, 2000, dismissing LRC
Case No. N-201, had already attained finality. Respondent also pointed out that the
Supplemental Motion for Reconsideration of petitioner suffered from the same fatal defects as
the original Motion for Reconsideration.

Respondent again posited that the subject property was foreshore land belonging to the State
and not subject to private appropriation, unless the same had already been declared by the
executive or legislative department of the national government as no longer needed for coast
guard service, public use, or special industries, and classified as alienable and disposable. Full-
blown trial in LRC Case No. N-201 was no longer necessary as the evidence so far presented by
petitioner had already established that the RTC lacked jurisdiction over the subject matter of
the case.

In its Order23 dated November 16, 2000, the RTC initially agreed with respondent that the
Motion for Reconsideration of petitioner violated Sections 4, 5, and 6, Rule 15 and Section 11,
Rule 13 of the Rules of Court. Resultantly, the Motion for Reconsideration of petitioner was
considered as not filed and did not toll the running of the period to file an appeal, rendering
final and executory the order of dismissal of LRC Case No. N-201.

However, after taking into consideration the Supplemental Motion for Reconsideration of
petitioner, the RTC issued another Order24 dated December 7, 2000, setting aside its Order
dated September 7, 2000 in the interest of justice and resolving to have a full-blown proceeding
to determine factual issues in LRC Case No. N-201.

It was then the turn of respondent to file with the RTC a Motion for Reconsideration 25 of the
Order dated December 7, 2000. In an Order26 dated February 20, 2001, the RTC denied the
motion of respondent and admitted the following:

A thorough review and perusal of the disputed order dated September 7, 2000 and December
7, 2000, whereby this Court dismissed [petitioner’s] petition for registration of Lot No. 1,
Dumaguete Cadastre, and later set aside the Order of September 7, 2000, shows that there was
honest mistake in declaring said lot 1, as a shoreline. Indeed, the adjoining lots are already
titled and bounded by a City Road. It is not bounded by a sea. The Court wants to correct this
error in its findings on the September 7, 2000 Order, that Lot No. 1 is situated on the shoreline
of Dumaguete City. The Court simply committed an oversight on the petitioner’s evidence that
the lot in question is a foreshore land x x x when in fact it is not. And it is for this reason that the
court reconsidered and set aside said September 7, 2000 Order, to correct the same while it is
true that said September 7, 2000 Order had attained its finality, yet this Court cannot in
conscience allow injustice to perpetuate in this case and that hearing on the merits must
proceed to determine the legality and truthfulness of its application for registration of title.

Respondent sought recourse from the Court of Appeals by filing a Petition for Certiorari and
Prohibition under Rule 65 of the Rules of Court, docketed as CA-G.R. SP No. 64379. Respondent
challenged the RTC Orders dated December 7, 2000 and February 20, 2001 for having been
issued by the RTC in grave abuse of discretion amounting to lack or excess of jurisdiction.
Respondent reiterated that the RTC Order dated September 7, 2000, dismissing LRC Case No. N-
201 had already attained finality. The defects of the Motion for Reconsideration of petitioner
rendered the same as a mere scrap of paper, which did not toll the running of the prescriptive
period to appeal the RTC Order dated September 7, 2000.

The Court of Appeals, in its Decision dated March 4, 2005, found merit in the Petition of
respondent and set aside the RTC Orders dated December 7, 2000 and February 20, 2001. The
appellate court, in its Resolution dated June 6, 2005, denied the Motion for Reconsideration of
petitioner.

Hence, petitioner comes before us via the instant Petition for Review with the following
assignment of error:

GROUND FOR THE APPEAL

Error of law: The March 4, 2005 decision of the Court of Appeals and its June 6, 2005
Resolution, erred on question of law in setting aside the Orders of the Regional Trial Court,
Branch 44, dated December 7, 2000 and February 20, 2001. The said Orders of the trial court
were made in order to determine factual issues and to correct its error in its findings on the
September 7, 2000 Order. Thus, the Court of Appeals decision is contrary to law, justice, equity
and existing jurisprudence.27

Respondent insists on the strict application of Sections 4, 5, and 6, Rule 15 and Section 11, Rule
13 of the Rules of Court. Violations of the said rules were fatal to the Motion for
Reconsideration and Supplemental Motion for Reconsideration of the petitioner, and as a
result, the RTC Order dated September 7, 2000, dismissing LRC Case No. N-201, had already
become final and executory and, thus, beyond the jurisdiction of the RTC to set aside.
Respondent urges us to reject the plea of petitioner for a liberal application of the rules in the
absence of a compelling reason to do so.

We grant the Petition.

The grant of a petition for certiorari under Rule 65 of the Rules of Court requires grave abuse of
discretion amounting to lack or excess of jurisdiction. Grave abuse of discretion exists where an
act is performed with a capricious or whimsical exercise of judgment equivalent to lack of
jurisdiction. The abuse of discretion must be patent and gross as to amount to an evasion of
positive duty or to a virtual refusal to perform a duty enjoined by law, or to act at all in
contemplation of law, as where the power is exercised in an arbitrary and despotic manner by
reason of passion or personal hostility.28

The Court of Appeals erred in granting the writ of certiorari in favor of respondent. The RTC did
not commit grave abuse of discretion when, in its Orders dated December 7, 2000 and February
20, 2001, it set aside the order of dismissal of LRC Case No. N-201 and resolved to have a full-
blown proceeding to determine factual issues in said case.

Procedural rules were conceived to aid the attainment of justice. If a stringent application of
the rules would hinder rather than serve the demands of substantial justice, the former must
yield to the latter.29 In Basco v. Court of Appeals,30 we allowed a liberal application of technical
rules of procedure, pertaining to the requisites of a proper notice of hearing, upon
consideration of the importance of the subject matter of the controversy, as illustrated in well-
settled cases, to wit:

The liberal construction of the rules on notice of hearing is exemplified in Goldloop Properties,
Inc. v. CA:

Admittedly, the filing of respondent-spouses' motion for reconsideration did not stop the
running of the period of appeal because of the absence of a notice of hearing required in Secs.
3, 4 and 5, Rule 15, of the Rules of Court. As we have repeatedly held, a motion that does not
contain a notice of hearing is a mere scrap of paper; it presents no question which merits the
attention of the court. Being a mere scrap of paper, the trial court had no alternative but to
disregard it. Such being the case, it was as if no motion for reconsideration was filed and,
therefore, the reglementary period within which respondent-spouses should have filed an
appeal expired on 23 November 1989.

But, where a rigid application of that rule will result in a manifest failure or miscarriage of
justice, then the rule may be relaxed, especially if a party successfully shows that the alleged
defect in the questioned final and executory judgment is not apparent on its face or from the
recitals contained therein. Technicalities may thus be disregarded in order to resolve the case.
After all, no party can even claim a vested right in technicalities. Litigations should, as much as
possible, be decided on the merits and not on technicalities.

Hence, this Court should not easily allow a party to lose title and ownership over a party worth
₱4,000,000.00 for a measly P650,000.00 without affording him ample opportunity to prove his
claim that the transaction entered into was not in fact an absolute sale but one of mortgage.
Such grave injustice must not be permitted to prevail on the anvil of technicalities.

Likewise, in Samoso v. CA, the Court ruled:

But time and again, the Court has stressed that the rules of procedure are not to be applied in a
very strict and technical sense. The rules of procedure are used only to help secure not override
substantial justice (National Waterworks & Sewerage System vs. Municipality of Libmanan, 97
SCRA 138 [1980]; Gregorio v. Court of Appeals, 72 SCRA 120 [1976]). The right to appeal should
not be lightly disregarded by a stringent application of rules of procedure especially where the
appeal is on its face meritorious and the interests of substantial justice would be served by
permitting the appeal (Siguenza v. Court of Appeals, 137 SCRA 570 [1985]; Pacific Asia Overseas
Shipping Corporation v. National Labor Relations Commission, et al., G.R. No. 76595, May 6,
1998). . . .

In the instant case, it is petitioner's life and liberty that is at stake. The trial court has sentenced
him to suffer the penalty of reclusion perpetua and his conviction attained finality on the basis
of mere technicality. It is but just, therefore, that petitioner be given the opportunity to defend
himself and pursue his appeal. To do otherwise would be tantamount to grave injustice. A
relaxation of the procedural rules, considering the particular circumstances herein, is justified. 31
(Emphasis ours.)

In the case at bar, the Motion for Reconsideration and Supplemental Motion for
Reconsideration of petitioner, which sought the reversal of RTC Order dated September 7, 2000
dismissing LRC Case No. N-201, cite meritorious grounds that justify a liberal application of
procedural rules.

The dismissal by the RTC of LRC Case No. N-201 for lack of jurisdiction is patently erroneous.
Basic as a hornbook principle is that jurisdiction over the subject matter of a case is conferred
by law and determined by the allegations in the complaint which comprise a concise statement
of the ultimate facts constituting the plaintiff's cause of action. The nature of an action, as well
as which court or body has jurisdiction over it, is determined based on the allegations contained
in the complaint of the plaintiff, irrespective of whether or not the plaintiff is entitled to recover
upon all or some of the claims asserted therein. The averments in the complaint and the
character of the relief sought are the ones to be consulted. Once vested by the allegations in
the complaint, jurisdiction also remains vested irrespective of whether or not the plaintiff is
entitled to recover upon all or some of the claims asserted therein.32

As a necessary consequence, the jurisdiction of the court cannot be made to depend upon the
defenses set up in the answer or upon the motion to dismiss; for otherwise, the question of
jurisdiction would almost entirely depend upon the defendant. What determines the
jurisdiction of the court is the nature of the action pleaded as appearing from the allegations in
the complaint. The averments therein and the character of the relief sought are the ones to be
consulted.33

Under Act No. 496, otherwise known as the Land Registration Act, as amended by Act No. 2347,
jurisdiction over all applications for registration of title to land was conferred upon the Courts
of First Instance (CFI) of the respective provinces in which the land sought to be registered was
situated. Jurisdiction over land registration cases, as in ordinary actions, is acquired upon the
filing in court of the application for registration, and is retained up to the end of the litigation. 34

The land registration laws were updated and codified by the Property Registration Decree, and
under Section 17 thereof, jurisdiction over an application for land registration was still vested
on the CFI of the province or city where the land was situated, viz:

SEC. 17. What and where to file. – The application for land registration shall be filed with the
Court of First Instance of the province or city where the land is situated. The applicant shall file
together with the application all original muniments of titles or copies thereof and a survey plan
of the land approved by the Bureau of Lands.

The Clerk of Court shall not accept any application unless it is shown that the applicant has
furnished the Director of Lands with a copy of the application and all annexes.

Batas Pambansa Blg. 129, otherwise known as The Judiciary Reorganization Act of 1980,
created the RTC35 in place of the CFI. Presently, jurisdiction over an application for land
registration remains with the RTC where the land is situated, except when such jurisdiction is
delegated by the Supreme Court to the Metropolitan Trial Court, Municipal Trial Courts, and
Municipal Circuit Trial Courts under certain circumstances.36

It is not disputed that the Application for Original Registration of Title filed by petitioner before
the RTC of the City of Dumaguete conformed to Section 15 of the Property Registration Decree,
which prescribes the form and contents of such applications. In its Application, petitioner
prayed that its title to the subject property, which it repeatedly alleged to have acquired
through continuous and adverse possession and occupation of the said property for more than
30 years or since 1960, be placed under the land registration laws. The allegations and prayer in
the Application of petitioner were sufficient to vest jurisdiction on the RTC over the said
Application upon the filing thereof.

Respondent sought the dismissal of LRC Case No. N-201 on the ground of lack of jurisdiction,
not because of the insufficiency of the allegations and prayer therein, but because the evidence
presented by petitioner itself during the trial supposedly showed that the subject property is a
foreshore land, which is not alienable and disposable. The RTC granted the Motion to Dismiss of
respondent in its Order dated September 7, 2000. The RTC went beyond the allegations and
prayer for relief in the Application for Original Registration of petitioner, and already scrutinized
and weighed the testimony of Engr. Dorado, the only witness petitioner was able to present.

As to whether or not the subject property is indeed foreshore land is a factual issue which the
RTC should resolve in the exercise of its jurisdiction, after giving both parties the opportunity to
present their respective evidence at a full-blown trial. As we have explained in the Estate of the
Late Jesus S. Yujuico v. Republic37 :

The plain import of Municipality of Antipolo is that a land registration court, the RTC at present,
has no jurisdiction over the subject matter of the application which respondent Republic claims
is public land. This ruling needs elucidation.

Firmly entrenched is the principle that jurisdiction over the subject matter is conferred by law.
Consequently, the proper CFI (now the RTC) under Section 14 of PD 1529 (Property Registration
Decree) has jurisdiction over applications for registration of title to land.

xxxx

Conformably, the Pasig-Rizal CFI, Branch XXII has jurisdiction over the subject matter of the land
registration case filed by Fermina Castro, petitioners’ predecessor-in-interest, since jurisdiction
over the subject matter is determined by the allegations of the initiatory pleading – the
application. Settled is the rule that "the authority to decide a case and not the decision
rendered therein is what makes up jurisdiction. When there is jurisdiction, the decision of all
questions arising in the case is but an exercise of jurisdiction.

In our view, it was imprecise to state in Municipality of Antipolo that the "Land Registration
Court [has] no jurisdiction to entertain the application for registration of public property x x x"
for such court precisely has the jurisdiction to entertain land registration applications since that
is conferred by PD 1529. The applicant in a land registration case usually claims the land subject
matter of the application as his/her private property, as in the case of the application of Castro.
Thus, the conclusion of the CA that the Pasig-Rizal CFI has no jurisdiction over the subject
matter of the application of Castro has no mooring. The land registration court initially has
jurisdiction over the land applied for at the time of the filing of the application. After trial, the
court, in the exercise of its jurisdiction, can determine whether the title to the land applied for
is registerable and can be confirmed. In the event that the subject matter of the application
turns out to be inalienable public land, then it has no jurisdiction to order the registration of the
land and perforce must dismiss the application. 38 (Emphasis ours.)

It is true that petitioner, as the applicant, has the burden of proving that the subject property is
alienable and disposable and its title to the same is capable of registration. However, we stress
that the RTC, when it issued its Order dated September 7, 2000, had so far heard only the
testimony of Engr. Dorado, the first witness for the petitioner. Petitioner was no longer
afforded the opportunity to present other witnesses and pieces of evidence in support of its
Application. The RTC Order dated September 7, 2000 – already declaring the subject property
as inalienable public land, over which the RTC has no jurisdiction to order registration – was
evidently premature.

The RTC Order dated September 7, 2000 has not yet become final and executory as petitioner
was able to duly file a Motion for Reconsideration and Supplemental Motion for
Reconsideration of the same, which the RTC eventually granted in its Order dated December 7,
2000. Admittedly, said motions filed by petitioner did not comply with certain rules of
procedure. Ordinarily, such non-compliance would have rendered said motions as mere scraps
of paper, considered as not having been filed at all, and unable to toll the reglementary period
for an appeal. However, we find that the exceptional circumstances extant in the present case
warrant the liberal application of the rules.

Also, the Motion for Reconsideration and Supplemental Motion for Reconsideration of the
Order dated September 7, 2000 filed by petitioner did not comply with Section 11, Rule 13 of
the Rules of Court, for these did not include a written explanation why service or filing thereof
was not done personally. Nonetheless, in Maceda v. Encarnacion de Guzman Vda. de
Magpantay,39 citing Solar Team Entertainment, Inc. v. Ricafort,40 and Musa v. Amor,41 we
explained the rationale behind said rule and the mandatory nature of the same, vis-à-vis the
exercise of discretion by the court in case of non-compliance therewith:

In Solar Team Entertainment, Inc. v. Ricafort, this Court, passing upon Section 11 of Rule 13 of
the Rules of Court, held that a court has the discretion to consider a pleading or paper as not
filed if said rule is not complied with.

Personal service and filing are preferred for obvious reasons. Plainly, such should expedite
action or resolution on a pleading, motion or other paper; and conversely, minimize, if not
eliminate, delays likely to be incurred if service or filing is done by mail, considering the
inefficiency of the postal service. Likewise, personal service will do away with the practice of
some lawyers who, wanting to appear clever, resort to the following less than ethical practices:
(1) serving or filing pleadings by mail to catch opposing counsel off-guard, thus leaving the
latter with little or no time to prepare, for instance, responsive pleadings or an opposition; or
(2) upon receiving notice from the post office that the registered containing the pleading of or
other paper from the adverse party may be claimed, unduly procrastinating before claiming the
parcel, or, worse, not claiming it at all, thereby causing undue delay in the disposition of such
pleading or other papers.

If only to underscore the mandatory nature of this innovation to our set of adjective rules
requiring personal service whenever practicable, Section 11 of Rule 13 then gives the court the
discretion to consider a pleading or paper as not filed if the other modes of service or filing
were not resorted to and no written explanation was made as to why personal service was not
done in the first place. The exercise of discretion must, necessarily consider the practicability of
personal service, for Section 11 itself begins with the clause "whenever practicable."

We thus take this opportunity to clarify that under Section 11, Rule 13 of the 1997 Rules of Civil
Procedure, personal service and filing is the general rule, and resort to other modes of service
and filing, the exception. Henceforth, whenever personal service or filing is practicable, in the
light of the circumstances of time, place and person, personal service or filing is mandatory.
Only when personal service or filing is not practicable may resort to other modes be had, which
must then be accompanied by a written explanation as to why personal service or filing was not
practicable to begin with. In adjudging the plausibility of an explanation, a court shall likewise
consider the importance of the subject matter of the case or the issues involved therein, and
the prima facie merit of the pleading sought to be expunged for violation of Section 11.

In Musa v. Amor, this Court, on noting the impracticality of personal service, exercised its
discretion and liberally applied Section 11 of Rule 13:

As [Section 11, Rule 13 of the Rules of Court] requires, service and filing of pleadings must be
done personally whenever practicable. The court notes that in the present case, personal
service would not be practicable. Considering the distance between the Court of Appeals and
Donsol, Sorsogon where the petition was posted, clearly, service by registered mail [sic] would
have entailed considerable time, effort and expense. A written explanation why service was not
done personally might have been superfluous. In any case, as the rule is so worded with the use
of "may," signifying permissiveness, a violation thereof gives the court discretion whether or
not to consider the paper as not filed. While it is true that procedural rules are necessary to
secure an orderly and speedy administration of justice, rigid application of Section 11, Rule 13
may be relaxed in this case in the interest of substantial justice.

In the case at bar, the address of respondent’s counsel is Lopez, Quezon, while petitioner
Sonia’s counsel’s is Lucena City. Lopez, Quezon is 83 kilometers away from Lucena City. Such
distance makes personal service impracticable. As in Musa v. Amor, a written explanation why
service was not done personally "might have been superfluous."42 (Emphases supplied and
citations omitted.)

Our ruling in the above-cited cases is relevant to the instant case. Counsel for petitioner holds
office in Dumaguete City, Negros Oriental, in the Visayas; while counsel for respondent holds
office in Quezon City, Metro Manila, in Luzon. Given the considerable distance between the
offices of these two counsels, personal service of pleadings and motions by one upon the other
was clearly not practicable and a written explanation as to why personal service was not done
would only be superfluous.43 In addition, we refer once more to the merits of the Motion for
Reconsideration and Supplemental Motion for Reconsideration of the RTC Order dated
September 7, 2000 filed by petitioner, which justify the liberal interpretation of Section 11, Rule
13 of the Rules of Court in this case.1avvphi1

Jurisprudence confirms that the requirements laid down in Sections 4, 5, and 6, Rule 15 of the
Rules of Court that the notice of hearing shall be directed to the parties concerned, and shall
state the time and place for the hearing of the motion, are mandatory. If not religiously
complied with, they render the motion pro forma. As such, the motion is a useless piece of
paper that will not toll the running of the prescriptive period.44

Yet, again, there were previous cases with peculiar circumstances that had compelled us to
liberally apply the rules on notice of hearing and recognize substantial compliance with the
same. Once such case is Philippine National Bank v. Paneda,45 where we adjudged:

Thus, even if the Motion may be defective for failure to address the notice of hearing of said
motion to the parties concerned, the defect was cured by the court's taking cognizance thereof
and the fact that the adverse party was otherwise notified of the existence of said pleading.
There is substantial compliance with the foregoing rules if a copy of the said motion for
reconsideration was furnished to the counsel of herein private respondents.

In the present case, records reveal that the notices in the Motion were addressed to the
respective counsels of the private respondents and they were duly furnished with copies of the
same as shown by the receipts signed by their staff or agents.

Consequently, the Court finds that the petitioner substantially complied with the pertinent
provisions of the Rules of Court and existing jurisprudence on the requirements of motions and
pleadings.46 (Emphasis supplied.)

It was not refuted that petitioner furnished respondent and respondent actually received
copies of the Motion for Reconsideration, as well as the Supplemental Motion for
Reconsideration of the RTC Order dated September 7, 2000 filed by petitioner. As a result,
respondent was able to file its Oppositions to the said Motions. The RTC, in issuing its Order
dated December 7, 2000, was able to consider the arguments presented by both sides. Hence,
there was substantial compliance by petitioner with the rules on notice of hearing for its
Motion for Reconsideration and Supplemental Motion for Reconsideration of the RTC Order
dated September 7, 2000. Respondent cannot claim that it was deprived of the opportunity to
be heard on its opposition to said Motions.

In view of the foregoing circumstances, the RTC judiciously, rather than abusively or arbitrarily,
exercised its discretion when it subsequently issued the Order dated December 7, 2000, setting
aside its Order dated September 7, 2000 and proceeding with the trial in LRC Case No. N-201.
WHEREFORE, the instant Petition for Review of petitioner City of Dumaguete is hereby
GRANTED. The Decision dated March 4, 2005 and Resolution dated June 6, 2005 of the Court
Appeals in CA-G.R. SP No. 64379 are SET ASIDE, and the Orders dated December 7, 2000 and
February 20, 2001 of Branch 44 of the Regional Trial Court of the City of Dumaguete in LRC Case
No. N-201 are REINSTATED. The said trial court is DIRECTED to proceed with the hearing of LRC
Case No. N-201 with dispatch.

SO ORDERED.

G.R. No. 141255 June 21, 2005

LUCIANO ELLO and GAUDIOSA ELLO, petitioners,

vs.
THE COURT OF APPEALS, SPRINGFIELD DEVELOPMENT CORPORATION, and CONSTANTINO G.
JARAULA, respondents.

DECISION

SANDOVAL-GUTIERREZ, J.:

Before us is a petition for certiorari1 assailing the (1) Resolution2 dated May 31, 1999 of the
Court of Appeals in CA-G.R. SP No. 49904 dismissing outright the petition for review filed by
spouses Luciano and Gaudiosa Ello, petitioners herein, on the ground that they failed to
incorporate therein the affidavit of proof of service required under Section 11 in relation to
Section 13, Rule 13 of the 1997 Rules of Civil Procedure, as amended; and (2) Resolution dated
October 8, 1999 denying their motion for reconsideration.

In their petition, petitioners averred that on May 15, 1996, Springfield Development
Corporation and Constantino G. Jaraula, respondents herein, jointly filed with the Municipal
Trial Court in Cities (MTCC), Branch 4, Cagayan de Oro City, a complaint against them for
forcible entry with application for preliminary mandatory injunction, docketed as Civil Case No.
96-May-346.

The complaint alleges inter alia that respondent Springfield Development Corporation is the
owner and actual possessor of Lot No. 19-C3 covered by Transfer Certificate of Title (TCT) No. T-
92571, while respondent Constantino Jaraula is the owner and actual possessor of Lot No.
2291-B covered by TCT No. T-63088, both situated at Gusa, Cagayan de Oro City. The two lots
adjoin each other and were originally parts of Lot No. 2291, a 12-hectare lot which has been
developed by respondents as the Mega Heights Subdivision. In January, March and April of
1996, petitioner spouses Luciano and Gaudiosa Ello and their hired personnel surreptitiously
and stealthily occupied respondents’ lots, built a make-shift shed under the trees, and fenced
the area they occupied. Respondents then demanded that petitioners and their hired personnel
vacate the area but they refused. Instead, they threatened and prevented respondents from
developing their lots into a subdivision. The matter reached the barangay but the parties failed
to reach an amicable settlement. Thus, the Barangay Lupon Tagapamayapa issued a Certificate
to File Action. Respondents prayed that petitioners be ordered to vacate the lots and to remove
the improvements they constructed thereon.4

Petitioners, in their answer, specifically denied respondents’ allegations, claiming that they
have been in possession of the disputed lots for over thirty (30) years; that the Department of
Agrarian Reform Adjudication Board (DARAB), in its Decision dated October 5, 1995 in DARAB
Case No. 305, declared that the lots are covered by the Comprehensive Agrarian Reform
Program (CARP) and petitioners are among the identified beneficiaries thereof; that the said
Decision has become final and executory; and that, therefore, the MTCC has no jurisdiction
over respondents’ complaint for forcible entry.

On December 4, 1996, the MTCC rendered its Decision dismissing the complaint, thus:

"WHEREFORE, in view of the foregoing consideration and for failure of the plaintiffs to establish
by preponderance of evidence that they have brought the instant case within one year from
entry of defendant, and in view of the fact that the land is subject matter of a DARAB Case No.
305, the court believes that it has no jurisdiction to try the instant case and, therefore, orders
the dismissal of the same. The counterclaim filed by the defendants is also dismissed for lack of
merit.

SO ORDERED."5

On appeal, the Regional Trial Court (RTC), Branch 17, Cagayan de Oro City, in its Decision dated
August 5, 1998, reversed the MTCC Decision, thus:

"WHEREFORE, premises considered, the Decision of the lower court in Civil Case No. 96-May-
346 of Branch 4, Municipal Trial Court in Cities, Cagayan de Oro City, rendered on December 4,
1996, is hereby ordered reversed and set aside, and this court hereby finds a case in favor of
the plaintiffs and against the defendants, and hereby orders the defendants Luciano Ello and
Gaudiosa Ello, their agents and privies to vacate Lots Nos. 19-C and 2291-B within ninety (90)
days and deliver the same to the plaintiffs Springfield Development Corporation and
Constantino Jaraula, and to refrain from ever disturbing and interrupting the plaintiffs in their
rightful and feaceful possession and enjoyment of the parcels of land subject-matter of this
case.

Costs against the defendants.

SO ORDERED."6

The RTC held in part:

"The fact that the defendants are now occupying Lots. Nos. 19-C and 2291-B without any
concrete permanent improvement within the area is a testament that they only entered the
same recently. And to this effect was the testimony of Architect Richard Tan, project manager
of Mega Heights Subdivision, who explained that prior to January, 1996, the defendants were
nowhere to be found in Lots Nos. 19-C and 2291-B.

It is, therefore, the considered view of the court that the filing of the instant action for forcible
entry in May, 1996 was done within one (1) year from the time of entry by the defendants in
Lots Nos. 19-C and 2291-B. The court is morally convinced that while the defendants were in
possession and occupation of Lot No. 2525 for many years, they have recently expanded their
occupation and possession to Lots Nos. 19-C and 2291-B, lots adjacent to and adjoining Lot No.
2525. x x x.

On the second issue, the court is likewise of the considered view that the lower court has
jurisdiction over this case. The court is morally convinced that the Decision of DARAB dated
October 5, 1995 has become moot and academic with the payment and relocation of the
occupants of Lot No. 2291 (Exhibits ‘F,’ ‘G,’ ‘H,’ and ‘I’), even before the DARAB Decision was
rendered. The exclusion of the defendants from the payment of compensation is consistent
with the findings of the lower court that ‘the heirs of Nicholas Capistrano believes that the area
occupied by the defendant is in excess of Lot 2291 per testimony of Engr. Belen and defendant
Luciano Ello.’ This is once more supported by the notes from CENRO (Exhibits ‘6’ and ‘6-A’)
which show that defendants are occupants and possessors of Lot No. 2525. Apparently, the
DAR had the same thing in mind because the defendants were not included in the original
listing of actual occupants of Lot No. 2291."

On October 22, 1998, petitioners filed with the Court of Appeals a petition for review, docketed
as CA-G.R. SP No. 49904.

In a minute Resolution dated May 31, 1999,7 the petition was dismissed outright on the ground
that it does not contain the affidavit of service required by Section 11 in relation to Section 13,
Rule 13 of the 1997 Rules of Civil Procedure, as amended.

Petitioners, through the Public Attorney’s Office, promptly filed a motion for reconsideration
attaching therewith the affidavit of service dated June 17, 1999, executed by Gabriel M.
Manasan. In his affidavit, Manasan stated that he is the messenger of the Public Attorney’s
Office, Cagayan de Oro City which directed him to file with the Court of Appeals through the
mail the petition for review in CA-G.R. SP No. 49904, "LUCIANO ‘CIANO’ ELLO and GAUDIOSA
ELLO, Petitioners, versus SPRINGFIELD DEV’T. CORP. and CONSTANTINO JARAULA,
Respondents;" that on October 21, 1998, he personally served copies of the petition to the Law
Office of respondents’ counsel Atty. Constantino Jaraula at No. 12th St., Nazareth, Cagayan de
Oro City and to the RTC, Branch 4, Cagayan de Oro City, per the stamped receipt indicated in
their own copy of the petition;8 and that the following day, October 22, 1998, he mailed copies
thereof to the Court of Appeals per postal Registry Receipt No. 36680 attached to his affidavit. 9
In their motion for reconsideration, petitioners averred that they failed to append to their
petition the affidavit of service due to an excusable oversight considering the time constraint in
filing the petition with its voluminous annexes; that they have a meritorious case as evidenced
by the final Decision in DARAB Case No. 305 declaring them as CARP beneficiaries of the
disputed property; and that there would be a denial of substantial justice if their petition would
be dismissed merely by reason of technicality.10 Citing previous rulings of this Court11 that
procedural rules should be liberally construed in order to promote substantial justice,
petitioners prayed that the affidavit of proof of service attached to their motion be admitted
and that their petition be given due course.

Still unconvinced, the Court of Appeals, in its Resolution dated October 8, 1999, denied
petitioners’ motion for reconsideration, invoking this Court’s ruling in Solar Team
Entertainment, Inc. vs. Judge Ricafort12 that "strictest compliance with Section 11 of Rule 13 is
mandated."13

Petitioners now come to us via the instant petition for certiorari assailing the twin minute
Resolutions of the Court of Appeals. They allege that the said court "acted with grave abuse of
discretion amounting to lack of jurisdiction" by persisting in dismissing their petition for review
"solely on technical grounds without regard whatsoever to the substantial merit of their cause
and the resulting injustice that could be created thereby."14 They pray that the challenged
Resolutions be annulled and that their petition be given due course.

Respondents, in their comment on the petition, counter that the Court of Appeals, in issuing
the assailed Resolutions, properly exercised its discretion. They contend that petitioners, by
failing to attach to their petition the required affidavit of service, "only succeeded in
demonstrating their contempt for the Rules and the Honorable Supreme Court’s directive in
Solar Team Entertainment, Inc. vs. Judge Ricafort."15

The issue here is whether the Court of Appeals gravely abused its discretion when it dismissed
outright petitioners’ petition for review on the sole technical ground that it does not contain
the affidavit of service as required by Section 11 in relation to Section 13, Rule 13 of the 1997
Rules of Civil Procedure, as amended.

Sections 3 and 5, Rule 13 of the 1997 Rules of Civil Procedure, as amended, prescribe two
modes of filing and service of pleadings, motions, notices, orders, judgments and other papers.
These are: (a) by personal delivery, governed by Section 6 of the same Rule; and (b) by mail,
under Section 7 thereof. If service cannot be done either personally or by mail, substituted
service may be resorted to pursuant to Section 8 of the same Rule.

However, Section 11 of Rule 13 requires that "whenever practicable," the filing of pleadings
and other papers in court, as well as the service of said papers on the adverse party or his
counsel, must be done "personally." But if such filing and service were through a different
mode, the party concerned must submit a "written explanation" why they were not done
personally. Section 11 provides:
"SEC. 11. Priorities in modes of service and filing. – Whenever practicable, the service and filing
of pleadings and other papers shall be done personally. Except with respect to papers
emanating from the court, a resort to other modes must be accompanied by a written
explanation why the service or filing was not done personally. A violation of this Rule may be
cause to consider the paper as not filed. (n)"

In relation to Section 11, Section 13 provides:

"SEC. 13. Proof of service. – Proof of personal service shall consist of a written admission of the
party served, or the official return of the server, or the affidavit of the party serving,
containing a full statement of the date, place and manner of service. If the service is by
ordinary mail, proof thereof shall consist of an affidavit of the person mailing of facts showing
compliance with Section 7 of this Rule. If service is made by registered mail, proof shall be
made by such affidavit and the registry receipt issued by the mailing office. The registry return
card shall be filed immediately upon its receipt by the sender, or in lieu thereof the unclaimed
letter together with the certified or sworn copy of the notice given by the postmaster to the
addressee. (10a)" (Underscoring supplied)

Section 11 is a new provision incorporated in the 1997 Rules of Civil Procedure, as amended,
prescribing the mode of filing and service of pleadings, motions and other papers. In Solar Team
Entertainment, Inc. vs. Judge Ricafort (supra), we explained that the primary objective of this
new provision is to foil the mischief of delay, thus:

"Personal service and filing are preferred for obvious reasons. Plainly, such should expedite
action or resolution on a pleading, motion or other paper; and conversely, minimize, if not
eliminate, delays likely to be incurred if service or filing is done by mail, considering the
inefficiency of the postal service. Likewise, personal service will do away with the practice of
some lawyers who, wanting to appear clever, resort to the following less than ethical practices:
(1) serving or filing pleadings by mail to catch opposing counsel off-guard, thus leaving the
latter with little or no time to prepare, for instance, responsive pleadings or an opposition; or
(2) upon receiving notice from the post office that the registered parcel containing the pleading
of or other paper from the adverse party may be claimed, unduly procrastinating before
claiming the parcel, or worse, not claiming it at all, thereby causing undue delay in the
disposition of such pleading or other papers.

The requirement under Section 11 is mandatory. Any violation of this Rule may be cause for the
court to consider the paper as not filed.1awphi1.net

However, such discretionary power of the court must be exercised properly and reasonably,
taking into account the following factors: (1) "the practicability of personal service;" (2) "the
importance of the subject matter of the case or the issues involved therein;" and (3) "the prima
facie merit of the pleading sought to be expunged for violation of Section 11." Thus, we
stressed in Solar :
"If only to underscore the mandatory nature of this innovation to our set of adjective rules
requiring personal service whenever practicable, Section 11 of Rule 13 then gives the court the
discretion to consider a pleading or paper as not filed if the other modes of service or filing
were resorted to and no written explanation was made as to why personal service was not
done in the first place. The exercise of discretion must, necessarily, consider the practicability
of personal service, for Section 11 itself begins with the clause ‘whenever practicable.’

We thus take this opportunity to clarify that under Section 11, Rule 13 of the Rules of Civil
Procedure, personal service and filing is the general rule, and resort to other modes of service
and filing, the exception. Henceforth, whenever personal service or filing is practicable, in
light of the circumstances of time, place and person, personal service or filing is mandatory.
Only when personal service or filing is not practicable may resort to other modes be had,
which must then be accompanied by a written explanation as to why personal service or filing
was not practicable to begin with. In adjudging the plausibility of an explanation, a court shall
likewise consider the importance of the subject matter of the case or the issues involved
therein, and the prima facie merit of the pleading sought to be expunged for violation of
Section 11. x x x." (Underscoring supplied)

In the present case, there is no question that petitioners violated Section 11 of Rule 13 by
failing to append the affidavit of service to their petition for review filed with the Court of
Appeals. We note, though, that petitioners, upon receipt of the Court of Appeals’ challenged
Resolution dismissing outright their petition due to such omission, promptly filed a motion for
reconsideration, readily acknowledging their procedural lapse and attaching therewith the
required affidavit of service.

Significantly, Gabriel Manasan’s affidavit of service shows that the petition for review was filed
with the Court of Appeals in Manila through registered mail. This mode of filing is permitted
under Section 11 of Rule 13 since it s obviously impractical for petitioners and their counsel,
who are all residents of Cagayan de Oro City, to personally file their petition in Manila. As to the
service of copies of the petition, Manasan personally served the same on respondents’ counsel
and the RTC in Cagayan de Oro City, thus fully complying with Section 11.

Clearly, Manasan’s affidavit of service is a substantial compliance with the requirement under
Section 11. It bears stressing that petitioners’ procedural lapse in not appending such affidavit
to their petition did not in any way thwart the laudable objective of Section 11 as stated in
Solar, i.e., to quell the lawyers’ unethical practice of deliberately resorting to delays in the
filing and service of pleadings, motions and other papers. Indeed, the evil sought to be
prevented by the new rule is absent here. Also, there is absolutely no indication from
petitioners’ omission that they demonstrated their contempt for the Rules and our directive in
Solar, as claimed by respondents.

Moreover, we note that the Court of Appeals, despite petitioners’ motion for reconsideration
showing compliance with Section 11, still denied the same, without taking into account the
importance of the issues raised in the petition.
It must be stressed that the findings of fact of the MTCC and the RTC are diametrically
opposed from each other.lawphil.net The MTCC found that for many years before respondents
filed the complaint for forcible entry, petitioners have been in possession of the disputed
property awarded to them by the CARP. On the contrary, the RTC found that they are not CARP
beneficiaries.

In their petition for review before the Court of Appeals, petitioners ascribed to the RTC the
following errors:

1. In ruling that the filing of the forcible entry complaint was within one (1) year from
petitioners’ entry on the subject land.

2. In finding that respondents are the owners in fee simple of the subject land; and

3. In ruling that the Decision in DARAB Case No. 305 has become moot and academic.

The assigned errors are purely factual in nature which only the Court of Appeals can determine.
By dismissing the petition outright would absolutely foreclose the resolution of these errors.
Clearly, justice would be better served if the Court of Appeals resolves the factual issues raised
in the petition.

In Sebastian vs. Morales,16 we ruled that "rules of procedure must be faithfully followed except
only when for persuasive reasons, they may be relaxed to relieve a litigant of an injustice not
commensurate with his failure to comply with the prescribed procedure," which exception is
present here.

In fine, we hold that the Court of Appeals, in issuing its assailed Resolutions, acted with grave
abuse of discretion amounting to lack or excess of jurisdiction.

WHEREFORE, the instant petition for certiorari is hereby GRANTED. The challenged Resolutions
dated May 31, 1999 and October 8, 1999 of the Court of Appeals in CA-G.R. SP No. 49904 are
ANNULLED and SET ASIDE. The petition for review is ordered REINSTATED.

SO ORDERED.

SALVADOR O. MOJAR, EDGAR B. BEGONIA, Heirs of the late JOSE M. CORTEZ, RESTITUTO
GADDI, VIRGILIO M. MONANA, FREDDIE RANCES, and EDSON D. TOMAS,

Petitioners,

- versus -
AGRO COMMERCIAL SECURITY SERVICE AGENCY, INC., et al.,[1]

Respondents.

G. R. No. 187188

June 27, 2012

DECISION

SERENO, J.:

This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, seeking to annul
the entire proceedings before the Court of Appeals (CA) in CA-G.R. SP No. 102201, in which it
issued its Decision dated 21 July 2008 and Resolution dated 16 March 2009.[2]

Statement of Facts and of the Case

Petitioners were employed as security guards by respondent and assigned to the various
branches of the Bank of Commerce in Pangasinan, La Union and Ilocos Sur.

In separate Office Orders dated 23 and 24 May 2002, petitioners were relieved from their
respective posts and directed to report to their new assignments in Metro Manila effective 3
June 2002. They, however, failed to report for duty in their new assignments, prompting
respondent to send them a letter dated 18 June 2002. It required a written explanation why no
disciplinary action should be taken against them, but the letter was not heeded.

On 15 February 2005, petitioners filed a Complaint for illegal dismissal against respondent and
the Bank of Commerce, Dagupan Branch, before the National Labor Relations Commission
(NLRC). Petitioners claimed, among others, that their reassignment was a scheme to sever the
employer-employee relationship and was done in retaliation for their pressing their claim for
salary differential, which they had earlier filed against respondent and the Bank of Commerce
before the NLRC. They also contended that the transfer to Manila was inconvenient and
prejudicial, since they would incur additional expenses for board and lodging.

On 22 May 2006, the Labor Arbiter (LA) rendered a Decision[3] finding that petitioners were
illegally dismissed. The dispositive portion reads:
WHEREFORE, premises considered, judgment is hereby rendered ordering respondents to
reinstate all the complainants to their former assignment in Pangasinan with full backwages
and if reinstatement is no longer possible, to pay separation pay of one month for every year of
service each of the seven complainant security guards. (A detailed computation of the
judgment award is attached as Annex A.)[4] (Italicized in the original)

On appeal, the NLRC affirmed the LAs ruling, with the modification that the Complaint against
the Bank of Commerce was dismissed.[5] The dispositive portion provides:

WHEREFORE, premises considered, the appeal of Agro Commercial Security Service Agency, Inc.
is hereby DISMISSED for lack of merit. The Appeal of Bank of Commerce is GRANTED for being
impressed with merit. Accordingly, judgment is hereby rendered MODIFYING the Decision of
the Labor Arbiter dated May 22, 2006 by DISMISSING the complaint against Bank of Commerce-
Dagupan. All other dispositions of the Labor Arbiter not so modified, STAYS.[6]

On 23 January 2008, respondent filed a Motion for Extension to file a Petition for Certiorari
before the CA. In a Resolution dated 20 February 2008, the latter granted the Motion for
Extension, allowing respondent until 10 February 2008 within which to file its Petition. On 9
February 2008, respondent filed its Petition for Certiorari before the appellate court.

On 30 June 2008, the CA issued a Resolution noting that no comment on the Petition had been
filed, and stating that the case was now deemed submitted for resolution.

On 21 July 2008, the CA rendered its Decision. Finding merit in the Petition, it found the Orders
transferring petitioners to Manila to be a valid exercise of management prerogative. The
records were bereft of any showing that the subject transfer involved a diminution of rank or
salaries. Further, there was no showing of bad faith or ill motive on the part of the employer.
Thus, petitioners refusal to comply with the transfer orders constituted willful disobedience of
a lawful order of an employer and abandonment, which were just causes for termination under
the Labor Code. However, respondent failed to observe the due process requirements in
terminating them. The dispositive portion of the CA Decision provides:

WHEREFORE, premises considered, the instant petition is GRANTED. The assailed Decision and
Resolution of the NLRC dated July 31, 2007 and October 31, 2007[,] respectively, in NLRC NCR
CA No. 046036-05 are REVERSED and SET ASIDE. The complaints of private respondents for
illegal dismissal are hereby DISMISSED. However, petitioner is ordered to pay private
respondents the sum of ₱10,000.00 each for having violated the latters right to statutory due
process.[7]

On 1 August 2008, petitioner Mojar filed a Manifestation[8] before the CA, stating that he and
the other petitioners had not been served a copy of the CA Petition. He also said that they were
not aware whether their counsel before the NLRC, Atty. Jose C. Espinas, was served a copy
thereof, since the latter had already been bedridden since December 2007 until his demise on
25 February 2008.[9] Neither could their new counsel, Atty. Mario G. Aglipay, enter his
appearance before the CA, as petitioners failed to get [the] folder from the office of Atty.
Espinas, as the folder can no longer be found.[10]

Thereafter, petitioners filed a Motion to Annul Proceedings[11] dated 9 September 2008 before
the CA. They moved to annul the proceedings on the ground of lack of jurisdiction. They argued
that the NLRC Decision had already attained finality, since the Petition before the CA was
belatedly filed, and the signatory to the Certification of non-forum shopping lacked the proper
authority.

In a Resolution dated 16 March 2009, the CA denied the Motion to Annul Proceedings.

Hence, this Petition.

The Petition raised the following arguments: (1) There was no proof of service attached to the
Motion for Extension to file a Petition for Certiorari before the CA; thus, both the Motion and
the Petition were mere scraps of paper. (2) Respondent purposely intended to exclude
petitioners from the proceedings before the CA by omitting their actual addresses in the CA
Petition, a mandatory requirement under Section 3, Rule 46; in relation to Section 1, Rule 65 of
the Rules of Court. Further, respondent failed to prove the valid service of its CA Petition upon
petitioners former counsel of record. (3) The CA was grossly ignorant of the law in ignoring
jurisprudence, which states that when the floating status of an employee lasts for more than six
months, the latter may be considered to have been constructively dismissed.

On 3 September 2009, respondent filed its Comment on the Petition, pursuant to this Courts 29
June 2009 Resolution. In its Comment, it argued that the CA Decision had already become final
and executory, inasmuch as the Motion to Annul Proceedings, a procedural approach not
provided for in the Rules, was filed some 44 days after the service of the CA Decision on the
counsel for petitioners. Further, Atty. Aglipay had then no legal standing to appear as counsel,
considering that there was still no substitution of counsel at the time he filed the Motion to
Annul Proceedings. In any case, petitioners are bound by the actions of their counsel, Atty.
Espinas.

On 1 March 2010, this Court issued a Resolution requiring petitioners to file their reply, which
petitioners complied with on 26 April 2010. In their Reply, petitioners state among others that
the records of the CA case showed that there was a deliberate violation of their right to due
process. The CA Petition did not contain the required affidavit of service, which alone should
have caused the motu proprio dismissal thereof. Further, the instant Petition before this Court
is an appropriate mode to contest the CA Decision and Resolution, which petitioners contend
are void judgments. They also argue that there is no rule on the clients substitution in case of
the death of counsel. Instead, the reglementary period to file pleadings in that case must be
suspended and made more lenient, considering that the duty of substitution is transferred to a
non-lawyer.
On 30 March 2011, respondent filed a Motion for Early Resolution of the case. Petitioners
likewise filed a Motion for Leave (For the Admission of the Instant Comment on Private
Respondents Motion for Early Resolution), stating that they were joining respondent in moving
for the early resolution of the case.

This Court will resolve the issues raised in seriatim.

Actual Addresses of Parties

Petitioners contend that the CA should not have taken cognizance of the Petition before it, as
their actual addresses were not indicated therein as required under Section 3, Rule 46[12] of
the Rules of Court, and pursuant to Cendaa v. Avila.[13] In the 2008 case Cendaa, this Court
ruled that the requirement that a petition for certiorari must contain the actual addresses of all
the petitioners and the respondents is mandatory. The failure to comply with that requirement
is a sufficient ground for the dismissal of a petition.

This rule, however, is not absolute. In the 2011 case Santos v. Litton Mills Incorporated,[14] this
Court ruled that where the petitioner clearly mentioned that the parties may be served with
the courts notices or processes through their respective counsels, whose addresses have been
clearly specified as in this case, this act would constitute substantial compliance with the
requirements of Section 3, Rule 46. The Court further observed that the notice required by law
is notice to counsel if the party has already appeared by counsel, pursuant to Section 2, Rule 13
of the Rules of Court.

In its Petition before the CA, respondent clearly indicated the following:

THE PARTIES

2.0. The petitioner AGRO COMMERCIAL SECURITY SERVICE AGENCY, INC. (hereafter petitioner
AGRO), is a corporation existing under Philippine laws, and may be served with process thru
counsel, at his address hereunder indicated; private respondents (1) SALVADOR O. MOJAR; (2)
EDGAR B. BEGONIA; (3) JOSE M. CORTEZ; (4) FREDDIE RANCES; (5) VIRGILIO MONANA; (6)
RESTITUTU [sic] GADDI; and, (7) EDSON D. TOMAS, are all of age, and during the material
period, were in the employ of petitioner AGRO as security guards; said respondents may be
served with process thru their common counsel, ATTY. JOSE C. ESPINAS at No. 51 Scout Tuazon,
Quezon City; on the other hand, respondent National Labor Relations Commission, 1st Division,
Quezon City, is the agency having jurisdiction over labor disputes in the Philippines and may be
served with process at offices in Quezon City;[15]

The foregoing may thus be considered as substantial compliance with Section 3, Rule 46. In any
case, and as will be discussed further below, the CA had sufficient reason to take cognizance of
the Petition.

Affidavit of Service
Section 3, Rule 46 provides that the petition for certiorari should be filed together with the
proof of service thereof on the respondent. Under Section 13, Rule 13 of the Rules of Court, if
service is made by registered mail, as in this case, proof shall be made by an affidavit of the
person mailing and the registry receipt issued by the mailing office. Section 3, Rule 46 further
provides that the failure to comply with any of the requirements shall be sufficient ground for
the dismissal of the petition.

Petitioners allege that no affidavit of service was attached to the CA Petition. Neither is there
any in the copy of the CA Petition attached to the instant Petition. In its Comment, respondent
claims that petitioners through their counsel, Atty. Aglipay can be charged with knowledge of
the pendency of the CA Petition. It says that on April 2008, Atty. Aglipay filed before the NLRC
an Entry of Appearance and Motion for Execution Pending Appeal.[16] However, petitioners
merely indicated therein that they were respectfully mov[ing] for the execution pending appeal
of the Labor Arbiters decision dated 22 May 2006 affirmed by the NLRC.[17] There was no
indication that they had been served a copy of the CA Petition. No other proof was presented
by respondent to show petitioners actual receipt of the CA Petition. In any case, this
knowledge, even if presumed, would not and could not take the place of actual service and
proof of service by respondent.

In Ferrer v. Villanueva,[18] petitioner therein failed to append the proof of service to his
Petition for Certiorari. Holding that this failure was a fatal defect, the Court stated:

There is no question that petitioner herein was remiss in complying with the foregoing Rule. In
Cruz v. Court of Appeals, we ruled that with respect to motions, proof of service is a mandatory
requirement. We find no cogent reason why this dictum should not apply and with more reason
to a petition for certiorari, in view of Section 3, Rule 46 which requires that the petition shall be
filed together with proof of service thereof. We agree with the Court of Appeals that the lack of
proof of service is a fatal defect. The utter disregard of the Rule cannot be justified by harking
to substantial justice and the policy of liberal construction of the Rules. Technical rules of
procedure are not meant to frustrate the ends of justice. Rather, they serve to effect the proper
and orderly disposition of cases and thus effectively prevent the clogging of court dockets.
(Emphasis in the original)

Indeed, while an affidavit of service is required merely as proof that service has been made on
the other party, it is nonetheless essential to due process and the orderly administration of
justice.[19]

Be that as it may, it does not escape the attention of this Court that in the CA Resolution dated
16 March 2009, the appellate court stated that their records revealed that Atty. Espinas,
petitioners counsel of record at the time, was duly served a copy of the following: CA
Resolution dated 20 February 2008 granting respondents Motion for Extension of Time to file
the CA Petition; CA Resolution dated 24 April 2008 requiring petitioners to file their Comment
on the CA Petition; and CA Resolution dated 30 June 2008, submitting the case for resolution,
as no comment was filed.
Such service to Atty. Espinas, as petitioners counsel of record, was valid despite the fact he was
already deceased at the time. If a party to a case has appeared by counsel, service of pleadings
and judgments shall be made upon his counsel or one of them, unless service upon the party is
specifically ordered by the court. It is not the duty of the courts to inquire, during the progress
of a case, whether the law firm or partnership representing one of the litigants continues to
exist lawfully, whether the partners are still alive, or whether its associates are still connected
with the firm.[20]

It is the duty of party-litigants to be in contact with their counsel from time to time in order to
be informed of the progress of their case. It is likewise the duty of parties to inform the court of
the fact of their counsels death.[21] Their failure to do so means that they have been negligent
in the protection of their cause.[22] They cannot pass the blame to the court, which is not
tasked to monitor the changes in the circumstances of the parties and their counsel.

Substitution of Counsel

Petitioners claim that Atty. Espinas passed away on 8 February 2008. They further claim that he
was already bedridden as early as December 2007, and thus they failed to get any information
whether [he] was served with a copy of the [CA Petition].[23]

Petitioners were negligent in the conduct of their litigation. Having known that Atty. Espinas
was already bedridden as early as December 2007, they should have already obtained new
counsel who could adequately represent their interests. The excuse that Atty. Aglipay could not
enter his appearance before the CA because [petitioners] failed to get [their] folder from the
office of Atty. Espinas[24] is flimsy at best.

The requirements for a valid substitution of counsel have been jurisprudentially settled in this
wise:

Under Section 26, Rule 138 of the Rules of Court and established jurisprudence, a valid
substitution of counsel has the following requirements: (1) the filing of a written application for
substitution; (2) the client's written consent; (3) the consent of the substituted lawyer if such
consent can be obtained; and, in case such written consent cannot be procured, (4) a proof of
service of notice of such motion on the attorney to be substituted in the manner required by
the Rules. Where death of the previous attorney is the cause of substitution of the counsel, a
verified proof of the death of such attorney (usually a death certificate) must accompany the
notice of appearance of the new counsel.[25]

The fact that petitioners were unable to obtain their folder from Atty. Espinas is immaterial.
Proof of service upon the lawyer to be substituted will suffice where the lawyers consent
cannot be obtained. With respect to the records of the case, these may easily be reconstituted
by obtaining copies thereof from the various courts involved.
Petitioners allegedly went to the CA sometime prior to 31 July 2008, or the date of filing of their
Manifestation before the CA, to inquire about the status of their case. Allegedly, they always
visited the Court of Appeals for [the] development of their case.[26] It is doubtful that a person
who regularly follows up the status of his case before a court would not be told, first, that a
petition has been filed against him; and, second, that the courts resolutions have been sent to
his counsel. It is questionable why, knowing these matters, petitioners did not seek the
replacement of their counsel, if the latter was unable to pursue their case. Further, despite
their manifestation that, sometime prior to 31 July 2008, they were already aware that the case
had been submitted for resolution, they still waited until 9 September 2008 or until they
allegedly had knowledge of the CA Decision before they filed the Motion to Annul Proceedings.

In Ampo v. Court of Appeals,[27] this Court explained the vigilance that must be exercised by a
party:

We are not persuaded by petitioners argument that he was not aware that his counsel had died
or that an adverse judgment had already been rendered until he received the notice of
promulgation from the RTC of Butuan City on April 20, 2005. Time and again we have stated
that equity aids the vigilant, not those who slumber on their rights. Petitioner should have
taken it upon himself to periodically keep in touch with his counsel, check with the court, and
inquire about the status of the case. Had petitioner been more prudent, he would have found
out sooner about the death of his counsel and would have taken the necessary steps to prevent
his present predicament.

x x x x x x x xx

Litigants who are represented by counsel should not expect that all they need to do is sit back,
relax and await the outcome of their cases. Relief will not be granted to a party who seeks
avoidance from the effects of the judgment when the loss of the remedy at law was due to his
own negligence. The circumstances of this case plainly show that petitioner only has himself to
blame. Neither can he invoke due process. The essence of due process is simply an opportunity
to be heard. Due process is satisfied when the parties are afforded a fair and reasonable
opportunity to explain their respective sides of the controversy. Where a party, such as
petitioner, was afforded this opportunity to participate but failed to do so, he cannot complain
of deprivation of due process. If said opportunity is not availed of, it is deemed waived or
forfeited without violating the constitutional guarantee.

In this case, petitioners must bear the fruits of their negligence in the handling of their case.
They may not decry the denial of due process, when they were indeed afforded the right to be
heard in the first place.

Substantive Issue: Illegal Dismissal

Petitioners argue that they were illegally dismissed, based on the 1989 case Agro Commercial
Security Services Agency, Inc. v. NLRC.,[28] which holds that when the floating status of
employees lasts for more than six (6) months, they may be considered to have been illegally
dismissed from the service.

Unfortunately, the above-mentioned case is not applicable here. In Agro, the service contracts
of the security agency therein with various corporations and government agencies to which the
security guards were previously assigned were terminated, generally due to the sequestration
of the said offices. Accordingly, many of the security guards were placed on floating status.
Floating status means an indefinite period of time when one does not receive any salary or
financial benefit provided by law.[29] In this case, petitioners were actually reassigned to new
posts, albeit in a different location from where they resided. Thus, there can be no floating
status or indefinite period to speak of. Instead, petitioners were the ones who refused to report
for work in their new assignment.

In cases involving security guards, a relief and transfer order in itself does not sever the
employment relationship between the security guards and their agency. Employees have the
right to security of tenure, but this does not give them such a vested right to their positions as
would deprive the company of its prerogative to change their assignment or transfer them
where their services, as security guards, will be most beneficial to the client.[30]

An employer has the right to transfer or assign its employees from one office or area of
operation to another in pursuit of its legitimate business interest, provided there is no
demotion in rank or diminution of salary, benefits, and other privileges; and the transfer is not
motivated by discrimination or bad faith, or effected as a form of punishment or demotion
without sufficient cause.[31]

While petitioners may claim that their transfer to Manila will cause added expenses and
inconvenience, we agree with the CA that, absent any showing of bad faith or ill motive on the
part of the employer, the transfer remains valid.

WHEREFORE, the Petition is DENIED. The Court of Appeals Decision dated 21 July 2008 and
Resolution dated 16 March 2009 in CA-G.R. SP No. 102201 are hereby AFFIRMED.

SO ORDERED.