REPUBLIC OF THE PHILIPPINES

SUPREME COURT
Manila

FOR DECLARATORY JUDGMENT G.R. No. _____________

IN THE MATTER OF THE PETITION CA-G.R. CV NO. 04439-MIN
REGARDING CONTRACT BETWEEN
ATTY. BATARA AND DBP,

ATTY. AMORAN BATARA AND

MRS. SALAM MUTIA
Petitioners

Versus

MRS. SINAB BATARA SACAR,

MAUYAG BATARA, NORJANA BELGADO
FARIDA L. BATUGAN, NORAIDA B. MAI
ALONGAN BATARA, SARAH SARIP,
BASHIER BATARA, DIAMOND BATARA,
MALIKA L. BATARA, ALIKHAN BATARA
AND NORAISA ALOON
Respondents
x---------------------------------------------/

PETITION FOR REVIEW ON CERTIORARI

COMES NOW, PETITIONERS, through the undersigned

counsels unto this Honorable Supreme Court, most respectfully move
and aver that:

PREFATORY STATEMENT

In petitions for review on certiorari under Rule 45 of the Rules

of Civil Procedure, only questions of law may be raised by the parties
and passed upon by this Court. It is not a function of this Court to
analyze and weigh the evidence presented by the parties all over
again. This rule, however, has several well-recognized
exceptions, such as when the factual findings of the CA and
the trial court are conflicting or contradictory.
(FLORENTINA BAUTISTA-SPILLE REPRESENTED BY HER
ATTORNEY-IN-FACT, MANUEL B. FLORES, JR., Petitioner,
v. NICORP MANAGEMENT AND DEVELOPMENT
CORPORATION, BENJAMIN G. BAUTISTA AND
INTERNATIONAL EXCHAN BANK, G.R. No. 214057, October
19, 2015.)

Pursuant to the above-pronouncement of the Honorable

Supreme Court, petitioners are seeking the utmost consideration of
this Honorable Court to review the factual findings of the Honorable

1
Court of Appeals being contrary to the evidence on record, with due
respect being mistaken and is contrary to the findings of the Shariah
District Court.

There is a need to call the power of the Honorable Supreme Court

to Exercise its Power of Supervision, considering that the
Honorable Court of Appeals Special Division decided the Appeal of the
Respondents in a way not in accord with law or with the applicable
decisions of the Supreme Court. In addition, the Court a quo departed
from the accepted and usual course of judicial proceedings as
extensively discussed in the grounds of this petition.

NATURE OF THE PETITION

This is an appeal under Rule 45 of the Rules of Court from the

Decision of the Court of Appeals dated August 10, 2018 and its
Resolution dated December 14, 2018, rendered by the Special Division
of the Court of Appeals in the case entitled “FOR DECLARATORY
JUDGMENT IN THE MATTER OF THE PETITIONREGARDING
CONTRACT BETWEEN ATTY. BATARA AND DBP, ATTY.
AMORAN BATARA AND MRS. SALAM MUTIA, petitioners-appellees
vs, MRS. SINAB BATARA SACAR et. Al, respondents-appellants. CA-
G.R. CV NO. 04439-MIN. An original copy of the questioned Decision
is hereto attached as Annex “A”, Motion for Reconsideration as Annex
“B” and the questioned Resolution as Annex “C”.

PARTIES

Petitioners AMORAN BATARA and deceased SALAM MUTIA, as

represented by her children namely, JALILAH SALMA B. MUTIA-
BATO, JAUHARIYAH B. MUTIA are all of legal age, Filipinos,
residents of Door B. Jalsar Apartment, No. 37 Purdue St. Celdran
Village, Bacayo, Tubod, Iligan City, where they may be served with
legal processes of this Honorable Court. MRS. SALAM MUTIA, is being
substituted by its children JALILAH SALMA B. MUTIA-BATO,
JAUHARIYAH B. MUTIA in this petition due to her demise on August
12, 2015;

Respondents MRS. SINAB BATARA SACAR, MAUYAG

BATARA, NORJANA BELGADO, FARIDA L. BATUGAN, likewise of
legal age, Filipinos, with postal address at 077 Amai Manabilang St.,
Raya Madaya II, Marawi City, where they may be served with summons
and legal processes, NORAIDA B. MAI, ALONGAN BATARA, SARAH
SARIP, BASHIER BATARA, DIAMOND BATARA, MALIKA L.
BATARA, ALIKHAN BATARA AND NORAISA ALOON, also of legal
age, Filipinos, with postal address at Sunna Ventures, MPC GB 19 2/F
Greenlanes Arcade, Greenhills Shopping Center, San Juan City, Metro
Manila, where they may be served with summons and legal processes

TIMELINESS OF FILING

2
 On September 1, 2018, petitioners received a copy of the Decision
of the Special Division of the Court of Appeals dated August 10, 2018.
On September 13, 2018 it filed a Motion for Reconsideration. On
January 9, 2019 it received a copy of the Notice of Resolution and
Resolution dated December 14, 2018 rendered Special Division of the
Court of Appeals, denying the motion for reconsideration.

On January 18, 2019, pursuant to section 2 of Rule 45 of the

Revised Rules on Civil Procedure, it filed a Motion for Extension of
Time to File a Petition for Review on Certiorari and prayed for an
extension of Thirty (30) days from January 24, 2019 or until February
25, 2019 to file the petition. Attached is a copy of the Motion as Annex
“D”;

STATEMENT OF MATERIAL FACTS

As can be culled in the petition filed before the Shariah District

Court hereto attached as Annex “E”, “Sometime in 1984, Atty.
Amoran Batara and Salam Batara Mutia had purchased former
properties of their late parents Hadji Liwalug Batara and Hadji Saripa
Borasa Batara from the Development Bank of the Philippines to wit:

1. TCT NO. T-8075- CITY OF ILIGAN

2. TCT NO. T-342- CITY OF MARAWI
3. TCT NO. T-340- CITY OF MARAWI
4. TCT NO. T-325-CITY OF MARAWI
5. TCT NO. T-398- CITY OF MARAWI
6. TCT NO. T-349-CITY OF MARAWI
7. TCT NO. T-338 CITY OF MARAWI
8. TCT NO. T-364 CITY OF MARAWI

All the above-listed properties are titled in the name of late Hadji
Liwalug Batara and Hadji Saripa Borasa Batara. The spouses Hadji
Liwalug Batara and Hadji Saripa Borasa Batara were blessed with four
(4) Children: Sinab (eldest), Salam, Mauyag, and Amoran
(youngest)

That the above listed properties were mortgaged in 1974 with the
Development bank of the Philippines (DBP) by their late parents Hadji
Liwalug Batara and Hadji Saripa Borasa Batara. However, before they
could settle their account with the bank, Hadji Liwalug Batara died in
1976 leaving only their sickly mother Hadji Saripa Borasa Batara;

That because of the failure to pay the DBP, the bank foreclosed
and acquired ownership over the land listed properties in 1976

That eight years after the bank acquired ownership over said
properties (in 1984) and the one (1) year REDEMPTION PERIOD
having expired, the four brothers and sisters Sinab B. Sacar, Salma B.
Mutia, Mauyag Batara and Amoran Batara had agreed among
themselves that whoever could buy the above-listed properties from
the bank would be the New Owners. This was with the blessing of their
mother, Hadji Saripa Borasa Batara, who stated that it would be more

3
logical and practical to have one or two brothers or sisters buying the
property than being bought by strangers or other persons . In fact
petitioners and their respective spouses were then present together
with Engy. Bictory Sacar, husband of Mrs. Sinab B. Sacar;

That out of compassion coupled with the persuasion of their

mother and respective spouses, petitioners Atty. Amoran M. Batara
and Mrs. Salam Batara Mutia bought the properties from the
bank using their respective hard-earned conjugal funds
(with their respective spouses).

That on April 30, 1984, Atty. Amoran Batara bought the

properties from DBP executing a Deed of Resale with DBP Iligan City
Branch Manager;

That unexpecting of any possible conflict which may arise from

it, petitioners did not transfer the titles of their late father to their
names as NEW OWNERS. They wanted to keep the old titles as it is a
souvenir of their late parents.

That Atty. Amoran Batara has signed the Deed of Resale as

representative of the HEIRS of Hadji Liwalug Batara referring to
Salam A. Mutia, Alim Ansari Mutia, and Mrs. Naderah Ali
Batara, children and children-in-laws of Hadji Liwalug
Batara and Hadji Saripha Borasa Batara who have equally
contributed in buying the above-listed properties. The
HEIRS being referred to by Amoran M. Batara are not the
twelve (12) respondents brothers and sisters who HAVE NOT
contributed any centavo in the repurchase of the above-
listed properties despite their knowledge of the fact of
indebtedness to the bank.

Xxxx

That DBP had prepared in advance the Deed of Resale without

properly consulting Atty. Amoran Batara who the real buyers among
the HEIRS Contributed in the resale. Petitioner Atty. Amoran Batara
just signed the contract.

Special Mention is the fact that among the properties bought

were the properties given as dowries (MAHAR) to Mrs. Naderah
Sampaco Ali Batara and Mrs. Faridah Basman.”

In their answer hereto attached as Annex “F” respondent move

for the dismissal of the petition on the following grounds to wit: No
ripeness for Adjudication/ Jurisdiction, locus standi, Lacks of
Certification of Non- Forum Shopping. In a nutshell, respondents
claim that Atty. Amoran entered into a contract of Resale with the DBP
as a representative of all the heirs of the late Liwalug Batara but the
same was denied by the Honorable Shariah District Court.

4
 The Honorable Shariah District Court ruled in favor of the
petitioners in its decision dated April 13, 2015. To quote the dispositive
portion of its decision:

“The petition is hereby GRANTED and accordingly,

Heirs of the late Liwalug Batara, VENDEES, represented
by Amoran M. Batara, is INTERPRETED and
DETERMINED to mean Heirs of the late Liwalug Batara,
namely: Amoran M. Batara, married to Nadera Sampaco
Ali Batara and Salam Batara Mutia, married to Alim
Ansari Mutia, represented by Amoran M. Batara,
VENDEES. Consequently, VENDEES as used in the body of
the Deed of Resale referred exclusively to the four (4):
Amoran and Naderah Batara and Salam and Ansari Mutia
and such vendees, they are exclusive owners of the 8 parcels
of land covered by TCT Nos. T-8075, (a.f), T-342, T-325, T-
398, T-349, T-338 and T-364.”

Respondents filed a Motion for Reconsideration but the same

was denied.

Respondents, filed a Notice of Appeal to the Supreme Court,

surprisingly the record of this case was transmitted to the Court of
Appeals.

The Honorable Court of Appeals, granted the appeal of the

respondents in its Decision dated August 10, 2018. Petitioners filed a
Motion for Reconsideration on September 13, 2018, but the same was
denied in its Resolution dated December 14, 2018.

Hence this Petition.

GROUNDS

I.

WITH DUE RESPECT, THE HONORABLE COURT OF

APPEALS SPECIAL DIVISION-CAGAYAN DE ORO ERRED IN
APPLYING THE LAW ON AGENCY IN THE TRANSACTION
BETWEEN DBP AND AMORAN BATARA, DESPITE THE ABSENCE
OF A SPECIAL POWER OF ATTORNEY EXECUTED BY THE OTHER
CHILDREN OF THE LATE LIWALUG BATARA, NAMELY, MRS.
SINAB BATARA SACAR, MAUYAG BATARA, NORJANA BELGADO,
FARIDA L. BATUGAN, NORAIDA B. MAI, ALONGAN BATARA,
SARAH SARIP, BASHIER BATARA, DIAMOND BATARA, MALIKA L.
BATARA, ALIKHAN BATARA AND NORAISA ALOON,
AUTHORIZING AMORAN BATARA TO ENTER INTO A DEED OF
RESALE WITH THE DBP TO ACQUIRE/BUY THE 8 LOTS COVERED
BY THE EIGHT (8) TCT’S IN THEIR BEHALF, IN
CONTRAVENTION OF ARTICLE 1868 IN RELATION TO 1878 OF
THE CIVIL CODE OF THE PHILIPPILES.

II.

5
 WITH DUE RESPECT, THE HONORABLE COURT OF
APPEALS SPECIAL DIVISION-CAGAYAN DE ORO, ERRED IN
APPLYING THE PRINCIPLE OF ESTOPPEL IN PAIS IN THE
INSTANT CASE.

III.

WITH DUE RESPECT, THE FACTUAL FINDINGS OF THE

HONORABLE COURT OF APPEALS IS MISTAKEN, NOT
SUPPORTED BY THE EVIDENCE ON RECORD AND IS CONTRARY
TO THE LAW ON EVIDENCE, PARTICULARLY THE ADMISSION
OF THE UNDATED MEMORANDUM, WHICH IS NOT AN
ORIGINAL DOCUMENT AND WAS PROPERLY OBJECTED TO BY
THE PETITIONER DURING THE TRIAL IN THE SHARIAH
DISTRICT COURT.

IV.

WITH DUE RESPECT, THE INSTANT CASE DID NOT

PRESCRIBE.

V.

WITH DUE RESPECT, THE DECISION OF THE SHARIAH

DISTRICT COURT HAD LONG BECAME FINAL AS THE NOTICE OF
APPEAL BY THE RESPONDENTS SHOULD HAVE BEEN DENIED,
BEING IMPROPER.

ARGUMENTS AND DISCUSSIONS

I. WITH DUE RESPECT, THE HONORABLE

COURT OF APPEALS SPECIAL FORMER
SPECIAL TWENTY-FIRST DIVISION-CAGAYAN
DE ORO ERRED IN APPLYING THE
LAW ON AGENCY IN THE TRANSACTION
BETWEEN DBP AND AMORAN BATARA,
DESPITE THE ABSENCE OF A SPECIAL
POWER OF ATTORNEY EXECUTED BY
THE OTHER CHILDREN OF THE LATE
LIWALUG BATARA, NAMELY,
MRS. SINAB BATARA SACAR,
MAUYAG BATARA, NORJANA BELGADO,
FARIDA L. BATUGAN, NORAIDA B. MAI,
ALONGAN BATARA, SARAH SARIP,
BASHIER BATARA, DIAMOND BATARA,
MALIKA L. BATARA, ALIKHAN BATARA
AND NORAISA ALOON, AUTHORIZING
AMORAN BATARA TO ENTER INTO A
DEED OF RESALE WITH THE DEVELOPMENT
BANK OF THE PHILIPPINES TO ACQUIRE/
BUY THE 8 LOTS COVERED BY THE EIGHT (8) TCT’S
IN THEIR BEHALF, IN CONTRAVENTION

6
OF ARTICLE 1868 IN RELATION TO 1878
OF THE CIVIL CODE OF THE PHILIPPILES.

Article 1868 of the Civil Code of the Philippines.

Article 1868. By the contract of agency a person binds

himself to render some service or to do something in
representation or on behalf of another, with the consent or
authority of the latter. (1709a)

In the instant case, is there any showing that, these respondents

above-named, gave consent or authority in favor of Amoran Batara to
represent them to enter into a Deed of Resale with the Development
Bank of the Philippines to buy or acquire the eight (8) lots covered by
eight (8) TCT’s?. A perusal of the entire records, would reveal that, it is
wanting of any document in the form of a Special Power of Attorney,
that would show that Amoran Batara was given the authority by these
respondents to act in their behalf in entering a Deed of Resale with the
DBP. This only demonstrate that Amoran Batara is not an agent of
these respondents. He is acting in his own right as a buyer together
with Salma Mutia.

Article 1878. Special powers of attorney are necessary in the

following cases

xxxxx
5) To enter into any contract by which the ownership of an
immovable is transmitted or acquired either gratuitously
or for a valuable consideration;

This instant case, involved a contract by which the ownership of

an immovable, the eight (8) lots covered by eight (8) TCT’s were
acquired for a valuable consideration by Amoran Batara and
Salam Mutia together with their respective spouses Naderah
Sampaco Ali Batara and Alim Ansari Mutia. If indeed,
respondents were the principals of Amoran Batara when he bought the
land, a Special Power of Attorney specifically for the
transaction should have been executed by them. Likewise, the
DBP would have required Amoran Batara to present a Special Power of
Attorney executed by the respondents authorizing him to represent
them as buyers of the subject eight (8) lots, if indeed he represented to
the former that he was just acting as representative of the respondents.
Moreover, it noteworthy to consider that under Muslim Culture and
Tradition, respect to the eldest in the family is the established norm. In
observance of this, in cases of transactions or decision-making
involving the rights of the entire siblings, preference is usually given to
the eldest. But why is it that in this case, the same was not observed?.
if indeed the buying of the subject eight (8) lots was an act of the entire
Heirs of Liwalug Batara, why is it that Sinab Sacar, being the eldest, did
not transact with the DBP in behalf of the heirs of Liwalug Batara,
instead it was Amoran, the youngest among the siblings and not only
that, at that time he was based in Zamboanga, a kilometer away from

7
Iligan City. This is an earmark of the fact that Amoran Batara was
acting in his own right as a buyer when he transacted with DBP,
together with her sister Salma Mutia.

II. WITH DUE RESPECT, THE HONORABLE

COURT OF APPEALS SPECIAL
DIVISION-CAGAYAN DE ORO, ERRED
IN APPLYING THE PRINCIPLE OF ESTOPPEL
IN PAIS IN THE INSTANT CASE

The principle of Estoppel in Pais is inapplicable in the instant

case. Amoran Batara did not make a representation with the DBP that
he is acting as an agent of his siblings-respondents. To reiterate, he
never acted as a representative of the respondents in purchasing the
subject lots from the DBP. He acted in his own right together with
Salma Mutia.

III. WITH DUE RESPECT, THE FACTUAL

FINDINGS OF THE HONORABLE
COURT OF APPEALS SPECIAL DIVISION
IS MISTAKEN, NOT SUPPORTED BY
THE EVIDENCE ON RECORD AND IS
CONTRARY TOTHE LAW ON EVIDENCE,
PARTICULARLYTHE ADMISSION OF THE
UNDATED MEMORANDUM, WHICH IS NOT AN
ORIGINAL DOCUMENT AND WAS
PROPERLY OBJECTED TO BY THE
PETITIONER DURING THE TRIAL
IN THE SHARIAH DISTRICT COURT.

ERRONONEOUS FACTUAL FINDINGS OF THE

COURT OF APPEALS.

The factual findings of the Court of Appeals (page 9,

par. 3, CA-GR.CV NO. 044390MIN) to quote: “In fact,
it was on the basis of Atty. Amoran’s representation that
DBP prepared the Deed of Resale, naming therein the “Heirs
of the late Liwalug, represented by appellee Atty. Amoran as
vendees and the DBP as the vendor”. This is not CORRECT
and HAS NO BASIS in the records of this case.
Nowhere can you find in the affidavits or deposition of
Amoran Batara did he state that he represented his siblings-
respondents in the preparation of the Deed of Resale. What
he stated, was that, the Deed of Resale was already prepared
by the DBP in advance without properly consulting.
Amoran Batara who the real buyers among the
HEIRS Contributed in the resale. Petitioner Atty.
Amoran Batara just signed the contract (Petition for
Declaratory Relief , Exh. “A-10, par. 23”)

In addition, the findings of the Honorable Court of

Appeals as stated in page 9-10, starting par. 4 and we
quote:

8
 “Furthermore, the contemporaneous and subsequent
acts of the parties would show that their real intention was
to consider all heirs of the late Liwalug Batara as owners of
parcels of land”

“First, “after DBP released the documents to

petitioners-appellees, the latter handed the same
documents to respondent appellants for safe-keeping.
This act further confirms the role of petitioners-appellees
as that mere representatives, xxxxxxxxx.” With due
respect, this conclusion is misplaced. Atty.
Amoran Batara was able to explain in detail that
the reason why he brought all the titles covering
the said properties to their elder sister, Mrs. Sinab
B. Sacara is for SAFEKEEPING (Petition for
Declaratory Relief, par. 18 (a) page 6). Atty. Batara
was always busy with his business in Zamboanga
City where he was, moreover a law student at that
time. So, for fear of losing or misplacing said
important documents, Atty. Batara entrusted
them for safekeeping to the respondents-
appellants, who after all were his siblings, (Exh.
“A-10”, par. 23 and 25). This was bolstered by the
admission of Sinab Batara in her Judicial
Affidavit. ( Judicial Affidavit of Sinab Batara, pp.
304; p.5)

“Second, We cannot ignore the Memorandum of

Agreement entered into by the petitioners-appellees and
respondents appellants after the purchase of the lands
from DBP. xxxxxxxxx. This in legal parlance is called a
negative pregnant denial xxxxx”. With due respect, the
consideration of the Memorandum of Agreement
(Exhibit 10), by the Court of Appeals in deciding
the appeal of the appellants despite being a mere
photocopy without having compared to the
original is a VIOLATION OF THE LAW ON
EVIDENCE. It is an elementary rule that a mere
photocopy is not admissible as evidence. In fact,
the Shariah District Court did not consider this in
its Decision.

“Also, respondent Appellant Sinab continued to pay

the real property taxes of the subject properties,
specifically the one located at Celdran Village, Iligan
City.” This is not also correct. Sinab only paid the taxes of
the property she is occupying for one (1) year during the
last part of the trial of the case. This should not be
construed as indication of ownership. Time and
again, the Honorable Supreme Court has
consistently ruled that the payment of taxes or
declaring a property for taxation purposes is not a
proof of ownership.

9
 “Lastly, petitioners-appellees Atty. Amoran and
Salam failed to adduce any evidence aside from their own
allegation that they were the only ones who contributed
for the purchase price. As a matter fact the same was
contested by appellants Sinab Mauyag, who claimed that
they contributed P37,300.00 as part of purchase price.”
With due respect, again this finding has no factual basis.
There is no showing that Sinab and Mauyag indeed
contributed to the purchase other than their bare
allegations. In addition, this claim was belatedly made. In
fact, in their verified answer (Exh. “E” to “E-11”),
nowhere can you find that they alleged that Sinab
and Mauyag contributed P37,300.00 as part of the
purchased price. They cannot even explain, why they
were not present during the purchase of the eight (8)
subject lots.

The Court of Appeals miserable failed to consider that petitioners

as a consequence of their ownership of the eight (8) subject lots, has all
the right of dominion. As such, they have all the rights to dispose the
same at their own will. When they decided to donate some parts of
these properties to their siblings-respondents, this is only a
manifestation of their generosity and that they value of family

IV. WITH DUE RESPECT,

IT WAS ERRONEOUS AND CONTRARY
TO THE RULES FOR THE COURT OF
APPEALS SPECIAL DIVISION TO
RULE THE THE CASE HAD ALREADY
PRESCRIBED DESPITE THAT IT
WAS NOT AMONG THE ASSIGNED ERRORS

The Honorable Supreme Court in the case of MULTI-

REALTY
DEVELOPMENT CORPORATION,vs.THE MAKATI TUSCAN
Y
CONDOMINIUM CORPORATION, G.R. No. 146726, June 16,
2006

In the first issue, we sustain petitioners contention that

the CA erred in dismissing its appeal solely on its finding that
when petitioner filed its complaint below in 1990, the action
had already prescribed. It bears stressing that in respondents
answer to petitioners complaint, prescription was not alleged
as an affirmative defense. Respondent did not raise the issue
throughout the proceedings in the RTC. Indeed, the trial
court did not base its ruling on the prescription of petitioners
action; neither was this matter assigned by respondent as an
error of the RTC in its brief as defendant-appellant in the CA.

Settled is the rule that no questions will be entertained

on appeal unless they have been raised below. Points of law,
theories, issues and arguments not adequately brought to the

10
attention of the lower court need not be considered by the
reviewing court as they cannot be raised for the first time on
appeal. Basic considerations of due process impel this rule.[18]

Truly, under Section 7, Rule 51 of the 1964 Rules of

Court, no error which does not affect the jurisdiction over the
subject matter will be considered unless stated in the
assignment of errors and properly argued in the brief, save as
the Court, at its option, may pass upon plain errors not
specified, and clerical errors. Even at that time, the appellate
court was clothed with ample authority to review matters
even if not assigned as errors in their appeal if it finds that
their consideration is necessary in arriving at a just decision
of the case.[19] It had ample authority to review and resolve
matters not assigned and specified as errors by either of the
parties on appeal if it found that the matter was essential and
indispensable in order to arrive at a just decision of the case.
It has broad discretionary power, in the resolution of a
controversy, to take into consideration matters on record
unless the parties fail to submit to the court specific questions
for determination. Where the issues already raised also rest
on other issues not specifically presented, as long as the latter
issues bear relevance and close relation to the former and as
long as they arise from matters on record, the appellate court
has authority to include them in its discussion of the
controversy as well as to pass upon them. In brief, in those
cases wherein questions not particularly raised by the parties
surface as necessary for the complete adjudication of the
rights and obligations of the parties and such questions fall
within the issues already framed by the parties, the interests
of justice dictate that the court consider and resolve them.[20]

When the appeals of the petitioner and that of the

respondent were submitted to the CA for decision, the 1997
Rules of Civil Procedure was already in
effect. Section 8, Rule 51 of said Rules, reads:
SEC. 8. Questions that may be decided. No error which
does not affect the jurisdiction over the subject matter or the
validity of the judgment appealed from or the proceedings
therein will be considered unless stated in the assignment of
errors, or closely related to or dependent on an assigned
error and properly argued in the brief, save as the court may
pass upon plain errors and clerical errors.

This provision was taken from the former rule with the
addition of errors affecting the validity of the judgment or
closely related to or dependent on an assigned error.[21] The
authority of the appellate court to resolve issues not raised in
the briefs of the parties is even broader.

Nevertheless, given the factual backdrop of the case, it

was inappropriate for the CA, motu proprio, to delve into and
resolve the issue of whether petitioners action had already

11
prescribed. The appellate court should have proceeded to
resolve petitioners appeal on its merits instead of dismissing
the same on a ground not raised by the parties in the RTC and
even in their pleadings in the CA.

Even if we sustain the ruling of the CA that it acted in

accordance with the Rules of Court in considering
prescription in denying petitioners appeal, we find and so
rule that it erred in holding that petitioners action had
already prescribed when it was filed in the RTC on April 26,
1990.

Prescription is rightly regarded as a statute of repose

whose object is to suppress fraudulent and stale claims from
springing up at great distances of time and surprising the
parties or their representatives when the facts have become
obscure from the lapse of time or the defective memory or
death or removal of witnesses. The essence of the statute of
limitations is to prevent fraudulent claims arising from
unwarranted length of time and not to defeat actions asserted
on the honest belief that they were sufficiently submitted for
judicial determination.[22] Our laws do not favor property
rights hanging in the air, uncertain, over a long span of
time.[23]

Article 1144 of the New Civil Code provides that an

action upon a written contract must be brought within ten
(10) years from the time the right of action accrues:

Art. 1144. The following actions must be brought within ten years
from the time the right of action accrues:

(1) Upon a written contract;

(2) Upon an obligation created by law;
(3) Upon a judgment.

In relation thereto, Article 1150 of the New Civil Code

provides that the time for prescription of all actions, when
there is no special provision which ordains otherwise, shall be
counted from the day they may be brought. It is the legal
possibility of bringing the action that determines the starting
point for the computation of the period of prescription.[24]

The term right of action is the right to commence and

maintain an action. In the law of pleadings, right of action is
distinguished from a cause of action in that the former is a
remedial right belonging to some persons while the latter is a
formal statement of the operational facts that give rise to such
remedial right. The former is a matter of right and depends
on the substantive law while the latter is a matter of statute
and is governed by the law of procedure. The right of action
springs from the cause of action, but does not accrue until all
the facts which constitute the cause of action have
occurred.[25]

12
 A cause of action must always consist of two elements:
(1) the plaintiffs primary right and the defendants
corresponding primary duty, whatever may be the subject to
which they relate person, character, property or contract; and
(2) the delict or wrongful act or omission of the defendant, by
which the primary right and duty have been violated.[26]

To determine when all the facts which constitute a

cause of action for reformation of an instrument may be
brought and when the right of the petitioner to file such
action accrues, the second paragraph of Section 1, Rule 63,
must be considered because an action for the reformation of
an instrument may be brought under said Rule:

SECTION 1. Who may file petition. Any person interested under

a deed, will, contract or other written instrument, whose rights are
affected by a statute, executive order or regulation, ordinance, or any
other governmental regulation may, before breach or violation thereof,
bring an action in the appropriate Regional Trial Court to determine any
question of construction or validity arising, and for a declaration of his
rights or duties, thereunder.

An action for the reformation of an instrument, to quiet title to

real property or remove clouds therefrom, or to consolidate ownership
under Article 1607 of the Civil Code, may be brought under this
Rule (emphasis supplied).

Such a petition is a special civil action determinative of

the rights of the parties to the case. It is permitted on the
theory that courts should be allowed to act, not only when
harm is actually done and rights jeopardized by physical
wrongs or physical attack upon existing legal relations, but
also when challenge, refusal, dispute or denial thereof is
made amounting to a live controversy. The uncertainty and
insecurity which may thereby be avoided may hamper or
disturb the freedom of the parties to transact business or to
make improvements on their property rights. A situation is
thus created when a judicial declaration may serve to prevent
a dispute from ripening into violence or destruction.[27]

The concept and meaning of the term cause of action in

proceedings for declaratory relief, vis--vis an ordinary civil
action, is broadened. It is not, as in ordinary civil action, the
wrong or delict by which the plaintiffs rights are violated, but
it is extended to a mere denial, refusal or challenge raising
at least an uncertainty or insecurity which is injurious to
plaintiffs rights.[28]

For a petition for declaratory relief to prosper, the

following conditions sine qua non must concur: (1) there
must be a justiciable controversy; (2) the controversy must be
between persons whose interests are adverse; (3) the party
seeking declaratory relief must have a legal interest in the
controversy; and (4) the issue involved must be ripe for
judicial determination.[29]

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 To controvert is to dispute; to deny, to oppose or
contest; to take issue on.[30] The controversy must be definite
and concrete, touching on the legal relations of the parties
having adverse legal interests. It must be a real and
substantial controversy admitting of specific relief through a
decree of a conclusive character as distinguished from an
opinion advising what the law would be upon a hypothetical
state of facts.[31]

The fact that the plaintiffs desires are thwarted by its

own doubts, or by the fears of others, does not confer a cause
of action. No defendant has wronged the plaintiff or has
threatened to do so.[32] However, the doubt becomes a
justiciable controversy when it is translated into a
claim of right which is actually contested.[33] As
explained by this Court, a dispute between the parties is
justiciable when there is an active antagonistic assertion of a
legal right on one side and a denial thereof on the other,
concerning a real, not merely a theoretical question or
issue.[34]

In sum, one has a right of action to file a

complaint/petition for reformation of an instrument when
his legal right is denied, challenged or refused by another; or
when there is an antagonistic assertion of his legal right and
the denial thereof by another concerning a real question or
issue; when there is a real, definitive and substantive
controversy between the parties touching on their legal
relations having adverse legal interests. This may occur
shortly after the execution of the instrument or much later.[35]

A party to an instrument is under no obligation

to seek a reformation of an instrument while he is
unaware that any opposition will be made to carry
out the actual agreement.[36]The statute of
limitations does not begin to run against an
equitable cause of action for the reformation of an
instrument because of mistake until the mistake has
been discovered or ought to have been
discovered.[37] The mere recording of a deed does not
charge the grantor with constructive notice of a
mistake therein, but is to be considered with other
facts and circumstances in determining whether the
grantor be charged with notice actual or
constructive.[38]

In Stateex rel. Pierce County v. King County,[39] the

appellate court ruled that:
In equitable actions for reformation on the ground of mistake the
rule on the question of when the period of limitation or laches
commences to run is as stated by this Court in State v. Lorenz, 22 Wash.
289, 60 P. 644, 647:

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 * * * that the statute did not begin to run against the right of
appellant to reform the deed [because of a mistake therein] until the
assertion on the part of respondents of their adverse claim.

In Chebalgoity v. Branum, 16 Wash.2d 251, 133 P.2d 288, 290,

we said:

Nor is his right to maintain it [an action for reformation

grounded on mistake] impaired by lapse of time, for the bar of the statue
of limitations does not begin to run until the assertion of an adverse
claim against the party seeking reformation.

The rule is also stated in 53 C.J. 1003, reformation of

instruments, as follows:

[ 155] C. Time for Bringing Action. An action to reform an instrument

may be brought as soon as the cause of action accrues. * * * On the other
hand, a party to an instrument is under no obligation to seek its
correction before his cause of action is finally vested or while he is
unaware that any opposition will be made in carrying out the actual
agreement, where for a long time the rights and duties of the parties are
the same under the writing and under the terms which it is alleged were
intended, and the failure to take any action toward reformation until his
right vests or opposition is manifest does not prejudice his suit.[40]

In this case, before petitioner became aware of

respondents denial of its right under their true contract,
petitioner could not be expected to file an action for the
reformation of the Master Deed. As Justice Jose BL Reyes,
ratiocinated in Tormon v. Cutanda:[41]

It follows that appellants cause of action arose only when the

appellees made known their intention, by overt acts, not to abide by the
true agreement; and the allegations of the complaint establish that this
happened when the appellees executed the affidavit of consolidation of
the title allegedly acquired by appellees under the fictitious pacto de
retro sale. It was then, and only then, that the appellants cause of action
arose to enforce the true contract and have the apparent one reformed
or disregarded, and the period of extinctive prescription began to run
against her. Since the consolidation affidavit was allegedly made only in
September 1960, and the complaint was filed in Court the following
November 1960, just two months afterward, the action of appellant had
not prescribed.[42]

The Courts ruling in the Tormon case was reiterated

in Veluz v. Veluz.[43]

In the more recent case of Naga Telephone Co., Inc. v.

Court of Appeals,[44] the Court made the following
declaration:

Article 1144 of the New Civil Code provides, inter

alia, that an action upon a written contract must be brought
within ten (10) years from the time the right of action
accrues. Clearly, the ten (10) years period is to be
reckoned from the time the right of action accrues which is
not necessarily the date of execution of the contract. As
correctly ruled by respondent court, private respondents right of action
arose sometime during the latter part of 1982 or in 1983 when according

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 to Atty. Luis General, Jr. x x x, he was asked by (private respondents)
Board of Directors to study said contract as it already appeared
disadvantageous to (private respondent) (p. 31, tsn, May 8,
1989). Private respondents cause of action to ask for reformation of said
contract should thus be considered to have arisen only in 1982 or 1983,
and from 1982 to January 2, 1989 when the complaint in this case was
filed, ten (10) years had not yet elapsed.[45]

This ruling was reiterated in Pilipinas Shell Petroleum

Corporation v. John Bordman Ltd. of Iloilo, Inc., [46] where
the Court declared that the cause of action of respondent
therein arose upon its discovery of the short deliveries with
certainty, since prior thereto, it had no indication that it was
not getting what it was paying for. The Court declared that
before then, there was yet no issue to speak of, and as such,
respondent could not have brought an action against
petitioner. It was stressed that it was only after the discovery
of the short deliveries that respondent got into position to
bring an action for specific performance. Thus, the Court
declared that the action was brought within the prescriptive
period.[47]

In the instant petition, petitioners right aside from the fact the
issue of prescription was never raised in Shariah District Court and
Court of Appeals, petitioners only discovered that herein respondents
asserts an adverse claim on the Deed of Resale between Amoran Batara
and DBP only sometime in 2009, when they executed the Deed of
Partition involving the subject eight (8) lots.

V.WITH DUE RESPECT, THE DECISION OF

THE SHARIAH DISTRICT COURT HAD
LONG BECAME FINAL AS THE NOTICE
OF APPEAL BY THE RESPONDENTS
SHOULD HAVE BEEN DENIED, BEING
IMPROPER.

Section 5. Notice of appeal. — The notice of appeal shall

indicate the parties to the appeal, specify the judgment or final
order or part thereof appealed from, specify the court to
which the appeal is being taken, and state the material
dates showing the timeliness of the appeal. (4a)

The respondents in their Notice of Appeal, indicated that they are

appealing their case to the Supreme Court in violation of the Principle
of Hierarchy of Courts.

PRAYER

WHEREFORE, premises considered, it is respectfully prayed of

this Honorable Court to GIVE DUE COURSE to the instant petition

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and REVERSE AND SET ASIDE the Decision of the Special Division of
the Court of Appeals, Cagayan De Oro City dated August 10, 2018 and
its Resolution dated December 14, 2018, rendered by the in the case
entitled “CV NO. 04439-MIN

Reinstate the Decision of the Shariah District Court-Marawi City

dated April 13, 2015 in toto.

Other relief, just and equitable, are also prayed for.

February 11, 2019 at Iligan City for Manila .

GANDAMRA GANDAMRA and ASSOCIATES

Counsel for the Petitioner
Suite 204-B and 209, Diocesan Centrum Bldg. Poblacion
Iligan City
Telefax No. (063) 221-6969
e-mail: gandamra_law@yahoo.com

by:

ATTY. SAIDALI C. GANDAMRA

Attorney’s Roll No. 39814
IBP Lifetime No. 05046
PTR No. 8566372 (1/3/19)
MCLE Comp. Cert. No. VI-0000295 July 18, 2016
CP No. 0917-715-5526
Serial No. 16-084

ATTY.KHANINI B. GANDAMRA-ZAMAN
PTR No. 8566373 (1/3/19)
IBP Life Membership No. 010082(5/18/2011)
ROLL NO. 57848 (April 30, 2010)
TIN No. 269-676-014
Office Telefax No. (063) 2216968
Mobile No. 09173120948
e-mail: gandamra_law@yahoo.com
MCLE Compliance No. VI- 0000293 (July 18, 2016)

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