Republic of the Philippines

Supreme Court
Manila

SECOND DIVISION

NELLIE VDA. DE FORMOSO and G.R. No. 154704

her children, namely, MA.
THERESA FORMOSO-
PESCADOR, ROGER FORMOSO,
MARY JANE FORMOSO,
BERNARD FORMOSO and
PRIMITIVO MALCABA,

Petitioners, Present:

CARPIO, J., Chairperson,

- versus - NACHURA,

PERALTA,

ABAD, and

MENDOZA, JJ.
PHILIPPINE NATIONAL BANK,
FRANCISCO ARCE, ATTY.
BENJAMIN BARBERO, and
ROBERTO NAVARRO,

Respondents.
 Promulgated:

June 1, 2011

x -----------------------------------------------------------------------------------------------------x

DECISION

MENDOZA, J.:

Assailed in this petition are the January 25, 2002 Resolution1[1] and the
August 8, 2002 Resolution2[2] of the Court of Appeals (CA) which dismissed the
petition for certiorari filed by the petitioners on the ground that the verification and
certification of non-forum shopping was signed by only one of the petitioners in
CA G.R. SP No. 67183, entitled Nellie P. Vda. De Formoso, et al. v. Philippine
National Bank, et al.

1[1]Rollo, pp, 26-27; penned by Associate Justice Mariano C. Del Castillo (now Supreme Court
Justice) and concurred in by Associate Justice Ruben T. Reyes (former Supreme Court Justice)
and Associate Justice Renato C. Dacudao.

2[2] Id. at 29.

The Factual and

Procedural Antecedents

Records show that on October 14, 1989, Nellie Panelo Vda. De Formoso
(Nellie) and her children namely: Ma. Theresa Formoso-Pescador, Roger Formoso,
Mary Jane Formoso, Bernard Formoso, and Benjamin Formoso, executed a special
power of attorney in favor of Primitivo Malcaba (Malcaba) authorizing him,
among others, to secure all papers and documents including the owners copies of
the titles of real properties pertaining to the loan with real estate mortgage
originally secured by Nellie and her late husband, Benjamin S. Formoso, from
Philippine National Bank, Vigan Branch (PNB) on September 4, 1980.

On April 20, 1990, the Formosos sold the subject mortgaged real properties
to Malcaba through a Deed of Absolute Sale. Subsequently, on March 22, 1994,
Malcaba and his lawyer went to PNB to fully pay the loan obligation including
interests in the amount of ₱2,461,024.74.

PNB, however, allegedly refused to accept Malcabas tender of payment and

to release the mortgage or surrender the titles of the subject mortgaged real
properties.
 On March 24, 1994, the petitioners filed a Complaint for Specific
Performance against PNB before the Regional Trial Court of Vigan, Ilocos Sur
(RTC) praying, among others, that PNB be ordered to accept the amount of
₱2,461,024.74 as full settlement of the loan obligation of the Formosos.

After an exchange of several pleadings, the RTC finally rendered its

decision3[3] on October 27, 1999 favoring the petitioners. The petitioners prayer
for exemplary or corrective damages, attorneys fees, and annual interest and daily
interest, however, were denied for lack of evidence.

PNB filed a motion for reconsideration but it was denied for failure to
comply with Rule 15, Section 5 of the 1997 Rules of Civil Procedure. PNB then
filed a Notice of Appeal but it was dismissed for being filed out of time.

The petitioners received their copy of the decision on November 26, 1999,
and on January 25, 2001, they filed their Petition for Relief from Judgment4[4]
questioning the RTC decision that there was no testimonial evidence presented to
warrant the award for moral and exemplary damages. They reasoned out that they
3[3] Id. at 131-144.

4[4] Id. at 158.

could not then file a motion for reconsideration because they could not get hold of
a copy of the transcripts of stenographic notes. In its August 6, 2001 Order, the
RTC denied the petition for lack of merit.5[5]

On September 7, 2001, the petitioners moved for reconsideration but it was

denied by the RTC in its Omnibus Order of September 26, 2001.6[6]

Before the Court of Appeals

On November 29, 2001, the petitioners filed a petition for certiorari before
the CA challenging the RTC Order of August 6, 2001 and its Omnibus Order dated
September 26, 2001.

In its January 25, 2002 Resolution, the CA dismissed the petition stating
that:

5[5] Id. at 18.

6[6] Id. at 14.

 The verification and certification of non-forum shopping was signed
by only one (Mr. Primitivo Macalba) of the many petitioners. In Loquias v.
Office of the Ombudsman, G.R. No. 139396, August 15, 2000, it was ruled
that all petitioners must be signatories to the certification of non-forum
shopping unless the one who signed it is authorized by the other
petitioners. In the case at bar, there was no showing that the one who
signed was empowered to act for the rest. Therefore, it cannot be
presumed that the one who signed knew to the best of his knowledge
whether his co-petitioners had the same or similar claims or actions filed
or pending. The ruling in Loquias further declared that substantial
compliance will not suffice in the matter involving strict observance of the
Rules. Likewise, the certification of non-forum shopping requires personal
knowledge of the party who executed the same and that petitioners must
show reasonable cause for failure to personally sign the certification. Utter
disregard of the Rules cannot just be rationalized by harping on the policy
of liberal construction.

Aggrieved, after the denial of their motion for reconsideration, the

petitioners filed this petition for review anchored on the following

GROUNDS

THE COURT OF APPEALS PATENTLY ERRED IN RULING THAT ALL

THE PETITIONERS MUST SIGN THE VERIFICATION AND
CERTIFICATION OF NON-FORUM SHOPPING IN A PETITION FOR
CERTIORARI WHEREIN ONLY QUESTIONS OF LAW ARE
INVOLVED.

ALTERNATIVELY, THE COURT OF APPEALS PATENTLY ERRED IN

DISMISSING THE WHOLE PETITION WHEN AT THE VERY LEAST
THE PETITION INSOFAR AS PETITIONER MALCABA IS
CONCERNED BEING THE SIGNATORY THEREOF SHOULD HAVE
BEEN GIVEN DUE COURSE.
 THE COURT OF APPEALS PATENTLY ERRED IN GIVING MORE
WEIGHT ON TECHNICALITIES WHEN THE PETITION BEFORE IT
WAS CLEARLY MERITORIOUS.7[7]

The petitioners basically argue that they have substantially complied with
the requirements provided under the 1997 Rules of Civil Procedure on Verification
and Certification of Non-Forum Shopping. The petitioners are of the view that the
rule on Verification and Certification of Non-Forum Shopping that all petitioners
must sign should be liberally construed, since only questions of law are raised in a
petition for certiorari and no factual issues that require personal knowledge of the
petitioners.

The petitioners further claim that they have a meritorious petition because
contrary to the ruling of the RTC, their Petition for Relief clearly showed that,
based on the transcript of stenographic notes, there was enough testimonial
evidence for the RTC to grant them damages and attorneys fees as prayed for.

On the other hand, PNB counters that the mandatory rule on the certification
against forum shopping requires that all of the six (6) petitioners must sign,

7[7] Id. at 15.

namely: Nellie Vda. De Formoso and her children Ma. Theresa Formoso-Pescador,
Roger Formoso, Mary Jane Formoso, and Bernard Formoso, and Primitivo
Malcaba. Therefore, the signature alone of Malcaba on the certification is
insufficient.

PNB further argues that Malcaba was not even a party or signatory to the
contract of loan entered into by his co-petitioners. Neither was there evidence that
Malcaba is a relative or a co-owner of the subject properties. It likewise argues
that, contrary to the stance of the petitioners, the issue raised before the CA, as to
whether or not the petitioners were entitled to moral and exemplary damages as
well as attorneys fees, is a factual one.

Finally, PNB asserts that the body of the complaint filed by the petitioners
failed to show any allegation that Macalba alone suffered damages for which he
alone was entitled to reliefs as prayed for. PNB claims that the wordings of the
complaint were clear that all the petitioners were asking for moral and exemplary
damages and attorneys fees.

OUR RULING

The petition lacks merit.

 Certiorari is an extraordinary, prerogative remedy and is never issued as a
matter of right. Accordingly, the party who seeks to avail of it must strictly observe
the rules laid down by law.8[8] Section 1, Rule 65 of the 1997 Rules of Civil
Procedure provides:

SECTION 1. Petition for certiorari.- When any tribunal, board or

officer exercising judicial or quasi-judicial functions has acted without or
in excess of its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no appeal, or any
plain, speedy, and adequate remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the proper court, alleging
the facts with certainty and praying that judgment be rendered annulling
or modifying the proceedings of such tribunal, board or officer, and
granting such incidental reliefs as law and justice may require.

The petition shall be accompanied by a certified true copy of the

judgment, order or resolution subject thereof, copies of all pleadings and
documents relevant and pertinent thereto, and a sworn certification of non-
forum shopping as provided in the third paragraph of Section 3, Rule 46.
[Emphasis supplied]

Under Rule 46, Section 3, paragraph 3 of the 1997 Rules of Civil Procedure,
as amended, petitions for certiorari must be verified and accompanied by a sworn
certification of non-forum shopping.

SECTION 3. Contents and filing of petition; effect of non-

compliance with requirements. The petition shall contain the full names
and actual addresses of all the petitioners and respondents, a concise

8[8] Eagle Ridge Golf & Country Club v. Court of Appeals & Eagle Ridge Employees Union
(EREU), G.R. No. 178989, March 18, 2010, 616 SCRA 116.
 statement of the matters involved, the factual background of the case, and
the grounds relied upon for the relief prayed for.

In actions filed under Rule 65, the petition shall further indicate the
material dates showing when notice of the judgment or final order or
resolution subject thereof was received, when a motion for new trial or
reconsideration, if any, was filed and when notice of the denial thereof was
received.

It shall be filed in seven (7) clearly legible copies together with proof
of service thereof on the respondent with the original copy intended for
the court indicated as such by the petitioner, and shall be accompanied by
a clearly legible duplicate original or certified true copy of the judgment,
order, resolution, or ruling subject thereof, such material portions of the
record as are referred to therein, and other documents relevant or
pertinent thereto. The certification shall be accomplished by the proper
clerk of court or his duly authorized representative, or by the proper
officer of the court, tribunal, agency or office involved or by his duly
authorized representative. The other requisite number of copies of the
petition shall be accompanied by clearly legible plain copies of all
documents attached to the original.

The petitioner shall also submit together with the petition a sworn
certification that he has not theretofore commenced any other action
involving the same issues in the Supreme Court, the Court of Appeals or
different divisions thereof, or any other tribunal or agency; if there is such
other action or proceeding, he must state the status of the same; and if he
should thereafter learn that a similar action or proceeding has been filed
or is pending before the Supreme Court, the Court of Appeals, or different
divisions thereof, or any other tribunal or agency, he undertakes to
promptly inform the aforesaid courts and other tribunal or agency thereof
within five (5) days therefrom.

The petitioner shall pay the corresponding docket and other lawful
fees to the clerk of court and deposit the amount of P500.00 for costs at
the time of the filing of the petition.

The failure of the petitioner to comply with any of the foregoing

requirements shall be sufficient ground for the dismissal of the petition.
[Emphases supplied]

The acceptance of a petition for certiorari as well as the grant of due course
thereto is, in general, addressed to the sound discretion of the court. Although the
Court has absolute discretion to reject and dismiss a petition for certiorari, it does
so only (1) when the petition fails to demonstrate grave abuse of discretion by any
court, agency, or branch of the government; or (2) when there are procedural
errors, like violations of the Rules of Court or Supreme Court Circulars.9[9]
[Emphasis supplied]

In the case at bench, the petitioners claim that the petition for certiorari that
they filed before the CA substantially complied with the requirements provided for
under the 1997 Rules of Civil Procedure on Verification and Certification of Non-
Forum Shopping.

The Court disagrees.

Sections 4 and 5 of Rule 7 of the 1997 Rules of Civil Procedure provide:

SEC. 4. Verification. Except when otherwise specifically required by

law or rule, pleadings need not be under oath, verified or accompanied by
affidavit.

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

pleadings and that the allegations therein are true and correct of his
personal knowledge or based on authentic records.

9[9] Athena Computers, Inc. and Joselito R. Jimenez v. Wesnu A. Reyes, G.R. No. 156905,
September 5, 2007, 532 SCRA 343, 350.
 A pleading required to be verified which contains a verification
based on information and belief or upon knowledge, information and
belief or lacks a proper verification, shall be treated as an unsigned
pleading.

SEC. 5. Certification against forum shopping. The plaintiff or

principal party shall certify under oath in the complaint or other initiatory
pleading asserting a claim for relief, or in a sworn certification annexed
thereto and simultaneously filed therewith: (a) that he has not theretofore
commenced any action or filed any claim involving the same issues in any
court, tribunal or quasi-judicial agency and, to the best of his knowledge,
no such other action or claim is pending therein; (b) if there is such other
pending action or claim, a complete statement of the present status
thereof; and (c) if he should thereafter learn that the same or similar
action or claim has been filed or is pending, he shall report that fact within
five (5) days therefrom to the court wherein his aforesaid complaint or
initiatory pleading has been filed.

Failure to comply with the foregoing requirements shall not be

curable by mere amendment of the complaint or other initiatory pleading
but shall be cause for the dismissal of the case without prejudice, unless
otherwise provided, upon motion and after hearing. The submission of a
false certification or non-compliance with any of the undertakings therein
shall constitute indirect contempt of court, without prejudice to the
corresponding administrative and criminal actions. If the acts of the party
or his counsel clearly constitute willful and deliberate forum shopping, the
same shall be ground for summary dismissal with prejudice and shall
constitute direct contempt, as well as a cause for administrative sanctions.
x x x.

In this regard, the case of Oldarico S. Traveno v. Bobongon Banana

Growers Multi-Purpose Cooperative,10[10] is enlightening:

10[10] G.R. No. 164205, September 3, 2009, 598 SCRA 27.

 Respecting the appellate courts dismissal of petitioners appeal due
to the failure of some of them to sign the therein accompanying
verification and certification against forum-shopping, the Courts
guidelines for the bench and bar in Altres v. Empleo, which were culled
from jurisprudential pronouncements, are instructive:

For the guidance of the bench and bar, the Court restates in capsule
form the jurisprudential pronouncements already reflected above
respecting non-compliance with the requirements on, or submission of
defective, verification and certification against forum shopping:

1) A distinction must be made between non-compliance with

the requirement on or submission of defective verification, and non-
compliance with the requirement on or submission of defective
certification against forum shopping.

2) As to verification, non-compliance therewith or a defect

therein does not necessarily render the pleading fatally defective. The
Court may order its submission or correction or act on the pleading if the
attending circumstances are such that strict compliance with the Rule may
be dispensed with in order that the ends of justice may be served thereby.

3) Verification is deemed substantially complied with when one

who has ample knowledge to swear to the truth of the allegations in the
complaint or petition signs the verification, and when matters alleged in
the petition have been made in good faith or are true and correct.

4) As to certification against forum shopping, non-compliance

therewith or a defect therein, unlike in verification, is generally not curable
by its subsequent submission or correction thereof, unless there is a need
to relax the Rule on the ground of substantial compliance or presence of
special circumstances or compelling reasons.

5) The certification against forum shopping must be signed by

all the plaintiffs or petitioners in a case; otherwise, those who did not sign
will be dropped as parties to the case. Under reasonable or justifiable
circumstances, however, as when all the plaintiffs or petitioners share a
common interest and invoke a common cause of action or defense, the
signature of only one of them in the certification against forum shopping
substantially complies with the Rule.
 6) Finally, the certification against forum shopping must be
executed by the party-pleader, not by his counsel. If, however, for
reasonable or justifiable reasons, the party-pleader is unable to sign, he
must execute a Special Power of Attorney designating his counsel of record
to sign on his behalf.

The petition for certiorari filed with the CA stated the following names as
petitioners: Nellie Panelo Vda. De Formoso, Ma. Theresa Formoso-Pescador,
Roger Formoso, Mary Jane Formoso, Bernard Formoso, Benjamin Formoso, and
Primitivo Malcaba.

Admittedly, among the seven (7) petitioners mentioned, only Malcaba

signed the verification and certification of non-forum shopping in the subject
petition. There was no proof that Malcaba was authorized by his co-petitioners to
sign for them. There was no special power of attorney shown by the Formosos
authorizing Malcaba as their attorney-in-fact in filing a petition for review on
certiorari. Neither could the petitioners give at least a reasonable explanation as to
why only he signed the verification and certification of non-forum shopping. In
Athena Computers, Inc. and Joselito R. Jimenez v. Wesnu A. Reyes, the Court
explained that:

The verification of the petition and certification on non-forum

shopping before the Court of Appeals were signed only by Jimenez. There
is no showing that he was authorized to sign the same by Athena, his co-
petitioner.

Section 4, Rule 7 of the Rules states that a pleading is verified by an

affidavit that the affiant has read the pleading and that the allegations
therein are true and correct of his knowledge and belief. Consequently, the
verification should have been signed not only by Jimenez but also by
Athenas duly authorized representative.

In Docena v. Lapesura, we ruled that the certificate of non-forum

shopping should be signed by all the petitioners or plaintiffs in a case, and
 that the signing by only one of them is insufficient. The attestation on non-
forum shopping requires personal knowledge by the party executing the
same, and the lone signing petitioner cannot be presumed to have personal
knowledge of the filing or non-filing by his co-petitioners of any action or
claim the same as similar to the current petition.

The certification against forum shopping in CA-G.R. SP No. 72284 is

fatally defective, not having been duly signed by both petitioners and thus
warrants the dismissal of the petition for certiorari. We have consistently
held that the certification against forum shopping must be signed by the
principal parties. With respect to a corporation, the certification against
forum shopping may be signed for and on its behalf, by a specifically
authorized lawyer who has personal knowledge of the facts required to be
disclosed in such document.

While the Rules of Court may be relaxed for persuasive and weighty
reasons to relieve a litigant from an injustice commensurate with his
failure to comply with the prescribed procedures, nevertheless they must
be faithfully followed. In the instant case, petitioners have not shown any
reason which justifies relaxation of the Rules. We have held that
procedural rules are not to be belittled or dismissed simply because their
non-observance may have prejudiced a partys substantive rights. Like all
rules, they are required to be followed except for the most persuasive of
reasons when they may be relaxed. Not one of these persuasive reasons is
present here.

In fine, we hold that the Court of Appeals did not err in dismissing
the petition for certiorari in view of the procedural lapses committed by
petitioners.11[11] [Emphases supplied]

Furthermore, the petitioners argue that the CA should not have dismissed the
whole petition but should have given it due course insofar as Malcaba is concerned
because he signed the certification. The petitioners also contend that the CA should
have been liberal in the application of the Rules because they have a meritorious
case against PNB.

11[11] Supra note 9.

 The Court, however, is not persuaded.

The petitioners were given a chance by the CA to comply with the Rules
when they filed their motion for reconsideration, but they refused to do so. Despite
the opportunity given to them to make all of them sign the verification and
certification of non-forum shopping, they still failed to comply. Thus, the CA was
constrained to deny their motion and affirm the earlier resolution.12[12]

Indeed, liberality and leniency were accorded in some cases.13[13] In these

cases, however, those who did not sign were relatives of the lone signatory, so
unlike in this case, where Malcaba is not a relative who is similarly situated with
the other petitioners and who cannot speak for them. In the case of Heirs of
Domingo Hernandez, Sr. v. Plaridel Mingoa, Sr.,14[14] it was written:

In the instant case, petitioners share a common interest and

defense inasmuch as they collectively claim a right not to be dispossessed
of the subject lot by virtue of their and their deceased parents construction
of a family home and occupation thereof for more than 10 years. The
commonality of their stance to defend their alleged right over the
controverted lot thus gave petitioners xxx authority to inform the Court of
Appeals in behalf of the other petitioners that they have not commenced

12[12] Rollo, p. 29.

13[13] Heirs of Domingo Hernandez, Sr. v. Plaridel Mingoa, Sr., G.R. No. 146548, December
18, 2009, 608 SCRA 394; and Oldarico S. Traveno v. Bobongon Banana Growers Multi-
Purpose Cooperative, G.R. No. 164205, September 3, 2009,598 SCRA 27.

14[14] Id.
 any action or claim involving the same issues in another court or tribunal,
and that there is no other pending action or claim in another court or
tribunal involving the same issues.

Here, all the petitioners are immediate relatives who share a

common interest in the land sought to be reconveyed and a common cause
of action raising the same arguments in support thereof. There was
sufficient basis, therefore, for Domingo Hernandez, Jr. to speak for and in
behalf of his co-petitioners when he certified that they had not filed any
action or claim in another court or tribunal involving the same issues.
Thus, the Verification/Certification that Hernandez, Jr. executed
constitutes substantial compliance under the Rules. [Emphasis supplied]

The same leniency was accorded to the petitioner in the case of Oldarico S.
Traveno v. Bobongon Banana Growers Multi-Purpose Cooperative,15[15] where
it was stated:

The same leniency was applied by the Court in Cavile v. Heirs of

Cavile, because the lone petitioner who executed the certification of non-
forum shopping was a relative and co-owner of the other petitioners with
whom he shares a common interest. x x x16[16]

Considering the above circumstances, the Court does not see any similarity
at all in the case at bench to compel itself to relax the requirement of strict
compliance with the rule regarding the certification against forum shopping.

15[15] Supra note 10.

16[16] Id.
 At any rate, the Court cannot accommodate the petitioners request to re-
examine the testimony of Malcaba in the transcript of stenographic notes of the
April 25, 1999 hearing concerning his alleged testimonial proof of damages for
obvious reasons.

Primarily, Section 1, Rule 45 of the Rules of Court categorically states that

the petition filed shall raise only questions of law, which must be distinctly set
forth. A question of law arises when there is doubt as to what the law is on a
certain state of facts, while there is a question of fact when the doubt arises as to
the truth or falsity of the alleged facts. For a question to be one of law, the same
must not involve an examination of the probative value of the evidence presented
by the litigants or any of them. The resolution of the issue must rest solely on what
the law provides on the given set of circumstances. Once it is clear that the issue
invites a review of the evidence presented, the question posed is one of fact.17[17]

In this case, the petition clearly raises a factual issue. As correctly argued by
PNB, the substantive issue of whether or not the petitioners are entitled to moral
and exemplary damages as well as attorneys fees is a factual issue which is beyond
the province of a petition for review on certiorari.

17[17] Cebu Bionic Builders Supply, Inc. vs. Development Bank of the Philippines, G.R. No.
154366, November 17, 2010.
 Secondly, even if the Court glosses over the technical defects, the petition
for relief cannot be granted. A perusal of the Petition for Relief of Judgment
discloses that there is no fact constituting fraud, accident, mistake or excusable
negligence which are the grounds therefor. From the petition itself, it appears that
the petitioners counsel had a copy of the transcript of stenographic notes which
was in his cabinet all along and only discovered it when he was disposing old and
terminated cases.18[18] If he was only attentive to his records, he could have filed
a motion for reconsideration or a notice of appeal in behalf of the petitioners.

WHEREFORE, the petition is DENIED.

SO ORDERED.

JOSE CATRAL MENDOZA

Associate Justice

18[18] Petition for Relief of Judgment, paragraph 7; rollo, p. 158.

 WE CONCUR:

ANTONIO T. CARPIO

Associate Justice

Chairperson

ANTONIO EDUARDO B. NACHURA DIOSDADO M. PERALTA

Associate Justice Associate Justice

ROBERTO A. ABAD

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the Courts
Division.

ANTONIO T. CARPIO

Associate Justice

Chairperson, Second Division

CERTIFICATION
 Pursuant to Section 13, Article VIII of the Constitution and the Division
Chairpersons Attestation, I certify that the conclusions in the above Decision had
been reached in consultation before the case was assigned to the writer of the
opinion of the Courts Division.

RENATO C. CORONA

Chief Justice
Republic of the Philippines

Supreme Court

Manila

FIRST DIVISION

VALLACAR TRANSIT, INC., G.R. No. 175512

Petitioner,
Present:

CORONA, C.J.,

Chairperson,

VELASCO, JR.,

LEONARDO-DE CASTRO,
- versus -
PERALTA,* and

PEREZ, JJ.

* Per Special Order No. 994 dated May 27, 2011.

 Promulgated:

JOCELYN CATUBIG,

Respondent. May 30, 2011

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

LEONARDO-DE CASTRO, J.:

For review under Rule 45 of the Rules of Court is the Decision19[1] dated
November 17, 2005 and the Resolution20[2] dated November 16, 2006 of the
Court Appeals in CA-G.R. CV No. 66815, which modified the Decision21[3]
dated January 26, 2000 of the Regional Trial Court (RTC), Branch 30 of

19[1] Rollo, pp. 58-68; penned by Associate Justice Enrico A. Lanzanas with Associate Justices
Mercedes Gozo-Dadole and Pampio A. Abarintos, concurring.

20[2] Id. at 70-71.

21[3] Id. at 85-102.

Dumaguete City, in Civil Case No. 11360, an action for recovery of damages
based on Article 2180, in relation to Article 2176, of the Civil Code, filed by
respondent Jocelyn Catubig against petitioner Vallacar Transit, Inc. While the RTC
dismissed respondents claim for damages, the Court of Appeals granted the same.

The undisputed facts are as follows:

Petitioner is engaged in the business of transportation and the franchise

owner of a Ceres Bulilit bus with Plate No. T-0604-1348. Quirino C. Cabanilla
(Cabanilla) is employed as a regular bus driver of petitioner.

On January 27, 1994, respondents husband, Quintin Catubig, Jr. (Catubig),

was on his way home from Dumaguete City riding in tandem on a motorcycle with
his employee, Teddy Emperado (Emperado). Catubig was the one driving the
motorcycle. While approaching a curve at kilometers 59 and 60, Catubig tried to
overtake a slow moving ten-wheeler cargo truck by crossing-over to the opposite
lane, which was then being traversed by the Ceres Bulilit bus driven by Cabanilla,
headed for the opposite direction. When the two vehicles collided, Catubig and
Emperado were thrown from the motorcycle. Catubig died on the spot where he
was thrown, while Emperado died while being rushed to the hospital.
 On February 1, 1994, Cabanilla was charged with reckless imprudence
resulting in double homicide in Criminal Case No. M-15-94 before the Municipal
Circuit Trial Court (MCTC) of Manjuyod-Bindoy-Ayungon of the Province of Negros
Oriental. After preliminary investigation, the MCTC issued a Resolution on
December 22, 1994, dismissing the criminal charge against Cabanilla. It found that
Cabanilla was not criminally liable for the deaths of Catubig and Emperado,
because there was no negligence, not even contributory, on Cabanillas part.

Thereafter, respondent filed before the RTC on July 19, 1995 a Complaint
for Damages against petitioner, seeking actual, moral, and exemplary damages, in
the total amount of P484,000.00, for the death of her husband, Catubig, based on
Article 2180, in relation to Article 2176, of the Civil Code. Respondent alleged that
petitioner is civilly liable because the latters employee driver, Cabanilla, was
reckless and negligent in driving the bus which collided with Catubigs motorcycle.

Petitioner, in its Answer with Counterclaim, contended that the proximate

cause of the vehicular collision, which resulted in the deaths of Catubig and
Emperado, was the sole negligence of Catubig when he imprudently overtook
another vehicle at a curve and traversed the opposite lane of the road. As a
special and affirmative defense, petitioner asked for the dismissal of respondents
complaint for not being verified and/or for failure to state a cause of action, as
there was no allegation that petitioner was negligent in the selection or
supervision of its employee driver.
 In the Pre-Trial Order22[4] dated June 10, 1997, the parties stipulated that
the primary issue for trial was whether or not petitioner should be held liable for
Catubigs death. Trial then ensued.

Police Officer (PO) 2 Robert B. Elnas (Elnas),23[5] Emilio Espiritu

(Espiritu),24[6] Dr. Norberto Baldado, Jr. (Dr. Baldado),25[7] Peter Cadimas
(Cadimas),26[8] and respondent27[9] herself testified in support of respondents
complaint.

PO2 Elnas conducted an investigation of the collision incident. According to

PO2 Elnas, the bus was running fast, at a speed of 100 kilometers per hour, when
it collided with the motorcycle which was trying to overtake a truck. The collision
occurred on the lane of the bus. Catubig was flung 21 meters away, and
Emperado, 11 meters away, from the point of impact. The motorcycle was

22[4] Records, pp. 69-70.

23[5] TSN, August 19, 1997.

24[6] TSN, December 9, 1997, pp. 1-14.

25[7] Id. at 14-22.

26[8] TSN, August 18, 1998.

27[9] TSN, July 28, 1997.

totaled; the chassis broke into three parts, and the front wheel and the steering
wheel with the shock absorbers were found 26 meters and 38 meters,
respectively, from the collision point. In contrast, only the front bumper of the
bus suffered damage.

Cadimas personally witnessed the collision of the bus and the motorcycle.
He recalled that he was then waiting for a ride to Dumaguete City and saw the
Ceres Bulilit bus making a turn at a curve. Cadimas signaled the said bus to halt
but it was running fast. Cadimas also recollected that there was a cargo truck
running slow in the opposite direction of the bus. Cadimas next heard a thud and
saw that the bus already collided with a motorcycle.

Espiritu was the photographer who took photographs of the scene of the
accident. He identified the five photographs which he had taken of Catubig lying
on the ground, bloodied; broken parts of the motorcycle; and the truck which
Catubig tried to overtake.

Dr. Baldado was the medico-legal doctor who conducted the post-mortem
examination of Catubigs body. He reported that Catubig suffered from the
following injuries: laceration and fracture of the right leg; laceration and fracture
of the left elbow; multiple abrasions in the abdominal area, left anterior chest
wall, posterior right arm, and at the back of the left scapular area; and contusion-
hematoma just above the neck. Dr. Baldado confirmed that Catubig was already
dead when the latter was brought to the hospital, and that the vehicular accident
could have caused Catubigs instantaneous death.

Respondent herself testified to substantiate the amount of damages she

was trying to recover from petitioner for Catubigs death, such as Catubigs earning
capacity; expenses incurred for the wake and burial of Catubig, as well as of
Emperado; the cost of the motorcycle; and the costs of the legal services and fees
respondent had incurred.

Respondents documentary exhibits consisted of her and Catubigs Marriage

Contract dated August 21, 1982, their two childrens Certificate of Live Births,
Catubigs College Diploma dated March 24, 1983, the list and receipts of the
expenses for Catubigs burial, the sketch of the collision site prepared by PO2
Elnas, the excerpts from the police blotter, the photographs of the collision,28[10]
and the Post Mortem Report29[11] on Catubigs cadaver prepared by Dr. Baldado.

28[10] Records, pp. 119-147.

29[11] Id. at 7.
 In an Order30[12] dated October 6, 1998, the RTC admitted all of
respondents aforementioned evidence.

On the other hand, Rosie C. Amahit (Amahit)31[13] and Nunally Maypa

(Maypa)32[14] took the witness stand for petitioner.

Amahit was a Court Stenographer at the MCTC who took the transcript of
stenographic notes (TSN) in Criminal Case No. M-15-94 against Cabanilla. Amahit
verified that the document being presented by the defense in the present case
was a true and correct copy of the TSN of the preliminary investigation held in
Criminal Case No. M-15-94 on May 25, 1994, and another document was a
duplicate original of the MCTC Resolution dated December 22, 1994 dismissing
Criminal Case No. M-15-94.

Maypa is the Administrative and Personnel Manager at the Dumaguete

branch of petitioner. He started working for petitioner on September 22, 1990 as
a clerk at the Human Resources Development Department at the Central Office of
petitioner in Bacolod City. Sometime in November 1993, he became an

30[12] Id. at 153.

31[13] TSN, October 20, 1998.

32[14] TSN, December 7, 1998 and December 17, 1998.

Administrative Assistant at the Dumaguete branch of petitioner; and in August
1995, he was promoted to his current position at the same branch.

While he was still an Administrative Assistant, Maypa was responsible for

the hiring of personnel including drivers and conductors. Maypa explained that to
be hired as a driver, an applicant should be 35 to 45 years old, have at least five
years experience in driving big trucks, submit police, court, and medical
clearances, and possess all the necessary requirements for driving a motor vehicle
of more than 4,500 kilograms in gross weight such as a professional drivers
license with a restriction code of 3. The applicant should also pass the initial
interview, the actual driving and maintenance skills tests, and a written
psychological examination involving defensive driving techniques. Upon passing
these examinations, the applicant still had to go through a 15-day familiarization
of the bus and road conditions before being deployed for work. Maypa, however,
admitted that at the time of his appointment as Administrative Assistant at the
Dumaguete branch, Cabanilla was already an employee driver of petitioner.

Maypa further explained the investigation and grievance procedure

followed by petitioner in cases of vehicular accidents involving the latters
employee drivers. Maypa related that Cabanilla had been put on preventive
suspension following the vehicular accident on January 27, 1994 involving the bus
Cabanilla was driving and the motorcycle carrying Catubig and Emperado.
Following an internal investigation of said accident conducted by petitioner,
Cabanilla was declared not guilty of causing the same, for he had not been
negligent.

Lastly, Maypa recounted the expenses petitioner incurred as a result of the

present litigation.

The documentary exhibits of petitioner consisted of the TSN of the

preliminary investigation in Criminal Case No. M-15-94 held on May 25, 1994
before the MCTC of Manjuyod-Bindoy-Ayungon of the Province of Negros
Oriental; Resolution dated December 22, 1994 of the MCTC in the same case; and
the Minutes dated February 17, 1994 of the Grievance Proceeding conducted by
petitioner involving Cabanilla.33[15]

The RTC, in its Order34[16] dated November 12, 1999, admitted all the
evidence presented by petitioner.

On January 26, 2000, the RTC promulgated its Decision favoring petitioner.
Based on the sketch prepared by PO2 Elnas, which showed that the point of

33[15] Records, pp. 192-215.

34[16] Id. at 222.

impact x x x occurred beyond the center lane near a curve within the lane of the
Ceres bus[;]35[17] plus, the testimonies of PO2 Elnas and Cadimas that the
motorcycle recklessly tried to overtake a truck near a curve and encroached the
opposite lane of the road, the RTC ruled that the proximate cause of the collision
of the bus and motorcycle was the negligence of the driver of the motorcycle,
Catubig. The RTC, moreover, was convinced through the testimony of Maypa, the
Administrative and Personnel Manager of the Dumaguete branch of petitioner,
that petitioner had exercised due diligence in the selection and supervision of its
employee drivers, including Cabanilla.

After trial, the RTC concluded:

WHEREFORE, finding preponderance of evidence in favor of the [herein

petitioner] that the [herein respondents] husband is the reckless and negligent driver
and not the driver of the [petitioner], the above-entitled case is hereby ordered
dismissed.

[Petitioners] counterclaim is also dismissed for lack of merit.36[18]

35[17] Id. at 90.

36[18] Rollo, p. 102.

 Respondent appealed to the Court of Appeals. In its Decision dated
November 17, 2005, the appellate court held that both Catubig and Cabanilla
were negligent in driving their respective vehicles. Catubig, on one hand, failed to
use reasonable care for his own safety and ignored the hazard when he tried to
overtake a truck at a curve. Cabanilla, on the other hand, was running his vehicle
at a high speed of 100 kilometers per hour. The Court of Appeals also brushed
aside the defense of petitioner that it exercised the degree of diligence exacted
by law in the conduct of its business. Maypa was not in a position to testify on the
procedures followed by petitioner in hiring Cabanilla as an employee driver
considering that Cabanilla was hired a year before Maypa assumed his post at the
Dumaguete branch of petitioner.

Thus, the Court of Appeals decreed:

WHEREFORE, based on the foregoing, the assailed decision of the trial court is
modified. We rule that [herein petitioner] is equally liable for the accident in question
which led to the deaths of Quintin Catubig, Jr. and Teddy Emperado and hereby award
to the heirs of Quintin Catubig, Jr. the amount [of] P250,000.00 as full compensation for
the death of the latter.37[19]

The Court of Appeals denied the motion for reconsideration of petitioner in

a Resolution dated November 16, 2006.

37[19] Id. at 67-68.

 Hence, the instant Petition for Review.

Petitioner asserts that respondents complaint for damages should be

dismissed for the latters failure to verify the same. The certification against forum
shopping attached to the complaint, signed by respondent, is not a valid
substitute for respondents verification that she has read the pleading and that the
allegations therein are true and correct of her personal knowledge or based on
authentic records.38[20] Petitioner cited jurisprudence in which the Court ruled
that a pleading lacking proper verification is treated as an unsigned pleading,
which produces no legal effect under Section 3, Rule 7 of the Rules of Court.

Petitioner also denies any vicarious or imputed liability under Article 2180,
in relation to Article 2176, of the Civil Code. According to petitioner, respondent
failed to prove the culpability of Cabanilla, the employee driver of petitioner.
There are already two trial court decisions (i.e., the Resolution dated December
22, 1994 of the MCTC of Manjuyod-Bindoy-Ayungon of the Province of Negros
Oriental in Criminal Case No. M-15-94 and the Decision dated January 26, 2000 of
the RTC in the instant civil suit) explicitly ruling that the proximate cause of the
collision was Catubigs reckless and negligent act. Thus, without the fault or

38[20] Id. at 23.

negligence of its employee driver, no liability at all could be imputed upon
petitioner.

Petitioner additionally argues, without conceding any fault or liability, that

the award by the Court of Appeals in respondents favor of the lump sum amount
of P250,000.00 as total death indemnity lacks factual and legal basis. Respondents
evidence to prove actual or compensatory damages are all self-serving, which are
either inadmissible in evidence or devoid of probative value. The award of moral
and exemplary damages is likewise contrary to the ruling of the appellate court
that Catubig should be equally held liable for his own death.

Respondent maintains that the Court of Appeals correctly adjudged

petitioner to be liable for Catubigs death and that the appellate court had already
duly passed upon all the issues raised in the petition at bar.

The petition is meritorious.

At the outset, we find no procedural defect that would have warranted the
outright dismissal of respondents complaint.
 Respondent filed her complaint for damages against petitioner on July 19,
1995, when the 1964 Rules of Court was still in effect. Rule 7, Section 6 of the
1964 Rules of Court provided:

SEC. 6. Verification.A pleading is verified only by an affidavit stating that

the person verifying has read the pleading and that the allegations thereof are true
of his own knowledge.

Verifications based on "information and belief," or upon "knowledge,

information and belief," shall be deemed insufficient.

On July 1, 1997, the new rules on civil procedure took effect. The foregoing
provision was carried on, with a few amendments, as Rule 7, Section 4 of the
1997 Rules of Court, viz:

SEC. 4. Verification. Except when otherwise specifically required by law or rule,

pleadings need not be under oath, verified or accompanied by affidavit.

A pleading is verified by an affidavit that the affiant has read the pleading and
that the allegations therein are true and correct of his knowledge and belief.

A pleading required to be verified which contains a verification based on

information and belief, or upon knowledge, information and belief, or lacks a proper
verification, shall be treated as an unsigned pleading.
 The same provision was again amended by A.M. No. 00-2-10, which
became effective on May 1, 2000. It now reads:

SEC. 4. Verification. - Except when otherwise specifically required by law or rule,

pleadings need not be under oath, verified or accompanied by affidavit.

A pleading is verified by an affidavit that the affiant has read the pleading and
that the allegations therein are true and correct of his personal knowledge or based on
authentic records.

A pleading required to be verified which contains a verification based on

information and belief or upon knowledge, information and belief, or lacks a proper
verification, shall be treated as an unsigned pleading.

The 1997 Rules of Court, even prior to its amendment by A.M. No. 00-2-10,
clearly provides that a pleading lacking proper verification is to be treated as an
unsigned pleading which produces no legal effect. However, it also just as clearly
states that [e]xcept when otherwise specifically required by law or rule, pleadings
need not be under oath, verified or accompanied by affidavit. No such law or rule
specifically requires that respondents complaint for damages should have been
verified.

Although parties would often submit a joint verification and certificate

against forum shopping, the two are different.
 In Pajuyo v. Court of Appeals,39[21] we already pointed out that:

A partys failure to sign the certification against forum shopping is different from
the partys failure to sign personally the verification. The certificate of non-forum
shopping must be signed by the party, and not by counsel. The certification of counsel
renders the petition defective.

On the other hand, the requirement on verification of a pleading is a formal and

not a jurisdictional requisite. It is intended simply to secure an assurance that what are
alleged in the pleading are true and correct and not the product of the imagination or a
matter of speculation, and that the pleading is filed in good faith. The party need not
sign the verification. A partys representative, lawyer or any person who personally
knows the truth of the facts alleged in the pleading may sign the verification.40[22]

In the case before us, we stress that as a general rule, a pleading need not
be verified, unless there is a law or rule specifically requiring the same. Examples
of pleadings that require verification are: (1) all pleadings filed in civil cases under
the 1991 Revised Rules on Summary Procedure; (2) petition for review from the
Regional Trial Court to the Supreme Court raising only questions of law under
Rule 41, Section 2; (3) petition for review of the decision of the Regional Trial
Court to the Court of Appeals under Rule 42, Section 1; (4) petition for review
from quasi-judicial bodies to the Court of Appeals under Rule 43, Section 5; (5)

39[21] G.R. No. 146364, June 3, 2004, 430 SCRA 492.

40[22] Id. at 508-509.

petition for review before the Supreme Court under Rule 45, Section 1; (6)
petition for annulment of judgments or final orders and resolutions under Rule
47, Section 4; (7) complaint for injunction under Rule 58, Section 4; (8) application
for preliminary injunction or temporary restraining order under Rule 58, Section
4; (9) application for appointment of a receiver under Rule 59, Section 1; (10)
application for support pendente lite under Rule 61, Section 1; (11) petition for
certiorari against the judgments, final orders or resolutions of constitutional
commissions under Rule 64, Section 2; (12) petition for certiorari, prohibition, and
mandamus under Rule 65, Sections 1 to 3; (13) petition for quo warranto under
Rule 66, Section 1; (14) complaint for expropriation under Rule 67, Section 1; (15)
petition for indirect contempt under Rule 71, Section 4, all from the 1997 Rules of
Court; (16) all complaints or petitions involving intra-corporate controversies
under the Interim Rules of Procedure on Intra-Corporate Controversies; (17)
complaint or petition for rehabilitation and suspension of payment under the
Interim Rules on Corporate Rehabilitation; and (18) petition for declaration of
absolute nullity of void marriages and annulment of voidable marriages as well as
petition for summary proceedings under the Family Code.

In contrast, all complaints, petitions, applications, and other initiatory

pleadings must be accompanied by a certificate against forum shopping, first
prescribed by Administrative Circular No. 04-94, which took effect on April 1,
1994, then later on by Rule 7, Section 5 of the 1997 Rules of Court. It is not
disputed herein that respondents complaint for damages was accompanied by
such a certificate.
 In addition, verification, like in most cases required by the rules of
procedure, is a formal, not jurisdictional, requirement, and mainly intended to
secure an assurance that matters which are alleged are done in good faith or are
true and correct and not of mere speculation. When circumstances warrant, the
court may simply order the correction of unverified pleadings or act on it and
waive strict compliance with the rules in order that the ends of justice may
thereby be served.41[23]

We agree with petitioner, nonetheless, that respondent was unable to

prove imputable negligence on the part of petitioner.

Prefatorily, we restate the time honored principle that in a petition for

review under Rule 45, only questions of law may be raised. It is not our function
to analyze or weigh all over again evidence already considered in the proceedings
below, our jurisdiction is limited to reviewing only errors of law that may have
been committed by the lower court. The resolution of factual issues is the
function of lower courts, whose findings on these matters are received with
respect. A question of law which we may pass upon must not involve an
examination of the probative value of the evidence presented by the
litigants.42[24]

41[23] Jimenez vda. De Gabriel v. Court of Appeals, 332 Phil. 157, 165 (1996).

42[24] Land Bank of the Philippines v. Monets Export and Manufacturing Corporation, 493
Phil. 327, 338 (2005).
 The above rule, however, admits of certain exceptions. The findings of fact
of the Court of Appeals are generally conclusive but may be reviewed when: (1)
the factual findings of the Court of Appeals and the trial court are contradictory;
(2) the findings are grounded entirely on speculation, surmises or conjectures; (3)
the inference made by the Court of Appeals from its findings of fact is manifestly
mistaken, absurd or impossible; (4) there is grave abuse of discretion in the
appreciation of facts; (5) the appellate court, in making its findings, goes beyond
the issues of the case and such findings are contrary to the admissions of both
appellant and appellee; (6) the judgment of the Court of Appeals is premised on a
misapprehension of facts; (7) the Court of Appeals fails to notice certain relevant
facts which, if properly considered, will justify a different conclusion; and (8) the
findings of fact of the Court of Appeals are contrary to those of the trial court or
are mere conclusions without citation of specific evidence, or where the facts set
forth by the petitioner are not disputed by respondent, or where the findings of
fact of the Court of Appeals are premised on the absence of evidence but are
contradicted by the evidence on record.43[25]

The issue of negligence is basically factual.44[26] Evidently, in this case, the

RTC and the Court of Appeals have contradictory factual findings: the former
found that Catubig alone was negligent, while the latter adjudged that both
Catubig and petitioner were negligent.

43[25] Id. at 338-339.

44[26] Pestao v. Sumayang, 400 Phil. 740, 749 (2000).

 Respondent based her claim for damages on Article 2180, in relation to
Article 2176, of the Civil Code, which read:

Art. 2176. Whoever by act or omission causes damage to another, there being fault or

negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this
Chapter.

Art. 2180. The obligation imposed by Article 2176 is demandable not only for ones own acts or
omissions, but also for those persons for whom one is responsible.

xxxx

Employers shall be liable for the damages caused by their employees and
household helpers acting within the scope of their assigned tasks, even though the
former are not engaged in any business or industry.

xxxx

The responsibility treated of in this article shall cease when the persons herein
mentioned prove that they observed all the diligence of a good father of a family to
prevent damage.

There is merit in the argument of the petitioner that Article 2180 of the
Civil Code imputing fault or negligence on the part of the employer for the fault or
negligence of its employee does not apply to petitioner since the fault or
negligence of its employee driver, Cabanilla, which would have made the latter
liable for quasi-delict under Article 2176 of the Civil Code, has never been
established by respondent. To the contrary, the totality of the evidence presented
during trial shows that the proximate cause of the collision of the bus and
motorcycle is attributable solely to the negligence of the driver of the motorcycle,
Catubig.

Proximate cause is defined as that cause, which, in natural and continuous

sequence, unbroken by any efficient intervening cause, produces the injury, and
without which the result would not have occurred. And more comprehensively,
the proximate legal cause is that acting first and producing the injury, either
immediately or by setting other events in motion, all constituting a natural and
continuous chain of events, each having a close causal connection with its
immediate predecessor, the final event in the chain immediately effecting the
injury as a natural and probable result of the cause which first acted, under such
circumstances that the person responsible for the first event should, as an
ordinary prudent and intelligent person, have reasonable ground to expect at the
moment of his act or default that an injury to some person might probably result
therefrom.45[27]

The RTC concisely articulated and aptly concluded that Catubigs overtaking
of a slow-moving truck ahead of him, while approaching a curve on the highway,
was the immediate and proximate cause of the collision which led to his own
death, to wit:

Based on the evidence on record, it is crystal clear that the immediate and
proximate cause of the collision is the reckless and negligent act of Quintin Catubig, Jr.

45[27] Ramos v. C.O.L. Realty Corporation, G.R. No. 184905, August 28, 2009, 597 SCRA
526, 535-536.
 and not because the Ceres Bus was running very fast. Even if the Ceres Bus is running
very fast on its lane, it could not have caused the collision if not for the fact that
Quintin Catubig, Jr. tried to overtake a cargo truck and encroached on the lane
traversed by the Ceres Bus while approaching a curve. As the driver of the motorcycle,
Quintin Catubig, Jr. has not observed reasonable care and caution in driving his
motorcycle which an ordinary prudent driver would have done under the circumstances.
Recklessness on the part of Quintin Catubig, Jr. is evident when he tried to overtake a
cargo truck while approaching a curve in Barangay Donggo-an, Bolisong, Manjuyod,
Negros Oriental. Overtaking is not allowed while approaching a curve in the highway
(Section 41(b), Republic Act [No.] 4136, as amended). Passing another vehicle
proceeding on the same direction should only be resorted to by a driver if the highway is
free from incoming vehicle to permit such overtaking to be made in safety (Section
41(a), Republic Act [No.] 4136). The collision happened because of the recklessness and
carelessness of [herein respondents] husband who was overtaking a cargo truck while
approaching a curve. Overtaking another vehicle while approaching a curve constitute
reckless driving penalized not only under Section 48 of Republic Act [No.] 4136 but also
under Article 365 of the Revised Penal Code.

The Court commiserates with the [respondent] for the untimely death of her
husband. However, the Court as dispenser of justice has to apply the law based on the
facts of the case. Not having proved by preponderance of evidence that the proximate
cause of the collision is the negligence of the driver of the Ceres bus, this Court has no
other option but to dismiss this case.46[28] (Emphases supplied.)

The testimonies of prosecution witnesses Cadimas and PO2 Elnas that

Cabanilla was driving the bus at a reckless speed when the collision occurred lack
probative value.

46[28] Rollo, p. 101.

 We are unable to establish the actual speed of the bus from Cadimass
testimony for he merely stated that the bus did not stop when he tried to flag it
down because it was running very fast.47[29]

PO2 Elnas, on the other hand, made inconsistent statements as to the

actual speed of the bus at the time of the collision. During the preliminary
investigation in Criminal Case No. M-15-94 before the MCTC, PO2 Elnas refused to
give testimony as to the speed of either the bus or the motorcycle at the time of
the collision and an opinion as to who was at fault.48[30] But during the trial of
the present case before the RTC, PO2 Elnas claimed that he was told by Cabanilla
that the latter was driving the bus at the speed of around 100 kilometers per
hour.49[31]

47[29] TSN, August 18, 1998, p. 3.

48[30] Excerpts from the TSN dated May 25, 1994, in Criminal Case No. M-15-94, are as
follows:

Q (To the witness) The sketch which you made is only a representation of what you
actually saw at the place of the incident, is that true?

A Yes, your Honor.

Q You cannot therefore testify as to the speed of the two (2) vehicles at the time that
they collided?

A Yes, your Honor.

Q You cant also form an opinion as to who was at fault, is that correct?

A Yes. (Records, p. 205.)

49[31] Pertinent portion of TSN dated August 19, 1997, pp. 21-22, are quoted as follows,:

Q: Did you ask the driver of the Ceres bus its speed immediately before the
collision?
 As the RTC noted, Cadimas and PO2 Elnas both pointed out that the
motorcycle encroached the lane of the bus when it tried to overtake, while
nearing a curve, a truck ahead of it, consistent with the fact that the point of
impact actually happened within the lane traversed by the bus. It would be more
reasonable to assume then that it was Catubig who was driving his motorcycle at
high speed because to overtake the truck ahead of him, he necessarily had to
drive faster than the truck. Catubig should have also avoided overtaking the
vehicle ahead of him as the curvature on the road could have obstructed his
vision of the oncoming vehicles from the opposite lane.

The evidence shows that the driver of the bus, Cabanilla, was driving his
vehicle along the proper lane, while the driver of the motorcycle, Catubig, had
overtaken a vehicle ahead of him as he was approaching a curvature on the road,

A: Yes.

Q: What was the answer of the driver of the Ceres bus?

A: As far as I could remember, he was [running] very fast, a speed of around 100
kilometers per hour.

Q: That is the speed of the Ceres bus?

A: Yes.

Q: Why is it that that is not reflected in your police blotter?

A: Because we were busy with the deceased persons and the sketching of the place of
the incident.
in disregard of the provision of the law on reckless driving, at the risk of his life
and that of his employee, Emperado.

The presumption that employers are negligent under Article 2180 of the
Civil Code flows from the negligence of their employees.50[32] Having adjudged
that the immediate and proximate cause of the collision resulting in Catubigs
death was his own negligence, and there was no fault or negligence on Cabanillas
part, then such presumption of fault or negligence on the part of petitioner, as
Cabanillas employer, does not even arise. Thus, it is not even necessary to delve
into the defense of petitioner that it exercised due diligence in the selection and
supervision of Cabanilla as its employee driver.

WHEREFORE, premises considered, the petition is GRANTED. The

Decision dated November 17, 2005 and Resolution dated November 16, 2006 of
the Court Appeals in CA-G.R. CV No. 66815 are SET ASIDE and the Decision
dated January 26, 2000 of the Regional Trial Court, Branch 30 of Dumaguete City,
dismissing Civil Case No. 11360 is REINSTATED.

SO ORDERED.

50[32] McKee v. Intermediate Appellate Court, G.R. No. 68102, July 16, 1992, 211 SCRA 517,
544.
TERESITA J. LEONARDO-DE CASTRO
Associate Justice

WE CONCUR:
 RENATO C. CORONA
Chief Justice

Chairperson

PRESBITERO J. VELASCO, JR. DIOSDADO M. PERALTA

Associate Justice Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice
 CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Courts Division.

RENATO C. CORONA
Chief Justice
JURISPRUDENCE.

A. “FAILURE TO STATE CAUSE OF ACTION” VS. “LACK OF CAUSE OF ACTION.”

The defendants respectfully cite the 2011 decision of the Supreme Court in the case of
DOLORES ADORA MACASLANG vs. RENATO AND MELBA ZAMORA, G.R. No.
156375, May 30, 2011.

In the said case, the Supreme Court held that “failure to state a cause of action” and “lack of
cause of action” are really different from each other.

“Failure to state a cause of action” refers to the “insufficiency of the pleading”, and is “a
ground for dismissal under Rule 16 of the Rules of Court”.

The herein defendants submit that it does not need to wait for pretrial or for trial on the
merits.

The herein defendants submit that the lack of a proper and valid Board Resolution authorizing
XXX to commence the civil action is means “insufficiency of the pleading”.

Its legal effect is the “failure to state a cause of action”.

The herein defendants submit that the pleading so filed with such a fatal defect is an “unsigned
pleading” and hence, a “mere scrap of paper”, as discussed in the foregoing sections above.

On the other hand, according to the aforecited Supreme Court in the aforecited decision, “lack of
cause action” refers to a situation where the “evidence does not prove the cause of action
alleged in the pleading”.

It needs trial on the merits because a DEMURRER TO EVIDENCE may be filed after
termination of the presentation of evidence-in-chief of the plaintiff.

THUS:

“x x x.

Failure to state a cause of action and lack of cause of action are really different from each
other. On the one hand, failure to state a cause of action refers to the insufficiency of the
pleading, and is a ground for dismissal under Rule 16 of the Rules of Court. On the other
hand, lack of cause action refers to a situation where the evidence does not prove the cause of
action alleged in the pleading. Justice Regalado, a recognized commentator on remedial law,
has explained the distinction:

xxx What is contemplated, therefore, is a failure to state a cause of action which is provided in
Sec. 1(g) of Rule 16. This is a matter of insufficiency of the pleading. Sec. 5 of Rule 10, which
was also included as the last mode for raising the issue to the court, refers to the situation where
the evidence does not prove a cause of action. This is, therefore, a matter of insufficiency
of evidence. Failure to state a cause of action is different from failure to prove a cause of
action. The remedy in the first is to move for dismissal of the pleading, while the remedy in the
second is to demur to the evidence, hence reference to Sec. 5 of Rule 10 has been eliminated in
this section. The procedure would consequently be to require the pleading to state a cause of
action, by timely objection to its deficiency; or, at the trial, to file a demurrer to evidence, if
such motion is warranted. (Emphasis added).

X x x.” (Emphasis added).

UNSIGNED PLEADING.

On the legal issue of USIGNED PLEADINGS, the herein defendants respectfully cite the
case of REPUBLIC OF THE PHILIPPINES, represented by the Land Registration
Authority vs. KENRICK DEVELOPMENT CORPORATION, G.R. No. 149576, August 8,
2006.

In the aforecited case, the Supreme Court held that an unsigned pleading is invalid and
it produces no legal effect.

Thus, it must be DISMISSED outright via a motion to dismiss or as a special affirmative

defense.

It further held that “procedural requirements” (which have often been “disparagingly
labeled as mere technicalities”) have their own valid raison d'etre in the “orderly
administration of justice”.

It furthermore held that to summarily brush such procedural requirements or

technicalities may result in “arbitrariness and injustice.”

THUS:
“X x x.

No doubt, Atty. Garlitos could not have validly given blanket authority for just anyone to
sign the answer. The trial court correctly ruled that respondents answer was invalid and of no
legal effect as it was an unsigned pleading. Respondent was properly declared in default and the
Republic was rightly allowed to present evidence ex parte.

Respondent insists on the liberal application of the rules. It maintains that even if it were
true that its answer was supposedly an unsigned pleading, the defect was a mere technicality that
could be set aside.

Procedural requirements which have often been disparagingly labeled as mere

technicalities have their own valid raison d'etre in the orderly administration of justice. To
summarily brush them aside may result in arbitrariness and injustice.

The Courts pronouncement in Garbo v. Court of Appeals is relevant:

 Procedural rules are [tools] designed to facilitate the adjudication of cases. Courts and
litigants alike are thus [enjoined] to abide strictly by the rules. And while the Court, in some
instances, allows a relaxation in the application of the rules, this, we stress, was never intended to
forge a bastion for erring litigants to violate the rules with impunity. The liberality in the
interpretation and application of the rules applies only in proper cases and under justifiable
causes and circumstances. While it is true that litigation is not a game of technicalities, it is
equally true that every case must be prosecuted in accordance with the prescribed procedure to
insure an orderly and speedy administration of justice.

X x x.

8. RELIEF.

WHEREFORE, premises considered, it is respectfully prayed that the ORDER, dated

March 17, 2016, be partially reconsidered:

(a) By declaring the fatal defect and/or absence of the legal authority of Xxx Xxx to
commence the instant action in behalf of the corporate plaintiff;

(b) By declaring that the petition “fails to state a cause of action”; and

(c) By declaring the instant petition is an “unsigned pleading” without any legal and valid
effect.

AND THAT ON THE BASIS OF THE FOREGOING, the instant petition be

DIMSISSED outright without prejudice, per Rule 16.

FURTHER, the herein defendants pray for such and other reliefs as may be deemed just
and equitable in the premises.

Las Pinas City, March 30, 2016.

A. M. NO. 00-2-10-SC

CIRCULAR NO. 48-2000

A. M. No. 00-2-10-SC. Re: Amendments to

Section 4, Rule 7 and Section 13, Rule 41 of
the 1997 Rules of Civil Procedure.

A.M. NO. 00-2-10-SC

AMENDMENT TO SECTION 4, RULE 7 AND

SECTION 13, RULE 41 OF THE 1997 RULES
OF CIVIL PROCEDURE.

The Court resolved to AMEND the

following provisions in the 1997 Rules of
Civil Procedure: (a) Section 4 of Rule 7; and
(b) Section 13 of Rule 41, to read as
follows:chanroblesvirtuallawlibrary

RULE 7

SEC. 4. Verification. - Except when

otherwise specifically required by law or
rule, pleadings need not be under oath,
verified or accompanied by affidavit.

A pleading is verified by an affidavit that

the affiant has read the pleading and that
the allegations therein are true and correct
of his personal knowledge or based on
authentic records.

A pleading required to be verified which

contains a verification based on
“information and belief,” or upon
“knowledge, information and belief,” or
lacks a proper verification, shall be treated
as an unsigned pleading.(4a)

RULE 41

SEC. 13. Dismissal of appeal. - Prior to the

transmittal of the original record or the
record on appeal to the appellate court,
the trial court may, motu proprio or on
motion, dismiss the appeal for having been
taken out of time or for non-payment of
the docket and other lawful fees within the
reglementary period. (13a)

The foregoing amendments shall take

effect on May 1, 2000, following the
publication of this Resolution in two (2)
newspapers of general circulation not later
than March 15, 2000.

(Sgd.) HILARIO G. DAVIDE, JR.

Chief Justice

(Sgd.) JOSUE N. BELLOSILLO (Sgd.) JOSE

A. R. MELO

Associate Justice Associate

Justice

(Sgd.) REYNATO S. PUNO (Sgd.) JOSE

C. VITUG

Associate Justice Associate

Justice
 (Sgd.) SANTIAGO M. KAPUNAN
(Sgd.) VICENTE V. MENDOZA

Associate Justice
Associate Justice

(Sgd.) ARTEMIO V. PANGANIBAN

(Sgd.) LEONARDO A. QUISUMBING

Associate Justice Associate

Justice

(Sgd.) FIDEL P. PURISIMA (Sgd.)

BERNARDO P. PARDO

Associate Justice
Associate Justice

(Sgd.) ARTURO B. BUENA (Sgd.)

MINERVA P. GONZAGA-REYES

Associate Justice
Associate Justice

(Sgd.) CONSUELO YNARES-

SANTIAGO (Sgd.) SABINO R. DE
LEON, JR.

Associate Justice
Associate Justice
3

EMPORARY RESTRAINING ORDERS

Purpose

The purpose of a temporary restraining order is to maintain the status quo until there can

be a hearing on the motion for a preliminary injunction

is concluded

Delgado v. Board of

Election Commissioners

224 Ill.2d 481, 483 (2007);

Stocker Hinge Mfg. v. Darnel Industries,

Inc

. 94 Ill.2d 535, 545 (1983);

Bartlow v. Shannon

, 399 Ill.App.3d 560, 567 (5

th

Dist. 2010).

Requirements

verified

complaint
or supporting affidavits are

required in order to obtai

n a TRO.

735

ILCS

5/11

101

C.D.Peters Constr. Co. v. Tri

City Regional Port Dist

., 281 Ill.App.3d 41, 47

(5

th

Dist. 1996

It must be shown through specific facts in the verified complaint or affidavits

that immediate and irreparable injury , loss or dama

ge will result before notice can be given and

a hearing on a preliminary injunction can take place.

Id

.
 Civil Procedure
Rule 58. Preliminary Injunction

Sec. 1. Preliminary injunction defined; classes. – A preliminary injunction is an order granted

at any stage of an action or proceeding prior to the judgment or final order, requiring a party or
a court , agency or a person to refrain from a particular act or acts. It may also require the
performance of a particular act or acts, in which case it shall be known as a preliminary
mandatory injunction.

The primary purpose of injunction is to preserve the status quo by restraining action or
interference or by furnishing preventive relief. The status quo is the last actual, peaceable,
uncontested status which precedes the pending controversy.

A mandatory injunction is an extreme remedy and will be granted only on a showing that (a) the
invasion of the right is material and substantial, (b) the right of the complainant is clear and
unmistakable, and (c) there is an urgent and paramount necessity for the writ to prevent serious
damage.

Distinctions between injunction and prohibition

1. Injunction is generally directed against a party in the action while prohibition is directed
against a court, tribunal or person exercising judicial powers;
2. Injunction does not involve the jurisdiction of the court, whereas prohibition may be on
the ground that the court against whom the writ is sought acted without or in excess of
jurisdiction;
3. Injunction may be the main action itself, or just a provisional remedy in the main action,
whereas prohibition is always a main action. Hence, for temporary restraint in a
proceeding for prohibition, preliminary injunction must be sought therein.

Bataclan v. Court of Appeals

175 SCRA

A writ of preliminary injunction is primarily intended to maintain the status quo between the
parties existing prior to the filing of the case. As an ancillary or preventive remedy, it may only
be resorted to by a litigant to protect or preserve his rights or interests and for no other purpose
during the pendency of the principal action.

Courts should not just summarily issue an order of denial without an adequate hearing and
judicious evaluation of the merits of the application as the same would be a denial of procedural
due process and could result in irreparable prejudice to a party.
Sec. 2. Who may grant preliminary injunction. – A preliminary injunction may be granted by
the court where the action or proceeding is pending. If the action or proceeding is pending in
the Court of Appeals or in the Supreme Court, it may be issued by said court or any member
thereof.

Sec. 3. Grounds for issuance of preliminary injunction. – A preliminary injunction may be

granted when it is established:

(a) That the applicant is entitled to the relief demanded, and the whole or part of such
relief consists in restraining the commission or continuance of the act or acts complained of, or
in requiring the performance of an act or acts, either for a limited period or perpetually;

(b) That the commission, continuance or non-performance of the act or acts complained
of during the litigation would probably work injustice to the applicant; or

(c) That a party, court, agency or a person is doing, threatening, or is attempting to do,
or is procuring or suffering to be done, some act or acts probable in violation of the rights of the
applicant respecting the subject of the action or proceeding, and tending to render the judgment
ineffectual.

Bacolod Murcia Milling v. Capitol

17 SCRA

For the writ of preliminary injunction to issue, there must be a showing based on facts that the
party availing of the remedy is entitled to the relief demanded.

An injunction will not issue to protect a right not in esse and which may never arise or to restrain
an act, which does not give rise to a cause of action

The function of an injunction is the maintenance of the status quo as of the time of its issuance.
In the case at bar, the right of the Central in using the railway has already expired: there being no
right to be protected anymore, the writ of preliminary injunction cannot be had.

Merville Park Homeowners Association Inc. v. Velez

196 SCRA
Where the village association seeks to take possession and control of the waterworks system
from the Salandanan who failed to undertake certain contractual obligations necessary to assure
the homeowners of a steady water supply, a writ of preliminary mandatory injunction will not be
granted absent a showing that the severe water shortage had not been remedied and that a clear
and present danger of the same or similar default on Salandanan’s part, threatening the same
severe consequences for the subdivision residents.

A preliminary mandatory injunction is not a proper remedy to take property out of the possession
and control of one party and to deliver the same to the other party where possession of such
property is being disputed. It may issue pendente lite only in cases of extreme urgency, where the
right to the possession, during the pendency of the main case, of the property involved is very
clear; where the considerations of relative inconvenience bear strongly in favor of the
complainant seeking the possession of pendente lite; where there was willful and unlawful
invasion of plaintiff’s rights, over his protest and remonstrance the injury being a continuing one;
where the effect of the preliminary mandatory injunction is to re-establish and maintain a pre-
existing and continuing relationship between the parties, recently and arbitrarily interrupted by
the defendant, rather than to establish a new relationship during the pendency of the principal
case. It is for the party requesting the writ to demonstrate clearly the presence of one or more of
the above grounds.

Sec. 4. Verified application and bond for preliminary injunction or temporary restraining
order. – A preliminary injunction or temporary restraining order may be granted only when:

(a) The application in the action or proceeding is verified and shows facts entitling the
applicant to the relief demanded; and

(b) Unless exempted by the court, the applicant files with the court where the action or
proceeding is pending a bond executed to the party or person enjoined, in an amount to be fixed
by the court, to the effect that the applicant will pay to such party or person all damages which
he may sustain by reason of the injunction or temporary restraining order if the court should
finally decide that the applicant was not entitled thereto. Upon approval of the requisite bond, a
writ of preliminary injunction shall be issued.

(c) When an application for a writ of preliminary injunction or a temporary restraining

order is included in a complaint or any initiatory pleading, the case, if filed in a multiple-sala
court, shall be raffled only after notice to and in the presence of the adverse party or the person
to be enjoined. In any event, such notice shall be preceded, or contemporaneously accompanied
by service of summons, together with a copy of the complaint or initiatory pleading and the
applicant’s affidavit and bond, upon the adverse party in the Philippines.

However, where the summons could not be served personally or by substituted service
despite diligent efforts, or the adverse party is a resident of the Philippines temporarily absent
therefrom or is a nonresident thereof, the requirement of prior or contemporaneous service of
summons shall not apply.

(d) The application for a temporary restraining order shall thereafter be acted upon only
after all parties are heard in a summary hearing which shall be conducted within twenty-four
(24) hours after the sheriff’s return of service and/or the records are received by the branch
selected by raffle and to which the records shall be transmitted immediately.

Sec. 5. Preliminary injunction not granted without notice; exception. – No preliminary

injunction shall be granted without hearing and prior notice to the party or person sought to be
enjoined. If it shall appear from facts shown by affidavits or by verified application that great or
irreparable injury would result to the applicant before the matter can be heard on notice, the
court to which the application for preliminary injunction was made, nay issue ex parte a
temporary restraining order to be effective only for a period of twenty (20) days from service on
the party or person sought to be enjoined, except as herein provided. Within the said twenty-day
period, the court must order said party or person to show cause, at a specified time and place,
why the injunction should not be granted, determine within the same period whether or not the
preliminary injunction shall be granted, and accordingly issue the corresponding order.

However, and subject to the provisions of the preceding sections, if the matter is of
extreme urgency and the applicant will suffer grave injustice and irreparable injury, the
executive judge of a multiple-sala court or the presiding judge of a single-sala court may issue
ex parte a temporary restraining order effective for only seventy-two (72) hours from issuance
but he shall immediately comply with the provisions of the next preceding section as to service of
summons and the documents to be served therewith. Thereafter, within the aforesaid seventy-two
(72) hours, the judge before whom the case is pending shall conduct a summary hearing to
determine whether the temporary restraining order shall be extended until the application for
preliminary injunction can be heard. In no case shall the total period of effectivity of the
temporary restraining order exceed twenty (20 days, including the original seventy-two hours
provided herein.

In the event that the application for preliminary injunction is denied or not resolved
within the said period, the temporary restraining order is deemed automatically vacated. The
effectivity of a temporary restraining order is not extendible without need of any judicial
declaration to that effect and no court shall have authority to extend or renew the same on the
same ground for which it was issued.

However, if issued by the Court of Appeals or a member thereof, the temporary restraining order
shall be effective for sixty (60) days from service on the party or person sought to be enjoined. A
restraining order issued by the Supreme Court or a member thereof shall be effective until further
orders.

Temporary restraining order, when issued

 1. When great or irreparable injury would result to the applicant even before the application
is heard on notice; 20-day temporary restraining order is issued.
2. If the matter is of extreme urgency and the applicant will suffer grave injustice and
irreparable injury, the court may issue ex parte a 72-hour temporary restraining order; can
only be issued by the executive judge of a multiple-sala court or by the presiding judge of
a single-sala court.

The judge issuing a 72-hour TRO is obliged to conduct a summary hearing within the effectivity
of the 72-hour TRO to determine whether the TRO shall be extended in which case, the same is
converted into a 20-day TRO. Within the 20-day period of effectivity of the TRO the court shall
determine in a hearing whether or not the preliminary injunction is to be granted. This 20-day
period is inextendible.

Thus, a TRO may be converted to a preliminary injunction, which in turn may be converted into
a final injunction. TRO and preliminary injunction are issued to maintain the status quo ante, that
is, prior to the institution of the main action. A final injunction confirms a preliminary injunction
and perpetually enjoins a party or person from doing the act/s complained of.

Effectivity of TROs:

TRO issued by trail court may either be for 72 hours or 20 days; if issued by the CA or a member
thereof, it shall be effective for sixty (60) days; TROs0 issued by the SC shall be effective until
further notice.

Social Security Commission v. Bayona

5 SCRA

Damages are irreparable within the meaning of the rule relative to the issuance of injunction
when there is no standard by which their amount can be measured with reasonable accuracy. An
irreparable injury which a court of equity will enjoin includes that degree of wrong of a repeated
and continuing kind which produce hurt, inconvenience, or damage that can be estimated only by
conjecture and not by any accurate standard of measurement. An irreparable injury to authorize
an injunction consists of “a serious charge of, or is destructive to, the property it affects, either
physically or in the character in which it has been held and enjoined, or when the property has
some peculiar quality or use, so that its pecuniary value will not fairly recompense the owner of
the loss thereof.”
For an injury to be irreparable, it does not have to refer to the amount of damages that may be
caused but rather to the difficulty of measuring the damages inflicted. If full compensation can
be obtained by way of damages, equity will not apply the remedy of injunction.

Sec. 6. Grounds for objection to, or for motion of dissolution of, injunction or restraining
order. – The application for injunction or restraining order may be denied, upon a showing of its
insufficiency. The injunction or restraining order may also be denied, or, if granted, may be
dissolved, on other grounds upon affidavits of the party or person enjoined, which may be
opposed by the applicant also by affidavits. It may further be denied or granted, may be
dissolved, if it appears after hearing that although the applicant is entitled to the injunction or
restraining order, the issuance or continuance thereof, as the case may be, would cause
irreparable damage to the party or person enjoined while the applicant can be fully compensated
for such damages as he may suffer, and the former files a bond in an amount fixed by the court
conditioned that he will pay all damages which the applicant may suffer by the denial or the
dissolution of the injunction or restraining order. If it appears that the extent of the preliminary
injunction or restraining order granted is too great, it may be modified.

Sec. 7. Service of copies of bonds; effect of disapproval of same. – The party filing a bond in
accordance with the provisions of this Rule shall forthwith serve a copy of such bond on the
other party, who may except to the sufficiency of the bond, or of the surety or sureties thereon. If
the applicant’s bond is found to be insufficient in amount, or if the surety or sureties thereon fail
to justify, and a bond sufficient in amount with sufficient sureties approved after justification is
not filed forthwith, the injunction shall be dissolved. If the bond of the adverse party is found to
be insufficient in amount, or the surety or sureties thereon fail to justify a bond sufficient in
amount with sufficient sureties approved after justification is not filed forthwith, the injunction
shall be granted or restored, as the case may be.

Sec. 8. Judgment to include damages against party and sureties. – AT the trial, the amount of
damages to be awarded to either party, upon the bond of the adverse party, shall be claimed,
ascertained, and awarded under the same procedure prescribed in section 20 of Rule 57.

Sec. 9. When final injunction granted. – If after the trial of the action it appears that the
applicant is entitled to have the act or acts complained of permanently enjoined, the court shall
grant a final injunction perpetually restraining the party or person enjoined from the
commission or continuance of the act or acts or confirming the preliminary mandatory
injunction.

Gilchrist v. Cuddy

29 Phil 542
THIRD DIVISION

FELIX DE GUZMAN OCAMPO, G.R. No. 164529

represented by GEORGE BUTLER,
JR.,

Petitioner, Present:

YNARES-SANTIAGO, J.
- versus- Chairperson,

AUSTRIA-MARTINEZ,

CHICO-NAZARIO, and

NACHURA, JJ.
ALICIA SISON VDA. DE
FERNANDEZ and LETICIA S.
FERNANDEZ,

Respondents.

Promulgated:

June 19, 2007

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION
CHICO-NAZARIO, J.:

Before this Court is a Petition for Review on Certiorari under Rule 45 of the Revised
Rules of Court seeking the reversal and setting aside of the Decision, dated 23 April 2004,51[1]
of the Court of Appeals in CA-G.R. SP No. 77857, and the affirmation, instead, of the Orders,
dated 11 November 200252[2] and 25 March 2003,53[3] of the Quezon City Regional Trial
Court (RTC), Branch 101, in Civil Case No. Q-01-44582. In its said Orders, the RTC granted the
application for the issuance of a writ of preliminary injunction of herein petitioner Felix de
Guzman Ocampo (Felix), filed through his representative, George Butler, Jr. (George, Jr.),
enjoining the Quezon City Metropolitan Trial Court (MeTC), Branch 43; its Sheriff; the Office
of the Sheriff; and the Register of Deeds from implementing the Second Notice to Vacate the
Premises and/or Writ of Execution issued by the MeTC in Civil Case No. 22375.

Central to the Petition at bar is a piece of property, consisting of a residential lot and
improvement, located along 13th Avenue, Murphy, Cubao, Quezon City (subject property). It
was previously registered under Transfer Certificate of Title (TCT) No. 49804 in the name of
Iluminada G. Piano (Iluminada), married to Ramon Piano (Ramon).54[4]

51[1] Penned by Associate Justice Delilah Vidallon-Magtolis with Associate Justices Eduardo
P. Cruz and Noel G. Tijam, concurring; rollo, pp. 160-166.

52[2] Penned by Judge Normandie B. Pizzaro, id. at 50-52.

53[3] Id. at 68-69.

54[4] RTC Records, pp. 61-62. Note, however, that the Deed of Sale purportedly executed by
Iluminada G. Piano in favor of herein respondent Alicia Sison vda. de Fernandez on 21
December 1993 (Rollo, p. 39), stated that the subject property was covered by TCT No.
 According to petitioner Felix, the spouses Piano took custody of George, Jr. as soon as
the latter was born in 1947. George, Jr. is purportedly an illegitimate son of Corporal George
Butler of the United States Army with Ms. Ermina Fornolles. Although there is no allegation or
evidence presented that they complied with the legal adoption process, the spouses Piano, during
their lifetime, maintained custody of and raised George, Jr. as their own son.55[5] Apparently,
Ramon passed away before his wife. On 1 February 1990, Iluminada, already a widow, executed
a document supposedly bequeathing to George, Jr. the ownership and administration of all her
properties, including the subject property, which served as her residence, and other properties
which she leased out. The said document,56[6] fully typewritten except for Iluminadas alleged
signature, reads in Filipino, is fully reproduced below

PEBRERO 1, 1990

AKO SI ILUMINADA DE GUZMAN PIANO, BIYUDA AT NAKATIRA

SA 119 13th AVENUE, CUBAO, QUEZON CITY AY NAGSASAAD SA
KANINUMAN NA AKING IBINIBIGAY AT INPINAGKAKATIWALA
ANG BUONG PAMAMAHALA AT PAG-MAMAYARI NG AMING
KABUHAYAN PATI NA ANG MGA LUPANG KINATITIRIKAN NG
AMING BAHAY SA KASALUKUYAN AT MGA BAHAY
PAUPAHAN, SA AMING ANAK NA SI GEORGE BUTLER, JR. NA
SIYA NAMING NAGING KASAMA AT KAPILING MULA SA

83137, but no copy of the said certificate could be found in the records of the case.
Herein petitioner Felix De Guzman Ocampo, as represented by George Butler, Jr.,
averred that TCT No. 49804 supposedly covered a bigger tract of land, and after it was
subdivided, TCT No. 83137 was issued covering only the subject property. However,
after comparison, the technical descriptions of the properties covered by both TCT Nos.
49804 and 83137 appear to be exactly the same, so that this Court can only assume that
they both cover the subject property, and Iluminada, for some unexplained reason, had
TCT No. 49804 cancelled and a new one, TCT No. 83137, issued, still in her name.

55[5] Rollo, p. 29.

56[6] Id. at 30.

 KANYANG KAMUSMUSAN AT SIYA RIN NAMING GABAY
HANGGANG SA NGAYON. IBINIBIGAY KO SA KANYA ANG
LAHAT NG KARAPATAN BILANG AMING ANAK UPANG
PAGYAMANIN ANUMANG KABUHAYAN ANG AMING MAIIWAN
PARA SA KANYANG KINABUKASAN AT SA KABUTIHAN NG
LAHAT.

(Signed)
ILUMINADA DE GUZMAN PIANO

About a year later, George, Jr. met Emy Ramos (Emy), who hailed from Pangasinan.
George, Jr. and Emy developed an intimate relationship and, shortly after, Emy came to live with
Iluminada and George, Jr. on the subject property. Even though Iluminada did not trust Emy at
the beginning, the latter was able to deceive and win the old ladys confidence subsequently. It
would then seem that Emy was later entrusted with the administration of Iluminada properties. In
1992, when Iluminada fell extremely ill and suffered mental lapses, Emy entirely took over the
old womans affairs, running the latters household, as well as her businesses.

In 1995, Iluminada mysteriously disappeared for almost a week. Petitioner Felix found it
strange that Emy knew that Iluminada was wandering around the town of Paombong, Bulacan,
and was brought by a tricycle driver to the office of the Bulacan Social Welfare Department. It
was also Emy who requested George, Jr. to fetch Iluminada at the said office.

Iluminada died sometime in 1997. It appears that by said time, George, Jr. and Emy had
already parted ways. George, Jr. continued to live on the subject property with his family until
their possession was disturbed by herein respondent Leticia S. Fernandez (Leticia), who
instituted with the MeTC a suit for unlawful detainer against George, Jr., docketed as Civil Case
No. 22375.
 It was only then that George, Jr. found out that the subject property was supposedly
transferred by Iluminada to herein respondent Alicia Sison vda. de Fernandez (Alicia) by virtue
of a Deed of Sale, dated 21 December 1993, for a consideration of P580,000.00.57[7] On 6

September 1996, Alicia then conveyed the subject property via a Deed of Absolute Sale58[8] to
her daughter and co-respondent Leticia for P500,000.00. Shortly thereafter, or on 26 September
1996, the subject property was registered in respondent Leticias name under TCT No. N-
165230.59[9]

Respondent Leticia prevailed in MeTC Civil Case No. 22375,60[10] and since George,
Jr. did not interpose any appeal within the reglementary period, the judgment therein became
final and executory, and a writ of execution was issued to enforce the same.61[11] George, Jr.
was thus served by the Sheriff of Quezon City with a Notice to Vacate the subject property.

This prompted George, Jr. to file with the RTC Civil Case No. Q-01-44582, against
respondents Alicia and Leticia, as well as Emy,62[12] the MeTC, and the Office of the Sheriff

57[7] Id. at 39.

58[8] Id. at 187.

59[9] Records, p. 10.

60[10] Decision, dated 28 February 2001, penned by Executive Judge Gregorio D. Dayrit; id. at
96-99.

61[11] Order, dated 7 June 2001, penned by Acting Executive Judge Henri JP B. Inting; id. at
100.

62[12] Emy Ramos, though, as records show, has not filed any responsive pleading or
participated in the said case.
and the Register of Deeds of Quezon City, for Recovery of Ownership/Reconveyance,
Temporary Restraining Order/Preliminary Injunction and Damages. The original
Complaint63[13] filed with the RTC was in the name of George, Jr. as the administrator,
acknowledged son and for or in behalf of the other heirs of Iluminada.

George, Jr. sought to recover the subject property since respondents Alicia and Leticia
acquired the same by fraud, deceit, and manipulation, in conspiracy with Emy, their kababayan
from Pangasinan. Some of the instances pointed out by George, Jr. which cast doubt on the
validity and authenticity of the sale of the subject property by Iluminada to respondent Alicia are
the following

(a) Iluminadas signature on the Deed of Sale, dated 21 December

1993, had been forged, as determined by George, Jr., who became very familiar
with Iluminadas genuine signature through the years when he lived with her;

(b) Around the date of execution of the Deed of Sale in 1993,

Iluminada was already physically ill and mentally impaired;

(c) Iluminada never intimated to George, Jr. that she had any intention
to sell the subject property;

(d) George, Jr. attested that there had been no negotiations between
Iluminada and Alicia prior to the sale of the subject property; and

(e) Despite the fact that Iluminada was already physically and
mentally frail, she supposedly executed the Deed of Sale, dated 21 December
1993, in Pangasinan, far from her home in Quezon City.

George, Jr. also questioned the transfer of the subject property by respondent Alicia to
her daughter and co-respondent Leticia shortly after acquiring the same and absent any

63[13] Records, pp. 1-8.

consideration, implying that it was yet another ploy to take the subject property farther from the
reach of its true owner.

In his complaint, George, Jr. further prayed for the issuance of a temporary restraining
order and/or writ of preliminary injunction against the Office of the Sheriff of Quezon City, so as
to enjoin the latter from implementing the writ of execution issued by the MeTC in Civil Case
No. 22375. The complaint contended that unless the execution of the judgment of the MeTC in
Civil Case No. 22375 is enjoined, the rights of George, Jr. and those he represents, shall
definitely suffer irreparable injury and prejudice, especially since the subject property serves as
George, Jr.s family abode.

In their Answer with Counterclaim,64[14] respondents Alicia and Leticia raised the
following defenses against George, Jr.s claims in his Complaint

(a) The document, dated 1 February 1990, by which Iluminada

purportedly bequeathed to George, Jr. the ownership and administration of all her
properties, including the subject property, was a forgery and, thus, null and void;

(b) Respondent Leticia acquired the subject property from her mother
and co-respondent Alicia in good faith and for value, three years after the latter
bought the subject property from Iluminada;

(c) Respondent Leticia instituted before the MeTC Civil Case No.
22375 for unlawful detainer against George, Jr., and a decision in her favor was
already promulgated, and which had become final and executory;

(d) George, Jr. had no cause of action against respondents Alicia and
Leticia, and Civil Case No. Q-01-44582 instituted by George, Jr. before the RTC
was only meant to delay the implementation of the Decision of the MeTC in Civil
Case No. 22375 directing him to vacate the subject property; and

64[14] Id. at 35-40.

 (e) Respondent Leticia has valid title to the subject property to which
she had secured TCT No. N-165230 in her name in 1996. Her certificate of title
should be accorded the character of indefeasibility, and any question as to its
validity had already prescribed.

As to George, Jr.s application for the issuance of a temporary restraining order and/or
writ of preliminary injunction, respondents Alicia and Leticia opposed the same arguing that the
MeTC, in Civil Case No. 22375, already settled the issue of possession of the subject property,
and to enjoin the implementation of the writ of execution therein would cause more harm and
damage to respondents Alicia and Leticia and render the MeTC judgment useless. Therefore,
respondents Alicia and Leticia prayed for the RTC to dismiss George, Jr.s Complaint in Civil
Case No. Q-01-44582, plus payment of damages for his filing of a baseless and unfounded suit.

After respondents Alicia and Leticia had filed their Answer with Counterclaim, the
Complaint was amended65[15] so as to name petitioner Felix as the complainant, represented by
his attorney-in-fact George, Jr. The appended Motion for Leave to Amend Complaint identified
petitioner Felix as one of the legal collateral heirs of Iluminada.66[16] Except for the named
complainant, the original and amended Complaints principally contained the same allegations
and prayers.

65[15] Id.at 49-56.

66[16] Id. at 46-47. In his present Petition, petitioner Felix de Guzman Ocampo explained that
he is Iluminadas nephew, being the son of the late Maria de Guzman Ocampo,
Iluminadas sister.
 Meanwhile, the MeTC, in Civil Case No. 22375, denied George, Jr.s Ex-parte Urgent
Motion to Defer/Stay Execution of its judgment in an Order, dated 15 August 2002.67[17]
Hence, the Sheriff of Quezon City issued a Second Notice to Vacate, dated 15 October 2002,
addressed to George, Jr. and all persons claiming rights under him. With the foregoing
development, petitioner Felix filed with the RTC, in Civil Case No. Q-01-44582, a Motion to set
the case for hearing on his application for a temporary restraining order and/or writ of
preliminary injunction. The said Motion was granted by the RTC which set the hearing date on
23 October 2002 at 8:30 a.m.68[18]

Despite being given due notice, the counsel for respondents Alicia and Leticia did not
appear before the RTC during the hearing set on 23 October 2002. In an Order issued on even
date,69[19] the RTC granted petitioner Felixs prayer for the issuance of a temporary restraining
order based on the following reasoning

During that setting, the records will confirm that all of the said [herein
respondents Alicia and Leticia, et al.] and counsel Viray were notified. To afford
them one last chance, the repeat service of notices for todays hearing was
ordered/effected and done, the details of which specifically as to the proof of
service is now attached to the records.

The [herein petitioner Felix/representative George, Jr.s] counsel was

allowed to present briefly his case in Court and, to the appreciation of the Court,
the main concern of the [petitioner Felix/representative George, Jr.] now is the
Sheriffs Second Notice to Vacate of Branch 43, [MeTC], Quezon City. In effect,
they are being asked to leave the premises in question by virtue of a Writ of
Execution dated June 7, 2001 issued by the Acting Executive Judge of the said
station, Judge Henri JP B. Inting.

67[17] Penned by Presiding Judge Evangeline Crisologo Castillo, id. at 129-130.

68[18] Penned by Judge Normandie B. Pizarro, id. at 118.

69[19] Id. at 124-125.

 From the records and as deciphered by the Court, the case before the lower
court is one of unlawful detainer where herein [petitioner Felix/representative
George, Jr.] lost and where incidentally the issue of ownership had been passed
upon.

The case before this Court now will focus on the issue of ownership
and/or reconveyance, the factual backgrounder being tied up to matters of
inheritance and/or fraudulent acquisition and/or transfer of the subject property.

There being no direct, speedy and immediate recourse by [petitioner

Felix/representative George, Jr.] in this case, there being initial merit to the prayer
for a Temporary Restraining Order, this Court GRANTS the same.

Accordingly, the [respondents Alicia and Leticia], as well as [MeTC],

Branch 43, its Sheriff and the Office of the Sheriff of Quezon City, Office of the
Clerk of Court of Quezon City and the Register of Deeds are hereby DIRECTED
to stop and/or desist from implementing the Second Notice to Vacate the Premises
and/or Writ of Execution until and after this Court has heard the main case on the
preliminary injunction.

The RTC, in the same Order, gave the parties the option of either presenting evidence at a
hearing or filing supporting pleadings on the issuance of a writ of preliminary injunction;
thereafter, the issue shall be considered submitted for resolution. In compliance with this Order,
petitioner Felix and respondents Alicia and Leticia filed their Position Paper and Memorandum,
respectively, and on 11 November 2002, the RTC issued another Order,70[20] this time,
granting petitioner Felixs prayer for the issuance of a writ of preliminary injunction, thus

For consideration of this Court in resolving the matter of the issuance of

the writ of preliminary injunction is the question on whether or not [petitioner
Felix/representative George, Jr.] have the clear and unmistakable rights that will
be violated in the event the enforcement of the Writ of Execution issued by the
Metropolitan Trial Court of Quezon City, Branch 41 [sic] is pushed through.

Inasmuch as the issue before this Court is the alleged spurious and
irregular transaction involving the alleged sale of the subject property, and
considering that the ejectment case before the Metropolitan Trial Court of Quezon
City, Branch 41 [sic] involves only possession and not ownership, logic and

70[20] Rollo, pp. 50-52.

 prudence call for the maintenance of the status quo between the parties until after
the case is decided on the merits.

To avoid any miscarriage of justice and injury to [herein petitioner

Felix/representative George, Jr.], and considering that the title of the [herein
respondents Alicia and Leticia] are [sic] now being assailed in this instant case,
this Court is impelled under the premises to GRANT the prayer for a writ of
preliminary injunction.

WHEREFORE, premises considered, the application for Writ of

Preliminary Injunction is hereby GRANTED, directing the [respondents Alicia
and Leticia] and all persons claiming rights under them, The Metropolitan Trial
Court of Quezon City, Branch 43, its Sheriff and the Office of the Sheriff of
Quezon City and the Register of Deeds to stop and/or desist from implementing
the Second Notice to Vacate the Premises and/or Writ of Execution pending
resolution of the main case, upon posting of a bond in the amount of FIVE
HUNDERED THOUSAND (P500,000.00) PESOS pursuant to Section 4, Rule
58, 1997 Rules of Civil Procedure.

The RTC, in an Order, dated 25 March 2003,71[21] denied respondents Alicia and
Leticias Motion for Reconsideration of its Order dated 11 November 2002.

Aggrieved, respondents Alicia and Leticia filed before the Court of Appeals a Petition for
Certiorari under Rule 65 of the revised Rules of Court assailing the Orders, dated 11 November
2002 and 25 March 2003, of the RTC in Civil Case No. Q-01-44582 for having been issued with
grave abuse of discretion amounting to lack or excess of jurisdiction. In its Decision, dated 23
April 2004,72[22] the Court of Appeals found the Petition of respondents Alicia and Leticia to
be impressed with merit and ratiocinated that

It is a long-settled rule that for a writ of preliminary mandatory injunction

to issue, the following requisites must be present: (1) that the complainant has a

71[21] Id. at 68-69.

72[22] Id. at 165-166.

clear legal right; (2) that his right has been violated and the invasion is material
and substantial; and (3) there is an urgent and permanent necessity for the writ to
prevent serious damage. Thus, injunction may issue pendente lite only in cases of
extreme urgency, where the right to the possession, during the pendency of the
main case, of the property involved is very clear; where considerations of relative
inconvenience bear strongly in favor of the complainant seeking the possession of
the property pendente lite; where there was willful and unlawful invasion on
plaintiffs right, over his protest and remonstrance, the injury being a continuing
one.

In the case at bar, [herein petitioner Felixs] right to the possession of the
subject property is not clear. [Petitioner Felix] merely bases his claim on his being
an alleged heir of Mrs. Iluminada Piano, the original property owner. However, as
a general rule, a pending civil action involving ownership of the same property
does not justify the suspension of ejectment proceedings, more so when the object
of the injunctive suit is a final and executory judgment already set for
implementation. According to the Supreme Court, the underlying reasons for such
ruling were that the actions in the Regional Trial Court did not involve physical or
de facto possession, and, on not a few occasions, that the case in the Regional
Trial Court was merely a ploy to delay disposition of the ejectment proceeding, or
that the issues presented in the former could quite as easily be set up as defenses
in the ejectment action and there resolved. Hence, the mere existence of a judicial
proceeding putting at issue the right of the plaintiff to recover the premises is not
enough reason to justify an exception to such general rule.

Besides, our rules of succession require that before any conclusion as to

the legal share due to a compulsory heir may be reached, the following steps must
be taken: (1) the net estate of the decedent must be ascertained, by deducting all
the payable obligations and charges from the value of the property owned by the
deceased at the time of his death; (2) the value of all the donations subject to
collation would be added to it. Obviously, the requisites for the issuance of a writ
of preliminary injunction were not met.

As for George Butler, Jr., who, while only designated as a representative

of the [petitioner Felix], also claims rights over the property in question by virtue
of his being an adopted son of the late Mrs. Piano, We note that he was the
defendant in the ejectment case filed by [herein respondent] Leticia, which
resulted in a final and executory judgment against him. It is a settled rule that
injunction suits instituted in the RTC by defendants in ejectment actions in the
municipal trial courts or other courts of the first level do not abate the latter.
Equally settled is that, as a rule, injunction will not be granted to take property out
of the possession or control of one party and place it into that of another whose
title has not clearly been established by law.
 Consequently, We are constrained to set aside the assailed orders of the
respondent court, for being issued with grave abuse of discretion amounting to
lack or excess of jurisdiction.

WHEREFORE, the petition is GRANTED and the questioned orders

dated November 11, 2002 and March 25, 2003 are SET ASIDE. The writ of
preliminary injunction issued in Civil Case No. Q-01-44582 is hereby
DISSOLVED. The respondent court is DIRECTED to pursue proceedings in
said civil case without further delay.

In a Resolution dated 8 July 2004,73[23] the Court of Appeals denied petitioner Felixs
Motion for Reconsideration finding no sufficient reason to deviate from the findings and
conclusion reached in its Decision, dated 23 April 2004.

And so, petitioner Felix, still represented by his attorney-in-fact George, Jr., comes
before this Court via a Petition for Review on Certiorari under Rule 45 of the Revised Rules of
Court, challenging the afore-quoted Decision, dated 23 April 2004, of the Court of Appeals
based on the following assignment of errors

I.

THE HONORABLE SIX [sic] DIVISION OF THE COURT OF APPEALS

ERRED WHEN IT REVERSED THE ORDER OF THE REGIONAL TRIAL
COURT GRANTING THE INJUNCTION THEREBY TAKING THE
PROPERTY OUT OF THE POSSESSION OF ONE PARTY AND PLACED IT
IN ANOTHER DESPITE THE FACT THAT PETITIONER HAS CLEAR AND
UNMISTAKABLE RIGHT TO POSSESS THE SUBJECT PROPERTY.

II.

73[23] Penned by Associate Justice Delilah Vidallon-Magtolis with Associate Justices Edgardo
P. Cruz and Noel G. Tijam, concurring, Rollo, p. 173.
 THE HONORABLE SIX [sic] DIVISION OF THE COURT OF APPEALS
ERRED WHEN IT REVERSED THE ORDER OF THE REGIONAL TRIAL
COURT GRANTING THE INJUNCTION DESPITE THE FAILURE OF THE
PRIVATE RESPONDENTS TO APPEAR IN THE HEARING OF ISSUANCE
OF PRELIMINARY INJUNCTION DESPITE NOTICE THEREBY WAIVING
THEIR RIGHTS TO QUESTION THE ORDER GRANTING THE
INJUNCTION.74[24]

We find no merit in the Petition at bar. The Court of Appeals did not commit any error in
setting aside the Orders, dated 11 November 2002 and 25 March 2003, of the RTC in Civil Case
No. Q-01-44582, and dissolving the writ of preliminary injunction issued by the said trial court.

Section 3, Rule 58 of the Revised Rules of Court, enumerated the grounds for the
issuance of a writ of preliminary injunction, to wit

SEC. 3. Grounds for issuance of preliminary injunction. A preliminary

injunction may be granted when it is established:

(a) That the applicant is entitled to the relief demanded, and the whole
or part of such relief consists in restraining the commission or continuance of the
act or acts complained of, or in requiring the performance of an act or acts, either
for a limited period or perpetually;

(b) That the commission, continuance or non-performance of the act or

acts complained of during the litigation would probably work injustice to the
applicant; or

(c) That a party, court, agency or a person is doing, threatening, or is

attempting to do, or is procuring or suffering to be done, some act or acts
probably in violation of the rights of the applicant respecting the subject of the
action or proceeding, and tending to render the judgment ineffectual.

74[24] Id. at 18.

 There are generally two kinds of preliminary injunction: (1) a prohibitory
injunction which commands a party to refrain from doing a particular act; and (2) a
mandatory injunction which commands the performance of some positive act to
correct a wrong in the past.75[25]

It is a well-settled rule that the sole object of a preliminary injunction,

whether prohibitory or mandatory, is to preserve the status quo until the merits of
the case can be heard. It is usually granted when it is made to appear that there is a
substantial controversy between the parties and one of them is committing an act or
threatening the immediate commission of an act that will cause irreparable injury
or destroy the status quo of the controversy before a full hearing can be had on the
merits of the case.76[26]

To be entitled to the injunctive writ, the applicant must show that there
exists a right to be protected which is directly threatened by an act sought to be
enjoined. Furthermore, there must be a showing that the invasion of the right is
material and substantial and that there is an urgent and paramount necessity for the
writ to prevent serious damage. The applicant's right must be clear and
unmistakable. In the absence of a clear legal right, the issuance of the writ
constitutes grave abuse of discretion. Where the applicant's right or title is doubtful

75[25] Levi Strauss & Co. v. Clinton Apparelle, Inc., G.R. No. 138900, 20 September 2005, 470
SCRA 236, 252.

76[26] Rava Development Corporation v. Court of Appeals, G.R. No. 96825, 3 July 1992, 211 SCRA 144, 154.
or disputed, injunction is not proper. The possibility of irreparable damage without
proof of an actual existing right is not a ground for injunction.77[27]

A clear and positive right especially calling for judicial protection must be
shown. Injunction is not a remedy to protect or enforce contingent, abstract, or
future rights; it will not issue to protect a right not in esse and which may never
arise, or to restrain an act which does not give rise to a cause of action. There must
exist an actual right. There must be a patent showing by the applicant that there
exists a right to be protected and that the acts against which the writ is to be
directed are violative of said right.78[28]

In the present Petition, petitioner Felix miserably failed to establish such a

clear and positive right that would entitle him to the issuance of the injunctive writ
prayed for.

It bears to emphasize that the complainant in Civil Case No. Q-01-44582 is

petitioner Felix, and not George, Jr.; and that George, Jr. is only supposed to
represent petitioner Felix in the said case for reconveyance of the subject property.
Petitioner Felix is the identified party-in-interest based on the allegation that he is a
legal collateral heir of Iluminada. Therefore, the right to the subject property that

77[27] Resolution, Medina v. City Sheriff, Manila, G.R. No. 113235, 24 July 1997.

78[28] Levi Strauss & Co. v. Clinton Apparelle, Inc., supra note 25 at 252.
must be established is that of petitioner Felix and not that of George, Jr. Based on
the pleadings and the evidences submitted, it would seem that even counsel for
petitioner Felix is confused as to whose right he is actually representing before the
RTC, for although he is supposed to assert the right of petitioner Felix to the
subject property, the pleadings and evidences on file dwelled mostly on the right of
George, Jr. to the same property. The RTC appears just as befuddled as it would
refer to petitioner Felix as the complainant and to George, Jr. as the plaintiff, when
the truth of the matter is, that petitioner Felix is the complainant and plaintiff in
Civil Case No. Q-01-44582 after amendment of the Complaint.

This said, all evidence79[29] in the records to establish the right of George,
Jr. to the subject property as an adopted son of Iluminada and her husband Ramon
are immaterial. What should have been presented, but are dismally missing herein,
are evidences establishing the unequivocal right of petitioner Felix to the subject
property. Except for his bare allegation that he is a surviving nephew of Iluminada,
entitled to inheritance from the latters estate as a legal heir, no other effort was
made to prove this fact.

79[29] (1) Iluminadas letter, dated 9 August 1963, to the Adjutant General of the United States
Army seeking assistance in securing financial support for her adopted son George, Jr.
from the latters biological father [Records, p. 148]; (2) The document, dated 1 February
1990, in which Iluminada bequeathed to her son George, Jr. the administration and
ownership of all her properties [Rollo, p. 30]; and (3) Certification, dated 7 September
1999, executed by Bonifacio M. Rillon, Punong Barangay of Barangay Socorro,
certifying that George, Jr. is a bona fide resident of the barangay, having lived on the
subject property for almost 15 years with his parents [Records, p. 161].
 Even the Order, dated 11 November 2002, issued by the RTC in Civil Case
No. Q-01-44582, granting petitioner Felixs application for the issuance of a writ of
preliminary injunction, only recounted the averments of the parties, but is
conspicuously silent as to the specific evidences and legal arguments actually
considered by the trial court. The RTC abruptly reached the conclusion that logic
and prudence call for the maintenance of the status quo between the parties until
after the case is decided on the merits, and that to avoid any miscarriage of justice
and injury to [herein petitioner Felix/representative George, Jr.], and that the title
of [herein respondents Alicia and Leticia] are [sic] now being assailed in this
instant case, [the RTC] is impelled under the premises to grant the prayer for a writ
of preliminary injunction.

In Levi Strauss & Co. v. Clinton Apparelle, Inc.,80[30] this Court surveyed
prior cases which adjudged the sufficiency of orders issued by trial courts granting
injunctive writs, thus

The Court also finds that the trial courts order granting the writ did not adequately
detail the reasons for the grant, contrary to our ruling in University of the
Philippines v. Hon. Catungal Jr., wherein we held that:

The trial court must state its own findings of fact and cite
particular law to justify grant of preliminary injunction. Utmost
care in this regard is demanded.

The trial court in granting the injunctive relief tersely ratiocinated that the
plaintiffs appear to be entitled to the relief prayed for and this Court is of the
considered belief and humble view that, without necessarily delving on the merits,
the paramount interest of justice will be better served if the status quo shall be

80[30] Supra note 25 at 256.

 maintained. Clearly, this statement falls short of the requirement laid down by the
above-quoted case. Similarly, in Developers Group of Companies, Inc. v. Court of
Appeals, we held that it was not enough for the trial court, in its order granting the
writ, to simply say that it appeared after hearing that plaintiff is entitled to the
relief prayed for.

Guided by the foregoing precedents, this Court likewise finds that the RTC Order,
dated 11 November 2002, granting the issuance of a writ of preliminary injunction,
is deficient for failing to state the factual and legal bases therefore.

While the right of petitioner Felix to the subject property, at this point, is but
a mere unsupported, uncorroborated, and self-serving claim, in stark contrast, the
right of respondent Leticia to the possession of the subject property had been
settled in the Decision, dated 28 February 2001, promulgated by the MeTC in Civil
Case No. 22375, which already became final and executory for failure of George,
Jr. to appeal the same. In the said Decision, the MeTC found as follows

After a careful evaluation of the pleadings and evidence, the Court finds
that the [herein respondent Leticia] has established by clear and preponderant
evidence her cause of action for ejectment against [George, Jr.].

The [respondent Leticia] being the registered owner of the property in

question occupied by [George, Jr.], it results that she has the right to enjoy it,
including the right to exclude others from its enjoyment through proper action
against its possessor or holder in order to recover it (Arts. 428 and 429, New Civil
Code). The Certificate of Title (TCT No. N-165230) issued in the name of the
[respondent Leticia] vested in her not only ownership over the subject house and
lot but also the right of possession as a necessary consequence of the right of
ownership. [George, Jr.] failed to adduce any legal ground for his continued stay
on the property. Besides, the records do not show that [George, Jr.] has instituted
an action to assert ownership over the subject house and lot. He merely claimed
that he is a foster son of the late spouses Iluminada and Ramon Piano, the
previous owners who have caused the subdivison of the lot into three parcels and
that he is not aware of any transaction resulting to the disposition of the portion
claimed by [respondent Leticia]. It is the accepted rule that a person who has a
torrens title over the subject property is entitled to the possession thereof
(Pangilinan vs. Aguilar, 43 SCRA 136). [George, Jr.] has failed to sufficiently
establish that he is entitled to the possession of the subject house and lot. After the
sale of the subject property, [George, Jr.]s possession thereof is merely tolerated
since no lessor-lessee relationship exist [sic] between them. His occupancy was at
the owners sufferance and his acts was [sic] merely tolerated which could not
affect the owners possession (Arts. 537 and 1119, New Civil Code). It is a settled
rule that once possession of [George, Jr.] is by tolerance, it becomes illegal upon
demand by the [respondent Leticia] to vacate (Anis v. Aragon, L-4685, April 28,
1951; PNB vs. Animas, 117 SCRA 735; Yu v. De Lara, 6 SCRA 785; Saclolo vs.
IAC, 159 SCRA 63; Peran vs. Pres. Judge of CFI of Sorsogon, 125 SCRA 78) for
the simple reason that possession by tolerance carries with it an implied promise
to vacate the property upon demand, and that the same was withdrawn when
demand to vacate was made by the [respondent Leticia] upon [George, Jr.]
personally and in the letter of June 20, 1998 (Annex B position paper). Likewise,
prior physical possession of the property is not an indispensable requisite since
[respondent Leticia] is a vendee for she merely steps into the shoes of the vendor
and succeeds to her rights and interests (Aguilar vs. Cabrera, 74 Phil. 658; Dela
Cruz vs. Bocar, et. al., 99 Phils. [sic] 491; Sun vs. Brillantes, 93 Phils. [sic] 175).
Moreover, as held in Caniza vs. Court of Appeals, an owners act of allowing
another to occupy his house, rent-free does not create a permanent and
indefeasible right of possession in the latters favor. After the expiration of the
thirty-day period given to [George, Jr.] to vacate the subject property in the letter
of June 20, 1998, made his occupation subsequently illegal. Therefore, there is no
legal obstacle for the [respondent Leticia] to eject [George, Jr.] and all persons
claiming right under him from the subject premises.

xxxx

WHEREFORE, premises considered, judgment is hereby rendered in

favor of the [respondent Leticia] and against [George, Jr.], to wit:

1) Ordering [George, Jr.] and all persons claiming rights under him to
vacate the premises located at 119 13th Avenue, Cubao, Quezon City and to
surrender the possession thereof to the [respondent Leticia];

2) Ordering [George, Jr.] to pay the [respondent Leticia] the amount

of P15,000.00 per month as reasonable rental value for the use and occupancy of
the subject premises beginning June 1998 and every month thereafter until
[George, Jr.] finally vacates and surrenders possession thereof to [respondent
Leticia];

3) Ordering [George, Jr.] to pay the [respondent Leticia] the amount

of P20,000.00 as attorneys fees, plus P1,500.00 appearance fee; and
 4) To pay the costs of suit.

The right of respondent Leticia to the execution of the aforequoted MeTC Decision is
already beyond cavil for the following reasons:

First, the Decision, dated 28 February 2001, was rendered by the MeTC in a case for
unlawful detainer, which, together with forcible entry, are considered under Rule 70 of the
Revised Rules of Court as summary proceedings intended to provide an expeditious means of
protecting actual possession or right to possession of property, without consideration of the
question of title. Such actions involve perturbation of social order which must be resolved as
promptly as possible, and, accordingly, technicalities or details of procedure which may cause
unnecessary delay should carefully be avoided.81[31]

Section 19, Rule 70 of the Revised Rules of Court provides that immediate execution in
ejectment cases is proper if the judgment is in favor of the plaintiff. It can be stayed by the
defendant only by perfecting an appeal, filing a supersedeas bond, and making a periodic deposit
of the rental or the reasonable compensation for the use and occupancy of the property during the
pendency of the appeal. Thus, if the defendant fails to comply with all these requisites, the trial
court upon motion of the plaintiff, with notice to the defendant and upon proof of such failure,
can order the immediate execution of the appealed Decision.82[32] In the instant Petition,
however, George, Jr., as the defendant in Civil Case No. 22375, failed to timely appeal the
MeTC Decision, dated 28 February 2001, which ruled in favor of respondent Leticia, the
plaintiff therein. Without an appeal, George, Jr. cannot stay the execution of the judgment
rendered in the said unlawful detainer case.

81[31] Torno v. Intermediate Appellate Court, G.R. No. L-72622, 28 October 1988, 166 SCRA
742, 749.

82[32] Chua v. Court of Appeals, 338 Phil. 262, 270 (1997).

 Second, whether or not the MeTC Decision, dated 28 February 2001, is correct is an issue
beyond the jurisdiction of any court, including this Court, because due to George, Jr.s failure to
appeal the same, it had become final and executory. Nothing is more settled in law than that
when a final judgment is executory, it thereby becomes immutable and unalterable. The
judgment may no longer be modified in any respect, even if the modification is meant to correct
what is perceived to be an erroneous conclusion of fact or law, and regardless of whether the
modification is attempted to be made by the court rendering it or by the highest Court of the
land. The doctrine is founded on considerations of public policy and sound practice that, at the
risk of occasional errors, judgments must become final at some definite point in time.83[33]

Resultantly, the implementation and execution of judgments that had attained finality are
already ministerial on the courts. Public policy also dictates that once a judgment becomes final,
executory, and unappealable, the prevailing party should not be denied the fruits of his victory by
some subterfuge devised by the losing party. Unjustified delay in the enforcement of a judgment
sets at naught the role of courts in disposing justiciable controversies with finality.84[34] Hence,
once a judgment becomes final, the prevailing party is entitled as a matter of right to a writ of
execution, the issuance of which is the trial court's ministerial duty.85[35]

Third, the judgment of the MeTC in Civil Case No. 22375 for unlawful detainer is
conclusive on the issue of possession, adjudged therein in favor of respondent Leticia, but not on

83[33] Mayon Estate Corporation v. Altura, G.R. No. 134462, 18 October 2004, 440 SCRA 377,
386.

84[34] Huerta Alba Resort, Inc. v. Court of Appeals, 394 Phil. 22, 46 (2000).

85[35] Filcon Manufucturing Corp. v. National Labor Relations Commission, G.R. No. 78576,
31 July 1991, 199 SCRA 814, 823 citing Torno v. Intermediate Appellate Court, supra
note 31 at 751.
issues of title and ownership. Therefore, the RTC should not lose sight of the fact that being
entirely distinct and separate actions, the action for reconveyance before it in Civil Case No. Q-
01-44582 should neither affect nor be affected by the action for unlawful detainer before the
MeTC in Civil Case No. 22375.

The case of De la Cruz v. Court of Appeals 86[36] provides an elucidating discussion on

the difference between these two types of actions

An unlawful detainer action has an entirely different subject from that of an action
for reconveyance of title. What is involved in unlawful detainer case is merely the
issue of material possession or possession de facto; whereas in an action for
reconveyance, ownership is the issue. So much so that the pendency of an action
for reconveyance of title over the same property does not divest the city or
municipal court of its jurisdiction to try the forcible entry or unlawful detainer
case, nor will it preclude or bar execution of judgment in the ejectment case
where the only issue involved is material possession or possession de facto.

This is so because:

"The judgment rendered in an action for forcible entry or

detainer shall be effective with respect to the possession only and
in no case bind the title or affect the ownership of the land or
building. Such judgment shall not bar an action between the same
parties respecting title to the land or building nor shall it be held
conclusive of the facts therein found in case between the same
parties upon a different cause of action involving possession."

The rationale is that forcible entry and unlawful detainer cases are
summary proceedings designed to provide for an expeditious means of protecting
actual possession or the right to possession of the property involved. It does not
admit of a delay in the determination thereof. It is a "time procedure" designed to
remedy the situation. Procedural technicality is therefore obviated and reliance
thereon to stay eviction from the property should not be tolerated and cannot
override substantial justice. So much so that judgment must be executed
immediately when it is in favor of the plaintiff in order to prevent further damages
arising from loss of possession.87[37]

86[36] 218 Phil. 492 (1984).

87[37] Id. at 498-499.

 This Court declared further in Sy v. Court of Appeals 88[38] that

By any standard, the delay in the resolution of the unlawful detainer case
and the enforcement of the decision therein is anathema to the summary nature of
unlawful detainer proceedings. This is especially true under the Rule on Summary
Procedure streamlining the proceedings in forcible entry and detainer cases to
achieve a more expeditious and less expensive determination thereof. The
pendency of the action for reconveyance does not constitute a compelling reason
to delay the termination of an ejectment case, for it gives rise merely to an
expectancy that the documents assailed therein may be nullified and the subject
properties may be ordered reconveyed to private respondents, as compared to the
clear, actual and existing legal right of petitioner to the possession of the subject
property as the registered owner.89[39]

And in Wilmon Auto Supply Corporation v. Court of Appeals,90[40] this Court made the
following significant statement

It may well be stressed in closing that as the law now stands, even when,
in forcible entry and unlawful detainer cases, "the defendant raises the question of
ownership in his pleadings and the question of possession cannot be resolved
without deciding the issue of ownership," the Metropolitan Trial Courts,
Municipal Trial Courts, and Municipal Circuit Trial Courts nevertheless have the
undoubted competence to resolve "the issue of ownership xxx only to determine
the issue of possession."91[41]

88[38] G.R. No. 95818, 2 August 1991, 200 SCRA 117.

89[39] Id. at 127-128.

90[40] G.R. No. 97637 and No. 98700-01, 10 April 1992, 208 SCRA 108.

91[41] Id. at 121.

 Based on these previous rulings of this Court, the pendency before the RTC of Civil Case
No. Q-01-44582 for reconveyance cannot bar the execution of the judgment rendered by the
MeTC in Civil Case No. 22375 for unlawful detainer. The summary nature of Civil Case No.
22375 for unlawful detainer, as well as the finality of the Decision, dated 28 February 2001,
promulgated by the MeTC in the said case, militate against any effort on the part of petitioner
Felix and his representative George, Jr. to delay further the execution of said Decision.

It must be noted that although petitioner Felix, the complainant, in RTC Civil Case No.
Q-01-44582 for reconveyance, was not a party in MeTC Civil Case No. 22375 for unlawful
detainer, he must still be bound by the judgment in the latter case as far as the right of possession
of the subject property is concerned. Petitioner Felix does not even make any pretense that he is
in actual possession of the subject property. By his own allegations in his pleadings, it is his
representative George, Jr. who presently possesses and occupies the subject property as his
residence. The status quo that petitioner Felix is trying to preserve with the writ of preliminary
injunction is the possession of the subject property, not by him, but by George, Jr. still.
Consequently, the ruling of the MeTC in the unlawful detainer case, Civil Case No. 22375,
declaring George, Jr.s continued possession of the subject property illegal, should also bind
petitioner Felix. To rule otherwise would be to allow petitioner Felix and his representative
George, Jr. to circumvent the final and executory Decision, dated 28 February 2001, of the
MeTC in Civil Case No. 22375.

Now coming to the second assignment of error made by petitioner Felix grounded on his
argument that respondents Alicia and Leticia, by their non-appearance during the hearing set for
the application for a temporary restraining order and/or writ of preliminary injunction despite
due notice, had waived their right to question the Orders of the RTC granting the said
application.
 This Court disagrees.

As early as the filing of their Answer with Counterclaim before the RTC in Civil Case
No. Q-01-44582, the respondents Alicia and Leticia made known their opposition to petitioner
Felixs application for the issuance of a temporary restraining order and/or writ of preliminary
injunction. When respondents Alicia and Leticia and their counsel failed to attend the hearing set
by the RTC on 23 October 2002, at 8:30 a.m., what they waived was their right to present
evidence therein to refute petitioner Felixs asserted entitlement to a temporary restraining order
and/or writ of preliminary injunction.

The RTC itself, in its Order, dated 21 October 2002, directed Atty. Viray, the counsel for
the respondents Alicia and Leticia, to field a collaborating counsel in case he is unable to come;
failure to do so might mean that [the RTC] will proceed accordingly. This only means that
should there be no legal representation on the part of respondents Alicia and Leticia on the set
hearing date, the RTC will already consider submitted for resolution the issue on whether the
application for the issuance of a temporary restraining order and/or writ of preliminary injunction
should be granted or denied.

This Court just cannot find any legal basis to support petitioner Felixs contention that the
absence of respondents Alicia and Leticia during the hearing must be deemed a waiver not only
of their right to present evidence in support of their stand on the issue in question, but also of
their right to challenge the resolution or order of the RTC should it be adverse to them. To affirm
the extent of the waiver of respondents Alicia and Leticia, as asserted by petitioner Felix and
based solely on the formers absence from the hearing, would be too radical and overbroad,
already precluding respondents Alicia and Leticia from availing themselves of any remedy to
question the subsequent RTC resolution or order if erroneous or rendered with grave abuse of
discretion amounting to lack or excess of jurisdiction. It may open the floodgates to mischief,
abuse, and violation of due process.

Moreover, after the hearing on 23 October 2002, the RTC issued an Order in open court
granting petitioner Felixs application for the issuance of a temporary restraining order. However,
the RTC did not yet make any pronouncement as to the application for the issuance of a writ of
preliminary injunction. Instead, in the last paragraph of its Order, the RTC gave the following
directive

Set the reception of evidence on the preliminary injunction proper on

October 28, 2002 at 8:30 a.m. In the alternative, the parties may submit their
supporting pleadings thereto. Thereafter, the incident shall be considered
submitted for resolution. As usual, in the interest of time, Atty. Chan is directed to
effect the service of the ORDER of this Court today by LBC to the [respondents
Alicia and Leticia] and their counsel.92[42]

In compliance therewith, respondents Alicia and Leticia did file a Memorandum93[43] which
extensively discussed their argument that the execution of the final and executory judgment in
MeTC Civil Case No. 22375, ordering George, Jr. to vacate the subject property, cannot be
stayed by a preliminary injunction issued in the pending RTC Civil Case No. Q-01-44582.
Hence, respondents Alicia and Leticia were still able to present before the RTC their opposition
to petitioner Felixs application for the issuance of a writ of preliminary injunction even after the
hearing which they failed to attend. Respondents Alicia and Leticia have consistently and
continuously made known to the RTC and to their adversary, petitioner Felix, that they oppose
the latters application for the issuance of an injunctive writ, before and after the hearing for
presentation of evidence on the matter, so that to conclude that they had waived their right to

92[42] Records, pp. 124-125.

93[43] Id. at 162-175.

question the RTC order granting such a writ just by their absence in the said hearing would be
specious and untenable.

The Court of Appeals, therefore, did not commit any error when it reversed and set aside
the Orders dated 11 November 2002 and 25 March 2003, of the RTC in Civil Case No. Q-01-
44582; and dissolved the writ of preliminary injunction issued in the said Orders. These Orders
granting petitioner Felixs application for issuance of a writ of preliminary injunction were
rendered by the RTC with grave abuse of discretion, amounting to lack or excess of jurisdiction.
It is worthy to reiterate herein the ruling of this Court in Almeida v. Court of Appeals 94[44]

In general, a trial courts decision to grant or to deny injunctive relief will

not be set aside on appeal unless the court abused its discretion. In granting or
denying injunctive relief, a court abuses its discretion when it lacks jurisdiction,
fails to consider and make a record of the factors relevant to its determination,
relies on clearly erroneous factual findings, considers clearly irrelevant or
improper factors, clearly gives too much weight to one factor, relies on erroneous
conclusions of law or equity, or misapplies its factual or legal conclusions. In the
absence of a clear legal right, the issuance of the injunctive writ constitutes grave
abuse of discretion. As the Court had the occasion to state in Olalia v. Hizon:

It has been consistently held that there is no power the

exercise of which is more delicate, which requires greater caution,
deliberation and sound discretion, or more dangerous in a doubtful
case, than the issuance of an injunction. It is the strong arm of
equity that should never be extended unless to cases of great
injury, where courts of law cannot afford an adequate or
commensurate remedy in damages.

Every court should remember that an injunction is a

limitation upon the freedom of action of the defendant and should
not be granted lightly or precipitately. It should be granted only
when the court is fully satisfied that the law permits it and the
emergency demands it.

94[44] G.R. No. 159124, 17 January 2005, 448 SCRA 681.

 WHEREFORE, premises considered, the instant Petition for Review is DENIED, and
the Decision, dated 23 April 2004, of the Court of Appeals in CA-G.R. SP No. 77857 is
AFFIRMED. The case is REMANDED to the Regional Trial Court, Branch 101, which is
DIRECTED to hear and resolve Civil Case No. Q-01-44582 with dispatch. Costs against the
petitioner.

SO ORDERED.

MINITA V. CHICO-NAZARIO

Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO

Associate Justice

Chairperson
MA. ALICIA AUSTRIA-MARTINEZ ANTONIO EDUARDO B. NACHURA

Associate Justice Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision were reached in

consultation before the case was assigned to the writer of the opinion of the Courts
Division.

CONSUELO YNARES-SANTIAGO

Associate Justice

Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairpersons Attestation, it is hereby certified that the conclusions in the above
Decision were reached in consultation before the case was assigned to the writer of
the opinion of the Courts Division.

REYNATO S. PUNO

Chief Justice