November 2009 Philippine Supreme Court Decisions on Remedial Law

Here are selected November 2009 Philippine Supreme Court decisions on remedial law:

Action;  forum shopping. Petitioners Espiritu, et al. point out that the certificate of non-forum shopping that respondents KPE and Petron attached to the petition they filed with the Court of Appeals was inadequate, having been signed only by Petron, through Atty. Cruz.

But, while procedural requirements such as that of submittal of a certificate of non-forum shopping cannot be totally disregarded, they may be deemed substantially complied with under justifiable circumstances. One of these circumstances is where the petitioners filed a collective action in which they share a common interest in its subject matter or raise a common cause of action. In such a case, the certification by one of the petitioners may be deemed sufficient.

Here, KPE and Petron shared a common cause of action against petitioners Espiritu, et al., namely, the violation of their proprietary rights with respect to the use of Gasul tanks and trademark. Furthermore, Atty. Cruz said in his certification that he was executing it “for and on behalf of the Corporation, and co-petitioner Carmen J. Doloiras.” Thus, the object of the requirement – to ensure that a party takes no recourse to multiple forums – was substantially achieved. Besides, the failure of KPE to sign the certificate of non-forum shopping does not render the petition defective with respect to Petron which signed it through Atty. Cruz. The Court of Appeals, therefore, acted correctly in giving due course to the petition before it.  Manuel C. Espiritu, Jr., et al. vs. Petron Corporation, et al., G.R. No. 170891, November 24, 2009.

Action;  real party in interest. As the successor-in-interest of the late Arsenio E. Concepcion and co-owner of the subject property, respondent Nenita S. Concepcion is entitled to prosecute the ejectment case not only in a representative capacity, but as a real party-in-interest. Article 487 of the Civil Code states, “Any one of the co-owners may bring an action in ejectment.” Hence, assuming that respondent failed to submit the proper documents showing her capacity to sue in a representative capacity for the estate of her deceased husband, the Court, in the interest of speedy disposition of cases, may deem her capacitated to prosecute the ejectment case as a real party-in-interest being a co-owner of the subject property considering that the trial court has jurisdiction over the subject matter and has also acquired jurisdiction over the parties, including respondent Nenita S. Concepcion.  Angelina S. Soriente, et al. vs. The Estate of the late Arsenio E. Concepcion, etc., G.R. No. 160239, November 25, 2009.

Appeal; locus standi. Petitioners correctly argue that the Credit Cooperative has no locus standi on appeal, since it failed to file a notice of appeal to the RTC’s September 14, 1999 Decision granting the motion for summary judgment. It was only the Union which appealed the case through a notice of appeal filed by its counsel, Atty. Luciano R. Caraang (Atty. Caraang). There is also no showing that Atty. Caraang represented both the Union and the Credit Cooperative in filing such notice of appeal. In fact, the Credit Cooperative did not deny its failure to file an appeal; however, it argued that it filed with the Court of Appeals an appellant’s brief in compliance with the appellate court’s directive to submit one. Suffice it to state that the Court of Appeals’ directive for the Credit Cooperative to file its brief did not clothe the Credit Cooperative with locus standi on appeal. The purpose of the filing of the brief is merely to present, in coherent and concise form, the points and questions in controversy, and by fair argument on the facts and law of the case, to assist the court in arriving at a just and proper conclusion. The Court of Appeals may have ordered the Credit Cooperative to submit its brief to enable it to properly dispose of the case on appeal. However, in the Credit Cooperative’s brief, not only did it ask for the reversal of the Summary Judgment but also prayed for the return of its garnished funds. This cannot be allowed. It would be grave error to grant the relief prayed for without violating the well-settled rule that a party who does not appeal from the decision may not obtain any affirmative relief from the appellate court other than what he has obtained from the lower court, if any, whose decision is brought up on appeal.

The rule is clear that no modification of judgment could be granted to a party who did not appeal.   Jose Feliciano Loy, et al. vs. San Miguel Corporation Employees Union-Philippine Transport and General Workers Organization (SMCEU-PTGWO), et al., G.R. No. 164886, November 24, 2009.

Arbitration;  third parties. We agree with the CA ruling that the BPPA arbitration clause does not apply to the present case since third parties are involved. Any judgment or ruling to be rendered by the panel of arbitrators will be useless if third parties are included in the case, since the arbitral ruling will not bind them; they are not parties to the arbitration agreement. In the present case, DOLE included as parties the spouses Abujos and Oribanex since they are necessary parties, i.e., they were directly involved in the BPPA violation DOLE alleged, and their participation are indispensable for a complete resolution of the dispute. To require the spouses Abujos and Oribanex to submit themselves to arbitration and to abide by whatever judgment or ruling the panel of arbitrators shall make is legally untenable; no law and no agreement made with their participation can compel them to submit to arbitration.  Stanfilco Employees Agrarian Reform Beneficiaries Multi-Purpose Cooperative vs. DOLE Philippines, Inc. (Stanfilco Division), Oribanex Services, Inc., Spouses Elly and Myrna Abujos, G.R. No. 154048, November 27, 2009.


Evidence; parol evidence rule. The “parol evidence rule” forbids any addition to or contradiction of the terms of a written instrument by testimony or other evidence purporting to show that, at or before the execution of the parties’ written agreement, other or different terms were agreed upon by the parties, varying the purport of the written contract. When an agreement has been reduced to writing, the parties cannot be permitted to adduce evidence to prove alleged practices which, to all purposes, would alter the terms of the written agreement. Whatever is not found in the writing is understood to have been waived and abandoned. None of the above-cited exceptions finds application in this case, more particularly the alleged failure of the MOA to express the true intent and agreement of the parties concerning the commitment/service fee of P320,000.00. Norton Resources and Development Corporation vs. All Asia Bank Corporation, G.R. No. 162523, November 25, 2009.

Injunction;  requirements. A writ of preliminary injunction may be issued only upon clear showing of an actual existing right to be protected during the pendency of the principal action. The twin requirements of a valid injunction are the existence of a right and its actual or threatened violations. Thus, to be entitled to an injunctive writ, the right to be protected and the violation against that right must be shown. Moreover, the rule is well entrenched that the issuance of the writ of preliminary injunction as an ancillary or preventive remedy to secure the right of a party in a pending case rests upon the sound discretion of the trial court. However, if the court commits grave abuse of its discretion in the issuance of the writ of preliminary injunction, such that the act amounts to excess or lack of jurisdiction, the same may be nullified through a writ of certiorari or prohibition. Such grave abuse of discretion in the issuance of writs of preliminary injunction implies a capricious and whimsical exercise of judgment that is equivalent to lack of jurisdiction or whether the power is exercised in an arbitrary or despotic manner by reason of passion, prejudice or personal aversion amounting to an evasion of positive duty or to a virtual refusal to perform the duty enjoined, or to act at all in contemplation of law. For the extraordinary writ of certiorari to lie, there must be a capricious, arbitrary and whimsical exercise of power.

A writ of preliminary injunction is generally based solely on initial and incomplete evidence. The evidence submitted during the hearing on an application for a writ of preliminary injunction is not conclusive or complete for only a “sampling” is needed to give the trial court an idea of the justification for the preliminary injunction pending the decision of the case on the merits. As such, the findings of fact and opinion of a court when issuing the writ of preliminary injunction are interlocutory in nature and made even before the trial on the merits is commenced or terminated. There are vital facts that have yet to be presented during the trial which may not be obtained or presented during the hearing on the application for the injunctive writ. The trial court needs to conduct substantial proceedings in order to put the main controversy to rest.

The sole object of a preliminary injunction is to maintain the status quo until the merits can be heard. A preliminary injunction is an order granted at any stage of an action prior to judgment of final order, requiring a party, court, agency, or person to refrain from a particular act or acts. It is a preservative remedy to ensure the protection of a party’s substantive rights or interests pending the final judgment on the principal action. A plea for an injunctive writ lies upon the existence of a claimed emergency or extraordinary situation which should be avoided for, otherwise, the outcome of a litigation would be useless as far as the party applying for the writ is concerned.  Equitable PCI Bank, Inc. vs. Hon. Salvador y Apurillo, et al., G.R. No. 168746, November 5, 2009.

Injunction;  requirements. A preliminary injunction may be granted only where the plaintiff appears to be clearly entitled to the relief sought and has substantial interest in the right sought to be defended. While the existence of the right need not be conclusively established, it must be clear. The standard is even higher in the case of a preliminary mandatory injunction.

The evidence presented before us in support of a preliminary injunction is weak and inconclusive, and the alleged right sought to be protected by petitioner is vehemently disputed. Power Sites and Signs, Inc. vs. United Neon (A Division of Ever Corporation), G.R. No. 163406, November 24, 2009.

Judgment;  finality.  Since the Fajardos did not appeal from the May 11, 2006 Order of the RTC, the same became final and executory as a matter of course. It can no longer be modified in any respect, even if the modification is meant to correct erroneous conclusions of fact and law, and whether it is made by the court that rendered it or by an appellate court. As a final and valid order, it could not be collaterally attacked through the Fajardos’ artful motion to treat Alberto’s April 24, 2006 motion as a scrap of paper, where the sole object, in truth, is the nullification of the May 11, 2006 Order. Rufina Fajardo, et al. vs. Alberto Comandante, et al., G.R. No. 185396, November 24, 2009.

Jurisdiction; DARAB. The case of Pasong Bayabas Farmers Association, Inc. v. Court of Appeals lists down the indispensable elements for a tenancy relationship to exist: “(1) the parties are the landowner and the tenant or agricultural lessee; (2) the subject matter of the relationship is an agricultural land; (3) there is consent between the parties to the relationship; (4) the purpose of the relationship is to bring about agricultural production; (5) there is personal cultivation on the part of the tenant or agricultural lessee; and (6) the harvest is shared between the landowner and the tenant or the agricultural lessee.”

The parties in the present case have no tenurial, leasehold, or any other agrarian relationship that could bring their controversy within the ambit of agrarian reform laws and within the jurisdiction of the DARAB. In fact, SEARBEMCO has no allegation whatsoever in its motion to dismiss regarding any tenancy relationship between it and DOLE that gave the present dispute the character of an agrarian dispute.

We have always held that tenancy relations cannot be presumed. The elements of tenancy must first be proved by substantial evidence which can be shown through records, documents, and written agreements between the parties. A principal factor, too, to consider in determining whether a tenancy relationship exists is the intent of the parties.

SEARBEMCO has not shown that the above-mentioned indispensable elements of tenancy relations are present between it and DOLE. It also cannot be gleaned from the intention of the parties that they intended to form a tenancy relationship between them. In the absence of any such intent and resulting relationship, the DARAB cannot have jurisdiction. Instead, the present petition is properly cognizable by the regular courts, as the CA and the RTC correctly ruled. Stanfilco Employees Agrarian Reform Beneficiaries Multi-Purpose Cooperative vs. DOLE Philippines, Inc. (Stanfilco Division), Oribanex Services, Inc., Spouses Elly and Myrna Abujos, G.R. No. 154048, November 27, 2009.

Jurisdiction;  just compensation. The LBP argues that the case before the RTC-SAC is an original action for determination of just compensation in the exercise of that court’s original and exclusive jurisdiction; therefore, the RTC-SAC should have conducted its own independent determination of the facts and law involved. The LBP further argues that the RTC-SAC completely disregarded the basic requirements of procedural due process when it merely adopted the decision of the DARAB.

Section 57 of RA 6657 clearly provides that RTC-SACs have original and exclusive jurisdiction over all petitions for the determination of just compensation payable to landowners under the land reform program. The RTC-SAC is not an appellate court that passes upon DARAB decisions determining just compensation under the land reform program.

Consequently, although the new rules speak of directly appealing the decision of adjudicators to the RTC-SACs, the jurisdiction of these designated courts to determine just compensation under Section 57 of RA 6657 is original and exclusive. Any effort to transfer this original jurisdiction to the adjudicators and to confer appellate jurisdiction on the RTC-SACs would be contrary to Section 57 and would result in void rulings. What adjudicators are empowered to do is only to determine in a preliminary manner the reasonable compensation to be paid to landowners, leaving to the courts the ultimate power to decide this question on the merits.

Thus, the RTC-SAC should have conducted its own independent and thorough investigation of the evidence submitted before it by the parties; the case should have been accorded its hearing and reception of evidence, and independent consideration of the facts and the law on the matter of just compensation. The RTC-SAC could not simply rely on and adopt the decision of the DARAB, an administrative body that preliminarily determines the reasonable compensation to be paid to landowners. Land Bank of the Philippines vs. Agustin C. Dizon, G.R. No. 160394, November 27, 2009.

Jurisdiction; lease. The allegation of existence of implied new lease or tacita reconduccion will not divest the MeTC of jurisdiction over the ejectment case. It is an elementary rule that the jurisdiction of the court in ejectment cases is determined by the allegations pleaded in the complaint and cannot be made to depend upon the defenses set up in the answer or pleadings filed by the defendant. This principle holds even if the facts proved during trial do not support the cause of action alleged in the complaint. In connection with this, it is well to note that in unlawful detainer cases the elements to be proved and resolved are the facts of lease and expiration or violation of its terms.

Here, no interpretative exercise is needed to conclude that respondent has complied with such requirement. In respondent’s Complaint, he specifically alleged that (1) the former owner, Mr. Chua, and petitioner entered into a contract of lease; (2) subsequently, respondent purchased the leased premises from Mr. Chua and became the owner thereof; (3) thereafter, the lease contract between Mr. Chua and petitioner expired; and (4) petitioner refused to vacate the premises despite the expiration and non-renewal of the lease.  Joven Yuki, Jr. vs. Wellington Co, G.R. No. 178527, November 27, 2009.

Jurisdiction; Ombudsman order. The crux of the matter is whether the CA has jurisdiction over decisions and orders of the Ombudsman in criminal cases. This issue has been directly addressed in Kuizon v. Desierto and reiterated in the more recent Golangco v. Fung,wherein the Court declared, thus: “The Court of Appeals has jurisdiction over orders, directives and decisions of the Office of the Ombudsman in administrative disciplinary cases only. It cannot, therefore, review the orders, directives or decisions of the Office of the Ombudsman in criminal or non-administrative cases.”

The question that arises next is what remedy should an aggrieved party avail of to assail the Ombudsman’s finding of the existence or lack of probable cause in criminal cases or non-administrative cases. In Estrada v. Desierto, the Court emphasized that parties seeking to question the resolutions of the Office of the Ombudsman in criminal cases or non-administrative cases, may file an original action for certiorari with this Court, not with the CA, when it is believed that the Ombudsman acted with grave abuse of discretion.  Office of the Ombudsman, represented by Hon. Aniano A. Desierto vs. Heirs of Margarita vda. De Ventura represented by Pacita V. Pascual, et al., G.R. No. 151800, November 5, 2009,

Mortgage; extrajudicial foreclosure. In extrajudicial foreclosure of mortgage, the party alleging non-compliance with the publication requirement has the burden of proving the same. In this case, the records are bereft of any evidence to prove that Citytrust did not comply with the requisite publication. Neither was there evidence disproving the qualification of “The Guardian” newspaper to publish the notice of auction sale.

We find that the evidence submitted by Citytrust sufficiently established compliance with the statutory requirements on posting and publication of notice of auction sale of a mortgaged property. Bank of the Philippines Islands, etc. vs. Evangeline L. Puzon, G.R. No. 160046, November 27, 2009.

Mortgage;  foreclosure.  The collection of surplus is inconsistent with the annulment of foreclosure because in suing for the return of the surplus proceeds, the mortgagor is deemed to have affirmed the validity of the sale since nothing is due if no valid sale has been made. It is only after the dismissal of complaint for annulment or when the foreclosure sale is declared valid that the mortgagor may recover the surplus in an action specifically brought for that purpose. However, to avoid multiplicity of suits, the better recourse is for the mortgagor to file a case for annulment of foreclosure with an alternative cause of action for the return of the surplus, if any.  Bernando B. Jose, Jr. vs. Michael Phils., Inc. et al.,  G.R. No. 169606, November 27, 2009.

Motion to dismiss; hypothetical admission. In a motion to dismiss, a defendant hypothetically admits the truth of the material allegations of the plaintiff’s complaint. This hypothetical admission extends to the relevant and material facts pleaded in, and the inferences fairly deductible from, the complaint. Hence, to determine whether the sufficiency of the facts alleged in the complaint constitutes a cause of action, the test is as follows: admitting the truth of the facts alleged, can the court render a valid judgment in accordance with the prayer?

To sustain a motion to dismiss, the movant needs to show that the plaintiff’s claim for relief does not exist at all. On the contrary, the complaint is sufficient “if it contains sufficient notice of the cause of action even though the allegations may be vague or indefinite, in which event, the proper recourse would be, not a motion to dismiss, but a motion for a bill of particulars.Stanfilco Employees Agrarian Reform Beneficiaries Multi-Purpose Cooperative vs. DOLE Philippines, Inc. (Stanfilco Division), Oribanex Services, Inc., Spouses Elly and Myrna Abujos, G.R. No. 154048, November 27, 2009.

Parties; indispensable parties. Section 7, Rule 3 of the Revised Rules of Court defines indispensable parties as parties-in-interest without whom there can be no final determination of an action and who, for this reason, must be joined either as plaintiffs or as defendants. Jurisprudence further holds that a party is indispensable, not only if he has an interest in the subject matter of the controversy, but also if his interest is such that a final decree cannot be made without affecting this interest or without placing the controversy in a situation where the final determination may be wholly inconsistent with equity and good conscience. He is a person whose absence disallows the court from making an effective, complete, or equitable determination of the controversy between or among the contending parties.

When the controversy involves a property held in common, Article 487 of the Civil Code explicitly provides that “any one of the co-owners may bring an action in ejectment.”

We have explained in Vencilao v. Camarenta and in Sering v. Plazo that the term “action in ejectment” includes a suit for forcible entry (detentacion) or unlawful detainer (desahucio). We also noted in Sering that the term “action in ejectment” includes “also, an accion publiciana (recovery of possession) or accion reinvidicatoria (recovery of ownership).” Most recently in Estreller v. Ysmael, we applied Article 487 to an accion publiciana case; in Plasabas v. Court of Appeals we categorically stated that Article 487 applies to reivindicatory actions.

We upheld in several cases the right of a co-owner to file a suit without impleading other co-owners, pursuant to Article 487 of the Civil Code. We made this ruling in Vencilao, where the amended complaint for “forcible entry and detainer” specified that the plaintiff is one of the heirs who co-owns the disputed properties. InSering, and Resuena v. Court of Appeals, the co-owners who filed the ejectment case did not represent themselves as the exclusive owners of the property. InCelino v. Heirs of Alejo and Teresa Santiago, the complaint for quieting of title was brought in behalf of the co-owners precisely to recover lots owned in common. In Plasabas, the plaintiffs alleged in their complaint for recovery of title to property (accion reivindicatoria) that they are the sole owners of the property in litigation, but acknowledged during the trial that the property is co-owned with other parties, and the plaintiffs have been authorized by the co-owners to pursue the case on the latter’s behalf.

These cases should be distinguished from Baloloy v. Hular and Adlawan v. Adlawan where the actions for quieting of title and unlawful detainer, respectively, were brought for the benefit of the plaintiff alone who claimed to be the sole owner. We held that the action will not prosper unless the plaintiff impleaded the other co-owners who are indispensable parties. In these cases, the absence of an indispensable party rendered all subsequent actions of the court null and void for want of authority to act, not only as to the absent parties but even as to those present.

We read these cases to collectively mean that where the suit is brought by a co-owner, without repudiating the co-ownership, then the suit is presumed to be filed for the benefit of the other co-owners and may proceed without impleading the other co-owners. However, where the co-owner repudiates the co-ownership by claiming sole ownership of the property or where the suit is brought against a co-owner, his co-owners are indispensable parties and must be impleaded as party-defendants, as the suit affects the rights and interests of these other co-owners.  Josephine Marmo, et al. vs. Moises O. Anacay, G.R. No. 182585, November 27, 2009.

Parties;  indispensable parties. Indispensable parties are those with such an interest in the controversy that a final decree would necessarily affect their rights, so that the courts cannot proceed without their presence. Joining indispensable parties into an action is mandatory, being a requirement of due process. Without their presence, the judgment of the court cannot attain real finality.

Judgments do not bind strangers to the suit. The absence of an indispensable party renders all subsequent actions of the court null and void. Indeed, it would have no authority to act, not only as to the absent party, but as to those present as well. And where does the responsibility for impleading all indispensable parties lie? It lies in the plaintiff.

Here, the Taronas sought the annulment of the tax declaration in the names of defendant Tallorin and two others, namely, Margarita Pastelero Vda. de Valdez and Dolores Valdez and, in its place, the reinstatement of the previous declaration in their father Juanito’s name. Further, the Taronas sought to strike down as void the affidavit in which Juanito renounced his tenancy right in favor of the same three persons. It is inevitable that any decision granting what the Taronas wanted would necessarily affect the rights of such persons to the property covered by the tax declaration.
But the Taronas’ action cannot be dismissed outright. As the Court held in Plasabas v. Court of Appeals, the non-joinder of indispensable parties is not a ground for dismissal. Section 11, Rule 3 of the 1997 Rules of Civil Procedure prohibits the dismissal of a suit on the ground of non-joinder or misjoinder of parties and allows the amendment of the complaint at any stage of the proceedings, through motion or on order of the court on its own initiative. Only if plaintiff refuses to implead an indispensable party, despite the order of the court, may it dismiss the action.

There is a need, therefore, to remand the case to the RTC with an order to implead Margarita Pastelero Vda. de Valdez and Dolores Valdez as defendants so they may, if they so desire, be heard.   Anicia Valdez-Tallorin vs. Heirs of Juanito Tarona, et al., G.R. No. 177429, November 24, 2009.

Parties;  real party in interest. The 1997 Rules of Civil Procedure requires that every action must be prosecuted or defended in the name of the real party-in-interest, i.e., the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit.

As Navarro correctly points out, Kargo Enterprises is a sole proprietorship, which is neither a natural person, nor a juridical person, as defined by Article 44 of the Civil Code.

Thus, pursuant to Section 1, Rule 3 of the Rules, Kargo Enterprises cannot be a party to a civil action.

As the registered owner of Kargo Enterprises, Karen Go is the party who will directly benefit from or be injured by a judgment in this case. Thus, contrary to Navarro’s contention, Karen Go is the real party-in-interest, and it is legally incorrect to say that her Complaint does not state a cause of action because her name did not appear in the Lease Agreement that her husband signed in behalf of Kargo Enterprises. Whether Glenn Go can legally sign the Lease Agreement in his capacity as a manager of Kargo Enterprises, a sole proprietorship, is a question we do not decide, as this is a matter for the trial court to consider in a trial on the merits. Roger V. Navarro Vs. Hon. Jose L. Escobido, Presiding Judge, RTC, Branch 37, Cagayan de Oro City, and Karen T. Go, doing business under the name Kargo Enterprises, G.R. No. 153788, November 27, 2009.

Pleadings;  amendment. The rule on amendment need not be applied rigidly, particularly where no surprise or prejudice is caused the objecting party. Where there is a variance in defendant’s pleadings and the evidence adduced at the trial, the Court may treat the pleading as if it had been amended to conform to the evidence.   Agripina Panganiban vs. Sps. Romeo Roldan, et al., G.R. No. 163053, November 25, 2009.

Pleadings; supplemental pleading. Pleadings are amended in order to allege facts which occurred prior to the filing of the original pleading. An amended pleading supersedes the pleading that it amends. In the case at bar, the subsequent answer could neither validly amend the first answer nor result in the withdrawal of the latter. It is to be noted that the new Union officers, upon their election, moved for their intervention and substitution on the premise that they became the real party in interest since the defendants in the case have ceased to be the legal representatives of the Union. Certainly, their election as new officers is an occurrence which arose after the filing of the first answer. Hence, the purported amended answer should have been designated as a supplemental answer. A supplemental pleading states the transactions, occurrences or events which took place since the time the pleading sought to be supplemented was filed. A supplemental pleading is meant to supply deficiencies in aid of the original pleading and not to dispense with or substitute the latter. It does not supersede the original, but assumes that the original pleading is to stand. As such, the Answer with Counterclaim filed by Aquino and Frisnedi did not result in the withdrawal of the Answer with Cross-Claim filed by the original defendants in this case, but was merely supplemented by the subsequent answer. Jose Feliciano Loy, et al. vs. San Miguel Corporation Employees Union-Philippine Transport and General Workers Organization (SMCEU-PTGWO), et al., G.R. No. 164886, November 24, 2009.

Pre-trial brief. Section 1 of Rule 18 of the Rules of Court imposes upon the plaintiff the duty to set the case for pre-trial after the last pleading is served and filed. Under Section 3 of Rule 17, failure to comply with the said duty makes the case susceptible to dismissal for failure to prosecute for an unreasonable length of time or failure to comply with the rules.

Respondents Lazaro filed the Cautionary Answer with Manifestation and Motion to File a Supplemental/Amended Answer on July 19, 2002, a copy of which was received by petitioners on August 5, 2002. Believing that the pending motion had to be resolved first, petitioners waited for the court to act on the motion to file a supplemental answer. Despite the lapse of almost one year, petitioners kept on waiting, without doing anything to stir the court into action.

In any case, petitioners should not have waited for the court to act on the motion to file a supplemental answer or for the defendants to file a supplemental answer. As previously stated, the rule clearly states that the case must be set for pre-trial after the last pleading is served and filed. Since respondents already filed a cautionary answer and [petitioners did not file any reply to it] the case was already ripe for pre-trial.

It bears stressing that the sanction of dismissal may be imposed even absent any allegation and proof of the plaintiff’s lack of interest to prosecute the action, or of any prejudice to the defendant resulting from the failure of the plaintiff to comply with the rules. The failure of the plaintiff to prosecute the action without any justifiable cause within a reasonable period of time will give rise to the presumption that he is no longer interested in obtaining the relief prayed for.

In this case, there was no justifiable reason for petitioners’ failure to file a motion to set the case for pre-trial. Petitioners’ stubborn insistence that the case was not yet ripe for pre-trial is erroneous. Although petitioners state that there are strong and compelling reasons justifying a liberal application of the rule, the Court finds none in this case. The burden to show that there are compelling reasons that would make a dismissal of the case unjustified is on petitioners, and they have not adduced any such compelling reason. Jazmin L. Espiritu and Porfirio Lazaro, Jr. vs. Vladimir G. Lazaro, et al., G.R. No. 181020, November 25, 2009.

Reconveyance;  decree of registration. It is well to remember that in an action for reconveyance, the decree of registration is highly regarded as incontrovertible. What is sought is the transfer of the property or its title, which has been wrongfully or erroneously registered in another person’s name, to its rightful owner or to one who has a better right. The present action for reconveyance only entails the segregation of the portion wrongfully included in the certificate of title. The decree of registration is to be respected, but the certificate of title will be cancelled for the purpose of amending it in order to exclude the portion wrongfully included therein. A new certificate covering the portion reconveyed shall then be subsequently issued in the name of the real owner.

However, the CA went beyond this and declared the entire deed of sale, covering 273 sq m, void for being simulated. As such, the CA decision would result not only in the amendment of petitioners’ certificate of title, but in the absolute revocation of petitioners’ title itself. The property would then revert to its previous owner, subject to the right of respondents over the portion of the lot which they claim as their own.  Spouses Exequiel Lopez and Eusebia Lopez vs. Spouses Eduardo Lopez, et al., G.R. No. 161925, November 25, 2009.

Rule 42; annexes to petition. Petitioner contends that the Petition for Review filed by the respondent with the CA is procedurally infirmed and that the appellate court should have outrightly dismissed the same. Specifically, petitioner points out that while respondent attached to the petition the parties’ respective position papers, he failed to attach to said position papers the annexes thereto. This, petitioner insists, warrants the dismissal of respondent’s petition per Section 2, Rule 42 of the Rules of Court, in relation to Section 3 of the same Rule.

We do not agree. Section 2 of Rule 42 does not require that all the pleadings and documents filed before the lower courts must be attached as annexes to the petition. Aside from clearly legible duplicate originals or true copies of the judgments or final orders of both lower courts, it merely requires that the petition be accompanied by copies of pleadings and other material portions of the record as would support the allegations of the petition. As to what these pleadings and material portions of the record are, the Rules grants the petitioner sufficient discretion to determine the same. This discretion is of course subject to CA’s evaluation whether the supporting documents are sufficient to make out a prima facie case. Thus, Section 3 empowers the CA to dismiss the petition where the allegations contained therein are utterly bereft of evidentiary foundation. Since in this case the CA gave due course to respondent’s Petition for Review and proceeded to decide it on the merits, it can be fairly assumed that the appellate court is satisfied that respondent has sufficiently complied with Section 2 of Rule 42. Joven Yuki, Jr. vs. Wellington Co, G.R. No. 178527, November 27, 2009.

Rule 45;  question of fact. The issue of whether we can review factual conclusions of the CA, when contrary to those of the administrative tribunal, need not detain us unnecessarily. We have long held in a number of cases that factual findings of administrative or quasi-judicial bodies, which are deemed to have acquired expertise in matters within their respective jurisdictions, are generally accorded not only respect but even finality, and bind the Court when supported by substantial evidence. Corollary thereto is our well-entrenched holding that this Court is not a trier of facts; this is strictly adhered to in labor cases. However, the rule admits of exceptions when: (1) the findings are grounded entirely on speculation, surmises or conjectures; (2) the inference made is manifestly mistaken, absurd or impossible; (3) there is grave abuse of discretion; (4) the judgment is based on a misapprehension of facts; (5) the findings of fact are conflicting; (6) in making its findings, the Court of Appeals went beyond the issues of the case, or its findings are contrary to the admissions of both appellant and appellee; (7) the findings are contrary to those of the trial court; (8) the findings are conclusions without citation of specific evidence on which they are based; (9) the facts set forth in the petition, as well as in petitioner’s main and reply briefs, are not disputed by respondent; (10) the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record; and (11) the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties, which, if properly considered, would justify a different conclusion. In the case at bar, we gave due course to MSD’s petition as the findings of fact and the conclusions of law of the Labor Arbiter and the NLRC differ from those of the CA.  Merck Sharp and Dohme (Philippines), et al. vs. Jonar P. Robles, et al., G.R. No. 176506, November 25, 2009.

Rule 45; question of fact. It has been repeatedly held that, as a rule, the findings of fact of the CA are final and conclusive and cannot be reviewed on appeal by this Court if they are borne out by the records or are based on substantial evidence. The factual issues raised by Napoles in this petition, specifically the failure of the NBI to recover the marked money from his possession, the presence of fluorescent powder on his hands, and the alleged violation of his constitutional right when he was arrested by the NBI have all been squarely discussed and fairly settled in the appellate court’s decision.

More importantly, Napoles failed to show any of the exceptional circumstances enumerated in the rules and jurisprudence whereby a review is permitted, namely: (1) when the conclusion is a finding grounded entirely on speculations, surmises or conjectures; (2) when the inference made is manifestly absurd, mistaken or impossible; (3) when there is grave abuse of discretion in the appreciation of facts; (4) when the judgment is premised on a misapprehension of facts; (5) when the findings of fact are conflicting; (6) when the CA, in making its findings, went beyond the issues of the case, and the same are contrary to the admissions of both appellants and appellees; (7) when the findings of fact of the CA are at variance with those of the trial court, in which case this Court has to review the evidence in order to arrive at the correct findings based on the record; (8) when the findings of fact are conclusions without citation of specific evidence on which they are based; (9) when the facts set forth in the petition as well as in the petitioner’s main and reply briefs are not disputed by respondents; (10) when the findings of fact of the CA are premised on the supposed absence of evidence and are contradicted by the evidence on record; and (11) when the trial court has overlooked certain material facts and circumstances which, if taken into account, would alter the result of the case in that they would introduce an element of reasonable doubt entitling the accused to acquittal.  Jimmy R. Napoles vs. Office of the Ombudsman (Visayas), et al., G.R. No. 183834. November 25, 2009

Rule 65; question of fact. The well-entrenched rule in our jurisdiction is that only questions of law may be entertained by this Court in a petition for review on certiorari. This rule, however, is not ironclad and admits certain exceptions, such as when (1) the conclusion is grounded on speculations, surmises or conjectures; (2) the inference is manifestly mistaken, absurd or impossible; (3) there is grave abuse of discretion; (4) the judgment is based on a misapprehension of facts; (5) the findings of fact are conflicting; (6) there is no citation of specific evidence on which the factual findings are based; (7) the findings of absence of facts are contradicted by the presence of evidence on record; (8) the findings of the Court of Appeals are contrary to those of the trial court; (9) the Court of Appeals manifestly overlooked certain relevant and undisputed facts that, if properly considered, would justify a different conclusion; (10) the findings of the Court of Appeals are beyond the issues of the case; and (11) such findings are contrary to the admissions of both parties.

After a painstaking review of the records, this Court finds no justification to warrant the application of any exception to the general rule. Reynaldo G. Cabigting vs. San Miguel Foods, Inc., G.R. No. 167706, November 5, 2009.

Rule 65;  injunction. A Petition for Certiorari, under Rule 65 of the Rules of Court, is intended for the correction of errors of jurisdiction only or grave abuse of discretion amounting to lack or excess of jurisdiction. Its principal office is only to keep the inferior court within the parameters of its jurisdiction or to prevent it from committing such a grave abuse of discretion amounting to lack or excess of jurisdiction. It may issue only when the following requirements are alleged in the petition and established:(1) the writ is directed against a tribunal, a board or any officer exercising judicial or quasi-judicial functions; (2) such tribunal, board or officer has acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction; and (3) there is no appeal or any plain, speedy and adequate remedy in the ordinary course of law. Excess of jurisdiction as distinguished from absence of jurisdiction means that an act, though within the general power of a tribunal, board or officer is not authorized, and invalid with respect to the particular proceeding, because the conditions which alone authorize the exercise of the general power in respect of it are wanting. Without jurisdiction means lack or want of legal power, right or authority to hear and determine a cause or causes, considered either in general or with reference to a particular matter. It means lack of power to exercise authority.

In the case at bar, this Court agrees with the conclusion of the CA that the RTC committed no grave abuse of discretion in granting YKS’ plea for injunctive relief.  Equitable PCI Bank, Inc. vs. Hon. Salvador y Apurillo, et al., G.R. No. 168746, November 5, 2009.

Summary procedure;  preliminary conference. Under Section 7 of the 1991 Revised Rules on Summary Procedure, if a sole defendant shall fail to appear in the preliminary conference, the plaintiff shall be entitled to judgment in accordance with Section 6 of the Rule, that is, the court shall render judgment as may be warranted by the facts alleged in the Complaint and limited to what is prayed for therein. However, “[t]his Rule (Sec. 7) shall not apply where one of two or more defendants sued under a common cause of action, who had pleaded a common defense, shall appear at the preliminary conference.” Petitioner claims that the preceding provision applies to her as a defendant, since the ejectment cases were consolidated by the trial court, and she and Caballero filed the same Answer to the Complaint; hence, the trial court should not have rendered judgment against her when she failed to appear in the preliminary conference.

The Court holds that the italicized provision above does not apply in the case of petitioner, since she and Caballero were not co-defendants in the same case. The ejectment case filed against petitioner was distinct from that of Caballero, even if the trial court consolidated the cases and, in the interest of justice, considered the Answer filed by Caballero in Civil Case No. 17974 as the Answer also of petitioner since she affixed her signature thereto.

Considering that petitioner was sued in a separate case for ejectment from that of Caballero and Sadol, petitioner’s failure to appear in the preliminary conference entitled respondent to the rendition of judgment by the trial court on the ejectment case filed against petitioner, docketed as Civil Case No. 17973, in accordance with Section 7 of the 1991 Revised Rules on Summary Procedure.  Angelina S. Soriente, et al. vs. The Estate of the late Arsenio E. Concepcion, etc., G.R. No. 160239, November 25, 2009.

Unlawful detainer;  issue. In unlawful detainer and forcible entry cases, the only issue to be determined is who between the contending parties has the better right to possess the contested property, independent of any claim of ownership. However, where the issue of ownership is so intertwined with the issue of possession, the courts may pass upon the issue of ownership if only to determine who has the better right to possess the property.  Agripina Panganiban vs. Sps. Romeo Roldan, et al., G.R. No. 163053, November 25, 2009.

Unlawful detainer; nature. Unlawful detainer and forcible entry suits under Rule 70 of the Rules of Court are designed to summarily restore physical possession of a piece of land or building to one who has been illegally or forcibly deprived thereof, without prejudice to the settlement of the parties’ opposing claims of juridical possession in appropriate proceedings. These actions are intended to avoid disruption of public order by those who would take the law in their hands purportedly to enforce their claimed right of possession. In these cases, the issue is pure physical or de facto possession, and pronouncements made on questions of ownership are provisional in nature. The provisional determination of ownership in the ejectment case cannot be clothed with finality.

In any case, we sustain the finding that respondent has the better right to possess the subject property. The Contract of Lease executed by petitioners and respondent remains valid. It is undisputed that petitioners failed to comply with the terms thereof by their failure to pay the stipulated rent. As lessor of the subject property, respondent has the right to demand that petitioners pay their unpaid obligations and, in case of their failure, that they vacate the premises. Considering that the lease contract has long expired, with more reason should respondent be allowed to recover the subject property.  Spouses Danilo T. Samonte and Rosalinda N. Samonte vs. Century Savings Bank, G.R. No. 176413, November 25, 2009

Unlawful detainer;  nature. To make out a case of unlawful detainer under Section 1, Rule 70 of the Rules of Court, the Complaint must allege that the defendant is unlawfully withholding from the plaintiff the possession of certain real property after the expiration or termination of the former’s right to hold possession by virtue of a contract, express or implied, and that the action is being brought within one year from the time the defendant’s possession became unlawful.

The Complaint alleged that petitioner occupied the subject property by tolerance of the late Arsenio Concepcion. While tolerance is lawful, such possession becomes illegal upon demand to vacate by the owner and the possessor by tolerance refuses to comply with such demand. Respondent sent petitioner a demand letter dated September 22, 2000 to vacate the subject property, but petitioner did not comply with the demand. A person who occupies the land of another at the latter’s tolerance or permission, without any contract between them, is necessarily bound by an implied promise that he will vacate upon demand, failing which a summary action for ejectment is the proper remedy against him. Under Section 1, Rule 70 of the Rules of Court, the one-year period within which a complaint for unlawful detainer can be filed should be counted from the date of demand, because only upon the lapse of that period does the possession become unlawful. Respondent filed the ejectment case against petitioner on April 27, 2001, which was less than a year from the date of formal demand. Clearly, therefore, the action was filed within the one-year period prescribed for filing an ejectment or unlawful detainer case.

The sole issue for resolution in an unlawful detainer case is physical or material possession. All that the trial court can do is to make an initial determination of who is the owner of the property, so that it can resolve who is entitled to its possession absent other evidence to resolve ownership. Courts in ejectment cases decide questions of ownership only it is necessary to decide the question of possession. The reason for this rule is to prevent the defendant from trifling with the summary nature of an ejectment suit by the simple expedient of asserting ownership over the disputed property. Angelina S. Soriente, et al. vs. The Estate of the late Arsenio E. Concepcion, etc., G.R. No. 160239, November 25, 2009.

Unlawful detainer; suspension. The ejectment case should not be suspended pending the resolution of the action for nullity of foreclosure.

As a general rule, an ejectment suit cannot be abated or suspended by the mere filing of another action raising ownership of the property as an issue. The Court has, in fact, affirmed this rule in the following precedents:

1.      Injunction suits instituted in the RTC by defendants in ejectment actions in the municipal trial courts or other courts of the first level (Nacorda v. Yatco, 17 SCRA 920 [1966]) do not abate the latter; and neither do proceedings on consignation of rentals (Lim Si v. Lim, 98 Phil. 868 [1956], citing Pue, et al. v. Gonzales, 87 Phil. 81 [1950]).

2.     An “accion publiciana” does not suspend an ejectment suit against the plaintiff in the former (Ramirez v. Bleza, 106 SCRA 187 [1981]).

3.     A “writ of possession case” where ownership is concededly the principal issue before the Regional Trial Court does not preclude nor bar the execution of the judgment in an unlawful detainer suit where the only issue involved is the material possession or possession de facto of the premises (Heirs of F. Guballa, Sr. v. C.A., et al.; etc., 168 SCRA 518 [1988]).

4.     An action for quieting of title to property is not a bar to an ejectment suit involving the same property (Quimpo v. de la Victoria, 46 SCRA 139 [1972]).

5.     Suits for specific performance with damages do not affect ejectment actions (e.g., to compel renewal of a lease contract) (Desamito v. Cuyegkeng, 18 SCRA 1184 [1966]; Rosales v. CFI, 154 SCRA 153 [1987]; Commander Realty, Inc. v. C.A., 161 SCRA 264 [1988]).

6.     An action for reformation of instrument (e.g., from deed of absolute sale to one of sale with pacto de retro) does not suspend an ejectment suit between the same parties (Judith v. Abragan, 66 SCRA 600 [1975]).

7.     An action for reconveyance of property or “accion reivindicatoria” also has no effect on ejectment suits regarding the same property (Del Rosario v. Jimenez, 8 SCRA 549 [1963];Salinas v. Navarro, 126 SCRA 167; De la Cruz v. C.A., 133 SCRA 520 [1984]); Drilon v. Gaurana, 149 SCRA 352 [1987]; Ching v. Malaya, 153 SCRA 412 [1987];Philippine Feeds Milling Co., Inc. v. C.A., 174 SCRA 108; Dante v. Sison, 174 SCRA 517 [1989]; Guzman v. C.A. [annulment of sale and reconveyance], 177 SCRA 604 [1989]; Demamay v. C.A., 186 SCRA 608 [1990]; Leopoldo Sy v. C.A., et al., [annulment of sale and reconveyance], G.R. No. 95818, Aug. 2, 1991).

8.     Neither do suits for annulment of sale, or title, or document affecting property operate to abate ejectment actions respecting the same property (Salinas v. Navarro [annulment of deed of sale with assumption of mortgage and/or to declare the same an equitable mortgage], 126 SCRA 167 [1983]; Ang Ping v. RTC [annulment of sale and title], 154 SCRA 153 [1987]; Caparros v. C.A. [annulment of title], 170 SCRA 758 [1989]; Dante v. Sison [annulment of sale with damages], 174 SCRA 517; Galgala v. Benguet Consolidated, Inc.[annulment of document], 177 SCRA 288 [1989]).

Only in rare instances is suspension allowed to await the outcome of a pending civil action. In Vda. de Legaspi v. Avendaño, and Amagan v. Marayag,we ordered the suspension of the ejectment proceedings on considerations of equity. We explained that the ejectment of petitioners therein would mean a demolition of their house and would create confusion, disturbance, inconvenience, and expense. Needlessly, the court would be wasting much time and effort by proceeding to a stage wherein the outcome would at best be temporary but the result of enforcement would be permanent, unjust and probably irreparable. Spouses Danilo T. Samonte and Rosalinda N. Samonte vs. Century Savings Bank, G.R. No. 176413. November 25, 2009

Writ of amparo;  coverage. The Court is, under the Constitution, empowered to promulgate rules for the protection and enforcement of constitutional rights. In view of the heightening prevalence of extrajudicial killings and enforced disappearances, the Rule on the Writ of Amparo was issued and took effect on October 24, 2007 which coincided with the celebration of United Nations Day and affirmed the Court’s commitment towards internationalization of human rights. More than three months later or on February 2, 2008, the Rule on the Writ of Habeas Data was promulgated.

The coverage of the writs is limited to the protection of rights to life, liberty and security. And the writs cover not only actual but also threats of unlawful acts or omissions.

To thus be covered by the privilege of the writs, respondents must meet the threshold requirement that their right to life, liberty and security is violated or threatened with an unlawful act or omission. Evidently, the present controversy arose out of a property dispute between the Provincial Government and respondents. Absent any considerable nexus between the acts complained of and its effect on respondents’ right to life, liberty and security, the Court will not delve on the propriety of petitioners’ entry into the property. P/Supt. Felixberto Castillo, Police Officers Romeo Bagtas, et al. vs. Dr. Amanda T. Cruz, Nixon T. Cruz and Ferdinand T. Cruz, G.R. No. 182165, November 25, 2009.

Writ of attachment;  fraud.   Petitioners contend that the writ of attachment was improperly issued because respondents’ amended complaint failed to allege specific acts or circumstances constitutive of fraud. Petitioners insist that the improperly issued writ of attachment may be discharged without the necessity of filing a counter-bond. Petitioners also argue that respondents failed to show that the writ of attachment was issued upon a ground which is at the same time also respondents’ cause of action. Petitioners maintain that respondents’ amended complaint was not an action based on fraud but was a simple case for collection of sum of money plus damages.

On the other hand, respondents argue that the Court of Appeals did not err in ruling that the writ of attachment can only be discharged by filing a counter-bond. According to respondents, petitioners cannot avail of Section 13, Rule 57 of the Rules of Court to have the attachment set aside because the ground for the issuance of the writ of attachment is also the basis of respondents’ amended complaint. Respondents assert that the amended complaint is a complaint for damages for the breach of obligation and acts of fraud committed by petitioners.

In this case, the basis of respondents’ application for the issuance of a writ of preliminary attachment is Section 1(d), Rule 57 of the Rules of Court.

The applicant for a writ of preliminary attachment must sufficiently show the factual circumstances of the alleged fraud because fraudulent intent cannot be inferred from the debtor’s mere non-payment of the debt or failure to comply with his obligation.

We rule that respondents’ allegation that petitioners undertook to sell exclusively and only through JRP/LGD for Target Stores Corporation but that petitioners transacted directly with respondents’ foreign buyer is sufficient allegation of fraud to support their application for a writ of preliminary attachment. Since the writ of preliminary attachment was properly issued, the only way it can be dissolved is by filing a counter-bond in accordance with Section 12, Rule 57 of the Rules of Court.  Metro, Inc. and Spouses Frederick and LIza Juan vs. Lara’s Gifts and Decors, Inc. et al., G.R. No. 171741, November 27, 2009.

Writ of possession;  failure to return surplus. In Sulit v. Court of Appeals, we withheld the issuance of a writ of possession because the mortgagee failed to deliver the surplus from the proceeds of the foreclosure sale which is equivalent to approximately 40% of the total mortgage debt. Sulit was considered as an exception to the general rule that it is ministerial upon the court to issue a writ of possession even during the period of redemption. We explained that equitable considerations prevailing in said case demand that a writ of possession should not issue.

In the subsequent case of Saguan v. Philippine Bank of Communications, however, we clarified that the exception made in Sulit does not apply when the period to redeem has already expired or when ownership over the property has already been consolidated in favor of the mortgagee-purchaser. In other words, even if the mortgagee-purchaser fails to return the surplus, a writ of possession must still be issued. In the instant case, the period to redeem has already lapsed. Thus, following the ruling in Saguan, the issuance of a writ of possession in favor of the petitioner is in order.

Relatedly, we held in Sulit that if the mortgagee is retaining more of the proceeds of the sale than he is entitled to, this fact alone will not affect the validity of the sale but simply gives the mortgagor a cause of action to recover such surplus.

In the instant case, the cadastral court is without jurisdiction to order petitioner to deliver to respondent the surplus or excess of the purchase price. The only issue in a petition for the issuance of a writ of possession is the purchaser’s entitlement to possession. No documentary or testimonial evidence is even required for the issuance of the writ as long as the verified petition states the facts sufficient to entitle the purchaser to the relief requested. As held in Saguan, when the mortgagee-purchaser fails to return the surplus, the remedy of a mortgagor “lies in a separate civil action for collection of a sum of money.  Bernando B. Jose, Jr. vs. Michael Phils., Inc. et al.,  G.R. No. 169606, November 27, 2009.

Writ of preliminary attachment; bond. A writ of preliminary attachment is defined as a provisional remedy issued upon order of the court where an action is pending to be levied upon the property or properties of the defendant therein, the same to be held thereafter by the sheriff as security for the satisfaction of whatever judgment that might be secured in the said action by the attaching creditor against the defendant.

In the case at bar, the CA correctly found that there was grave abuse of discretion amounting to lack of or in excess of jurisdiction on the part of the trial court in approving the bond posted by petitioners despite the fact that not all the requisites for its approval were complied with. In accepting a surety bond, it is necessary that all the requisites for its approval are met; otherwise, the bond should be rejected.

Every bond should be accompanied by a clearance from the Supreme Court showing that the company concerned is qualified to transact business which is valid only for thirty (30) days from the date of its issuance. However, it is apparent that the Certification issued by the Office of the Court Administrator (OCA) at the time the bond was issued would clearly show that the bonds offered by Western Guaranty Corporation may be accepted only in the RTCs of the cities of Makati,Pasay, and Pasig. Therefore, the surety bond issued by the bonding company should not have been accepted by the RTC of Dasmariñas, Branch 90, since the certification secured by the bonding company from the OCA at the time of the issuance of the bond certified that it may only be accepted in the above-mentioned cities. Thus, the trial court acted with grave abuse of discretion amounting to lack of or in excess of jurisdiction when it issued the writ of attachment founded on the said bond. Sofia Torres, et al. vs. Nicanor Satsatin, et al., G.R. No. 166759, November 25, 2009.

Writ of preliminary attachment; jurisdiction. In provisional remedies, particularly that of preliminary attachment, the distinction between the issuance and the implementation of the writ of attachment is of utmost importance to the validity of the writ. The distinction is indispensably necessary to determine when jurisdiction over the person of the defendant should be acquired in order to validly implement the writ of attachment upon his person.

This Court has long put to rest the issue of when jurisdiction over the person of the defendant should be acquired in cases where a party resorts to provisional remedies. A party to a suit may, at any time after filing the complaint, avail of the provisional remedies under the Rules of Court. Specifically, Rule 57 on preliminary attachment speaks of the grant of the remedy “at the commencement of the action or at any time before entry of judgment.” This phrase refers to the date of the filing of the complaint, which is the moment that marks “the commencement of the action.” The reference plainly is to a time before summons is served on the defendant, or even before summons issues.

In Cuartero v. Court of Appeals, this Court held that the grant of the provisional remedy of attachment involves three stages: first, the court issues the order granting the application; second, the writ of attachment issues pursuant to the order granting the writ; and third, the writ is implemented. For the initial two stages, it is not necessary that jurisdiction over the person of the defendant be first obtained. However, once the implementation of the writ commences, the court must have acquired jurisdiction over the defendant, for without such jurisdiction, the court has no power and authority to act in any manner against the defendant. Any order issuing from the Court will not bind the defendant.

Thus, it is indispensable not only for the acquisition of jurisdiction over the person of the defendant, but also upon consideration of fairness, to apprise the defendant of the complaint against him and the issuance of a writ of preliminary attachment and the grounds therefor that prior or contemporaneously to the serving of the writ of attachment, service of summons, together with a copy of the complaint, the application for attachment, the applicant’s affidavit and bond, and the order must be served upon him.  Sofia Torres, et al. vs. Nicanor Satsatin, et al., G.R. No. 166759, November 25, 2009.

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