Republic of the Philippines

COURT OF APPEALS
Cagayan De Oro

MANUEL L. SAMANIEGO,
Plaintiff-Appellee,
CA-G.R. S.P. NO. _____
RTC Civil Case No. 1204
-versus- MTC Civil Case No. 1443

NOEL H. LOZANO, SR., For: Ejectment and

ROGER BALBIN, ROLANDO BALENA, Damages
ARMANDO CHRISOSTOMO and all other
Persons Claiming and/or Acting under their
employ or instruction
Defendants-Appellants.

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

PETITION FOR REVIEW

(Rule 42)

DEFENDANTS, by counsel and to this Honorable Court,

respectfully allege:

NATURE OF THE CASE

1. This is a petition for review pursuant to Rule 42 of the Rules of

Court of the decision of the Regional Trial Court, 11 th Judicial
Region, Branch 3, Nabunturan, Davao de Oro in Civil Case No.
1204, which affirmed the decision of the 3rd Municipal Circuit
Trial Court (MCTC) of Nabunturan-Mawab-Montevista in Civil
Case No. 1443 against the Defendants.

2. Final judgment or order of the Regional Trial Court in an appeal

from the final judgment or order of a Metropolitan Trial Court,
Municipal Trial Court, may be appealed to the Court of Appeals
through Petition for Review under this rule, whether the appeal
involves question of fact, of law or mixed question of fact and
law.
 THE PARTIES

Plaintiff is of legal age with address at Unit 303 Helix

Building, Pasig Line St., Paco, Manila and is the defendant in said
Criminal Case No. 2017-10, MeTC BR. 2, Manila City, and the
appellant in said Criminal Case No. 2017-13, RTC Br. 23, Manila City.

Respondents are the plaintiff in Criminal Case No. 2017-

10, MeTC Br. 2, Manila City, and the appellee in Criminal Case No.
2017-13, RTC Br. 23, Manila City.

TIMELINESS OF PETITION

1. On 29 September 2020, the Regional Trial Court

(RTC), Branch 3, Nabunturan, Davao de Oro, rendered a decision
denying the appeal of the Defendants-Appelants and affirming the
decision of the 3rd Municipal Circuit Trial Court (MCTC) of
Nabunturan-Mawab-Montevista in Civil Case No. 1443 against them
in the ejectment case filed by the Plaintiff-Appellee. Certified true
copy of said decision is attached hereto as ANNEX "A".

Accordingly, a Motion for Reconsideration was filed by

the Defendants-Appellants through their counsel dated ________,
copy of which motion for reconsideration is attached hereto as ANNEX
"B".

On 31 August 2021, Defendants-Appellants received a

copy of the Resolution dated 27 July 2021 of the trial court denying
said motion for reconsideration. Certified true copy of said order is
attached hereto as ANNEX "C".

Defendants-Appellants had until 15 September 2021 to file a

petition for review under Rule 42. Undersigned counsel filed on 10
September 2021 by registered mail his seasonable Motion for
Extension of Time to File Petition For Review (Rule 42) praying for
additional Fifteen (15) days from 15 September 2021 or up to 30
September 2021 within which to file their intended Petition for Review.
He paid the requisite docket fees, and other fees by postal money orders
attached to the said motion.

The Fifteen (15) day period shall expire on 30 September 2021

but without waiting for the said expiry date, he now filed this instant
petition for review with the Court of Appeals, as shown from the face
of said petition.

This petition was not filed for delay. It is one which raises
substantial issues and thus, is worthy of consideration.

STATEMENT OF FACTS AND MATTERS INVOLVED

The factual background and proceedings are as follows:

1. Sometime on February 5, 2017, plaintiff bought a brand-new

2016 Toyota Fortuner SUV worth one million pesos (Php
1,000,000.00) from one Janet Lim Atutubo, a sales agent
working for Toyota Motors-Otis Branch. The contract of sale
is herein attached as ANNEX "C-1";

2. As payment for the car, plaintiff issued a postdated

Metropolitan bank (Metrobank) check payable to Toyota
Motors-Otis with the amount of one million pesos (Php
1,000,000.00 only). The photocopy of said check herein
attached as ANNEX "D";

3. On February 8, 2017, Toyota Motors-Otis tried to cash in the

check but the same was dishonored by the aforementioned
bank wherein the latter claimed that plaintiff’s account had
insufficient funds.

4. Toyota Motors-Otis, through its branch manager Peter Alan

Tuwad, supposedly sent called the plaintiff through his mobile
phone on February 9, 2017 to inform the latter to pay the
balance immediately. The plaintiff agreed to pay the balance
in a week since he did not have the money available yet as he
had been recently fired from his job.

5. A week had passed and the plaintiff was not able to pay. Due
to this, Toyota Motors-Otis supposedly sent multiple demand
letters in which none of them reached plaintiff in the course of
one (1) month. The plaintiff was not able to reply to any of
them. It then filed a criminal action for B.P. No. 22 against the
 plaintiff along before the MeTC Br. 2 along with a civil action
to recover the amount on March 10, 2017 and was docketed as
Criminal Case No. 2017-10, herein attached as ANNEX "G";

6. On March 24, 2017, the MeTC Br. 2 released a judgment

holding plaintiff guilty for violation of B.P. No. 22, which
decision is herein attached as ANNEX "H";

7. On March 26, 2017, Plaintiff filed a motion for

reconsideration, herein attached as ANNEX "I";

8. On March 30, 2017, Plaintiff received the order of the MeTC

Br. 2 of Manila City denying the motion for reconsideration,
herein attached as ANNEX "J";

9. On April 10, 2017, Plaintiff filed an appeal under Rule 40 of

the Rules of Court to the RTC Br. 23, Manila City and was
docketed as Civil Case No. 2017-13, which appeal is herein
attached as ANNEX "K";

10. On April 24, 2017, the RTC Br. 23, Tacloban City released
an order affirming in toto the decision of the lower court,
which order is herein attached as ANNEX "L";

11. On April 30, 2017, Plaintiff filed a motion for

reconsideration for the order released April 25, 2017, which
motion is herein attached as ANNEX "M";

12. On May 10, 2017, the RTC Br. 23, Manila City denied the
motion for reconsideration citing proper judgment on the part
of the lower court, which order is herein attached as ANNEX
"N";

13. On May 15, 2017, herein Plaintiff filed this instant petition
for review under Rule 42 of the Rules of Court.

ISSUE RAISED
 Whether or not the plaintiff had received may be held criminally
liable for violation of B.P. No. 22

ERRORS COMMITTED BY TRIAL COURT

I. THE TRIAL COURT ERRED WHEN IT AFFIRMED

THE DECISION OF THE LOWER COURT
AFFIRMING THE DECISION OF THE MeTC OF
MANILA CITY AS IT ASSUMED THAT THE
PHONE CALL WAS SUFFICIENT AS NOTICE TO
PLAINTIFF THAT THE CHECK WAS
DISHONORED.

II. THE TRIAL COURT ERRED WHEN IT IT FAILED

TO RECOGNIZE THAT PLAINTIFF WAS NOT
LAWFULLY INFORMED OF THE DISHONORED
CHECK BY TOYOTA MOTORS-OTIS SINCE
PLAINTIFF HAD NEVER RECEIVED THE
DEMAND LETTERS.

GROUNDS OR REASONS FOR ALLOWANCE OF APPEAL

1. The appeal should be granted as it was filed within the

reglementary period of 15 days.

2. The appeal should be granted as substantial injustice was

committed against the rights of the plaintiff to be lawfully informed of
his case, which rights were ignored by the trial court.

DISCUSSION

1. On May 11, 2017, herein plaintiff received the order to the

Regional Trial Court, Br. 23 of Manila City denying the
latter's motion for reconsideration with regards the order of the
aforesaid court dated April 24, 2017, or 1 day after the receipt
of the order denying the motion for reconsideration. Being that
the instant petition was filed within the parameters of Rule 42
of the Rules of Court, the same should be granted due course.
 2. According to Domagsang vs. Court of Appeals1, the court held
that while Section 2 of B.P. No. 22 indeed does not state that
the notice of dishonor be in writing, this must be taken in
conjunction with Section 3 of the law, i.e., “that where there
are no sufficient funds in or credit with such drawee bank,
such fact shall always be explicitly stated in the notice of
dishonor or refusal”. A mere oral notice or demand to pay
would appear to be insufficient for conviction under the
law. In this case, plaintiff had only received a phone call from
Toyota Motors-Otis branch manager Peter Alan Tuwad which
is not sufficient for conviction of plaintiff.

3. It was held in Lao vs. Court of Appeals2 that a notice of

dishonor personally sent to and received by the accused is
necessary before one can be held liable under B.P. 22. In that
case, the court stated that because no notice of dishonor was
actually sent to and received by the petitioner, the prima facie
presumption that she knew about the insufficiency of funds
cannot apply. In this case, the plaintiff had not received any of
the demand letters not notices of dishonor at his address.

PRAYER

WHEREFORE, premises considered, it is most

respectfully prayed of the Honorable Court that judgment be rendered
in favor of the Plaintiff and for the grant of the following:

1. That the petition be given due course;

2. That after due proceedings, judgment be rendered

setting aside the questioned decision and ordering
annexes "H" and "L" hereof be set aside and another one
be rendered, holding:

a. Plaintiff is acquitted from the criminal case.

b. Adjudging plaintiff free from liability for damages and

attorney's fees in the total amount of fifty thousand pesos
(PHP 1,000,000.00).

1
G.R. NO. 139292, December 5, 2000.
2
G.R. No. 119178, June 20, 1997.
 3. Plaintiff likewise prays for other reliefs deemed just and
equitable in the premises are similarly prayed for.

Manila City, Philippines. 15th May 2017.

BY

ATTY. INIGO CELDRAN

Counsel for Plaintiff
Roll No. 5023
IBP No. 750 – Lifetime
PTR No. 70 - 1/2/14 Quezon City
MCLE Compliance IV No. 001233
Issued on December 8, 2012

REPUBLIC OF THE PHILIPPINES)

City of Manila, Metro Manila) S.S.
 VERIFICATION AND CERTIFICATION AGAINST FORUM
SHOPPING

I, Marlowe Baviera, of legal age, after having been duly sworn,

deposes and states that:
1. I am the Plaintiff in the above stated case;

2. I have caused the preparation of the said complaint for

collection of sum of money with damages;

3. I have read the contents thereof and the facts stated therein are
true and correct of my personal knowledge and/or on the basis
of the documents and records in my possession;

4. I have not commenced any other action or proceeding

involving the same issues in the any tribunal, agency or body;

5. To the best of my knowledge and belief, no such action or

proceeding is pending before any tribunal, agency or body;

6. If I should thereafter learn that a similar action has been filed

before any tribunal, agency or body, I undertake to report that
fact within five (5) days therefrom to this Honorable Court.

Executed this 15th day of May, 2017 at Manila City,

Philippines.

Marlowe Baviera
Affiant
T.I.N. 165-444-888, Manila City

SUBSCRIBED AND SWORN to before me, this 15th day of

May 2017, affiant exhibiting to me his Tax Identification Card as
shown above below her name as competent evidence of his identity.
 ATTY. INIGO CELDRAN
Counsel for Plaintiff
Roll No. 5023
IBP No. 750 – Lifetime
PTR No. 70 - 1/2/14 Quezon City
MCLE Compliance IV No. 001233
Issued on December 8, 2012

Doc. No. 9;
Page No. 4;
Book No. III;
Series of 2017.

Copy furnished:

CLERK OF COURT
RTC BR. 23
Manila City Hall, Manila

JOSE C. CALIDA
Solicitor General
Office of the Solicitor General
134 Amorsolo St., Legaspi Village, Makati City