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834 Phil. 317

THIRD DIVISION
[ G.R. No. 194455. June 27, 2018 ]
SPOUSES AVELINA RIVERA-NOLASCO AND EDUARDO A.
NOLASCO, PETITIONERS, V. RURAL BANK OF PANDI,
INC., RESPONDENT.

DECISION
MARTIRES, J.:
Before the Court is a petition for review on certiorari,
[1]
 under Rule 45 of the Rules of Court, assailing the
Decision, dated 25 June 2010,[2] and the Resolution,
dated 26 October 2010,[3] of the Court of Appeals (CA) in
CAG.R. SP No. 105288, through which the appellate
court[4] reversed and set aside three issuances of the
Office of the Provincial Agrarian Reform Adjudicator
(PARAD) in DARAB Case No. R-03-02-5792'08, namely:
the Order, dated 20 June 2008; the Resolution, dated 15
July 2008; and the Order, dated 11 August 2008. In fine,
the CA ruled that the Department of Agrarian Reform
Adjudication Board (DARAB) had no jurisdiction over the
Complaint filed in DARAB Case No. R-03-02-5792'08.
We required the parties to submit their Comment[5] and
Reply.[6] They complied.[7]
THE FACTS
On 23 February 1995, the spouses Reynaldo and
Primitiva Rivera (the spouses Rivera) obtained a Two
Hundred Thousand Peso loan from the Rural Bank of
Pandi, Inc. (respondent bank). The loan was secured with
a mortgage over a parcel of land measuring 18,101
square meters, located at Barangay Bunsuran II,
Municipality of Pandi, Province of Bulacan, and
registered in the spouses' names under Transfer
Certificate of Title (TCT) No. T-304255.[8]
The spouses Rivera failed to pay their loan, prompting
respondent bank to extrajudicially foreclose the
mortgage.[9] At the resultant auction sale, the bank was
declared the highest bidder for the property. When
Primitiva (Reynaldo had by then died) failed to exercise
the right of redemption,[10] respondent bank filed
an Affidavit of Consolidation with the Register of Deeds.
TCT No. T-304255 was then cancelled and a new
certificate of title, TCT No. T-512737 (M), was issued in
respondent bank's name.[11]
The spouses now solely represented by Primitiva, refused
to vacate the property, prompting the bank to seek relief
from the Regional Trial Court in Malolos City (RTC).[12] On
14 January 2008, said court issued a writ of possession in
favor of the bank, directing its sheriff to eject the
spouses. The next month, by virtue of the writ, the bank
was placed in possession of the property.[13]
The Case before the DARAB
On 10 April 2008, herein petitioners, the spouses Avelina
Rivera-Nolasco and Eduardo Nolasco (petitioner spouses),
filed a Complaint[14] before the DARAB denominated as
"For: Maintenance and Peaceful Possession of
Landholding and Damages with Prayer for Temporary
Restraining Order and/or Writ of Preliminary Injunction"
and docketed as DARAB Case No. R-03-02-5792'08.
Petitioner spouses alleged, in the main, that they were
tenants of the subject property.
The spouses narrated that the property was part of a
larger landholding, spanning 36,000 square meters,
which was then owned by the Sarmiento Family of
Meycauayan, Bulacan. The land was tenanted by Ireneo
Rivera, the father of petitioner Avelina Rivera-Nolasco
(Avelina).
When Ireneo died in 1974, Reynaldo Rivera, the eldest of
his children, continued Ireneo's tenancy with the
assistance of his siblings. In 1981, Reynaldo became
financially distressed[15] and sold his tenancy rights to
Avelina for P50,000.00. From then on, Avelina became
the Sarmiento Family's sole agricultural tenant of the
landholding.
In 1986, the Sarmiento Family sold half of the
landholding to a certain Boy Salazar; as disturbance
compensation, the family transferred the remaining half,
about 18,101 square meters, to Ireneo's heirs, his
children, who then agreed that the land be registered
solely in the name of Reynaldo, in deference to his being
the eldest. The siblings acknowledged that they were co-
owners of the land, and that they would partition it in
the future. TCT No. T-304255 was thus issued in Spouses
Rivera's name. The siblings further agreed that Avelina
was to continue as their sole and exclusive tenant; every
year, she was to give her siblings a portion of the harvest
corresponding to their respective one-eighth (1/8th)
undivided shares in the property.[16]
As earlier narrated, on 23 February 1995, Spouses Rivera
mortgaged the property to respondent bank. Petitioner
spouses claim that this was without their and the other
siblings' prior knowledge.[17] After the RTC issued the
aforementioned writ of possession, the bank had the
entire property fenced and forthwith denied Avelina
entry. She and her workers were thus prevented from
tending to their palay crop which by April 2008, was
ready for harvest.[18] Avelina's counsel[19] wrote
respondent bank, requesting that she be allowed entry
so she may conduct the necessary harvest. The bank
verbally responded that it would agree, on the condition
that Avelina and her husband renounce their tenancy
rights over the property.[20] Thereafter, petitioner
spouses filed the subject complaint.
Conversely, respondent bank filed an Answer (with
Motion to Dismiss) (Answer),[21] contending that the
DARAB had no jurisdiction over the complaint as
petitioner spouses were not tenants at the property. The
bank claimed that in 1999, the Municipal Agrarian
Reform Officer[22] had certified[23] that the property was
neither tenanted nor covered by the Operation Land
Transfer of the agrarian reform program; in 2007, the
Chief Agrarian Reform Program Officer[24] at Baliuag,
Bulacan, issued a similar certification.[25] The bank further
argued that even if it were to be assumed that the
spouses had planted the palay on the property, they
were not entitled to its harvest or to indemnification for
its loss as they had not been planters in good faith.
Finally, the bank insisted that it had been a mortgagee in
good faith, and that it had acquired possession of the
property pursuant to an order of the RTC. The bank
insisted that the DARAB respect this order.
The Ruling of the PARAD
Acting pursuant to his delegated jurisdiction,[26] Joseph
Noel C. Longeoan,[27] the Provincial Agrarian Reform
Adjudicator (PARAD) tasked to resolve the Answer, found
the motion to dismiss to be of no merit. He maintained
the jurisdiction of his office to resolve the complaint. The
PARAD's 20 June 2008 order pertinently reads:[28]
xxxx
Without delving into the merits of the case, a judicious
examination of the complaint will tell us that the relief
being prayed for calls for the application of agrarian
reform laws. As such, this Forum is clothed with the
power and authority to hear and decide the issue or
issues raised in the case at bar without encroaching into
the issues already passed upon by the Regional Trial
Court.
In the case of TCMC, Inc. v. CA, 316 SCRA 502, the
Supreme Court said:
"Jurisdiction of the court over the subject matter is
determined by the allegations of the complaint, hence,
the court's jurisdiction cannot be made to depend upon
the defenses set up in the answer or motion to dismiss."
WHEREFORE, in light of the foregoing premises, the
instant motion is hereby DENIED for lack of merit.
SO ORDERED.
Respondent bank moved for reconsideration. Pending its
resolution of this motion, however, the PARAD approved
the application for preliminary injunction and ordered
respondent bank to accord petitioner spouses with the
peaceful possession of subject property during the
pendency of DARAB Case No. R-03-02-5792'08.[29] In
response, respondent bank filed a second motion,
a Motion to Quash Writ of Injunction, which petitioner
spouses duly opposed.
On 11 August 2008,[30] the PARAD issued an Order
denying the two aforementioned motions; on even date,
he issued the Writ of Preliminary Injunction.[31]
The Case before the CA
Through a petition for certiorari,[32] under Rule 65 of the
Rules of Court, respondent bank sought relief from the
CA, contending that the PARAD had committed grave
abuse of discretion amounting to lack or excess of
jurisdiction in denying respondent bank's motion to
dismiss despite lack of jurisdiction over the complaint. [33]
The Ruling of the CA
As previously noted, the petition before the CA was
granted. To conclude that the DARAB had no jurisdiction
over the subject complaint, the appellate court zeroed in
on petitioner spouses' averment, made in the same
complaint, that they were co-owners of the property.
"Ownership," the court a quo aphorized, "is the
antithesis of tenancy." We quote the appellate court's
pertinent discussion of this decisive point, so that the
decision under review may speak for itself:[34]
In their complaint, the private respondents alleged,
among others, that they became owners of the subject
land, together with Reynaldo Rivera, the registered
owner, and the other Rivera siblings when the Sarmiento
Family, the original owners of the land, transferred the
ownership of the land to them as disturbance
compensation. They further claimed that the land was
only registered in trust in the name of Reynaldo Rivera
for convenience and in deference to his being the eldest
of the Rivera siblings and that the mortgage of the
subject property, which eventually led to its foreclosure
by the petitioner bank, was without the knowledge and
consent of the other owners, the private respondents
and the other Rivera children. Private respondents'
contention that they are co-owners of the subject
property and, at the same time, tenants of the same
defies logic. Tenancy is established precisely when a
landowner institutes a tenant to work on his property
under the terms and conditions of their tenurial
arrangement. The private respondents cannot
anomalously insist to be both tenants and owners of the
subject land. Ownership is antithesis of tenancy.
Co-ownership is a manifestation of the private ownership
which, instead of being exercised by the owner in an
exclusive manner over the things subject to it, is
exercised by two or more owners and the undivided
thing or right to which it refers is one and the same. It is
not a real right distinct from ownership but is a mere
form or manifestation of ownership.[35] Co-owners are
therefore owners of an undivided thing. [36]
On the other hand, tenants are defined as persons who—
in themselves and with the aid available from within
their immediate farm households—cultivate the land
belonging to or possessed by another, with the latter's
consent, for purposes of production, sharing the produce
with the landholder under the share tenancy system, or
paying to the landholder a price certain or ascertainable
in produce or money or both under the leasehold
tenancy system.[37]
Based on the foregoing discussion, the allegations in the
complaint filed by the private respondents before the
PARAD shows that 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. The private respondents cannot thereafter force
a tenancy relationship between them and the successive
owners of the land.
All told, the PARAD clearly committed a jurisdictional
infraction when he took cognizance of the private
respondents' complaint. The allegations of the complaint
failed to show that the private respondents are
agricultural tenants of the land and that the instant case
involves an agrarian dispute cognizable by the DARAB. To
reiterate, the jurisdiction of the DARAB is limited to
agrarian disputes or controversies and other matters or
incidents involving the implementation of the
Comprehensive Agrarian Program (CARP) under Rep. Act
No. 6657, Rep. Act No. 3844 and other agrarian laws. An
allegation that an agricultural tenant tilled the land in
question does not make the case an agrarian dispute. All
the indispensable elements of a tenancy relationship
must be alleged in the complaint. The private
respondents' allegation that they are co-owners of the
subject land clearly removes the present case from the
DARAB's jurisdiction.
With regard to the other issues raised by the petitioner
bank, we see no need to resolve the same in view of our
finding that the DARAB did not have jurisdiction over the
subject matter of the present case.
WHEREFORE, in view of the foregoing premises, the
petition filed in this case is hereby GRANTED. The
assailed Order dated June 20, 2008, Resolution dated July
15, 2008 and Order dated August 11, 2008 of the
Provincial Agrarian Reform Adjudicator (PARAD) Joseph
Noel C. Longboan in DARAB Case No. R-03-02-5792-08
are hereby REVERSED and SET ASIDE.
SO ORDERED.
Petitioner spouses filed a motion for reconsideration,
[38]
 but it was denied; hence, the present petition before
this Court.
The Petition for Review
The petition at bar imputes abuse of discretion on the
part of the CA, ostensibly stemming from serious,
reversible error committed with the following acts: first,
in failing to appreciate the "substantial and peculiar
circumstances" of the case which, if properly considered,
would justify a different conclusion; second, in delimiting
the meaning and applicability of the term "agrarian
dispute" within the four comers of the traditional
definition of a tenancy relationship; third, in failing to
rule with equity, considering that petitioner spouses had
lived on the subject property for twenty-nine years.
ISSUE
WHETHER THE CA REVERSIBLY ERRED IN RULING THAT
THE PARAD COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN
TAKING JURISDICTION OVER THE COMPLAINT IN DARAB
CASE NO. R-03-02-5792'08.
Two Questions
Such issue pivots on two questions. The first is whether
the complaint had sufficient averments as to confer
subject matter jurisdiction unto the DARAB. The second
is capable of several articulations. It is whether petitioner
spouses' averment of co-ownership of the land subject of
the complaint sufficiently negates their claim of tenancy
thereon, such that, as a matter of course, the PARAD
cannot be conferred with jurisdiction in DARAB Case No.
R-03-02-5792'08. Another articulation is whether the
averment of co-ownership is sufficient reason for the
complaint's dismissal, such that, consequently, petitioner
spouses can no longer obtain the reliefs they seek.
OUR RULING
The CA ruling is set aside.
The material averments of
the subject complaint
sufficiently convey
jurisdiction unto the
PARAD.
We resolve the first question in the affirmative. In so
ruling, we turn to the rules on jurisdiction reiterated
in Heirs of Julian dela Cruz and Leonora Talara v. Heirs of
Alberto Cruz.[39] It is axiomatic that the jurisdiction of a
tribunal, including a quasi-judicial officer or government
agency such as the DARAB and the PARAD, over the
nature and subject matter of a petition or complaint is
determined by the material allegations therein and the
character of the relief prayed for, irrespective of whether
the petitioner or complainant is entitled to any or all such
reliefs.[40] Jurisdiction over the nature and subject matter
of an action is conferred by the Constitution and the law,
and not by the consent or waiver of the parties where
the court otherwise would have no jurisdiction over the
nature or subject matter of the action. Nor can it be
acquired through or waived by any act or omission of the
parties.[41] Indeed, the jurisdiction of the court or tribunal
is not affected by the defenses or theories set up by the
defendant or respondent in his answer or motion to
dismiss.
At the time the subject complaint was filed,[42] the 2003
DARAB Rules of Procedure[43] governed the proceedings
of the board and its adjudicators. Section 1, Rule II of said
Rules provides, among others:[44]
RULE II
JURISDICTION OF THE BOARD AND THE ADJUDICATORS
SECTION 1. Primary and Exclusive Original Jurisdiction.
The Adjudicator shall have primary and exclusive original
jurisdiction to determine and adjudicate the following
cases:
1.1 The rights and obligations of persons, whether
natural or juridical, engaged in the management,
cultivation, and use of all agricultural lands covered by
R.A. No. 6657, otherwise known as the Comprehensive
Agrarian Reform Law (CARL), as amended, and other
related agrarian laws; x x x x
xxxx
We go now to the subject complaint to assess, without
delving into its merits, its allegations and the reliefs. Do
these pleas dovetail with the subject matter jurisdiction
of the administrative board of its chosen refuge? The
complaint pertinently pleads:
xxxx
COMPLAINT
PLAINTIFFS, through counsel, to this Honorable Board,
most respectfully state:
xxxx
3. That the parcel of Riceland of 18,101 square meters
located at Bunsuran III, Pandi, Bulacan, which is the
subject of this case was originally part of a bigger
parcel of Riceland of about 36,000 square meters,
more or less, which was owned by the Sarmiento
Family of Meycauayan, Bulacan but tilled and
 tenanted by Ireneo Rivera (deceased father of
plaintiff Avelina Rivera-Nolasco.)
4. That when said Ireneo Rivera died on October 12,
1974, Reynaldo Rivera being the eldest of Ireneo's
eight (8) children (including herein Avelina Rivera
who was then still single) continued as tenant of the
aforementioned landholding of the Sarmiento
Family, but with the assistance of his other siblings.
5. That in 1981 Reynaldo Rivera and his wife Primitiva
became financially distressed and/or bankrupt and
in order to raise funds and pay their unpaid matured
loans with the defendant Bank, the said couple
sold/transferred all their tenancy rights over the said
landholding for P50,000.00 to herein plaintiff Avelina
Rivera-Nolasco.
6. That as a result thereof, plaintiff Avelina Rivera-
Nolasco became the sole and exclusive agricultural
tenant starting 1981 of the said landholding of
36,000 square meters of the Sarmiento Family with
the valuable assistance of her husband Eduardo
Nolasco.
7. That in 1986 the Sarmiento Family sold the one-half
(1/2) portion of the tenanted landholding of 36,000
 square meters to a certain Boy Salazar of Balagtas,
Bulacan. In consideration of, and as disturbance
compensation of the late Ireneo Rivera and later of
the plaintiff Avelina Rivera-Nolasco, the portion of
18,101 square meters was ceded and transferred by
the Sarmiento Family to the Rivera children.
However, by mutual agreement of all the Rivera
children and with the prior knowledge of their
respective spouses, the said 18,101 square meters
was placed and registered only in trust under the
name of Reynaldo Rivera for convenience and in
deference to his being the eldest of the eight (8)
Rivera children. Hence, TCT No. T-304255 was issued
on August 27, 1986 in the name of Spouses Reynaldo
Rivera and Primitiva Rivera, copy of which is
attached as Annex "A" hereof with the
corresponding Tax Declaration as Annex "A-1"
hereof.
8. However, under the aforesaid agreement the 18,101
square meters as considered a co-ownership of the
eight (8) Rivera children subject to their future
partition at the appropriate time while plaintiff
Avelina Rivera-Nolasco continued as the sole and
exclusive tenant thereof but giving every year to her
 other siblings a portion of the harvest which pertains
to their respective 118 undivided shares in the
property.
9. That since 1981, Reynaldo Rivera and/or his wife
ceased to have any participation in the cultivation of
the subject landholding of 18,101 square meters.
Since then, however, plaintiff Avelina-Rivera-Nolasco
has continuously and publicly taken possession and
cultivation of said landholding with the assistance of
her husband as its sole and exclusive tenant and
even paying to the National Irrigation Administration
the irrigation fees for said landholding as evidenced
by the attached copy of the NIA official receipts from
1983 to 2008 marked as Annexes "B" to "Z" and "AA"
to "JJ," inclusive, hereof.
10. That plaintiff Avelina-Rivera-Nolasco is likewise
duly recognized by the Department of Agrarian
Reform and duly registered therein as the tenant-
tiller of the subject landholding as evidenced by the
Certification of MARO Juan J. Salvador of Pandi and
Balagtas, Bulacan dated April 4, 2000, copy of which
is attached as Annex "KK" hereof. She is likewise
known and recognized publicly as the sole and
 legitimate tenant of the said landholding as
evidenced by the following:
a) Certification by the Irrigators' association dated
September 24, 1999 (Annex "LL'' hereof);
   
b) Certification by Barangay Captain Carlito Concepcion
of Bunsuran III, Pandi, Bulacan dated September 1,
1999 (annex "MM" hereof);
   
c) Certificate of BARC Chairman Alvino Anastacio of
Bunsuran III, Pandi, Bulacan dated September 1,
1999 (Annex "NN" hereof);
   
d) Joint Affidavit of four (4) boundary owners/farmers
dated March 25, 2000 (Annex "OO" hereof);
   
e) Joint Affidavit of Barangay Captain Carlita
Concepcion and BARC Chairman Albino Anastacio, of
Bunsuran III, Pandi, Bulacan dated March 25, 2000
(Annex "PP" hereof).
xxxx
14. That over the objections of the herein plaintiff,
the defendant Bank caused the fencing of the entire
landholding with concrete posts and barbed wire. As
a result thereof, plaintiff was prevented from
entering the property and to perform the usual care
of her palay crop especially so that the defendant
Bank has engaged the services of the local Barangay
Officials and Barangay Tanod to watch the property
and prevent any entry thereto. In fact, the defendant
Bank also refused/denied the written request of the
plaintiff’s counsel, Atty. Venustiano S. Roxas, dated
March 3, 2008 to allow entry into the property by
the plaintiffs and their farm workers to continue
attending to the standing palay crop and avoid its
destruction. Two (2) copies of photograph taken on
February 2, 2008 and the letter dated March 3, 2008
are hereto attached as Annexes "RR," "SS," and "TT"
hereof.
15. That when the present palay crop on the subject
landholding was already fully ripe and ready for
harvesting within the first week of April 2008,
plaintiff Avelina Rivera-Nolasco, through her counsel
Atty. Venustiano S. Roxas, sent a formal letter to the
defendant Bank dated April 1, 2008 requesting that
 plaintiff Avelina Rivera-Nolasco be permitted to
enter the subject landholding and to undertake the
necessary harvesting with the use of her rice
thresher and vehicle with a promise to restore to its
original position any portion of the fence that would
be temporarily opened for that purpose. Copy of
said letter is attached as Annex "UU" hereof. In
response to said letter the defendant Bank verbally
agreed to grant the plaintiffs request provided that
the plaintiffs would renounce in writing any tenancy
rights over the property.
16. That in a clear and patent abuse of rights over
the subject landholding and despite the earlier
written statement of plaintiff Avelina Rivera-Nolasco
that "she is only concerned with her own righs over
said property as its lawful tiller-tenant," the herein
defendant Bank failed and refused, and still fails and
refuses to at least accompany the plaintiffs or to
issue or give any written authorization to the
plaintiffs to enter the landholding and harvest the
standing palay crop thereon. With such unjustified
and repeated refusal of the defendant Bank and
considering that the landholding is under the
watchful eyes of the local Barangay officials and
 Barangay Tanods of Bunsuran III, Pandi, bulacan who
were so engaged by the defendant Bank to guard
the property, plaintiffs were discouraged/ prevented
from harvesting the subject palay crop for fear of
being molested, harassed, or even charged
criminally for such offenses as Theft, Trespass or
Malicious Mischief. As a result thereof, subject palay
crop is in extreme danger of being
damaged/destroyed for which plaintiffs will suffer
actual losses of approximately P80,000.00. Copy of
two (2) photographs of the palay crops taken on
April 7, 2008 are attached as Annexes "VV'' and
"WW" hereof.
17. That the aforesaid actuations of the defendant
Bank violate the rights of plaintiff Avelina Rivera-
Nolasco as the sole and legitimate tenant of the
subject landholding and are designed to ultimately
eject or remove her as such tenant of the subject
landholding. x x x x
xxxx
22. That defendant Bank is doing, threatens, or is
about to do, or is procuring or suffering to be done,
 some acts in violation or the rights of the plaintiffs
respecting the subject of the action.
xxxx
Following these allegations, the complaint seeks these
reliefs:
WHEREFORE, premises considered, it is most respectfully
prayed:
1. That upon the filing of this complaint, a Temporary
Restraining Order be immediately issued ex parte
directing the defendant Bank or any of its officers
and employees and/or all persons acting for or in its
behalf to desist from stopping, obstructing,
molesting, or otherwise harassing the herein
plaintiffs and all other persons acting for or in their
behalf in entering into the subject landholding,
harvesting the present palay crop thereon,
cultivating or tilling said landholding or otherwise
performing any act or acts as tenant thereof.
2. That after proper hearing, a writ of preliminary
injunction be issued directing the defendant Bank,
its officers and employees and any or all persons
acting for or in their behalf to desist from stopping,
molesting, obstructing, harassing or otherwise
 ejecting or removing the herein plaintiffs from the
subject landholding as tenant thereof during the
pendency of this case.
3. That after trial, judgment be issued as follows:
(A) Declaring or making the injunction permanent.
   
(B) Declaring and maintaining the herein plaintiff Avelina
Rivera-Nolasco as the sole and lawful tenant of the
subject landholding.
   
(C) Ordering the defendant Bank to pay to the plaintiffs
the following:
1. Actual damages of approximately P80,000.00
representing the peso value of the lost, damaged or
destroyed palay crop currently planted on subject
landholding.
2. Attorney's fees of P50,000.00 plus appearance fees
of P2,500.00 per hearing and other litigation
expenses of at least P20,000.00.
3. Moral damages of P200,000.00.
4. Exemplary damages of P50,000.00.
PLAINTIFFS also pray for such other reliefs as may be just
and equitable under the premises.[45]
xxxx
These averments and prayers amount to an issue
cognizable by the DARAB and its adjudicators. In fine,
petitioner spouses assert that they are tenants of
agricultural land and pray that their tenancy be
respected by respondent bank. What results is an
agrarian dispute, a controversy over which the PARAD
has jurisdiction. To recall, an agrarian dispute is any
controversy relating to, among others, tenancy over
lands devoted to agriculture.[46] Here, the controversy
raised squarely falls under that class of cases described
under Paragraph 1.1, Section 1, Rule II of the 2003
DARAB Rules of Procedure.
In this regard, we note that the specific elements of
tenancy are sufficiently averred in the subject complaint,
these being: first, that the parties are the landowner and
the tenant or agricultural lessee; second, that the subject
matter of the relationship is an agricultural land; third,
that there is consent between the parties to the
relationship; fourth, that the purpose of the relationship
is to bring about agricultural production; fifth, that there
is personal cultivation on the part of the tenant or
agricultural lessee; and sixth, that the harvest is shared
between the landowner and the tenant or agricultural
lessee.[47] Averments corresponding to each of these
elements are easily seen, demonstrable in the face of the
subject complaint.
True, it cannot be said that respondent bank and
petitioner spouses had directly consented to an
agricultural leasehold relationship given that, per the
subject narration, such pertinent consent had been
formed between Avelina and her siblings. All the same,
in Bautista, et al. v. Vda de Villena, the Court observed:
x x x. [J]urisdiction does not require the continuance of
the relationship of landlord and tenant—at the time of
the dispute. The same may have arisen, and oftentimes
arises, precisely from the previous termination of such
relationship. If the same existed immediately, or shortly,
before the controversy and the subject matter thereof is
whether or not said relationship has been lawfully
terminated; or if the dispute otherwise springs or
originates from the relationship of landlord and tenant,
the litigation is (then) cognizable only by the [DARAB].[48]
With respect to the certifications respondent bank
secured from the MARO and the CARPO, ostensibly
proving that the subject property was not tenanted or
covered by agrarian reform, these documents are
irrelevant to the task at hand. We reiterate, the
determination of whether a tribunal has subject matter
jurisdiction in a case is not affected by the defenses set
up in an answer or motion to dismiss. In any case, it
bears reiterating that certifications of municipal reform
officers as to the presence or absence of a tenancy
relationship are merely provisional; in one case we even
ruled that they do not bind the courts.[49]
Given the averments of the subject complaint, we rule
that the PARAD already obtained a jurisdictional foothold
in this Case. As an incidence, it could take on all the
issues of the case, including the defenses raised by
respondent bank; petitioner spouses are allowed to
present their case in full, which must then be decided on
the merits.
We proceed to the second inquiry. Which may be
articulated in several ways. From yet another standpoint,
the question is whether the averment of co-ownership in
the complaint should be reason enough to thwart the
jurisdiction already conferred unto the PARAD by the
complaint's other material averment, such that
petitioner spouses can no longer seek recognition as
tenants of the subject property, endowed with the
appurtenant rights of agricultural tenants. The appellate
court opined that such averment was enough, the main
reason being that ownership was antithetical to tenancy.
The Court, however, is unable to affirm the overarching
application of such a view in this case for several reasons,
chiefly: first, the ownership in this case, a co-ownership
at that, remains an unconfirmed claim; and second, as
the dismissal of the subject complaint had effectively
prevented petitioner spouses from fully presenting their
case, the assailed ruling risks summarily ejecting
agricultural tenants. Absent administrative findings on
the particularities of Avelina's claimed tillage, we believe
that such risk should not be taken.
Outright dismissal of an
action is not proper where
there are factual matters in
dispute requiring the
presentation and
appreciation of evidence.
The present petition poses no factual questions, as is
ideal in cases filed under Rule 45. This is certainly due in
no small part to the dismissal of petitioner spouses'
complaint at the PARAD level. Consequently, the parties'
respective factual claims did not go through the wringer
of administrative fact-checking, and so there is a paucity
of adjudicated facts in this case, which gives rise to
certain musings.
We recall that the subject agricultural land was
registered solely in the name of spouses Reynaldo and
Primitiva Rivera, per TCT No. T-304255. We are also
aware that said spouses were not impleaded in DARAB
Case No. R-03-02-5792'08. While such non-impleadment
may have been par for the course, considering the nature
of the action filed with the PARAD and also because
ownership of the land had by then transferred to
respondent bank, a question arises nevertheless. Do the
spouses Rivera not dispute petitioner spouses' claim of
co-ownership? Avelina says the co-ownership arose from
a mere verbal agreement. Are the spouses Rivera even
aware of such a claim? More to the point, is the co-
ownership true?
As far as TCT No. T-304255 is concerned, the owners of
the subject land prior to its acquisition by respondent
bank were its registered owners Reynaldo Rivera and his
wife, not Reynaldo and his siblings. Parenthetically, we
are mindful of previous cases wherein this Court stated
that the Torrens titles were conclusive evidence with
respect to the ownership of the land described therein.
[50]
 If we are to abide by the recitals of TCT No. T-304255
and ascribe sole ownership to the spouses Rivera, where
does that leave Avelina? Avelina narrates years of tillage
of the land, beginning in 1974. Would this not also
indicate that she was the spouses Rivera's tenant? If
Avelina were not a co-owner with the rest of her siblings,
then, at the very least, should she not be considered as
the tenant of her sibling Reynaldo? Accordingly, would
not such tenancy subsist even after the land's ownership
was transferred to respondent bank?
The questions continue if we are to accept without a
doubt the truthfulness of the asserted co-ownership.
What were the particularities of Avelina's harvest-sharing
and/or profit-sharing agreement with her siblings?
Avelina claims that as the only sibling tilling the property,
her annual obligation was to give her co-owners a
portion of the harvest corresponding to their respective
1/8th undivided share in the property. How much have
the harvests that Avelina kept for herself changed when
ownership of the property transferred from the
Sarmiento Family to the Rivera family? In other words,
how has Avelina's share changed from her tenancy to co-
ownership?
The numerous questions surrounding the averred co-
ownership are worth pondering. The averment was the
appellate court's sole basis for dismissing the subject
complaint. Incidentally, respondent bank did not even
include said basis as part of its defenses before the
PARAD. Certainly, the question of whether the particulars
of the arrangement between Avelina and her siblings
preponderate to an agricultural leasehold relationship or
to a co-ownership should form part of an administrative
inquiry, in order to properly address the larger question
of whether an agricultural leasehold relationship among
co-owners may co-exist in their civil co-ownership. It is in
view of these questions that we deem the dismissal
under review to have been premature. In Ingjug-Tiro v.
Casals,[51] we held that a summary or outright dismissal
of an action is not proper where there are factual
matters in dispute that require presentation and
appreciation of evidence. We so rule in this case.
The theory on the co-
existence of agricultural
tenancy and co-ownership
merits a closer look.
In this case, we are presently ill persuaded that co-
ownership ipso facto, or at the very least the mere
averment thereof, should be enough to thwart a co-
owner's suit for recognition as tenant. While the
appellate court's aphorism on the mutual exclusivity
between land ownership and tenancy may hold true
when the ownership involved is reposed in a single
entity, should the same be deemed as automatically true
for co-ownerships, as well?
Petitioner spouses plead a likely narrative and argument
on this point:
Clearly, the Court of Appeals grossly ignored the fact that
the former landowner (Sarmiento Family) gave the
18,101 square meters to the eight (8) Rivera children by
way of Disturbance Compensation in recognition of the
long years of tenancy relationship between the
Sarmiento Family and the deceased Ireneo Rivera; that
since Renaldo [sic] Rivera is the eldest among the eight
(8) siblings, and some of them were then still minors,
they all agreed that the title for 18,101 square meters
(TCT No. T-304255) would be placed only in the name of
Reynaldo Rivera but only "intrust" and subject to its
future partition by the eight (8) co-owners at the
appropriate time; that as a result thereof, Petitioner
Avelina Rivera-Nolasco, therefore, became the co-owner
of the 1/8 undivided portion of the 18,101 square meters
and at the same time the sole tiller and tenant of the
entire 7/8 undivided portions of her seven (7) siblings to
whom Avelina regularly gave the latter's rental as
Landowner or Lessor from the annual palay harvest.
That kind of "temporary arrangement" as to the
"ownership" or "tillage" of a piece of real property which
is owned in common by several brothers and sisters is a
common practice in the rural areas especially if some of
the co-owners are still minors (as in the instant case) or
the co-owners are financially incapable to subdivide the
whole parcel and have a separate titling for the share of
each and every co-owner. It is neither illegal nor
immoral.[52]
Without prejudice to the eventual findings of the
administrative agency concerned, we deem petitioner
spouses' proposition to be within the realm of possibility.
It is thus worthy of examination by the DARAB and its
adjudicators, which has the expertise to undertake such
an examination. We so rule in line with the doctrine of
primary jurisdiction, viz:
In San Miguel Properties, Inc. v. Perez, we explained the
reasons why Congress, in its judgment, may choose to
grant primary jurisdiction over matters within the
erstwhile jurisdiction of the courts, to an agency:
The doctrine of primary jurisdiction has been increasingly
called into play on matters demanding the special
competence of administrative agencies even if such
matters are at the same time within the jurisdiction of
the courts. A case that requires for its determination the
expertise, specialized skills, and knowledge of some
administrative board or commission because it involves
technical matters or intricate questions of fact, relief
must first be obtained in an appropriate administrative
proceeding before a remedy will be supplied by the
courts although the matter comes within the jurisdiction
of the courts. The application of the doctrine does not
call for the dismissal of the case in the court but only for
its suspension until after the matters within the
competence of the administrative body are threshed out
and determined.[53]
The assailed ruling risks
granting imprimatur to an
extrajudicial eviction of
agricultural tenants.
To recall, what prompted the filing of the subject
complaint were the acts of respondent bank in
preventing petitioner spouses and their workers from
entering the subject property and from tending to their
alleged agricultural harvest thereon. If we set the
agricultural tenancy of petitioner spouses as a basic
postulate, then these acts essentially amount to their
eviction from the land. Subsequently, the dismissal of the
subject complaint before the PARAD lent judicial
imprimatur to a summary extrajudicial eviction of
agricultural tenants.
The law, however, has set careful parameters before an
agricultural tenant may be ejected. In Natividad vs.
Mariano,[54] the Court put a spotlight on how the law set
these careful parameters:
Section 7 of R.A. No. 3844 ordains that once the tenancy
relationship is established, a tenant or agricultural lessee
is entitled to security of tenure. Section 36 of R.A. No.
3844 strengthens this right by providing that the
agricultural lessee has the right to continue the
enjoyment and possession of the landholding and shall
not be disturbed in such possession except only upon
court authority in a final and executory judgment, after
due notice and hearing, and only for the specifically
enumerated causes. The subsequent R.A. No. 6657
further reiterates, under its Section 6, that the security of
tenure previously acquired shall be respected. Finally, in
order to protect this right, Section 37 of R.A. No. 3844
rests the burden of proving the existence of a lawful
cause for the ejectment of the agricultural lessee on the
agricultural lessor.
The specifically enumerated causes for terminating a
leasehold relationship mentioned in Natividad are set in
Sections 8, 28, and 36 of Republic Act (R.A.) No. 3844,
[55]
 to wit:[56]
SEC. 8. Extinguishment of Agricultural Leasehold
Relation.—The agricultural leasehold relation established
under this Code shall be extinguished by:
(1) Abandonment of the landholding without the
knowledge of the agricultural lessor;
   
(2) Voluntary surrender of the landholding by the
agricultural lessee, written notice of which shall be
 served three months in advance; or
   
(3) Absence of the persons under Section Nine to
succeed to the lessee, in the event of death or
permanent incapacity of the lessee. x x x x
SEC. 28. Termination of Leasehold by Agricultural Lessee
During Agricultural Year.—The agricultural lessee may
terminate the leasehold during the agricultural year for
any of the following causes:
(1) Cruel, inhuman or offensive treatment of the
agricultural lessee or any member of his immediate
farm household by the agricultural lessor or his
representative with the knowledge and consent of
the lessor;
 
(2) Noncompliance on the part of the agricultural lessor
with any of the obligations imposed upon him by the
provisions of this Code or by his contract with the
agricultural lessee;
 
(3) Compulsion of the agricultural lessee or any member
of his immediate farm household by the agricultural
 lessor to do any work or render any service not in any
way connected with farm work or even without
compulsion if no compensation is paid;
 
(4) Commission of a crime by the agricultural lessor or
his representative against the agricultural lessee or
any member of his immediate farm household; or
 
(5) Voluntary surrender due to circumstances more
advantageous to him and his family.
xxxx
SEC. 36. Possession of Landholding; Exceptions.—
Notwithstanding any agreement as to the period or
future surrender, of the land, an agricultural lessee shall
continue in the enjoyment and possession of his
landholding except when his dispossession has been
authorized by the Court in a judgment that is final and
executory if after due hearing it is shown that:
(1) The agricultural lessor-owner or a member of his
immediate family will personally cultivate the
landholding or will convert the landholding, if suitably
located, into residential, factory, hospital or school
 site or other useful non-agricultural purposes:
Provided, That the agricultural lessee shall be entitled
to disturbance compensation equivalent to five years
rental on his landholding in addition to his rights
under Sections twenty-five and thirty-four, except
when the land owned and leased by the agricultural
lessor, is not more than five hectares, in which case
instead of disturbance compensation the lessee may
be entitled to an advanced notice of at least one
agricultural year before ejectment proceedings are
filed against him: Provided, further, That should the
landholder not cultivate the land himself for three
years or fail to substantially carry out such conversion
within one year after the dispossession of the tenant,
it shall be presumed that he acted in bad faith and
the tenant shall have the right to demand possession
of the land and recover damages for any loss incurred
by him because of said dispossessions;
   
(2) The agricultural lessee failed to substantially comply
with any of the terms and conditions of the contract
or any of the provisions of this Code unless his failure
is caused by fortuitous event or force majeure;
   
(3) The agricultural lessee planted crops or used the
landholding for a purpose other than what had been
previously agreed upon;
   
(4) The agricultural lessee failed to adopt proven farm
practices as determined under paragraph 3 of Section
twenty-nine;
   
(5) The land or other substantial permanent
improvement thereon is substantially damaged or
destroyed or has unreasonably deteriorated through
the fault or negligence of the agricultural lessee;
   
(6) The agricultural lessee does not pay the lease rental
when it falls due; Provided, That if the non-payment
of the rental shall be due to crop failure to the extent
of seventy-five per centum as a result of a fortuitous
event, the non-payment shall not be a ground for
dispossession, although the obligation to pay the
rental due that particular crop is not thereby
extinguished; or
   
(7) The lessee employed a sub-lessee on his landholding
in violation of the terms of paragraph 2 of Section
twenty-seven.
In the 1993 case of Bernas v. CA and Deita, the Court
held that the grounds for the ejectment of an agricultural
leasehold lessee are an exclusive enumeration; no other
grounds could justify the termination of an agricultural
leasehold.[57]
On the postulate that petitioner spouses are agricultural
tenants, or at the least allowed to proceed with their suit
to be recognized as agricultural tenants, we observe that
respondent bank had evicted petitioner spouses
extrajudicially. But the law sets that the burden of
proving the existence of a lawful cause for ejectment of
an agricultural tenant rests on respondent bank. Co-
ownership, however, does not appear to be one of the
legislated causes for the lawful ejectment of an
agricultural tenant; certainly, it is presently not a
recognized mode of extinguishing such relationship.
In fine, absent administrative findings on the
particularities of Avelina's tillage, this Court cannot
ascribe to the view that the averment of co-ownership
should disallow petitioner spouses from pressing on their
suit to be recognized as agricultural tenants. To reiterate,
absent the conduct by the PARAD of the proceedings in
DARAB Case No. R-03-02-5792'08 and the resolution of
said case on the merits, the assailed CA ruling risks
judicially approving the summary and extrajudicial
eviction of agricultural tenants. Parenthetically, the Court
is also mindful of the dangers of reifying as doctrine a
practice where unscrupulous landowners would offer
their tenants co-ownership of a portion of their
agricultural land in order to terminate the latter's
tenancy rights. Given the material averments in the
subject complaint, the PARAD had already gained a
jurisdictional foothold in DARAB Case No. R-03-02-
5792'08, and should have been allowed to exercise the
agency expertise in resolving the issues and problems
presented.
We recall our ruling in Bernas v. CA and Deita:[58]
The Court must, in our view, keep in mind the policy of
the State embodied in the fundamental law and in
several special statutes, of promoting economic and
social stability in the countryside by vesting the actual
tillers and cultivators of the soil, with rights to the
continued use and enjoyment of their landholdings until
they are validly dispossessed in accordance with law.
At this stage in the country's land reform program, the
agricultural lessee's right to security of tenure must be
"firmed-up" and not negated by inferences from
facts not clearly established in the record nor litigated in
the courts below.
Hand in hand with diffusion of ownership over
agricultural lands, it is sound public policy to encourage
and endorse a diffusion of agricultural land use in favor
of the actual tillers and cultivators of the soil.
It is one effective way in the development of a strong and
independent middle-class in society.
WHEREFORE, premises considered, the Petition
is GRANTED. The Decision, dated 25 June 2010, and the
Resolution, dated 26 October 2010, of the Court of
Appeals in CA-G.R. SP No. 105288 are hereby SET ASIDE.
The Office of the Provincial Agrarian Reform Adjudicator
is DIRECTED to proceed with DARAB Case No. R-03-02-
5792'08.
SO ORDERED.
Velasco, Jr., (Chairperson), Bersamin, Leonen,
and Gesmundo, JJ., concur.

July 19, 2018

NOTICE OF JUDGMENT
Sirs/Mesdames:
Please take notice that on June 27, 2018 a Decision, copy
attached hereto, was rendered by the Supreme Court in
the above-entitled case, the original of which was
received by this Office on July 19, 2018 at 11:15 a.m.
Very truly yours,

  (SGD.) WILFREDO
V. LAPITAN
Division Clerk of
Court

[1]
 Rollo, pp. 9-28.
[2]
 Id. at 33-48.
[3]
 Id. at 50-51.
[4]
 The First Division, then composed of Presiding Justice
Andres B. Reyes, Jr., Chairperson, Associate Justice Isaias
Dicdican, who penned said issuances, and Associate
Justice Stephen C. Cruz.
[5]
 Rollo, p. 227.
[6]
 Id. at 424.
[7]
 Id. at 422 and 442.
[8]
 Id. at 34.
[9]
 Pursuant to the provisions of Act 3135, as amended by
Act 4118.
[10]
 Rollo, p. 54.
[11]
 Id. at 34.
[12]
 Id., Branch 14.
[13]
 Id. at 34-35.
[14]
 Id. at 52-59.
[15]
 Id. at 52-53.
[16]
 Id. at 53.
[17]
 Id. at 54.
[18]
 Id. at 55.
[19]
 Atty. Venustiano S. Roxas.
[20]
 Rollo, p. 56.
[21]
 Id. at 96-108.
[22]
 Id. at 99, Juan Saldevar, Department of Agrarian
Reform, Region III, Pandi, Bulacan,
[23]
 Certification dated 22 January 1999.
[24]
 Rollo, p. 99, Oscar M. Trinidad, Department of
Agrarian Reform, Baliuag, Bulacan.
[25]
 Id. Certification dated 20 September 2007.
[26]
 As provided for under the DARAB Rules of Procedure,
cf. Soriano v. Bravo 653 Phil. 72, 87-90 (2010).
[27]
 Rollo, p. 118.
[28]
 Id. at 117-118.
[29]
 Rollo, pp. 123-132, Resolution dated 15 July 2008.
[30]
 Id. at 133-135.
[31]
 Id. at 136-137.
[32]
 Id. at 152- 178, dated 15 September 2008.
[33]
 Id. at 42-43.
[34]
 Id. at 46-48.
[35]
 Pasong Bayabas Farmers v. DARAB, 473 Phil. 64-99
(2004); citing Almuete v. Andres, 421 Phil. 522-532
(2001).
[36]
 Rollo, p. 46.
[37]
 Bautista v. Mag-isa Vda. De Villena, 481 Phil. 591, 601
(2004).
[38]
 Rollo, pp. 207-219 dated 22 July 2010.
[39] 
512 Phil. 389-407 (2005); citing Soriano v. Bravo, 653
Phil. 72-96 (2010).
[40]
 Soriano v. Bravo, 653 Phil. 72, 89-90 (2010).
[41]
 Id. at 90.
[42]
 Rollo, pp. 52-59, see note 14 at p. 55 of Complaint
dated 10 April 2008.
[43]
 Adopted on 17 January 2003.
[44]
 Section 1, Rule II of the 2003 DARAB Rules of
Procedure, reads:
RULE II JURISDICTION OF THE BOARD AND THE
ADJUDICATORS
SECTION 1. Primary and Exclusive Original Jurisdiction.
The Adjudicator shall have primary and exclusive original
jurisdiction to determine and adjudicate the following
cases:
1.1 The rights and obligations of persons, whether
natural or juridical, engaged in the management,
cultivation, and use of all agricultural lands covered by
R.A. No. 6657, otherwise known as the Comprehensive
Agrarian Reform Law (CARL), as amended, and other
related agrarian laws;
1.2 The preliminary administrative determination of
reasonable and just compensation of lands acquired
under Presidential Decree (PO) No. 27 and the
Comprehensive Agrarian Reform Program (CARP);
1.3 The annulment or cancellation of lease contracts or
deeds of sale or their amendments involving lands under
the administration and disposition of the DAR or Land
Bank of the Philippines (LBP);
1.4 Those cases involving the ejectment and
dispossession of tenants and/or leaseholders:
1.5 Those cases involving the sale, alienation, pre-
emption, and redemption of agricultural lands under the
coverage of the CARL or other agrarian laws;
1.6 Those involving the correction, partition, secondary
and subsequent issuances of Certificates of Land
Ownership Award (CLOAs) and Emancipation Patents
(EPs) which are registered with the Land Registration
Authority;
1.7 Those cases involving the review of leasehold rentals;
1.8 Those cases involving the collection of amortizations
on payments for lands awarded under PO No. 27, as
amended, RA No. 3844, as amended, and R.A. No. 6657,
as amended, and other related laws, decrees, orders,
instructions, rules, and regulations, as well as payment
for residential, commercial, and industrial lots within the
settlement and resettlement areas under the
administration and disposition of the DAR;
1.9 Those cases involving the annulment or rescission of
lease contracts and deeds of sale, and the cancellation or
amendment of titles pertaining to agricultural lands
under the administration and disposition of the DAR and
LBP; as well as EPs issued under PO 266, Homestead
patents, Free Patents, and miscellaneous sales patents to
settlers in settlement and resettlement areas under the
administration and disposition of the DAR;
1.10 Those cases involving boundary disputes over lands
under the administration and disposition of the DAR and
the LBP, which are transferred, distributed, and/or sold
to tenant-beneficiaries and are covered by deeds of sale,
patents, and certificates of title;
1.11 Those cases involving the determination of title to
agricultural lands where this issue is raised in an agrarian
dispute by any of the parties or a third person in
connection with the possession thereof for the purpose
of preserving the tenure of the agricultural lessee or
actual tenant-farmer or farmer-beneficiaries and
effecting the ouster of the interloper or intruder in one
and the same proceeding; and
1.12 Those cases previously falling under the original and
exclusive jurisdiction of the defunct Court of Agrarian
Relations under Section 12 of PO No. 946 except those
cases falling under the proper courts or other quasi-
judicial bodies; and
1.13 Such other agrarian cases, disputes, matters or
concerns referred to it by the Secretary of the DAR.
[45]
 Rollo, pp. 52-59.
[46]
 Mendoza v. Germino, 650 Phil. 74, 82 (2010);
citing Isidro v. Court of Appeals, 298-A Phil. 481, 490
(1993).
[47]
 Bumagat v. Arribay, 735 Phil. 595,607 (2014).
[48]
 481 Phil. 591, 607 (2004); citing David v. Rivera, 464
Phil. 1006, 1017 (2004), Latag v. Banog, 122 Phil. 1188,
1194, (1966), and Basilio v. De Guzman, 105 Phil. 1276-
1277 (1959).
[49]
 Bautista et al. v. Vda de Villena, 481 Phil. 591,606
(2004); citing Nisnisan v. Court of Appeals, 355 Phil. 605,
612 ( 1998), Oarde v. Court of Appeals, 345 Phil. 457, 469
( 1997), and Cuaño v. Court of Appeals, 307 Phil. 128, 146
(1994).
[50]
 Sampaco v. Lantud, 669 Phil. 304, 316 (2011).
[51]
 415 Phil. 665, 674 (2001).
[52]
 Rollo, pp. 18-19.
[53]
 717 Phil. 244,262-263 (2013).
[54]
 Natividad v. Mariano 710 Phil. 57, 73 (2013).
[55]
 An act to ordain the Agricultural Land Reform Code
and to institute land reform in the Philippines including
abolition of tenancy and channeling of capital into
industry, provide for the necessary implementing
agencies, appropriate funds therefor and for other
purposes.
[56]
 Verde v. Macapagal, 571 Phil. 251, 259 (2008).
[57]
 296-A Phil. 90, 111 (1993); Sta. Ana v. Sps. Carpo 593
Phil. 108, 130 (2008).
[58]
 Id. at 106.
© Supreme Court E-Library 2019
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Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-11988            February 1, 1918
JACINTO MOLINA, plaintiff-appellee,
vs.
JAMES J. RAFFERTY, as Collector of Internal
Revenue, defendant-appellant.
Attorney-General Avanceña for appellant.
Mariano Escueta for appellee.
MALCOLM, J.:
This appeal present for resolution the question of
whether or not fish are an agricultural product.
FACTS.
The facts are not in dispute. Plaintiff is the owner of
various fish ponds (pesquerias) in the municipality of
Bulacan, Province of Bulacan. Between January 1 and
September 30, 1915, plaintiff consigned to a commission
merchant in Manila quantities of fish which sold for
P5,264.89. The commission merchant paid the
merchant's percentage and fixed taxes due under the
Internal Revenue Law. Plaintiff, however, had not
previously paid the merchant's tax, although from August
1. 1904, the date when the first Internal Revenue Law
became effective, until October 26, 1915, plaintiff had
been engaged in this business, Plaintiff had been paid the
real estate tax on the land upon which the fishponds are
located. On the date last mentioned, on demand of a
representative of the Bureau of Internal revenue, plaintiff
paid under protest P71.81, the total internal-revenue tax
on the gross sum received for the first three-quarters of
the year 1915. The ground of the protest was that
plaintiff is an agriculturist and not a merchant and
therefore exempt from the taxes imposed by the Internal
Revenue Law upon the gross sales of merchants. The
protest was denied by the Collector of Internal Revenue,
who held that the plaintiff was a merchant. Suit to
recover this amount of P71.81 was thereupon instituted
in the Court of First Instance of the city of Manila against
the defendant as collector of internal revenue. After trial
on an agreed statement of facts, the Honorable Jose
Abreu in a carefully prepared decision ordered defendant
to refund the P71.81 paid by plaintiff as internal-revenue
taxes and penalties under protest, with legal interest
thereon from November 26, 1915, the date of such
payment under protest. Defendant appealed making four
assignments of error, all of which, however, with the
exception of the last, which need not be considered,
center around the question which we set out in the
beginning of this decision. Both appellee and appellant
have further favored the court with an exceptionally able
presentation of their respective contentions. We are
given to understand that this is in the nature of a test
case, concerning not alone the comparatively small
amount involved but affecting the taxes of numerous
other persons in an amount which will run up into
thousands of pesos.
In addition to the foregoing statement of the case, we
must note the nature of the fishponds and of the fish. As
to the first, before the lands are suitable for use as
fishponds, it is necessary for the land to be prepared by
the erection of dikes and cleaning out and deepening the
bottom. The presence of caretakers is necessary to see
that the fishponds do not become damaged and to
regulate the entrance and exit of water through the
floodgates. The fish are of the species known bañgus.
These fish are obtained from small fishes (semillas),
which are placed in the fishponds. These small fishes are
first put in a comparatively small compartment,
surrounded by walls of earth, which is found within the
fishery itself. Afterwards when they get to be about the
size of a cigarette, they are let loose into the other
compartments of the same fishery. This compartment
for semillas  is allowed to dry and is cleaned well before
the semillas  are placed therein; it is even plowed to kill
all the bugs that may eat up the fish. In order to make
marine plants grow, a small amount of sea water is
allowed to enter. When the fish have become large an
endeavor is made to fill the fishery with water. From
time to time the water contained in the fishery is
renewed to avoid the killing of the fish. The walls of a
fishery are constructed to preserve and to retain the
water and the fishes inside the fishery. These walls are
constructed on a swampy lands and in some cases on rice
fields bounded by a river or the sea.
The food of the bañgus includes marine plants. These
algae are of seven classes, their scientific names being
cladophora, chaetomorpha, oscillatoria, oedogonium,
lyngbya, enteromorpha, and najas. One of these plants is
rooted. Some of the others are very loosely attached to
the ground, but not rooted. Generally the algae float in
the water.
LAW.
The provisions of the law which it is necessary to
construe are not extensive. The different internal-
revenue laws have provided for a merchant's tax.
"Merchant," as used in the law, "means a person
engaged in the sale, barter, or exchange of personal
property of whatever character." (Act No. 2339, sec. 40;
Administrative Code [1917] sec. 1459.) The succeeding
section (Act no. 2339, sec. 41; Administrative Code
[1917], sec. 1460) is entitled "Sales not subject to
merchant's tax." The section provides:
In computing the tax above imposed transactions in the
following commodities shall be excluded: . . . .
(c) Agricultural products when sold by the producer or
owner of the land where grown, whether in their original
state or not."
With the facts and the law before us, we return to the
question first suggested.
QUESTION.
Are fish an agricultural product within the meaning of the
exemption provisions of the Internal revenue Law?
OPINION.
Different methods of approach to this question are
possible. For example, all argument could disposed of
peremptorily with the bald statement that in accordance
with the rule of stare decisis, the decision of this court in
The United States vs. Laxa  ([1917], 36 Phil. Rep., 670) is
decisive. Justice Araullo, in his opinion, held that fish are
not an agricultural product, that the owner of a fishpond
who sells the fish at the fishpond is a merchant, that such
a merchant is not entitled to the exemption provided by
the Internal Revenue Law, and that the said owner is
guilty of violation of the Internal Revenue Law. We prefer
not to take such a stand, although we are confident that
it could be defended, because of the vigorous objection
to a decision in a criminal prosecution becoming a
precedent in a civil action for the recovery of taxes.
As opposed to the Laxa decision, counsel for plaintiff
invites special attention to the cases of Mapa vs. Insular
Government ([1908] 10 Phil., 175) and Mercado vs.
Collector of Internal Revenue  ([1915] 32 Phil. Rep., 271).
In the first case, the Supreme Court said —
The question before us is not what is agricultural land,
but what definition has been given to that phrase by the
Act of Congress.
The Philippine Bill, it was found, classified land as
agricultural public land in order to distinguish such land
from timber or mineral land. Neither Congress nor the
court gave any definition of agricultural land as such or of
the products of the land. Moreover, the court made the
observation that, "The land in question in this case,
which is used as a fishery, could be filled up and any kind
of crops raised thereon." If the case can be considered as
an authority, it must be that the court recognizes that
agricultural land, as the term is used in the Act of
Congress, may be devoted to other than agricultural
purposes, and that using agricultural land for a fishpond
is a use other than agricultural. In the second case
of Mercado vs. Collector of Internal Revenue,
following Mapa vs. Insular Government  (supra), the
Court said —
It is, then unquestionable that bakawan firewood is an
agricultural product, differing from other kinds of
firewood obtained from the forest trees because the
bakawan plant grows only on land subject to overflow,
which require clearing and care by workers skilled in
agricultural pursuits, in order that it may thrive. It is also
to be noted that up to the present time mangrove
swamps have been found suitable for no other useful
crop.
But it is plainly a far cry from holding that bakawan,
planted and grown through the culture of the soil, is an
agricultural product, to finding that fish are in similar
sense planted and grown as a result of the culture of the
soil. Whatever comfort can be derived from these
decisions are persuasive authority is more than nullified
by the later case of The United States vs. Laxa  ([1917] 36
Phil. Rep., 670)."
Just, therefore, as the facts and the law are indisputable,
so do we prefer to forget these three cases for the time
being and to rest our decision on the plain and ordinary
meaning of the law disclosed by the elementary rules of
statutory construction.
And first, in order to dispose of the question, is the
owner of a fishpond, such as the plaintiff, who sells fish
taken from a fishpond, a "merchant" as defined in the
Internal revenue Law? Recalling this definition of a
"merchant," it would appear undeniable that the plaintiff
is properly included in such classification. To paraphrase
the law, he is a person engaged in the sale of fish. Under
our law, whatever may be the usual conception of a
merchant, buying and selling are not essential; to sell
only is sufficient. (See also In re  Cameron Town Mut. Fire,
Lightning and Windstorm Ins. Co. [1899], 96 Fed., 756.)
If such a man is a merchant, does his sale of fish place
him under the exemption of the Internal Revenue Law?
We know the meaning of "fish." In the authoritative work
by Dr. C. L. G. Gunther on the Study of Fishes, we find the
following:
According to the views generally adopted at present, all
those vertebrate animals are referred to the class of
fishes, which, living in water, breathe air dissolved in
water by means of gills or branchiae; whose heart
consists of a single ventricle and single atrium; whose
limbs, if present, are modified into fins, supplemented by
unpaired median fins; and whose skin is either naked, or
covered with scales or osseous plates or bucklers . . . .
We then have left to define merely the words
"agricultural products."
"Agriculture" is defined by Webster as "the art or science
of cultivating the ground, including the preparation of
the soil, the planting of seeds, the raising and harvesting
of crops, and the rearing, feeding, and management of
live stock." Let us test our facts by this definition. The
ground of the fishpond is cultivated. The soil is prepared.
We, however, greatly doubt that seeds (of fish) are
planted or that crops (of fish) are raised and harvested.
Certainly, the seeds of fish are not sown in the ground as
one would sow corn, while as distinguished from the
rearing, feeding, and management of live stock, which
consumes the products of the farm, the fish living in
water depending upon water for life, only receive
nourishment from marine plants most of which have
little or no connection with the land.
To proceed. The equivalent of "agriculture" in
"husbandry." And "husbandry" is defined by Webster as
"the business of a farmer, comprehending agriculture or
tillage of the ground, the raising, managing, and fattening
of cattle and other domestic animals, the management of
the dairy and whatever the land produces." Again, we
are far from confident that a farmer is generally
understood to be a fisherman, and that the land can be
said to produce fish. In a case in which these definitions
were considered, the supreme court of Tennessee said
that "agriculture" means "in its original sense, the
cultivation of the ground for the purpose of procuring
vegetables and fruits for the use of man and beast, or the
act of preparing the soil, sowing and planting seeds,
dressing the plants, and removing the crops. In this sense
of the word includes gardening or horticulture, and also
the raising and feeding of cattle or stock; but in a more
common and appropriate sense is used to signify that
specie of cultivation which is intended to raise grain and
other field crops for a man and beast." (Simons vs. Lovell
[1872], 54 Tenn. [7 Heisk.], 510; see also In re  Drake
[1902], 114 Fed., 229.)
To proceed. "Agricultural products," the supreme court
of Georgia has held, "in ordinary usage," is confined to
the yield of the soil, as corn, wheat, rye, hay, etc. (Davis
and Co. vs. Mayor and Council of Macon [1879], 64 Ga.,
128.) The court had here to determine if beef cattle were
exempt from taxation as "an agricultural product." The
court asked —
"And when it is thought of closely, would it not be rather
an unusual application of the phrase 'agricultural
products' to make it comprehend beef cattle? In ordinary
usage, is not the phrase confined to the yield of the soil,
as corn, wheat, rye. oats, hay, etc., in its primary form?
When there has been conversion of the fruits of the soil
into animal tissues are still to apply the phrase? And
suppose we are to disregard the change in its first stage,
and call a cow or a steer an agricultural product, must we
carry the name forward to the steak or roast which the
butcher sells us from the slaughter animal? If cattle fall
under the denomination, so do hogs; and if beef, so does
bacon." (See also State vs. Patterson [1887], 4 S. E., 47.)
Another case, coming from the supreme court of the
District of Columbia, gives a much broader meaning to
the phrase. (District of Columbia vs. Oyster [1885], 4 Am.
Rep., 275.) The court said —
The common parlance of the country, and the common
practice of the county, have been to consider all those
things as farming products or agricultural products which
had the situs  of their production upon the farm, and
which were brought into condition for the uses of society
by the labor of those engaged in agricultural pursuits, as
contra-distinguished from manufacturing or other
industrial pursuits. The product of the dairy or the
product of the poultry yard, while it does not come
directly out of the soil, is necessarily connected with the
soil and with those who are engaged in the culture of the
soil. It is, in every sense of the word, a part of the farm
product. It is depended upon and looked upon as one of
the results and one of the means of income of the farm,
and in a just sense, therefore, it may be considered
produce.
To indicate further the wide sweep of the term
"agricultural products," and to show how such
terminology influences those who disagree with us,
"agricultural products" has been held to include swine,
horses, meat cattle, sheep, manure, cordwood, hay,
poultry, vegetables, fruit, eggs, milk, butter, and lard.
(See Mayor vs. Davis, 6 W. and S., 279.) But never by any
court to include fish.
Like everything else in the world, it must be that there is
a limit to the things which can be included in the term
"agricultural products." The District of Columbia case,
much relied upon by the plaintiff, gives the clue.
Agriculture is but one pursuit. Agriculture and what it
includes is contradistinguished from other occupations
and professions, as manufacturing — and we believe,
fishing. Thus, of fisheries the Encyclopedia Britannica (p.
429) says —
For the most part the operations of fishing have been
comparable with those of primitive hunting rather than
with agriculture.
Fisheries, while possibly in concomitance with the soil,
are even more certainly concerned with the water in
which the fish live and have their being, If fishing is
farming, then conversely farming must be fishing.
Waiving all the technical definitions, does the ordinary
man when he speaks of agriculture and farming think of
a farmer as a fisherman, and when he speaks of fisheries
does he think of a fisherman as a farmer?
One other word in the law, "grown" is necessarily
included and must be considered in finding the proper
meaning. The law provides that "agricultural products"
must be "grown." Again referring to Webster, "grown"
means "to cause to grow; to cultivate; to produce; as, to
grow a crop; to grow wheat, hops, or tobacco." The fish
taken from the fishponds and sold are certainly not the
natural products of such land. They are retained therein
by the construction of artificial dykes. They are
animals farae nature, They have none of the
characteristics of the natural products of the soil. Fish are
not "grown" as wheat, hops, or tobacco are grown."
The question as to whether or not a similar exemption in
favor of agriculturists contained in the Internal Revenue
Law of 1904 operated to exclude from the merchant's
tax, receipts from the sale of fish, arose shortly after the
passage of that Act. The Attorney-General in an opinion
rendered on March 14, 1906 (3 Op. Atty. gen., 65), held
in effect that the culture of the soil was determining
factor in considering what products are or are not
agricultural products. As to quarrymen and fishermen.
the Attorney-General observed —
The occupation of the lumberman and the stockman, in
the historical development of these industries, as well as
in present day practice, has never been confused with
that of the agriculturist; while as to quarrymen and
fishermen it may be observed that tillers of the soil are
not wont to plow the fields in quest of rock or in
anticipation of a crop of fishes or of pearls.
This opinion of the Attorney-General was concurred in by
the then Governor-General and Acting Secretary of
Finance Justice, who had helped draft the law. The
Collector of the Internal Revenue thereupon published
the opinion in full in Bureau of Internal Revenue Circular,
No. 106. This official ruling of the executive officials is
now entitled to consideration by the courts. Courts will
and should respect the contemporaneous construction
placed upon a statue by the executive officers whose
duty it is to enforce it, and unless such interpretation is
clearly erroneous will ordinarily be controlled thereby.
(In re  Allen [1903], 2 Phil., 630, following
Pennoyer vs. McConnaughy [1890], 140 U. S., 363;
Government of the Philippine Islands Ex Rel.  Municipality
of Cardona vs. Municipality of Binangonan [1916], 34
Phil. Rep., 518.)
We have thus far considered the etymology of the words.
We frankly admit to a slight doubt of exact interpretation
by this method. We, however, believe that viewed from
the standpoint of the most elementary of all rules of
statutory construction there is but one possible result. In
other words, our sole duty is to ascertain and give effect
to the intention of the lawmaking body. We can best
discover this intention through the medium of the action
taken by the Legislature in the enactment of other laws.
The first Internal revenue law (Act No. 1189) was enacted
by the Philippine Commission. It is plain that the
Commissioners must have had in mind agriculture as
known to them in the United States. The organization of
the American Government includes a "Department of
Agriculture," the "Bureau of Fisheries" is under the
Department of Commerce. Agriculture and fishing are
therefore separate and distinct. In Great Britain there is a
"Board of Agriculture and Fisheries." Moreover, the same
Philippine Legislature which provided an exemption from
taxation for agricultural products was also interested in
establishing a Bureau of Agriculture. In enumerating the
functions of this Bureau, not one word is said of fish or
fisheries. We rather doubt if the experts in agronomy in
the Bureau of Agriculture would consider themselves
competent to advise as to piscatology. On the contrary,
you find a section of fisheries established not in the
Bureau of Agriculture but in the Bureau of Science.
Instead, also, you find special laws unrelated to
agriculture dealing with the granting of fishery privileges.
The purpose of the Legislature in exempting agricultural
products from taxation under the Internal Revenue Law
was to encourage farming and not fishing. This court has
herefore held, and we reiterate, that "where language is
plain, subtle refinements which tinge words so as to give
them the color of a particular judicial theory are not only
unnecessary but decidedly harmful." (Yangco vs. Court of
First Instance of Manila and Yangco [1915], 29 Phil., 183.)
Chief Justice Marshall in the historic case of
Gibbons vs. Ogden, ([1824], 9 Wheat., 1) said:
As men, whose intentions require no concealment,
generally employ the words which most directly and
aptly express the ideas they intend to convey, the
enlightened patriots who framed our Constitution, and
the people who adopted it must be understood to have
employed words in their natural sense, and to have
intended what they have said.
The answer to our question are — A person engaged in
the sale of fish is a merchant. Fish are not an agriculture
product. This merchant is not entitled to exemption
under the Internal Revenue Law.
The further objection is made that the particular tax
would constitute double taxation. It is sufficient to note
in this respect that this court in Gil Hermanos vs. Hord
([1908] 10 Phil., 218) said:
It is very apparent that tax under discussion is not a tax
upon property. It is rather a tax upon the occupation or
industry in which a person is engaged.
The internal-revenue tax is also uniform for all of a class.
In opposition to such a contention, it could be advanced
if necessary that the burden is on plaintiff to establish
that the surrender of the taxing power is manifested by
words too plain to be mistaken. "When exemption is
claimed, it must be shown indubitably to exist."
(Farrington vs. Tennessee [1877], 95 U. S., 697, 686.)
"The presumption is always against any surrender of the
taxing power." (Tennessee vs. Whitworth [1885], 117 U.
S., 129, 136.)
We have permitted our discussion of the question raised
by this appeal to proceed much farther than is really
necessary for the decision of the case. If we have fallen
into the mire of proximity, it has been because we
approached the subject with a desire to accede, if
possible, to the request of the plaintiff. We are as much
interested in upholding legislation which will assist in the
commercial development of the Islands as any one. We
cannot, however, step outside the settled and ordinary
meaning of the law and by judicial legislation give to the
law a meaning not intended. If redress is proper, under
these circumstances, complainants must look to the
Legislature and not to the courts.
The judgment of the lower court is reversed and the
defendant is absolved of the complaint, with the costs of
the first instance against the plaintiff, and without special
finding as to costs of this instance. So ordered.
Carson, Araullo and Street, JJ., concur.

Separate Opinions
JONHSON, J., with whom concurs
ARELLANO, C.J., dissenting:
The only important question presented by this appeal is
whether or not the products of a "vivero de peces"
should be considered as an agricultural product and as
such relieved from the internal-revenue tax in
accordance with paragraph (c) of article 41 of Act No.
2339.
The Court of First Instance, in a very well-reasoned
opinion, held that said products were exempt from the
internal-revenue tax under said Act. This court, by a
majority opinion, held that said products were not
exempt from the payment of the internal-revenue tax
and reversed the judgment of the lower court.
We think the majority opinion misses both the spirit and
purposes of the law, and woks a great imjustice and a
severe hardship upon thousands of the inhabitants of the
Philippine Islands who are engaged in purely agricultural
pursuits. Said decision places a great burden upon those
who are least able to bear it. By reason of the very small
profits of the agriculturist, earned by the hardest of
labor, every intendment of the law should be, at least,
liberally construed in his favor.
Paragraph (c) of section 41 of Act No. 2339 provides that
the tax imposed under said law shall not be imposed
upon "agricultural products when sold by the producer
or owner of the land where grown, whether in their
original state or not." Under the interpretation given in
the majority opinion, the Collector of Internal Revenue
may collect taxes upon every grain of rice produced by
the farmers of the Philippine Islands, unless he sells the
same "where grown." Such an interpretation, in our
opinion, was never intended by the lawmaker.
The majority opinion has fallen into error, in our opinion,
in not distinguishing a "pesqueria" from a vivero de
peces." no contention is made that the products of a
"pesquera," as the terms is generally used, should be
relieved from the internal-revenue tax. Our contention is
simply that the products of a "vivero de peces" should be
relieved from the internal-revenue tax, upon the theory
that they are as much of an agricultural product as any
other product of the farm by reason of the method
employed in producing them. The majority opinion
admits [that] whether a particular product is or is not an
agricultural product depends upon the methods used in
producing it.
A "pesqueria," as distinguished from a "vivero de peces,"
may be defined as a specie of trap  placed upon the farm
in which fish are caught from time to time. While a
"vivero de peces" may be defined as apart of the same as
is done in the production of corn, sugar cane, rice,
bananas, coconuts, ducks, chickens, eggs, milk, butter,
lard, hay, wood, cattle, horses, sheep, or any other great
variety of products produced by the farmers in the
Philippine Islands, the only difference being one of
degree of the care and labor necessary for production.
The error which the majority opinion has fallen into may
best illustrated by an example:
A is the owner of a farm. A portion of the same is dry
land capable of producing sugar cane, or corn, or other
varieties of farm products which can only be produced
upon dry land. A portion of said farm, by virtue of its
location with reference to water, sunlight, and air may be
used for the production of abaca, bananas, or some of
the various classes of fruits. Another portion of the farm
is low land, upon which rice or certain classes of
vegetables only can be produced profitably. Still another
portion of the farm is swamp land, covered by water and
incapable of being properly drained. Another portion of
the farm is mountainous so that it cannot be cultivated at
all. Upon the mountainous portion of said farm the
owner raises cattle, sheep, goats, horses, hogs, chickens,
turkeys, eggs, lard, butter, wool and hides. Another
portion of the farm can most profitably be devoted to
the production of bacauan which was held to be an
agricultural product. (Mercado vs. Collector of Internal
Revenue, 32 Phil. Rep., 271.) The swamp land of his farm
is of such a character that it can not profitably be
devoted to the production of rice or any of the cereals,
and is too swampy upon which to raise cattle, sheep,
horses, goats, etc. The farmer, therefore, utilizes that
portion for the production of geese, ducks, and other
domestic fowls, as well as for the production of eggs.
There comes a time when the swamp land ceases to be
profitable for the production of rice as well as for the
production of said fowls and eggs. All of said farm,
including the various classes of land as above
described, is taxed as agricultural land; and it is a matter
of common knowledge that the "vivero de peces" are
taxed as agricultural land, and equally as high, if not
higher, than other lands devoted to the production of
rice, corn or sugar cane, etc.
A great demand may arise for fish in the country. The
farmer, in order to reap the advantage of said demand,
ceases to produce eggs, or ducks, or geese upon the
swamp lands of his farm and turn the same into a
"vevero de peces." He, thus, wisely utilizing the different
portions of the farm for the production of all of the
products which farmers generally produce, is greatly
increasing the wealth of the State.
The majority opinion admits that domestic fowls —
chickens, ducks, geese, turkeys — and eggs, butter, lard,
milk, vegetables, fruit, etc., are agricultural products, but
argues that nothing is, or may be considered, an
agricultural product which does not result from a
cultivation of the soil. To admit that eggs, butter, lard and
milk are agricultural products, and to argue that nothing
is an agricultural product which does not result from a
cultivation of the soil presents a consistency in argument
and conclusion which we are unable to understand. It is
admitted  that the land for the "vevero de peces" is
specially prepared. A certain cultivation and preparation
is necessary for the creation of a "vivero de peces." It is
difficult to understand what special preparation of the
soil is necessary for the production of hen's eggs, butter,
lard, milk, or cattle, or sheep or horses or hogs, or goats
which makes those products agricultural products. It is a
matter of common knowledge that land may be specially
prepared for the production of rice this year and then
changed into a "vivero de peces" next year and vice
versa. Under what interpretation of the law and under
what definition of agricultural products may we conclude
that the year in which the same parcel of land produces
rice produces an agricultural product while in the year it
is producing fish is not also producing an agricultural
products? Of course, as we stated above, a "vivero de
peces" must not be confused with a "pesqueria" which is
used as a trap for the purpose of catching fish. No
contention is made that the products of the latter is in
any sense an agricultural product any more than the
product of a trap placed in the fields for the purpose of
catching wild animals, which from time to time pass upon
the land, is an agricultural product.
It is admitted in the majority opinion that the land for a
"vivero de peces" must be specially prepared by first
building dykes and cultivating the land preparatory to the
planting of the fish. the only difference, therefore,
between the preparation of a "vivero de peces" and the
preparation of a rice paddy is one in extent of labor
employed. In both cases the land is specially prepared for
the particular purpose to which the farmer desires to
devote it. Forgetting for a moment the stereotyped and
the lexicographer's definition of agricultural products,
and forgetting for a moment that there is no more
difference, so far as the method of production is
concerned, between the production of corn and the
production of ducks and eggs, we will find ourselves
driven to the conclusion that from the standpoint of
method of production there is no difference between the
production of fish in a "vivero de peces" and the
production of ducks upon land which is recognized as
agricultural lands. The majority opinion has fallen into
error by trying to make a 15th century definition apply to
20th century conditions. The judgment of the lower court
should be affirmed with costs.