Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-40527 June 30, 1976

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
HERMOGENES MARIANO and HON. AMBROSIO M. GERALDEZ, in his capacity as Presiding
Judge of the Court of First Instance of Bulacan, Branch V, respondents.

Solicitor General Estelito P. Mendoza, Assistant Solicitor General Nathanael P. Pano, Jr., Solicitor
Oswaldo D. Agcaoili, Provincial P.C. Kliachko and Assistant Provincial Fiscal C. G. Perfecto for
petitioner.

Eustaquio Evangelista for respondent Hermogenes Mariano.

MUÑOZ PALMA, J:

This petition for certiorari postulates a ruling on the question of whether or not civil courts and
military commissions exercise concurrent jurisdiction over the offense of estafa of goods valued at
not more than six thousand pesos and allegedly committed by a civilian. 1

On December 18, 1974, the office of the Provincial Fiscal of Bulacan filed an Information (Criminal
Case No. SM-649) accusing private respondent herein Hermogenes Mariano of estafa alleged to
have been committed as follows:

That on or about and during the period from May 11 and June 8, 1971, in the
municipality of San Jose del Monte, province of Bulacan, Philippines, and within the
jurisdiction of this Honorable Court, the said accused Hermogenes Mariano, being
then appointed as Liaison Officer by the then incumbent Municipal Mayor,
Constantino Nolasco, acting for and in behalf of the municipality of San Jose del
Monte, Bulacan and authorized to receive and be receipted for US excess property
of USAID/NEC for the use and benefit of said municipality, received from the said
USAID/NEC the following items, to wit:

150 ft. electric cable valued

at $15 or P100.50

525 ft. cable power valued at

$577-50 or P3,859.35

250 ft. electric cable at

$125.00 or P837.50
 with a total value of $717.50 or P4,797.35, involving the duty of making delivery of
said items to the said Municipal Mayor, but the said accused Hermogenes Mariano
once in possession of the said items and far from complying with his aforesaid
obligation and in spite of repeated demands, did then and there wilfully, unlawfully
and feloniously, with grave abuse of confidence and with deceit, misappropriate,
misapply and convert to his own personal use and benefit the said items valued at
$717.50 or P4,797.35, belonging to the said USAID/NEC, to the damage and
prejudice of the said owner in the said sum of $717,50 or P4,797.35. (pp. rollo).

On February 19, 1975, Hermogenes Mariano thru his counsel Filed a motion to quash the
Information on the following grounds:

1. That the court trying the cause has no jurisdiction of the offense charged or of the
person of the defendant;

2. That the criminal action or liability has been extinguished;

3. That it contains averments which , if true, would constitute a legal excuse or

justification. (p. 19, rollo)

In his motion to quash, Mariano claimed that the items which were the subject matter of the
Information against him were the same items for which Mayor Constantino A. Nolasco of San Jose
del Monte, province of Bulacan, was indicted before a Military Commission under a charge of
malversation of public property, and for which Mayor Nolasco had been found guilty and sentenced
to imprisonment at hard labor for ten (10) years and one (1) day to fourteen (14) years and eight (8)
months with perpetual disqualification plus a fine of P19,646.15 (see pp. 23-24, rollo), and that
inasmuch as the case against Mayor Nolasco had already been decided by the Military Tribunal, the
Court of First Instance of Bulacan had lost jurisdiction over the case against him. (pp. 19-20, Ibid)

On March 14, 1975 respondent Judge issued an Order granting the motion to quash on the ground
of lack of jurisdiction reasoning as follows:

Considering that the Military Commission had already taken cognizance of the
malversation case against Mayor Nolasco involving the same subject matter in its
concurrent jurisdiction with this Court, the case involving the subject properties had
already been heard and decided by a competent tribunal, the Military Commission,
and as such this Court is without jurisdiction to pass upon anew the same subject
matter. (pp. 30-31, rollo, emphasis supplied)

Respondent Judge did not rule on the other grounds invoked in the motion to quash.

The people now seeks a review of the aforesaid Order and presents the sole issue of jurisdiction of
respondent Court over the estafa case filed against respondent Mariano.

"Jurisdiction" is the basic foundation of judicial proceedings. The word "jurisdiction" is derived from
2

two Latin words "juris" and "dico" — "I speak by the law" — which means fundamentally the power or
capacity given by the law to a court or tribunal to entertain, hear, and determine certain
controversies. Bouvier's own definition of the term "jurisdiction" has found judicial acceptance, to
3

wit: "Jurisdiction is the right of a Judge to pronounce a sentence of the law in a case or issue before
him, acquired through due process of law;" it is "the authority by which judicial officers take
cognizance of and decide cases." 4
In Herrera vs. Barretto, September 10, 1913, 25 Phil. 245, 251, this Court, in the words of Justice
Moreland, invoking American jurisprudence, defined "jurisdiction" simply as the authority to hear and
determine a cause the right to act in a case. "Jurisdiction" has also been aptly described as the right
to put the wheels of justice in notion and to proceed to the final determination of a cause upon the
pleadings and evidence. 5

"Criminal Jurisdiction" is necessarily the authority to hear and try a particular offense and impose the
punishment for it. 6

The conferment of jurisdiction upon courts or judicial tribunals is derived exclusively from the
constitution and statutes of the forum. Thus, the question of jurisdiction of respondent Court of First
Instance over the case filed before it is to be resolved on the basis of the law or statute providing for
or defining its jurisdiction. That, We find in the Judiciary Act of 1948 where in its Section 44 (f) it is
provided:

SEC. 44. Original jurisdiction. — Courts of First Instance shall have original
jurisdiction:

xxx xxx xxx

(f) In all criminal cases in which the penalty provided by law is imprisonment for more
than six months, or a fine of more than two hundred pesos, (emphasis supplied)

The offense of estafa charged against respondent Mariano is penalized with arresto mayor in its
maximum period to prision correccional in its minimum period, or imprisonment from four (4) months
and one (1) day to two (2) years and four (4) months. By reason of the penalty imposed which
7

exceeds six (6) months imprisonment, the offense alleged to have been committed by the accused,
now respondent, Mariano, falls under the original jurisdiction of courts of first instance.

The above of course is not disputed by respondent Judge; what he claims in his Order is that his
court exercises concurrent jurisdiction with the military commission and because the latter tribunal
was the first to take cognizance of the subject matter, respondent court lost jurisdiction over it .That
statement of respondent court is incorrect.

In People vs. Fontanilla, this Court speaking through then Justice now Chief Justice Fred Ruiz
Castro, categorically reiterated the settled rule that the jurisdiction of a court is determined by the
statute in force at the time of the commencement of the action. In the case at bar, it is rightly
8

contended by the Solicitor General that at the time Criminal Case No. SM-649 was filed with the
Court of First Instance of Bulacan, that was December 18, 1974, the law in force vesting jurisdiction
upon said court was the Judiciary Act of 1948, the particular provision of which was not affected one
way or the other by any Presidential issuances under Martial Law. General Order No. 49
dated October 4, 1974, which repeals General Order No. 12 and the latter's amendments and
related General Orders inconsistent with the former, redefines the jurisdiction of military tribunals
over certain offense, and estafa and malversation are not among those enumerated therein. In 9

other words the Military Commission is not vested with jurisdiction over the crime of estafa. * 9

Respondent court therefore gravely erred when it ruled that it lost jurisdiction over the estafa case
against respondent Mariano with the filing of the malversation charge against Mayor Nolasco before
the Military Commission. Estafa and malversation are two separate and distinct offenses and in the
case now before Us the accused in one is different from the accused in the other. But more
fundamental is the fact that We do not have here a situation involving two tribunals vested with
concurrent jurisdiction over a particular crime so as to apply the rule that the court or tribunal which
first takes cognizance of the case acquires jurisdiction thereof exclusive of the other. The Military
10

Commission as stated earlier is without power or authority to hear and determine the particular
offense charged against respondent Mariano, hence, there is no concurrent jurisdiction between it
and respondent court to speak of. Estafa as described in the Information filed in Criminal Case No.
SM-649 falls within the sole exclusive jurisdiction of civil courts.

PREMISES CONSIDERED, the appealed Order dated March 14, 1975, is set aside and respondent
Judge is directed to proceed with the trial of Criminal Case No. SM- 649 without further delay.

SO ORDERED.

Teehankee, Makasiar, Aquino and Martin, JJ., concur.

Footnotes

1 This Petition for Review was filed by Asst. Provincial Fiscal Clemente G. Perfecto
of the Province of Bulacan. In the Court's Resolution of July 16, 1975, the Court
Resolved to give due course to the Petition, treat the same as a special civil action,
granting the parties time within which to file their memoranda. Respondent Mariano
did not answer this Petition nor did he file any memorandum. On May 28, 1976, the
Solicitor General filed his memorandum supporting this Petition of the Provincial
Fiscal of Bulacan.

2 Moody vs. Port Clyde Development Co., 102 Me. 365.

3 In re Adoption and Custody of Underwood, 107 S.E. 2d 608, 616, 144 W. Va. 312;
Wesley vs. Schneckloth, 346 P. 2d 658, 660, 55 Wash. 2d 90; Atwood vs. Cox, 55 P.
2d 377, 380; Barrs vs. State, 97 S.E. 86, 87; Long Flame coal Co. vs. State
Compensation Com'r, 163 S.E. 16, 19; 23A Words & phrases 136.

4 Chicago Title and Trust Co vs. Brown, 47 L.R.A. 798; In re Tailor, 45 L.R.A. 136:
State vs. Wakefield, 15 A. 181, 183, 60 Vt. 618.

5 Wabash R. Co. vs. Duncan, C.A. Mo., 170 F. 2d 38, 41.

6 Moran, Rules of Court, 1970 Ed., Vol. 1, p. 36.

7 ART. 315 Swindling (estafa) - Any person who shall defraud another by any of the
means mentioned hereinbelow shall be punished by:

xxx xxx xxx

3d. The penalty of arresto mayor in its maximum period to prision correccional in its
minimum period, if such amount is over 200 pesos but does not exceed, 6,000
pesos.

8 L-25354, June 28,1968, 23 SCRA 1227.

9 Memorandum, pp. 3-4.

9* General Order No. 49 was amended by General Order No. 54 dated October 22,
1975, to include to estafa as among those cognizable by the military tribunals
but only when the crime is committed in large scale or by a syndicate.

10 People vs. Fernando, L-25942, May 28, 1968, 21 SCRA 867.

 SECOND DIVISION

G.R. No. 158370 August 17, 2006

SPOUSES MICHAEL UY & BONITA UY, Petitioners,

vs.
EDUARDO ARIZA, ERLINDA A. ABDON, BENJAMIN ARIZA, TERESITA A. SIMPORIOS, HEIRS
OF MARIANO ARIZA, JR., namely: JUANITA L. ARIZA, DENNIS L. ARIZA, ROLDAN L. ARIZA,
& JOVANNI L. ARIZA; and the Heirs of FAUSTO ARIZA, namely: JESUSA ARIZA, THELMA
SOLLANO, ARTURO ARIZA, ELDINA CONOS, VILMA SABERON, & REBECCA
PADULLO, Respondents.

DECISION

PUNO, J.:

The facts:

On October 8, 1996, spouses Michael and Bonita Uy, petitioners, purchased 200 square meters of
the parcel of land designated as Lot No. 3229-C-2-F, covered by Transfer Certificate of Title (TCT)
No. T-20007, from respondents. The contract stipulated that petitioners had the right of choice to
designate which portion of Lot No. 3229-C-2-F would be the subject of the sale. 1

Petitioners exercised their right to choose within two to three months from the sale, informing
respondents that they have selected and in fact occupied around 200 square meters of a portion of
land. 2

On August 4, 1997, petitioners purchased another 200 square meters of the same Lot No. 3229-C-2-
F, with the same option to choose which portion. They selected and occupied an adjoining portion to
the lot in their first sale. 3

It appears that the parcels of land petitioners had chosen and occupied were already titled in the
names of the Delgados, namely, Carlos, Allan and Antonio, Jr. Although originally part of Lot No.
3229-C-2-F, the two parcels of land were part of some 3,500 square meters that were purportedly
sold by the respondents to the Delgados on July 31, 1985. This deed of sale to the Delgados was
annotated on TCT No. T-20007 (covering Lot No. 3229-C-2-F) on June 10, 1993, and a new title for
the covered area was issued on April 21, 1994, which was likewise annotated on TCT No. T-20007
on the same date. 4 Thus, at the time of the first sale by the respondents to petitioners, the two
parcels of land had been cancelled from Lot No. 3229-C-2-F (covered by TCT No. T-20007), and
were already part of Lot No. 3229-C-2-F-1 (covered by TCT No. T-39106). 5
Petitioners were sued for unlawful detainer by the Delgados. In September 1998, petitioners entered
into a compromise agreement with the Delgados and surrendered possession of the subject parcels
of land. Petitioners compromised the case without giving notice to respondents. 6

Thereafter, petitioners demanded from respondents that they be allowed to choose again from Lot
No. 3229-C-2-F. When respondents refused, petitioners filed, on March 12, 1999, a case for specific
performance with delivery of possession of real property and damages. 7 Petitioners anchored their
claim for specific performance on the averment that they "could not exercise [their] right to choose
the portion bought from the parcel of land afore-described because the portion pointed out by the
[petitioners] were already sold and claimed by third persons…" 8

Respondents filed their answer and by way of special and affirmative defenses alleged that they had
already complied with their obligation to deliver, as petitioners had already chosen and been in
possession of the parcels of land they chose. 9 Respondents also faulted petitioners for losing
possession of the parcels of land by entering into a compromise agreement with the Delgados on
two grounds: first, because respondents have allegedly initiated the necessary legal steps to defend
their possessory rights to the disputed land by filing a case for the declaration of nullity of the title of
the Delgados, and second, because petitioners failed to interpose a third-party complaint to implead
respondents in the unlawful detainer case. 10

The trial court denied respondents’ motion to dismiss based on their Special and Affirmative
Defenses as well as their motion for reconsideration. 11 They went to the Court of Appeals on an
action for certiorari and prohibition contending that the trial court committed grave abuse of
discretion in holding that:

1. petitioners had a cause of action for specific performance against respondents;

2. petitioners erroneously selected the parcels of land by some unfortunate turn of events so that the
portions selected were not owned by respondents but the Delgados; and

3. the parcels of land were owned by the Delgados, a conclusion that was premature considering
that the case for the declaration of nullity of the Delgados’ title covering the parcels was pending
before the trial court.

The Court of Appeals reversed and set aside the orders of the trial court. It held that petitioners had
no cause of action to file a case of specific performance against respondents. 12 It ruled that the
proper remedy of the petitioners is an action for enforcement of warranty against eviction.

Petitioners now come before this Court on a petition for review on the following issues:

(1) whether the complaint filed in the RTC by petitioners fails to state a cause of action for specific
performance with delivery of possession of real property and damages against respondents; and

(2) whether the RTC’s denial of the motion to dismiss on lack of cause of action was the proper
subject of certiorari before the Court of Appeals.

We deny the petition.

We quote with approval the following ruling of the appellate court, viz:
At the outset, it could already be seen that indeed, [petitioners] have no cause of action against
[respondents]. The case for specific performance which was filed by [petitioners] against
[respondents] is not the proper remedy in this case. Rather, said action was purely an afterthought
on the part of [petitioners] when they were eventually evicted from the lots they bought from
[respondents].

The facts of the case are very clear. [Petitioners] bought from [respondents] a 200 square meter lot
which was part of a bigger parcel of land covered by TCT No. 20007 registered in the names of
[respondents], and which [petitioners] immediately took possession of. After a year, [petitioners]
again bought from [respondents] and took possession of the adjacent lot also measuring 200 square
meters. Since the sale, [petitioners] had been in peaceful possession of the lots until they were
evicted from the same by third persons claiming to be the owners of the said lots. Thus, if
[petitioners] have a cause of action against [respondents], it would be one for the enforcement of
warranty against eviction and not one for specific performance.

The core of [petitioners’] argument to support their action for specific performance was that
[respondents] failed to deliver to them the lots subject matter of the sale, since what was delivered
were not owned by [respondents] but by third persons. They likewise maintain that they were not
able to exercise their choice on which lot to occupy as agreed upon by them. We do not find these
arguments tenable. The truth of the matter is that [respondents] were able to deliver the said parcels
of land to [petitioners]. It could not be said that [petitioners were] deprived of their choice on which
parcel of land they were to buy and occupy. The fact that they even decided to buy the lot adjacent
to the first lot they bought would clearly indicate that the said lots were their choice. Moreover,
[petitioners] had been enjoying possession of the same until an unlawful detainer case was filed
against them by third persons. After having enjoyed the property for sometime, [petitioners] cannot
now come before the court claiming that [respondents] failed to deliver the property subject of the
sale.

There is no denying also that these lots were originally part of a bigger parcel of land owned by
[respondents] and covered by TCT No. 20007. That third persons armed with a certificate of title in
their favor suddenly surfaced claiming to be the owners of the subject lots does not automatically
render the delivery made by [respondents] to [petitioners] ineffectual. Stated otherwise, although
third persons later on claimed ownership over the property, it does not mean that [respondents]
failed to deliver the lots subject matter of the sale. It is also worth mentioning that the claim of these
third persons to the subject lots is being disputed by [respondents] as in fact, they filed an action for
the declaration of nullity of the title of Allan, Carlos and Antonio Delgado over the subject lots and
which up to now is still pending before the Court of Appeals. This action on the part of [respondents]
would show that they do not recognize the right of these third persons to the subject lots and that
[respondents] still maintain that they are the lawful owners of the same.

What is before Us is a clear case of eviction. Thus, the action for specific performance filed by
[petitioners] against [respondents] must necessarily fail. If at all, [petitioners] may file an action for
the enforcement of warranty in case of eviction which every vendor of a parcel of land is enjoined by
law to guarantee as provided under Article 1548 of the New Civil Code:

Art. 1548. Eviction shall take place whenever by a final judgment based on a right prior to the sale or
an act imputable to the vendor, the vendee is deprived of the whole or part of the thing purchased.

The vendor shall answer for the eviction even though nothing has been said in the contract on the
subject.
The contracting parties, however, may increase, diminish or suppress this legal obligation of the
vendor.

But even if [petitioners] would file an action for the enforcement of warranty in case of eviction
against [respondents], We are afraid that the same will not prosper. The records of the case reveal
that the unlawful detainer case filed by third persons against [petitioners], which led to the ouster of
the latter from the subject lots, was decided by compromise agreement without impleading
[respondents] as third-party defendants. It should be stressed that in order for the case to prosper, it
is a precondition that the seller must have been summoned in the suit for the eviction of the buyer.
This rule is provided under the provisions of Articles 1558 and 1559 of the New Civil Code, to wit:

Art. 1558. The vendor shall not be obliged to make good the proper warranty, unless he is
summoned in the suit for eviction at the instance of the vendee.

Art. 1559. The defendant vendee shall ask, within the time fixed in the Rules of Court for answering
the complaint, that the vendor be made a co-defendant.

Applying the above-quoted provisions of law, the Supreme Court enumerated the requisites in the
enforcement of a vendor’s liability for eviction, in the case of Maria Luisa De Leon Escaler and
Ernesto Escaler v. Court of Appeals, et al., [G.R. No. L-42636. August 1, 1985.], to wit:

In order that a vendor’s liability for eviction may be enforced, the following requisites must concur –
a) there must be a final judgment; b) the purchaser has been deprived of the whole or part of the
thing sold; c) said deprivation was by virtue of a right prior to the sale made by the vendor; and d)
the vendor has been summoned and made co-defendant in the suit for eviction at the instance of the
vendee. In the case at bar, the fourth requisite – that of being summoned in the suit for eviction
(Case No. 4252) at the instance of the vendee – is not present.

We need only add that petitioners could have filed a third-party complaint against the respondents
when they were sued for eviction by the
Delgados under Rule 6, Section 11. 13 In Firestone Tire and Rubber Co. of the Philippines v.
Tempongko, 14 we explained the function of a third-party complaint, viz:

The third-party complaint, is x x x a procedural device whereby a ‘third party’ who is neither a party
nor privy to the act or deed complained of by the plaintiff, may be brought into the case with leave of
court, by the defendant, who acts as third-party plaintiff to enforce against such third-party defendant
a right for contribution, indemnity, subrogation or any other relief, in respect of the plaintiff’s claim.
The third-party complaint is actually independent of and separate and distinct from the plaintiff’s
complaint. Were it not for this provision of the Rules of Court, it would have to be filed independently
and separately from the original complaint by the defendant against the third-party. But the Rules
permit defendant to bring in a third-party defendant or so to speak, to litigate his separate cause of
action in respect of plaintiff’s claim against a third party in the original and principal case with the
object of avoiding circuitry of action and unnecessary proliferation of lawsuits and of disposing
expeditiously in one litigation the entire subject matter arising from one particular set of facts. Prior
leave of Court is necessary, so that where the allowance of a third-party complaint would delay the
resolution of the original case, such as when the third-party defendant cannot be located or where
matters extraneous to the issue of possession would unnecessarily clutter a case of forcible entry, or
the effect would be to introduce a new and separate controversy into the action, the salutary object
of the rule would not be defeated, and the court should in such cases require the defendant to
institute a separate action. x x x.
If petitioners filed the third-party complaint against the respondents, they could have sought from the
respondents "x x x contribution, indemnity, subrogation or any other relief" in respect of the claim of
the Delgados. The phrase "any other relief" includes a claim of a vendee for warranty against the
vendor. 15

IN VIEW WHEREOF, the petition is denied.

No cost.

SO ORDERED.

REYNATO S. PUNO

Associate Justice

WE CONCUR:

ANGELINA SANDOVAL-GUTIERREZ

Associate Justice

(on official business)

RENATO C. CORONA, * ADOLFO S. AZCUNA

Associate Justice Associate Justice

CANCIO C. GARCIA
Associate Justice

ATTESTATION

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

REYNATO S. PUNO

Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, I
certify that the conclusions in the above decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court’s Division.

ARTEMIO V. PANGANIBAN
Chief Justice
Footnotes

* On official business.

1
Rollo, pp. 45-48.

2
Petitioners’ Motion for Reconsideration with the CA, rollo, p. 30. See rollo, p. 7.

3
Rollo, p. 8. See CA rollo, p. 5.

4
Rollo, pp. 41-43.

5
Id.

6
See CA rollo, p. 59.

7
Civil Case No. 99-03-41, raffled to RTC Branch 8, Tacloban City, rollo, pp. 13-18.

8
Plaintiffs’ (now Petitioners) Complaint in RTC Branch 8, CA rollo, p. 14.

9
Defendants’ (now Respondents) Answer in RTC Branch 8, CA rollo, pp. 20 and 21.

10
Id. at 21.

11
RTC Order dated July 28, 2000, CA rollo, p. 54.

12
CA Decision promulgated July 3, 2002, rollo, pp. 23-27.

13
Sec. 11. Third, (fourth, etc.)–party complaint. – A third (fourth, etc.)-party complaint is a
claim that a defending party may, with leave of court, file against a person not a party to the
action, called the third (fourth, etc.)-party defendant, for contribution, indemnity, subrogation
or any other relief, in respect of his opponent’s claim.

14
L-24399, March 28, 1968, 27 SCRA 418.

15
Castillo v. Samonte, 106 Phil. 1023 (1960).
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 154704 June 1, 2011

NELLIE VDA. DE FORMOSO and her children, namely, MA. THERESA FORMOSO-PESCADOR,
ROGER FORMOSO, MARY JANE FORMOSO, BERNARD FORMOSO and PRIMITIVO
MALCABA, Petitioners,
vs.
PHILIPPINE NATIONAL BANK, FRANCISCO ARCE, ATTY. BENJAMIN BARBERO, and
ROBERTO NAVARRO, Respondents.

DECISION

MENDOZA, J.:

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

The Factual and

Procedural Antecedents

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

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

PNB, however, allegedly refused to accept Malcaba’s tender of payment and to release the
mortgage or surrender the titles of the subject mortgaged real properties.

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

After an exchange of several pleadings, the RTC finally rendered its decision 3 on October 27, 1999
favoring the petitioners. The petitioners’ prayer for exemplary or corrective damages, attorney’s fees,
and annual interest and daily interest, however, were denied for lack of evidence.
PNB filed a motion for reconsideration but it was denied for failure to comply with Rule 15, Section 5
of the 1997 Rules of Civil Procedure. PNB then filed a Notice of Appeal but it was dismissed for
being filed out of time.

The petitioners received their copy of the decision on November 26, 1999, and on January 25, 2001,
they filed their Petition for Relief from Judgment4 questioning the RTC decision that there was no
testimonial evidence presented to warrant the award for moral and exemplary damages. They
reasoned out that they could not then file a motion for reconsideration because they could not get
hold of a copy of the transcripts of stenographic notes. In its August 6, 2001 Order, the RTC denied
the petition for lack of merit.5

On September 7, 2001, the petitioners moved for reconsideration but it was denied by the RTC in its
Omnibus Order of September 26, 2001.6

Before the Court of Appeals

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

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

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

Aggrieved, after the denial of their motion for reconsideration, the petitioners filed this petition for
review anchored on the following

GROUNDS

THE COURT OF APPEALS PATENTLY ERRED IN RULING THAT ALL THE PETITIONERS MUST
SIGN THE VERIFICATION AND CERTIFICATION OF NON-FORUM SHOPPING IN A PETITION
FOR CERTIORARI WHEREIN ONLY QUESTIONS OF LAW ARE INVOLVED.

ALTERNATIVELY, THE COURT OF APPEALS PATENTLY ERRED IN DISMISSING THE WHOLE

PETITION WHEN AT THE VERY LEAST THE PETITION INSOFAR AS PETITIONER MALCABA IS
CONCERNED BEING THE SIGNATORY THEREOF SHOULD HAVE BEEN GIVEN DUE COURSE.

THE COURT OF APPEALS PATENTLY ERRED IN GIVING MORE WEIGHT ON TECHNICALITIES

WHEN THE PETITION BEFORE IT WAS CLEARLY MERITORIOUS. 7
The petitioners basically argue that they have substantially complied with the requirements provided
under the 1997 Rules of Civil Procedure on Verification and Certification of Non-Forum Shopping.
The petitioners are of the view that the rule on Verification and Certification of Non-Forum Shopping
that all petitioners must sign should be liberally construed, since only questions of law are raised in a
petition for certiorari and no factual issues that require personal knowledge of the petitioners.

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

On the other hand, PNB counters that the mandatory rule on the certification against forum shopping
requires that all of the six (6) petitioners must sign, namely: Nellie Vda. De Formoso and her children
Ma. Theresa Formoso-Pescador, Roger Formoso, Mary Jane Formoso, and Bernard Formoso, and
Primitivo Malcaba. Therefore, the signature alone of Malcaba on the certification is insufficient.

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

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

OUR RULING

The petition lacks merit.

Certiorari is an extraordinary, prerogative remedy and is never issued as a matter of right.

Accordingly, the party who seeks to avail of it must strictly observe the rules laid down by
law.8 Section 1, Rule 65 of the 1997 Rules of Civil Procedure provides:

SECTION 1. Petition for certiorari.- When any tribunal, board or officer exercising judicial or quasi-
judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy,
and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified
petition in the proper court, alleging the facts with certainty and praying that judgment be rendered
annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental
reliefs as law and justice may require.

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

Under Rule 46, Section 3, paragraph 3 of the 1997 Rules of Civil Procedure, as amended, petitions
for certiorari must be verified and accompanied by a sworn certification of non-forum shopping.
SECTION 3. Contents and filing of petition; effect of non-compliance with requirements. – The
petition shall contain the full names and actual addresses of all the petitioners and respondents, a
concise statement of the matters involved, the factual background of the case, and the grounds
relied upon for the relief prayed for.

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

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

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

The petitioner shall pay the corresponding docket and other lawful fees to the clerk of court and
deposit the amount of ₱500.00 for costs at the time of the filing of the petition.

The failure of the petitioner to comply with any of the foregoing requirements shall be
sufficient ground for the dismissal of the petition. [Emphases supplied]

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

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

The Court disagrees.

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

SEC. 4. Verification. – Except when otherwise specifically required by law or rule, pleadings need
not be under oath, verified or accompanied by affidavit.
A pleading is verified by an affidavit that the affiant has read the pleadings and that the allegations
therein are true and correct of his personal knowledge or based on authentic records.

A pleading required to be verified which contains a verification based on "information and belief" or
upon "knowledge, information and belief" or lacks a proper verification, shall be treated as an
unsigned pleading.

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

Failure to comply with the foregoing requirements shall not be curable by mere amendment of the
complaint or other initiatory pleading but shall be cause for the dismissal of the case without
prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false
certification or non-compliance with any of the undertakings therein shall constitute indirect contempt
of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the
party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be
ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause
for administrative sanctions. x x x.

In this regard, the case of Oldarico S. Traveno v. Bobongon Banana Growers Multi-Purpose
Cooperative,10 is enlightening:

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

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

1) A distinction must be made between non-compliance with the requirement on or

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

2) As to verification, non-compliance therewith or a defect therein does not necessarily

render the pleading fatally defective. The Court may order its submission or correction or act
on the pleading if the attending circumstances are such that strict compliance with the Rule
may be dispensed with in order that the ends of justice may be served thereby.

3) Verification is deemed substantially complied with when one who has ample knowledge to
swear to the truth of the allegations in the complaint or petition signs the verification, and
when matters alleged in the petition have been made in good faith or are true and correct.
 4) As to certification against forum shopping, non-compliance therewith or a defect therein,
unlike in verification, is generally not curable by its subsequent submission or correction
thereof, unless there is a need to relax the Rule on the ground of "substantial compliance" or
presence of "special circumstances or compelling reasons."

5) The certification against forum shopping must be signed by all the plaintiffs or petitioners
in a case; otherwise, those who did not sign will be dropped as parties to the case. Under
reasonable or justifiable circumstances, however, as when all the plaintiffs or petitioners
share a common interest and invoke a common cause of action or defense, the signature of
only one of them in the certification against forum shopping substantially complies with the
Rule.

6) Finally, the certification against forum shopping must be executed by the party-pleader,
not by his counsel. If, however, for reasonable or justifiable reasons, the party-pleader is
unable to sign, he must execute a Special Power of Attorney designating his counsel of
record to sign on his behalf.

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

Admittedly, among the seven (7) petitioners mentioned, only Malcaba signed the verification and
certification of non-forum shopping in the subject petition. There was no proof that Malcaba was
authorized by his co-petitioners to sign for them. There was no special power of attorney shown by
the Formosos authorizing Malcaba as their attorney-in-fact in filing a petition for review on certiorari.
Neither could the petitioners give at least a reasonable explanation as to why only he signed the
verification and certification of non-forum shopping. In Athena Computers, Inc. and Joselito R.
Jimenez v. Wesnu A. Reyes, the Court explained that:

The verification of the petition and certification on non-forum shopping before the Court of Appeals
were signed only by Jimenez. There is no showing that he was authorized to sign the same by
Athena, his co-petitioner.

Section 4, Rule 7 of the Rules states that a pleading is verified by an affidavit that the affiant has
read the pleading and that the allegations therein are true and correct of his knowledge and belief.
Consequently, the verification should have been signed not only by Jimenez but also by Athena’s
duly authorized representative.

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

The certification against forum shopping in CA-G.R. SP No. 72284 is fatally defective, not
having been duly signed by both petitioners and thus warrants the dismissal of the petition
for certiorari. We have consistently held that the certification against forum shopping must be
signed by the principal parties. With respect to a corporation, the certification against forum shopping
may be signed for and on its behalf, by a specifically authorized lawyer who has personal knowledge
of the facts required to be disclosed in such document.
While the Rules of Court may be relaxed for persuasive and weighty reasons to relieve a litigant
from an injustice commensurate with his failure to comply with the prescribed procedures,
nevertheless they must be faithfully followed. In the instant case, petitioners have not shown any
reason which justifies relaxation of the Rules. We have held that procedural rules are not to be
belittled or dismissed simply because their non-observance may have prejudiced a party’s
substantive rights. Like all rules, they are required to be followed except for the most persuasive of
reasons when they may be relaxed. Not one of these persuasive reasons is present here.

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

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

The Court, however, is not persuaded.

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

Indeed, liberality and leniency were accorded in some cases.13 In these cases, however, those who
did not sign were relatives of the lone signatory, so unlike in this case, where Malcaba is not a
relative who is similarly situated with the other petitioners and who cannot speak for them. In the
case of Heirs of Domingo Hernandez, Sr. v. Plaridel Mingoa, Sr.,14 it was written:

In the instant case, petitioners share a common interest and defense inasmuch as they collectively
claim a right not to be dispossessed of the subject lot by virtue of their and their deceased parents’
construction of a family home and occupation thereof for more than 10 years. The commonality of
their stance to defend their alleged right over the controverted lot thus gave petitioners xxx authority
to inform the Court of Appeals in behalf of the other petitioners that they have not commenced any
action or claim involving the same issues in another court or tribunal, and that there is no other
pending action or claim in another court or tribunal involving the same issues.

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

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

The same leniency was applied by the Court in Cavile v. Heirs of Cavile, because the lone petitioner
who executed the certification of non-forum shopping was a relative and co-owner of the other
petitioners with whom he shares a common interest. x x x16
Considering the above circumstances, the Court does not see any similarity at all in the case at
bench to compel itself to relax the requirement of strict compliance with the rule regarding the
certification against forum shopping.

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

Primarily, Section 1, Rule 45 of the Rules of Court categorically states that the petition filed shall
raise only questions of law, which must be distinctly set forth. A question of law arises when there is
doubt as to what the law is on a certain state of facts, while there is a question of fact when the
doubt arises as to the truth or falsity of the alleged facts. For a question to be one of law, the same
must not involve an examination of the probative value of the evidence presented by the litigants or
any of them. The resolution of the issue must rest solely on what the law provides on the given set of
circumstances. Once it is clear that the issue invites a review of the evidence presented, the
question posed is one of fact.17

In this case, the petition clearly raises a factual issue. As correctly argued by PNB, the substantive
1avvphil

issue of whether or not the petitioners are entitled to moral and exemplary damages as well as
attorney’s fees is a factual issue which is beyond the province of a petition for review on certiorari.

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

WHEREFORE, the petition is DENIED.

SO ORDERED.

JOSE CATRAL MENDOZA

Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

ANTONIO EDUARDO B. NACHURA DIOSDADO M. PERALTA

Associate Justice Associate Justice

ROBERTO A. ABAD
Associate Justice

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

ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division

CERTIFICATION

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

RENATO C. CORONA
Chief Justice

Footnotes

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

2
Id. at 29.

3
Id. at 131-144.

4
Id. at 158.

5
Id. at 18.

6
Id. at 14.

7
Id. at 15.

8
Eagle Ridge Golf & Country Club v. Court of Appeals & Eagle Ridge Employees Union
(EREU), G.R. No. 178989, March 18, 2010, 616 SCRA 116.

9
Athena Computers, Inc. and Joselito R. Jimenez v. Wesnu A. Reyes, G.R. No. 156905,
September 5, 2007, 532 SCRA 343, 350.

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

11
Supra note 9.

12
Rollo, p. 29.
 Heirs of Domingo Hernandez, Sr. v. Plaridel Mingoa, Sr., G.R. No. 146548, December 18,
13

2009, 608 SCRA 394; and Oldarico S. Traveno v. Bobongon Banana Growers Multi-Purpose
Cooperative, G.R. No. 164205, September 3, 2009,598 SCRA 27.

14
Id.

15
Supra note 10.

16
Id.

Cebu Bionic Builders Supply, Inc. vs. Development Bank of the Philippines, G.R. No.
17

154366, November 17, 2010.

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