cases on civ pro

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Republic of the PhilippinesSupreme Court

Manila

FIRST DIVISION

ASUNCION URIETA VDA. DE G.R. No. 164402

AGUILAR, represented by

ORLANDO U. AGUILAR, Present:

Petitioner,CORONA, C.J., Chairperson,

VELASCO, JR.,- versus - LEONARDO-DE CASTRO,

DEL CASTILLO, andPEREZ,JJ.

SPOUSES EDERLINA B. ALFARO

and RAUL ALFARO, Promulgated:Respondents. July 5, 2010

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

- - x

D E C I S I O N

DEL CASTILLO, J.:

In an action for recovery of possession of realty, who has the better right of possession, the

registered owner armed with a Torrens title or the occupants brandishing a notarized but unregistered

deed of sale executed before the land was registered under the Torrens system?

As we previously ruled in similar cases,[1] we resolve the question in favor of the titleholder.

Factual Antecedents


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On August 3, 1995, petitioner filed a Complaint for Recovery of Possession and Damages[2] before the

Regional Trial Court (RTC) of San Jose, Occidental Mindoro. She alleged that on May 16, 1977, her

husband Ignacio Aguilar (Ignacio) was issued Original Certificate of Title (OCT) No. P-9354[3] over a 606-

square meter parcel of land designated as Lot 83 situated in Brgy. Buenavista, Sablayan, Occidental

Mindoro. Prior thereto, or in 1968, Ignacio allowed petitioners sister, Anastacia Urieta (Anastacia),

mother of respondent Ederlina B. Alfaro (Ederlina), to construct a house on the southern portion of said

land and to stay therein temporarily.

In 1994, Ignacio died and his heirs decided to partition Lot 83. Petitioner thus asked the

respondents, who took possession of the premises after the death of Anastacia, to vacate Lot 83. They

did not heed her demand.

Thus, petitioner filed a case for accion publiciana praying that respondents be ordered to vacatesubject property, and to pay moral, temperate, and exemplary damages, as well as attorneys fees and

the costs of suit.

In their Answer with Counterclaims and Affirmative Defenses,[4] respondents did not dispute that

Ignacio was able to secure title over the entire Lot 83. However, they asserted that on April 17, 1973,

Ignacio and herein petitioner sold to their mother Anastacia the southern portion of Lot 83 consisting of

367.5 square meters as shown by the Kasulatan sa Bilihan[5] which bears the signatures of petitioner

and Ignacio. Since then, they and their mother have been in possession thereof. Respondents also

presented several Tax Declarations[6] in support of their allegations.

Respondents also raised the defense of prescription. They pointed out that accion publiciana or an

action to recover the real right of possession independent of ownership prescribes in 10 years.

However, it took petitioner more than 25 years before she asserted her rights by filing accion publiciana.

As alleged in the complaint, they took possession of the disputed portion of Lot 83 as early as 1968, but

petitioner filed the case only in 1995.

By way of counterclaim, respondents prayed that petitioner be directed to execute the necessary

documents so that title to the 367.5-square meter portion of Lot 83 could be issued in their name. They

likewise prayed for the dismissal of the complaint and for award of moral and exemplary damages, as

well as attorneys fees.


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In her Reply and Answer to Counterclaim,[7] petitioner denied having signed the Kasulatan sa Bilihan

and averred that her signature appearing thereon is a forgery. She presented an unsworn written

declaration dated January 28, 1994 where her husband declared that he did not sell the property in

question to anyone. As to the issue of prescription, she asserted that respondents occupation of

subject property cannot ripen into ownership considering that the same is by mere tolerance of the

owner. Besides, the purported Kasulatan sa Bilihan was not registered with the proper Registry of

Deeds.

During the trial, petitioner presented the testimonies of Orlando Aguilar (Orlando) and Zenaida Baldeo

(Zenaida). Orlando testified that he has been staying in Lot 83 since 1960 and had built a house thereon

where he is presently residing; and, that his mother, herein petitioner, denied having sold the property

or having signed any document for that matter.

Zenaida also testified that in 1981, her father (Ignacio) and Ederlina had a confrontation before the

barangay during which her father denied having conveyed any portion of Lot 83 to anybody. She further

testified that she is familiar with the signature of her father and that the signature appearing on the

Kasulatan sa Bilihan is not her fathers signature.

For their part, respondents offered in evidence the testimonies of Estrella Bermudo Alfaro (Estrella),

Ederlina, and Jose Tampolino (Jose). Estrella declared that she was present when Ignacio and the

petitioner affixed their signatures on the Kasulatan sa Bilihan, which was acknowledged before Notary

Public Juan Q. Dantayana on April 17, 1973. She narrated that her mother actually purchased the

property in 1954, but it was only in 1973 when the vendor executed the deed of sale. In fact, her fatherFrancisco Bermudo was able to secure a permit to erect a house on the disputed property from the

Office of the Mayor of Sablayan, Occidental Mindoro in 1954.[8] She was surprised to learn though that

their property is still registered in the name of the petitioner.

Ederlina corroborated the declarations of Estrella. She also alleged that her parents occupied the

property in 1954 when they built a hut there, then later on, a house of strong materials.

Jose corroborated the declarations of the other witnesses for the respondents that the disputed portion

of Lot 83 is owned by Anastacia.

Ruling of the Regional Trial Court


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In its Decision[9] dated September 21, 1998, the court a quo ordered the respondents to vacate subject

premises and denied their counterclaim for reconveyance on the grounds of prescription and laches. It

held that the prescriptive period for reconvenyance of fraudulently registered real property is 10 years

reckoned from the date of the issuance of the certificate of title. In this case, however, it is not disputed

that OCT No. P-9354 covering the entire Lot 83 was issued to Ignacio in 1977. The trial court likewise

held that respondents are guilty of laches and that the reconveyance of the disputed property in their

favor would violate the rule on indefeasibility of Torrens title.

The dispositive portion of the trial courts Decision reads:

WHEREFORE, and in the light of all the foregoing considerations, judgment is hereby rendered in favor

of plaintiff and against the defendants, to wit:

1. Ordering the defendants and any person claiming right under them to vacate the premises in question

and surrender the possession thereof to plaintiff;

2. To pay the amount of Ten Thousand Pesos (P10,000.00) as and for reasonable attorneys fees;

3. To pay the costs of this suit.

SO ORDERED.[10]

Ruling of the Court of Appeals

On June 7, 2004, the CA promulgated its Decision*11+ reversing the trial courts Decision and dismissing

the complaint, as well as respondents counterclaim. The CA upheld the validity of the Kasulatan sa

Bilihan since it is a notarized document and disputably presumed to be authentic and duly executed. In

addition, witness Estrella categorically declared that she was present when petitioner and Ignacio signed

the Kasulatan sa Bilihan. The CA elaborated that in order to disprove the presumption accorded to a


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notarized document, the party contesting its authenticity and due execution must present a clear and

convincing evidence to the contrary, which the petitioner failed to do.

The CA likewise disagreed with the court a quo that respondents counterclaim should be dismissed on

the ground of indefeasibility of title. It emphasized that the Torrens system was adopted to protect

innocent third parties for value and not to protect fraud. Nonetheless, the CA did not grant the relief

sought in respondents counterclaim considering that not all interested parties were impleaded in the

case.

The dispositive portion of the CAs Decision reads:

IN VIEW OF THE FOREGOING, the decision appealed from is REVERSED, and a new one ENTERED

dismissing the complaint and counterclaim.

SO ORDERED.[12]

Issue

Without seeking reconsideration of the CAs Decision, petitioner interposed the present recourse raising

the sole issue of:

WHETHER X X X THE HONORABLE COURT OF APPEALS ERRED IN UPHOLDING THE

VALIDITY/GENUINENESS AND DUE EXECUTION OF THE PURPORTED DEED OF SALE OF THE PORTION OF

THE LOT DESPITE THE VEHEMENT DENIAL OF THE ALLEGED VENDORS.[13]

Petitioner contends that the CA grievously erred in upholding the validity and genuineness of the

Kasulatan sa Bilihan. She alleges that she wanted to take the witness stand to disclaim in open court her

purported signature appearing on respondents Kasulatan sa Bilihan, but could not do so because she is

too old, bed-ridden and has to bear a tortuous five-hour drive to reach the court. Nevertheless, she

executed a sworn statement declaring that she and her husband never sold any portion of Lot 83 and


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that their signatures appearing on said deed were forged. She avers that the assistance of an expert

witness is not even necessary to detect the patent dissimilarities between said forged signatures and

their authentic signatures.

Petitioner likewise argues that the CA erred in taking into consideration the appearance and condition of

the paper where the Kasulatan sa Bilihan is written. She posits that the fabrication of an ancient-looking

document nowadays is no longer difficult. She also points to several circumstances which cast doubt on

the authenticity and due execution of the Kasulatan sa Bilihan, but which the CA inexplicably ignored

Furthermore, petitioner maintains that her title is indefeasible. And while there are exceptions to the

rule on indefeasibility of title,[14] she emphasizes that respondents never disputed her title. With

regard to the tax declarations presented by respondents, petitioner asserts that it has been the

consistent ruling of this Court that tax declarations are not necessarily proof of ownership.

In their comment, respondents assert that in petitions filed under Rule 45 of the Rules of Court, only

questions of law can be raised. Factual issues are prohibited. From the arguments advanced by the

petitioner, however, it is clear that she is asking this Court to examine and weigh again the evidence on

record.

Our Ruling

We grant the petition.

This case falls under the exceptions where the Supreme Court may review factual issues.

As a rule, only questions of law may be raised in petitions for review on certiorari.[15] It is settled that

in the exercise of the Supreme Courts power of review, the court is not a trier of facts and does not

normally undertake the re-examination of the evidence presented by the contending parties during the

trial of the case.[16] This rule, however, is subject to a number of exceptions,[17] one of which is when

the findings of the appellate court are contrary to those of the trial court, like in the present case.


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Nature and purpose of accion publiciana.

Also known as accion plenaria de posesion,[18] accion publiciana is an

ordinary civil proceeding to determine the better right of possession of realty independently of title.[19]

It refers to an ejectment suit filed after the expiration of one year from the accrual of the cause of action

or from the unlawful withholding of possession of the realty.[20]

The objective of the plaintiffs in accion publiciana is to recover possession only, not ownership.[21]

However, where the parties raise the issue of ownership, the courts may pass upon the issue todetermine who between the parties has the right to possess the property. This adjudication, however,

is not a final and binding determination of the issue of ownership; it is only for the purpose of resolving

the issue of possession, where the issue of ownership is inseparably linked to the issue of possession.

The adjudication of the issue of ownership, being provisional, is not a bar to an action between the same

parties involving title to the property.[22] The adjudication, in short, is not conclusive on the issue of

ownership.[23]

Guided by the foregoing jurisprudential guideposts, we shall now resolve the arguments raised by the

parties in this petition.

As against petitioners Torrens title, respondents Kasulatan sa Bilihan cannot confer better right to

possess.

It is settled that a Torrens title is evidence of indefeasible title to property in favor of the person in

whose name the title appears.[24] It is conclusive evidence with respect to the ownership of the land

described therein.[25] It is also settled that the titleholder is entitled to all the attributes of ownership

of the property, including possession.[26] Thus, in Arambulo v. Gungab,[27] this Court declared that the

age-old rule is that the person who has a Torrens title over a land is entitled to possession thereof.


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In the present case, there is no dispute that petitioner is the holder of a Torrens title over the entire Lot

83. Respondents have only their notarized but unregistered Kasulatan sa Bilihan to support their claim

of ownership. Thus, even if respondents proof of ownership has in its favor a juris tantum presumption

of authenticity and due execution, the same cannot prevail over petitioners Torrens title. This has

been our consistent ruling which we recently reiterated in Pascual v. Coronel,[28] viz:

Even if we sustain the petitioners arguments and rule that the deeds of sale are valid contracts, it would

still not bolster the petitioners case. In a number of cases, the Court had upheld the registered owners

superior right to possess the property. In Co v. Militar, the Court was confronted with a similar issue of

which between the certificate of title and an unregistered deed of sale should be given more probative

weight in resolving the issue of who has the better right to possess. There, the Court held that the court

a quo correctly relied on the transfer certificate of title in the name of petitioner, as opposed to the

unregistered title in the name of respondents. The Court stressed therein that the Torrens System was

adopted in this country because it was believed to be the most effective measure to guarantee the

integrity of land titles and to protect their indefeasibility once the claim of ownership is established and

recognized.

Likewise, in the recent case of Umpoc v. Mercado, the Court declared that the trial court did not err in

giving more probative weight to the TCT in the name of the decedent vis--vis the contested

unregistered Deed of Sale. Later in Arambulo v. Gungab, the Court held that the registered owner is

preferred to possess the property subject of the unlawful detainer case. The age-old rule is that the

person who has a Torrens Title over a land is entitled to possession thereof. (Citations omitted.)

As the titleholder, therefore, petitioner is preferred to possess the entire Lot 83. Besides, there are

telltale signs which cast doubt on the genuineness of the Kasulatan. To cite a few:

1. The date of its execution unbelievably coincides with the date the buyer, Anastacia, died;

2. Despite its alleged execution on April 17, 1973, respondents brought up the Kasulatan only

when petitioner asked them to vacate the disputed premises. Prior thereto, they neither asserted their

rights thereunder nor registered the same with the proper Registry of Deeds;


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3. The lawyer who notarized the Kasulatan sa Bilihan, as well as the witnesses thereto, was not

presented in court; and,

4. The District Land Officer who signed OCT No. P-9354 by authority of the President is a public

officer who has in his favor the presumption of regularity in issuing said title.

Torrens certificate of title cannot be the subject of collateral attack.

Moreover, respondents attack on the validity of petitioners title by claiming that their mother became

the true owner of the southern portion of Lot 83 even before the issuance of OCT No. P-9354constitutes as a collateral attack on said title. It is an attack incidental to their quest to defend their

possession of the property in an accion publiciana, not in a direct action whose main objective is to

impugn the validity of the judgment granting the title.[29] This cannot be allowed. Under Section 48 of

Presidential Decree No. 1529, otherwise known as the Property Registration Decree, a certificate of title

cannot be the subject of collateral attack. Thus:

SEC. 48. Certificate not subject to collateral attack.A certificate of title shall not be subject to

collateral attack. It cannot be altered, modified, or canceled except in a direct proceeding in accordance

with law.

A collateral attack transpires when, in another action to obtain a different relief and as an incident to

the present action, an attack is made against the judgment granting the title.[30] This manner of attack

is to be distinguished from a direct attack against a judgment granting the title, through an action whose

main objective is to annul, set aside, or enjoin the enforcement of such judgment if not yet

implemented, or to seek recovery if the property titled under the judgment had been disposed of.[31]

Thus, in Magay v. Estiandan,[32] therein plaintiff-appellee filed an accion publiciana. In his defense,

defendant-appellant alleged among others that plaintiff-appellees Transfer Certificate of Title No. 2004

was issued under anomalous circumstances. When the case reached this Court, we rejected defendant-

appellants defense on the ground that the issue on the validity of said title can only be raised in an

action expressly instituted for that purpose. Also, in Co v. Court of Appeals[33] we arrived at the same

conclusion and elaborated as follows:


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In their reply dated September 1990, petitioners argue that the issues of fraud and ownership raised in

their so-called compulsory counterclaim partake of the nature of an independent complaint which they

may pursue for the purpose of assailing the validity of the transfer certificate of title of private

respondents. That theory will not prosper.

While a counterclaim may be filed with a subject matter or for a relief different from those in the basic

complaint in the case, it does not follow that such counterclaim is in the nature of a separate and

independent action in itself. In fact, its allowance in the action is subject to explicit conditions, as above

set forth, particularly in its required relation to the subject matter of opposing partys claim. Failing in

that respect, it cannot even be filed and pursued as an altogether different and original action.

It is evident that the objective of such claim is to nullify the title of private respondents to the property

in question, which thereby challenges the judgment pursuant to which the title was decreed. This is

apparently a collateral attack which is not permitted under the principle of indefeasibility of a Torrens

title. It is well settled that a Torrens title cannot be collaterally attacked. The issue on the validity of

title, i.e., whether or not it was fraudulently issued, can only be raised in an action expressly instituted

for that purpose. Hence, whether or not petitioners have the right to claim ownership of the land in

question is beyond the province of the instant proceeding. That should be threshed out in a proper

action.

The lower courts cannot pass upon or grant respondents counterclaim for lack of jurisdiction.

Both the trial court and the appellate court considered respondents counterclaim as a petition for

reconveyance. In which case, it should be treated merely as a permissive counterclaim because the

evidence required to prove their claim differs from the evidence needed to establish petitionersdemand for recovery of possession. Being a permissive counterclaim, therefore, respondents should

have paid the corresponding docket fees.[34] However, there is no proof on record that respondents

paid the required docket fees. The official receipts were neither attached to nor annotated on

respondents Answer with Counterclaims and Affirmative Defenses*35+ which was filed via registered

mail[36] on August 19, 1995. It has been our consistent ruling that it is not simply the filing of the

complaint or appropriate initiatory pleading, but the payment of the full amount of the prescribed


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docket fee, that vests a trial court with jurisdiction over the subject matter or nature of the action.[37]

The same rule applies to permissive counterclaims, third-party claims and similar pleadings, which shall

not be considered filed until and unless the filing fee prescribed therefor is paid.[38]

On a final note, and as discussed above, we stress that our ruling in this case is limited only to the issue

of determining who between the parties has a better right to possession. This adjudication is not a final

and binding determination of the issue of ownership. As such, this is not a bar for the parties to file an

action for the determination of the issue of ownership where the validity of the Kasulatan sa Bilihan and

of OCT No. P-9354 can be properly threshed out.

WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals dated June 7, 2004

is REVERSED and SET ASIDE and the September 21, 1998 Decision of Regional Trial Court, Branch 46, San

Jose, Occidental Mindoro, insofar as it orders the respondents to vacate the premises is REINSTATEDand AFFIRMED.

SO ORDERED.

MARIANO C. DEL CASTILLO

Associate Justice


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FIRST DIVISION

HEIRS OF MACABANGKIT G.R. No. 141447

SANGKAY, namely, CEBU

BATOWA-AN, SAYANA,

NASSER, MANTA, EDGAR, Present:

PUTRI, MONKOY and AMIR,

all surnamed MACABANGKIT, PANGANIBAN, C.J., Chairperson,Petitioners, YNARES-

SANTIAGO,

AUSTRIA-MARTINEZ,CALLEJO, SR., and

- versus- CHICO-NAZARIO,JJ.

NATIONAL POWER Promulgated:

CORPORATION,

Respondent. May 4, 2006x-----------------------------------------------------------------------------------------x

D E C I S I O N

CALLEJO, SR., J.:

Before this Court is a Petition for Review on Certiorari of the Decision[1]ofthe Court of Appeals (CA) in CA-G.R. SP No. 54889 which set aside the Special

Order[2]dated September 7, 1999 issued by the Regional Trial Court (RTC) ofIligan City, Branch 61 in Civil Case No. 4094, as well as the Resolution dated

November 12, 1999 denying the motion for reconsideration thereof. The said

Special Order of the RTC granted the Urgent Motion for Execution Pending

Appeal filed by plaintiffs therein of its Decision and Supplemental Decision, thusobliging the National Power Corporation (NAPOCOR) to pay

plaintiffs P79,472.750.00 as just compensation.

The antecedents are as follows:
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Macabangkit Sangkay was the owner of a 227,065-square-meter parcel of

land located in Iligan City. When he died intestate, the property was subdividedinto nine parcels and subsequently titled to his heirs, namely:

Name Title No.

1) Edgar Macabangkit - OCT No. P-1003

2) Nasser Macabangkit - OCT No. P-1004

3) Sayana Macabangkit - OCT No. P-1005

4) Manta Macabangkit - OCT No. P-1007

5) Cebu Macabangkit - OCT No. P-1008

6) Batowa-an Macabangkit - OCT No. P-1010

7) Amir Macabangkit - OCT No. P-1012

8) Monkoy Macabangkit - OCT No. P-1027

9) Putri Macabangkit - OCT No. P-1028[3]

The said Heirs declared their properties for taxation purposes in their

respective names.[4]

In 1979, NAPOCOR constructed an underground three-kilometer long

tunnel traversing the properties of the Heirs, about 100 meters beneath the

surface. The tunnel was used to siphon water and divert the flow of

the Agus River for the operation ofNAPOCORsHydro-Electric Project in Agus

V, VI, and VII, at Ditucalan and Fuentes, Iligan City. A transmission line alsotraversed the property. The Heirs were not informed that such underground tunnel

had been constructed; neither did NAPOCOR compensate them for the use of their

property.[5]

The Heirs filed a complaint for damages and recovery of possession of theproperty with alternative prayer for just compensation against NAPOCOR before

the RTC of Iligan City, alleging the following in their complaint:

8. In the early part of 1996, plaintiffs entered into a Memorandum of

Agreement with Global Asia Management and Resource Corporation for the sale

of their property. On July 5, 1996, plaintiffs received a letter from the GlobalAsia Management and Resource Corporation, refusing the plaintiffs land due to

the presence of defendants underground tunnel. Copy of the Memorandum of

Agreement and the subsequent withdrawal of Global Asia Management and
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Resource Corporation, from the agreement are attached herewith as ANNEXESW and X,forming as part hereof;

9. On October 10, 1996, plaintiffs offered their land as collateral for a

loan applied with the Al-Amanah Islamic Investment Bank of the Philippines,

Iligan City Branch, and again the said parcels of land were not accepted ascollateral due to the presence of defendants underground tunnel, copy of theletter of the said Bank, dated October 10, 1996 is herewith attached and marked

as ANNEX Y,forming as part hereof;

10. That the act of defendant is equivalent to unlawful taking and

condemnation of plaintiffs parcels of land, without just compensation and/or

reasonable rental since 1979. Written and oral demands were made for defendant

to vacate and remove its tunnel, or, in the alternative, to pay just compensationand rental of plaintiffs parcels of land, but defendant refused and continuously

refuses, sans any valid ground. Copy of plaintiffs demand letter is attached

herewith as ANNEX Z forming as part hereof. Also, the answer of defendant toplaintiffs demand letter is also attached herewith and marked asANNEX Z-1,forming as part hereof;

11. That, as a consequence of defendants unlawful taking andcondemnation of plaintiffs properties and the illegal construction of defendants

underground tunnel, the defendant were deprived of the agricultural, commercial,

industrial and residential value of their land aforesaid;

So also, by the same reason aforestated, the surface of plaintiffs land

became unsafe for habitation as the defendants tunnel will someday collapse, and

the surface will be carried by the current of the water. Those of plaintiffs andworkers with houses on the surface were forced to transfer to a safer site in 1996,

as they were continuously disturb day and night, because of fear and the danger,

coupled by the sound being produce by the water flow and which sometime shakethe surface;

12. That the current aggregate assessed value of plaintiffs, parcels ofland as indicated in their respective Tax Declarations is ONE HUNDRED SIX

THOUSAND AND SEVEN HUNDRED TEN (P106,710.00) PESOS, more or

less;

13. That defendant must be held liable for damages in the form of

rental and other damages starting [from] 1979 when the defendants underground

tunnel was constructed up to the present, plus additional damages beyond 1997,

should defendant continue to illegally stay on plaintiffs land, in such amount asmay be determined and deemed just and equitable by the Honorable Court;


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14. That it is necessary for defendant to dismantle its underground

tunnel illegally constructed beneath the lands of plaintiffs and to deliver

possession of the same to plaintiff the subterrain illegally occupied by defendant;

15. The construction of the tunnel by defendant beneath plaintiffs

parcels of lands have caused danger to their lives and properties; sleepless nights,serious anxiety, and shock, thereby entitling them to recover moral damages in theamount of TWO HUNDRED THOSUAND (P200,000.00) PESOS. And by way

of example to deter persons similarly minded and for public good, defendant may

be held liable for exemplary damages, also in the amount of TWO HUNDREDTHOUSAND (P200,000.00) PESOS. Or in both cases, in such amount as may be

determined by the Honorable Court;

16. That to protect the interest of the plaintiffs and for purposes offiling the instant case, they were compelled to engage the services of counsel, in

the amount equivalent to TWO [HUNDRED] THOUSAND (P200,000.00), plus

court appearance fee of ONE THOUSAND (P1,000.00), as and by way ofattorneys fees.[6]

They prayed that judgment be rendered in their favor after due proceedings,

to wit:

WHEREFORE, premises considered, plaintiffs pray that judgment be

rendered as follows:

1. Directing defendants to remove and dismantle its underground

tunnel constructed beneath the land of plaintiffs and to deliver possession of the

subterrain area illegally occupied by defendant;

2. To pay plaintiffs a monthly rental from 1979 up to the time the

defendant vacates the subterrain of the land of plaintiffs, in such amount as may

be considered reasonable by the Honorable Court;

3. In the alternative, if and when the removal of defendants

underground tunnel is not legally possible, to pay plaintiffs of the justcompensation of their land in the amount as may be deemed reasonable by the

Honorable Court. But, in either case, (either by the removal of the tunnel or by

paying just compensation) to pay plaintiffs a reasonable rental;

4. To pay moral damages in the amount of TWO HUNDRED

THOUSAND (P200,00.00) PESOS and exemplary damages of another TWO

HUNDRED THOUSAND (P200,000.00) PESOS, or in such respective amount asmay be determined by the Honorable Court;
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5. Pay attorneys fees in the amount of TWO HUNDRED

THOUSAND (P200,000.00), plus appearance fee of ONE THOUSAND

(P1,0000.00) PESOS, as and by way of attorneys fees;

6. Such other relief deemed just and equitable under the

circumstance.

[7]

In its answer to the complaint, NAPOCOR interposed the following special

and affirmative defenses:

6. That while it is true that under Article 437 of the New Civil Code, theowner of a parcel of land is the owner of its surface and everything under it and

can therefore construct thereon any work or make any plantation and excavation

which he may deem proper, yet, such exercise of right is without detriment to

servitude and is subject to other limitations imposed either by special law orordinances;

7. That under Section 3, paragraph (f) of Republic Act 6395, as amended,which, by its nature, is a special law, defendant herein is authorized to take water

from any public stream, river, creek, lake, spring or waterfall in the Philippines

for the purposes specified therein; to intercept and divert the flow of water from

lands of riparian owners and from persons owning or interested in water whichare or may be necessary to said purposes, upon payment of just compensation

therefor; to alter, straighten, obstruct or increase the flow of water in streams or

water channels intersecting or connecting therewith or continuous to its works orany part thereof; thus, the construction of tunnel by defendant is legal and

sanctioned by law;

8. That assuming arguendo, without admitting, that a tunnel was indeedconstructed in 1979 under the land claimed by the plaintiffs, their cause of action

against the defendant is barred not only byprescriptionbut also

by estoppeland laches.Under our laws and jurisprudence, easement of aqueductcanals and tunnels are apparent and continuous easement and any action arising

therefrom prescribes in five (5) years which prescriptive period is to be reckoned

from its accrual. In the instant case, the cause of action of the plaintiffs, if any,has accrued in 1979 and yet they only filed the complaint in 1997 or after the

lapse of almost eighteen (18) years;[8]

The Heirs adduced in evidence the Certificate issued by the City Assessors

Office stating that the property had an assessed value of P400.00 to P500.00 per

square meter. Witnesses testified that the adjacent parcels of land were sold

at P700.00 and P750.00 per square meter and that the area where the property is
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located is classified as industrial, and residential and adjacent to subdivisions with

industrial classification.[9]

On August 13, 1999, the RTC rendered judgment in favor of the

Heirs. Thefalloof the decision reads:

WHEREFORE, premises considered:

1. The prayer for the removal or dismantling of defendants tunnel is

denied[.] However, defendant is hereby directed and ordered:

a) To pay plaintiffs land with a total area of 227,065square meters, at the rate of FIVE HUNDRED (P500.00) PESOS

per square meter, or a total of ONE HUNDRED THIRTEEN

MILLION FIVE HUNDRED THIRTY TWO THOUSAND AND

FIVE HUNDRED (P113,532,500.00) PESOS, plus interest, asactual damages or just compensation;

b) To pay plaintiffs a monthly rental of their land in the

amount of THIRTY THOUSAND (P30,000.00) PESOS from 1979

up to July 1999 with 12% interest per annum;

c) To pay plaintiffs the sum of TWO HUNDRED

THOUSAND (P200,000.00) PESOS, as moral damages;

d) To pay plaintiffs, the sum of TWO HUNDRED

THOUSAND (P200,000.00) PESOS, as exemplary damages;

e) To pay plaintiffs, the sum equivalent to 15% of the totalamount awarded, as attorneys fees, and to pay the cost.

SO ORDERED.[10]

The RTC declared that the construction of the underground tunnel affected

the entire area of the Heirs property. Consequently, plaintiffs lost the agricultural,

industrial, commercial and residential value of the land.

On August 18, 1999, the RTC rendered a Supplemental Decision,

the dispositive portion of which reads:


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Therefore, paragraph 1(a) of the dispositive portion of the original

decision should read, as follows:

a) To pay plaintiffs land with a total area of 227,065

square meters, at the rate of FIVE HUNDRED (P500.00) PESOS

per square meter, or a total of ONEHUNDRED THIRTEEN MILLION FIVE HUNDRED THIRTYTWO THOUSAND AND FIVE HUNDRED (P113,532,500.00)

PESOS, plus interest, as actual damages or just

compensation;Consequently, plaintiffs land or properties arehereby condemned in favor of defendant National Power

Corporation, upon payment of the aforesaid sum;

This supplemental decision shall be considered as part of paragraph 1(a)of the dispositive portion of the original decision.

[11]

Before NAPOCOR was served with a copy of said Decision, the Heirs filed

an Urgent Motion for Execution of Judgment Pending Appeal, alleging that

execution pending appeal was justified, considering the trial courts finding that it

(NAPOCOR) had acted in bad faith in constructing the tunnel. They pointed out

that it had been illegally occupying their land for a long period of time without any

compensation or rental having been paid to them, and that to prolong the execution

of the decision would likewise prolong its illegal act. The Heirs pointed out that

once they received their share of the money judgment, they would be able to

purchase safer lands and build new houses thereon. They insisted that any appeal

which may be taken by NAPOCOR would be dilatory and frivolous.

The Heirs appended to their motion their Joint Affidavit wherein they

alleged that they constantly feared that an earthquake could happen at any time,

and that the tunnel could collapse or cave in, which would necessarily cause

serious injuries or even death.[12]

NAPOCOR opposed the motion. It contended that the Heirs failed to prove

that it acted in bad faith when it constructed the tunnel; hence, there was no

justification to grant their motion. It pointed out that the Heirs were


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never deprived of the beneficial use of their land; in fact, there was no evidence on

record that they ever attempted to use the affected portion of the property.

NAPOCOR claimed that the Heirs demand for rentals was without factual and

legal basis.

NAPOCOR further alleged that the Heirs claim that the tunnel exposedthem to danger was belied by the testimony of Nasser Macabangkit. On cross-

examination, he testified that only two of his siblings, Sayana and Edgar

Macabangkit, starter to reside in the subject property in 1998, after the complaint

was filed on November 21, 1987. It further alleged that it had already filed an

appeal, which, as gleaned from the evidence and the applicable jurisprudence, was

not a mere dilatory tactic.[13]

On September 7, 1997, the trial court issued the Special Order granting the

motion for execution pending appeal and awarded 70% of the money judgment,

or P79,472,750.00, upon the filing of a P1,000,000.00

bond. The dispositive portion of the Order reads:

WHEREFORE, premises considered, the Motion for Execution PendingAppeal is therefore granted, but only for the amount equivalent to SEVENTY

PERCENT (70%) of the amount awarded as fair market value of plaintiffs land or

for a total of SEVENTY-NINE MILLION FOUR-HUNDRED SEVENTY-TWO

THOUSAND AND SEVEN HUNDRED FIFTY (P79,472,750.00) PESOS,Philippine Currency, subject to the condition that plaintiffs shall file an execution

bond duly approved by this Court, either in cash, surety or property in the amount

of ONE MILLION (P1,000,000.00) PESOS, which bond is in addition toplaintiffs land already condemned in favor of the defendant, to answer for any

damage that defendant may suffer as a result of the execution of the decision

pending appeal, should it later on be ruled on appeal that plaintiffs be not entitledto it and the decision be reversed.

Monthly rentals, moral and exemplary damages, attorneys fee and cost

are excluded from the execution pending appeal.

Let the corresponding Writ of Execution Pending appeal be issued upon

the posting and approval of the aforesaid execution bond. Mr. MontoyLomondot, Sheriff-IV, RTC, Lanao del Norte is hereby commanded to cause the

implementation and execution of the portion of the aforesaid decision in

accordance with the Rules of Court, together with


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his lawful fees for the service of the Writ. He shall be assisted by the other

deputy sheriffs assigned to this Court or in another branch after securing the

consent of the presiding Judge thereof. He shall likewise be assisted by Atty.Cairoding Maruhom, Ex-officio Provincial/City Sheriff of Lanao del Sur-Marawi

City, and Palao Diamla, Sheriff-IV, RTC, Lanao del Sur, subject to the consent of

the Presiding Judge concerned.

The Clerk of Court is hereby ordered to assess and collect the

corresponding additional filing fee from the judgment award.

SO ORDERED.[14]

The trial court declared that among the good reasons to grant the motion for

execution pending appeal was the fact that NAPOCOR had occupied the property

and had used it in bad faith since 1979 without having paid just

compensation therefor. Moreover, the construction of the tunnel rendered the

subject property unfit for industrial, residential, or commercial use because of the

danger it posed; neither could the Heirs dispose of the property. Thus, they had the

right to compel NAPOCOR to pay the price of the land or the proper rent under

Article 450 of the New Civil Code. The trial court also declared that the appeal of

defendant was dilatory and frivolous, which was resorted to so that it could

continue enjoying and using the property for free. It also stated execution of

judgment pending appeal would not cause prejudice or irreparable damage to

defendant, since the amount of just compensation sought to be executed was

equivalent to the fair market value of the Heirs land, while the rentals were for

NAPOCORS use of the land. It also ruled that the Heirs could file their motion for

execution pending appeal even before NAPOCOR received a copy of the

decision.[15]

The RTC thereafter issued the Writ of Execution[16]on September 9, 1999.

NAPOCOR assailed the trial courts Special Order and Writ of Execution

before the CA via petition for review on certiorari under Rule 65, claimingthat

respondent Judge acted without or in excess of jurisdiction and gravely abused his

discretion in granting the Motion for Execution Pending Appeal and issuing the
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concomitant writ despite the absence of compelling reasons therefor.[17]It

citedAquino v. Santiago[18]to support its argument. It claimed that it was not in

danger of being insolvent as would justify execution of the decision pending

appeal. It further posited that since Republic Act No. 6395, as amended, was aspecial law which recognized the construction of water pipes to divert the flow of

water for purposes of generating electricity as a limitation to ownership of

property.

NAPOCOR further claimed that the assailed Special Order rendered

nugatory its right to appeal the decision sought to be executed. It insisted that itshould not be obliged to pay the alleged market value of the property since it was

not entirely affected by the support tunnel.

For their part, the Heirs averred that execution pending appeal is a matteraddressed to the second discretion of the trial court and cannot be nullified by theappellate court unless grave abuse of discretion amounting to excess or lack of

jurisdiction is shown. They claimed that NAPOCOR failed to prove that the trialcourt was guilty of grave abuse of discretion in granting their motion for execution

pending appeal. They pointed out that it was justified by good reasons, and that

they adduced proof of the fair market value of the property and posted therequired P1,000,000.00 bond. The Heirs cited the ruling of the CA inNational

Power Corporation v. Ibrahim

[19]

andMunicipality of Bian, Laguna v. Court ofAppeals.[20]

The appellate court heard the parties on oral argument. On November 12,

1999, the CA rendered judgment granting the petition and set aside

the assailed orders of the trial court.[21] According to the appellate court,

even assumingNAPOCORsbad faith in constructing its tunnel beneath thesurface of the property, it was not an urgent and compelling reason to grant the

motion for execution pending appeal. The matter goes into the merits of

the case, which the CA should resolve on appeal. Moreover, it was not for the trialcourt to rule on whetherNAPOCORsappeal was dilatory; the merits of the appealshould be resolved first, considering the other matters involved in the appeal aside

from the fact that the total amount of the award was P113,532,500.00.

According to the CA, under Section 3(i) of Republic Act No. 6395, the act

revising the charter of NAPOCOR, any action by any person claiming
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compensation and/or damages shall be filed within five (5) years after the right-of-

way, transmission lines, substations, plants or other facilities shall have beenestablished; after the said period, no suit can be brought to question the same. It

stressed that the effect of this proviso on the decision of the trial court can be better

addressed in the appeal.

The Heirs filed a Motion for Reconsideration,[22] which the trial court deniedfor lack of merit on January 13, 2000;[23]hence, the instant petition.

Petitioners allege that the CA erred in granting the writ of certiorariin favor

of respondent NAPOCOR on its finding that the trial court committed grave abuse

of its discretion in issuing the Special Order. Petitioners maintain that the trialcourts finding that respondent NAPOCOR acted in bad faith and that its appeal

was dilatory was supported by the evidence on record and the pleadings of the

parties. They insisted that the appellate court should not substitute its findings forthose of the trial court. Its reliance on Section 3(i) of Republic Act No. 6395 wasmisplaced because the law does not apply to the construction of a tunnel

underneath the surface of their property. Petitioners further aver that the CA should

have applied its ruling inNational Power Corporation v. Ibrahim.[24]By itsdecision, the CA condoned the unjust enrichment of private respondent at their

expense.

The issue for resolution is whether the CA erred in finding that the trial court

committed grave abuse of its discretion in granting petitioners motion for

execution pending appeal of its decision and supplemental decision in the amountof P79,472,750.00.

The petition is dismissed for lack of merit.

The rule is that execution shall issue as a matter of right, on motion, upon a

judgment or order that disposes of the action or proceedings upon the expiration ofthe period to appeal therefrom if no appeal has been perfected.[25]However, the

trial court may grant execution before the expiration of the period to appeal upon

motion of the prevailing party provided that it has jurisdiction over the case and isin possession of either the original record or the record on appeal, as the case may

be, and there are good reasons for such execution to be stated in a special order

after due hearing. The rule does not proscribe the prevailing party from filing suchmotion even before the losing party has received his copy of the decision or final

order of the trial court. Such motion for execution pending appeal may be filed bythe prevailing party at any time before the expiration of the period to appeal. It
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may happen that, upon service on the prevailing party of a copy of the decision or

final order of the trial court, he files a motion for execution pending appeal but thelosing party files a motion for reconsideration of the decision or final order within

the required 15-day period under Rule 39 of the Revised Rules of Court. In such a

case, the motion of the prevailing party for execution pending appeal may be heldin abeyance pending final resolution of the losing partys motion for

reconsideration of the decision or final order. Upon the other hand, if the losingparty does not appeal the decision or final order, the execution of the decision

becomes a matter of right on the part of the prevailing party. In such case, themotion for execution pending appeal becomes moot and

academic, as the prevailing party may file a motion for a writ of execution of the

decision or final order.

As provided in Section 2, Rule 39 of the Revised Rules of Court, execution

of the judgment or final order pending appeal is discretionary. It is the exceptionto the rule that only a final judgment may be executed, hence, must be strictlyconstrued. Execution pending appeal should not be granted routinely but only in

extraordinary circumstances.[26] However, if the trial court grants execution

pending appeal in the absence of good reasons therefor, it is incumbent upon theCA to issue a writ of certiorari; failure to do so would constitute grave abuse of

discretion on its part.[27]

The CA ruled correctly when it held that the trial court acted with grave

abuse of its discretion amounting to excess or lack of jurisdiction when it granted

private respondents motion for execution pending appeal in the absence of goodreasons to justify the grant of said motion.

The Rules of Court do not enumerate the circumstances which would justify

the execution of the judgment or decision pending appeal.[28]However, this Court

has held that good reasons consist of compelling or superior circumstances

demanding urgency which will outweigh the injury or damages should the losingparty secure a reversal of the judgment or final order. Were the rule otherwise,

execution pending appeal may well become a tool of oppression and inequity

instead of an instrument of solicitude and justice.[29]

The existence of good reasons is what confers discretionary power on acourt to issue a writ of execution pending appeal. These reasons must be stated in

the order granting the same. Unless they are divulged, it would be

difficult to determine whether judicial discretion has been properly exercised in thecase. The mere posting of a bond will not justify execution pending appeal.
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Furthermore, a combination of circumstances is the dominant consideration which

impels the grant of immediate execution. The requirement of a bond is imposedmerely as an additional factor for the protection of the defendants creditor;

otherwise, execution pending appeal could be obtained through the mere filing of

such bond.[30]

Petitioners insist that, as gleaned from their Joint Affidavit, when theydiscovered the existence of respondents tunnel in 1996, they were impelled to

transfer their residence; they then lived with one of their brothers-in-law, Camama Ibrahim in Mahayahay, Iligan City. They assert that there is nothing

in the testimony of petitioner Nasser Macabangkit which would negate the urgency

to buy properties located in a safe area. The relevant portion of the Joint Affidavitreads:

4. That we constantly fear that an earthquake may happen at any timewhich would could cause the collapse or caving in of the tunnel with the resultant

violent destruction of our houses, and would necessarily cause us serious injuries,or even our death or those of the members of our family. The recent incident of

erosion and landslide at Cherry Hills, Antipolo City, is not remote possibility,

that it may had happen to us. May God forbid.

5. That our fear has been aggravated by the fact that we often feel the

vibration of the area beneath our houses whenever the volume of the water that

passes through the tunnel increases, especially at midnight. Thus, we have beensuffering from sleepless nights or, at least troubled sleep, for countless times ever

since the tunnel was illegally constructed by the defendant;

6. That as a result of the very real danger that we have been exposed to,we have long decided to leave our houses and reside at the residence of our

brother-in-law, one Camama Ibrahim, at Mahayahay, Iligan City, and suffered a

humiliating condition, as well as the congestion. As soon as we have the financialmeans, we have to liberate our family from the same humiliation and congestion,

by purchasing a lot


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and construct a house. We are entitled to a humane, dignified and decent shelter

which commensurate to our social standing in the community.

7. That we, therefore, need money very badly right now and, if we

received our share in the damages awarded to us in the decision, we would readily

use it for a suitable land far from the area where the tunnel exists, and build ourhouses thereon, so that we may be freed from the ever-present fear of a very realdanger to ourselves, our families and our properties, which we have been

subjected to for many years due to the illegal acts of the National Power

Corporation.[31]

On the other hand, in their Complaint filed before the RTC on November 11,1997, petitioners alleged that the construction of the tunnel by the respondent

caused danger to their lives and properties, and gave them sleepless nights, serious

anxiety and shock. The Court rules, however, that this claim of petitioners was

merely an afterthought and is barren of merit.

Petitioner Nasser Macabangkit testified before the trial court on December 1,1998, and declared that only two of the petitioners, Edgar

and Sayana Macabangkit, resided in the property starting only in 1998:

Q Was there anyone of your brothers and sisters who have actually

visited/resided in this land in question?

A As of now, there is, Sir.

Q Will you tell us the name of your brother or sister who is now residing inthis land of yours?

A Edgar and Sayana Macabangkit.

Q Do you know when was it when they started residing in that land of yours?

A This year, Sir.

COURT:Q This year 1998?

A Yes, Your Honor. (TSN, December 1, 1998, pp. 21-23)[32]

What the Court cannot fathom is the fact that shortly after filing theircomplaint on November 11, 1997, petitioners Edgar and Sayana Macabangkit stilldared to establish their residence in the property. Indeed, it is incredible that after

discovering the existence of the tunnel and finding the area very dangerous,petitioners would still choose to live therein. If petitioners truly believed that the


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tunnel posed danger to their property and their very lives, any decision to stay on

would be short of suicidal on their part.

Thus, the Court holds that the trial court committed grave abuse of discretion

when it ordered the execution of its Decision and Supplemental Decision pendingappeal, compelling respondent to remit P70,472,750.00 to petitioners simply

because petitioners Edgar and Sayana Macabangkit needed their share(P11,353,370.00 each) just so they could buy land and establish their new homes.

Petitioners insist, however, that the good reasons cited by the trial court

for granting their motion for execution pending appeal are based on the trial courts

findings of facts, i.e, respondent acted in bad faith in constructing a three-kilometerlong tunnel underneath petitioners property without their knowledge and consent;

respondent had not compensated the petitioners for its use of the property since

1979; respondent profited from its use of their properties; the existence of thetunnel rendered petitioners property unfit for industrial, residential or commercialuse due to the danger posed by it, and no one was willing to buy the property; and

the fair market value of the property had been amply proved by evidence.

For its part, respondent avers that, it acted in good faith based on Section

3(f) and (g) of Republic Act No. 6395,[33]as amended. Respondent posits that it is

incredible that petitioners failed to discover the tunnel when it was constructed in1979; hence, petitioners slept on their rights for 18 years or so. It further averred

that the precise amount due to petitioners for the respondents use of the tunnel, by

way of compensation, is another contentious issue on appeal. Even assuming thatpetitioners are entitled to compensation or reasonable rentals for the portion

appropriated by respondent, the appellate court still has to resolve the issue ofwhether, as claimed by the respondent, petitioners claim is barred by Section

3(i)[34]of Republic Act No. 6395.

The well-established rule is that it is not for the trial court to determine the

merits of the decision it rendered and use the same as basis for its order allowingexecution pending appeal. The authority to determine the merits of the appeal and

the correctness of the findings and conclusions of the trial court is lodged in theappellate court. The trial court cannot preempt the decision of the appellate court

and use its own decision as basis for affirming the trial courts order of executionpending appeal.[35]
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Neither is the trial court justified to order execution pending appeal, on its

assertion that the appeal of the respondent is a dilatory tactic. As the Court heldinManacop v. Equitable PCI Bank:[36]

Besides, that the appeal is merely dilatory is not a good reason for granting

execution pending appeal. As held inBF Corporation v. Edsa Shangri-la Hotel:

itis not for the trial judge to determine the merit of a decision herendered as this is the role of the appellate court. Hence, it is not

within competence of the trial court, in resolving a motion for

execution pending appeal, to rule that the appeal is patently dilatoryand rely on the same as basis for finding good reasons to grant the

motion. Only an appellate court can appreciate the dilatory intent of

an appeal as an additional good reason in upholding an order for

execution pending appeal

Petitioners reliance on the ruling of the CA inNational Power Corporationv. Ibrahim,[37]is misplaced. We agree with the following ratiocination of the CA in

its decision:

We note that in support of its case, private respondents cited the case of

National Power Corporation v. Hon. Amer Ibrahim, et al. (CA-G.R. SP No.41897) which was decided by the Special Seventeenth Division of this Court. In

the said case, the discretionary execution granted by the public respondent was

upheld. While we are not unmindful of the findings in the said case, it is ouropinion that based on the circumstances obtaining in this case, it would best serve

the ends of justice if the appeal on the merits of the case is first resolved withoutany execution pending appeal, not only because the total amount involved is quite

substantial - ONE HUNDRED THIRTEEN MILLION FIVE HUNDREDTHIRTY-TWO THOUSAND AND FIVE HUNDRED PESOS

(P113,532,500.00), but also because of the other matters involved in the

appeal.(citation omitted)[38]

IN LIGHT OF ALL THE FOREGOING,the petition is DENIED

for lack of merit. Costs against the petitioners.

SO ORDERED.

ROMEO J. CALLEJO, SR.

Associate Justice
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WE CONCUR:

ARTEMIO V. PANGANIBAN

Chief JusticeChairperson

CONSUELO YNARES-SANTIAGO MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice Associate Justice

MINITA V. CHICO-NAZARIO

Associate Justice


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SECOND DIVISION

BONIFACIO M. MEJILLANO,Petitioner,

- versus -

ENRIQUE LUCILLO, HON.

GREGORIA B. CONSULTA, Presiding

Judge of RTC,Legaspi City, Branch 4,Respondents.

G.R. No. 154717

Present:

QUISUMBING,J., Chairperson,

YNARES-SANTIAGO,

CHICO-NAZARIO,

LEONARDO-DE CASTRO, and

BRION,JJ.

Promulgated:

June 19, 2009x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

QUISUMBING, J.:

Assailed in the present petition for review on certiorari are the

Decision[1]

dated March 14, 2002 and the Resolution[2]

dated August 12, 2002 of

the Court of Appeals in CA-G.R. SP No. 62322. The Court of Appeals had

affirmed the Orders dated September 13, 2000

[3]

and October 23, 2000

[4]

of theRegional Trial Court (RTC) of Legaspi City, Branch 4, in Civil Case No. 9879,

which dismissed petitioners appeal from the Decision[5]

dated July 5, 2000 of the

Municipal Trial Court (MTC) of Daraga, Albay in Civil Case No. 945 and denied

his motion for reconsideration.

The factual antecedents of this petition are as follows:

Faustino Loteria died sometime in 1931 leaving two parcels of land, Lot

No. 9007 which contains an area of 6,628 square meters, and Lot No. 9014 whichcontains an area of 4,904 square meters. During his lifetime, Faustino Loteria

begot six children. He sired three children by his first marriage to Ciriaca

Luciada, namely, Tranquilino, Antonia and Cipriano; and another three during his

subsequent marriage to Francisca Monreal, namely, Julita, Felix and Hospicio.
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On May 25, 1959, the surviving children of Faustino Loteria with Ciriaca

Luciada, namely Tranquilino and Antonia, executed an Extrajudicial Settlement

and Cession.[6]

In said agreement, Tranquilino and Antonia divided Lot No. 9007

equally between them and Antonia ceded her one-half (1/2) share in the property to

Tranquilino. On March 1, 1978, Tranquilino executed a Deed of AbsoluteSale[7]of Lot No. 9007 in favor of Jesus Lorente. Soon after, he modified the

agreement to include Lot No. 9014 in an Amended Deed of Absolute

Sale[8]

dated September 11, 1978.

The conflict arose when the children of Faustino with Francisca Monreal,

namely Felix and Hospicio, claimed that Lot No. 9014 is their inheritance from

their late father. Hence, Jesus Lorente could not have validly bought it from

Tranquilino. The conflicting claims to occupy and use the disputed property led

Jesus Lorente to file an action for recovery of possession with the RTC of Legaspi

City. The RTC, in a Decision[9]dated September 20, 1985 in Civil Case No. 6005,

dismissed the complaint and declared that Felix and Hospicio Loteria are co-heirs

or co-owners of Lot No. 9014. As such, they are entitled to the possession of the

property, subject to the final determination of their rights as heirs of their late

father.

Thereafter, the heirs of Hospicio sold to respondent Enrique Lucillo their

one-half () share in Lot No. 9014 by way of an Extrajudicial Settlementand Sale

[10]on April 28, 1995. The remaining one-half (1/2) portion was also sold to

respondent Lucillo by Felix on August 7, 1995 by way of Deed of Absolute

Sale.[11]

When respondent Lucillo was about to enter said property, however, he

discovered that petitioner was occupying Lot No. 9014. Respondent Lucillo wrote

petitioner a letter[12]requesting him to vacate said property, but petitioner refused to

surrender possession thereof claiming that he is the owner of Lot No. 9007 and Lot

No. 9014 by virtue of an Extrajudicial Partition and Sale executed in their favor bythe heirs of Jesus Lorente. Hence, on September 18, 1995, respondent Lucillo filed

an action for recovery of possession of real property against petitioner with the

MTC of Daraga, Albay.[13]

In its Decisiondated July 5, 2000 in Civil Case No. 945, the MTC decreed:
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WHEREFORE, judgment is hereby rendered orde[r]ing defendant

Bonifacio Mejillano to relinquish possession of Lot No. 9014, situated at

Pandan, Daraga, Albay, and to turn-over the peaceful possession thereof

to plaintiff Enrique Lucillo. Costs against the defendant.

SO ORDERED.[14]

Aggrieved, petitioner seasonably appealed the foregoing decision to the

RTC, but failed to file an appeal memorandum. Consequently, respondent judge

dismissed petitioners appeal onSeptember 13, 2000:

For failure of appellant to file a memorandum pursuant to the

mandatory requirement of Rule 40, Sec. 7(b) of the 1997 Rules of

Civil Procedure, despite the lapse of the period therein given, the appeal

is hereby ordered DISMISSED.

SO ORDERED.[15]

On October 9, 2000, petitioner, through new counsel, filed a motion for

reconsideration attaching thereto the appeal memorandum. Petitioner alleged that

his failure to file the required memorandum on time was due to ignorance, the

untimely demise of his former counsel and the mistaken notion that what was

needed in the appeal was merely a notice of appeal and nothing more.

[16]

In itsOrder

[17]dated October 23, 2000, the RTC of Legaspi City, ruled:

x x x x

The Court cannot accept [petitioners] claim of ignorance for

the records will show that he personally made the Answer to the

Complaint (Exp. pp. 9, 10, 11 & 12) and the Notice of Appeal (Exp. pp.

1-7).

Neither can the Court accept his claim of poverty because he

chose to be represented by the late Atty. Delfin De Vera, a lawyer of noordinary caliber and there is no indication on record that his services

were for free. But even assuming that the entry of Atty. Delfin de Vera

into the picture was financially excessive on him, why did he not seek

the services of the PAO before which he subscribed and swore the

Verification and Certification of his Answer on November 23, 1995?
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In view of the foregoing, the Opposition to the Motion for

Reconsideration stands to be meritorious.

SO ORDERED.

Petitioner went to the Court of Appeals on a petition for certiorari. In aDecision dated March 14, 2002, the Court of Appeals dismissed the petition, ruling

that respondent judge did not act with grave abuse of discretion in dismissing the

appeal. Thefalloof said decision reads:

WHEREFORE, premises considered, the petition

is DISMISSED and the assailed orders are AFFIRMED.

SO ORDERED.[18]

On August 12, 2002, the appellate court also denied his motion for

reconsideration. Hence, the instant appeal. Petitioner now raises the following

issues for our resolution:I.

THE COURT OF APPEALS GRIEVOUSLY ERRED IN NOT

CONSIDERING PETITIONERS SUBSTANTIAL COMPLIANCE IN

FILING HIS APPEAL MEMORANDUM WITH THE REGIONAL

TRIAL COURT OF LEGASPI CITY IN THE INTEREST OF

SUBSTANTIAL JUSTICE DESPITE THE FACT THAT THERATHER BELATED FILING THEREOF BY PETITIONER WAS

UNINTENTIONAL AS SHOWN IN HIS AFFIDA[V]IT OF MERIT.

II.


CONSIDERING THE FACT THAT

THE SALE OF SUBJECT LAND TO PRIVATE RESPONDENT IS

NULL AND VOID.

III.


CONSIDERING THE MERITORIOUS CAUSE OF ACTION OF

PETITIONER AGAINST PRIVATE RESPONDENT.[19]
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Stated simply, the issue for our resolution is whether the appellate court

committed reversible error in affirming the order of the RTC dismissing petitioners

appeal for failure to file on time his memorandum on appeal.

Petitioner avers that his failure to file his memorandum on time was due tohis lawyers untimely death. He avers that he received the notice to file his

memorandum, but because he is not a lawyer, he did not fully understand the tenor

of such notice. It was only later after he talked with a Public Attorneys Office

district lawyer that he came to file, albeit belatedly, his appeal memorandum. He

insists on a liberal application of the rules, arguing that in a long line of cases, this

Court ruled that dismissals of appeals on purely technical grounds are frowned

upon and that rules of procedure are used only to help secure not override

substantial justice.

All circumstances in this case having been considered carefully, we now

find the petition bereft of merit.

Section 7 (b), Rule 40 of the Revised Rules of Court expressly states:

(b) Within fifteen (15) days from such notice, it shall be the duty

of the appellant to submit a memorandum which shall brieflydiscuss the errors imputed to the lower court, a copy of which shall

be furnished by him to the adverse party. Within fifteen (15) days fromreceipt of the appellants memorandum, the appellee may file his

memorandum. Failure of the appellant to file a memorandum shall be

a ground for dismissal of the appeal. [Emphasis supplied.]

The rule is clear. It is obligatory on the part of petitioner to file his

memorandum on appeal within fifteen days from receipt of the notice to file the

same; otherwise, his appeal will be dismissed. InEnriquez v. Court of

Appeals,

[20]

we ruled:

x x x The use of the word shall in a statute or ruleexpresses

what is mandatory and compulsory. Further, the Rule imposes upon an

appellant the duty to submit his memorandum. A duty is a legal or

moral obligation, mandatory act, responsibility, charge, requirement,

trust, chore, function, commission, debt, liability, assignment, role,

pledge, dictate, office, (and) engagement. Thus,under the express
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