August 31, 2006
This petition for review on certiorari under Rule 45 of the Rules of Court assails the January 25, 2001 decision1 of the Court of Appeals in CA-G.R. SP No. 52089 which dismissed the petition for certiorari filed by petitioner Rommel B. Bearneza for lack of merit.
This case originated from a complaint2 for permanent total disability benefits filed by petitioner against private respondent NFD International Manning Agents, Inc. on January 17, 1990. The Philippine Overseas Employment Administration (POEA) dismissed the complaint for lack of merit.
On appeal, the National Labor Relations Commission (NLRC) reversed the POEA decision on February 27, 1992.3 The manning agency moved for reconsideration but the same was denied in a resolution dated August 31, 1992. The resolution also granted petitioner attorney’s fees equivalent to 5% of the judgment award.
On October 1, 1992, the manning agency filed a petition for certiorari before this Court assailing the NLRC’s decision and resolution. It was docketed as G.R. No. 107131.
The Court issued a temporary restraining order to enjoin the execution of the judgment award upon posting by the manning agency of a P1 million bond.
On March 13, 1997, the petition was dismissed.4 The manning agency sought reconsideration while petitioner filed a "motion for damages on the injunction bond" praying for the imposition of a 12% interest per annum on the judgment award computed from September 22, 1992 until full satisfaction of the award.
On June 16, 1997, the Court denied both the manning agency’s motion for reconsideration and petitioner’s motion for damages on the injunction bond for lack of merit.
Entry of judgment was made on March 13, 1998. The records of the case were thereafter remanded to the NLRC for execution of judgment.
On December 18, 1997, the labor arbiter issued an alias writ of execution ordering the satisfaction of petitioner’s claims in the amounts of P1,209,000 (representing the peso equivalent of the judgment award) and
P60,450 as attorney’s fees. On January 9, 1998, the sheriff submitted a return informing the labor arbiter that the alias writ had been satisfied.
Petitioner then filed with the labor arbiter a motion for the issuance of a second alias writ of execution. He prayed that the manning agency be held liable also for 12% p.a. interest on the judgment award. His motion was, however, denied by the labor arbiter.
The NLRC affirmed the decision of the labor arbiter and dismissed petitioner’s claim for the imposition of a 12% annual interest on the judgment award for being unmeritorious.5
Aggrieved, petitioner elevated the case to the Court of Appeals by way of a petition for certiorari. The appellate court found no merit in the petition and dismissed it. The Court of Appeals ruled that the NLRC did not commit grave abuse of discretion in dismissing petitioner’s claim for 12% p.a. interest. Not only had the NLRC’s February 27, 1992 decision become final and executory, it had in fact already been executed. The appellate court further noted that petitioner’s claim had already been ruled upon by this Court in G.R. No. 107131.
Hence, this petition.
The petition has no merit. No abuse of discretion may be imputed to the labor arbiter and the NLRC.
The NLRC’s February 27, 1992 decision had already become final and executory. The sheriff’s return showed that the judgment had in fact been executed.
Moreover, no discretion could have possibly been exercised on petitioner’s claim as the matter had long been resolved and laid to rest by this Court in its June 16, 1997 resolution in G.R. No. 107131.
Our June 16, 1997 resolution was clear and categorical:
G.R. No. 107131 (NFD International Manning Agents, Inc. vs. National Labor Relations Commission and Rommel Bearneza) ? Acting on the motion of [NFD International Manning Agents, Inc.] for reconsideration of the decision of March 13, 1997 and considering that there is no substantial argument to warrant a modification of this Court’s decision, the Court Resolved to DENY reconsideration with FINALITY.
The Court further Resolved to:
(1) DENY for lack of merit the motion for damages on the injunction bond filed by [Rommel Bearneza];
(2) NOTE the (1) [manning agency's] opposition to the motion for damages; and (2) [Bearneza's] reply thereto;
(3) GRANT the motion of [Bearneza] to remand the original records of this case to the Labor Arbiter; and
(4) NOTE WITHOUT ACTION [Bearneza's] motion for leave to file opposition to the [manning agency's] motion for damages. (emphasis supplied)
Once a judgment attains finality it becomes immutable and unalterable.6 It may no longer be modified in any respect, even if the modification is meant to correct what is perceived to be an erroneous conclusion of fact or law, and regardless of whether the modification is attempted to be made by the court rendering it or by the highest court of the land.7
WHEREFORE, the petition is hereby DENIED.
Costs against petitioner.
Puno, Chairperson, Sandoval-Gutierrez, Azcuna, Garcia, J.J., concur.
1 Penned by Associate Justice Ramon A. Barcelona (retired) and concurred in by Associate Justices Rodrigo V. Cosico and Alicia L. Santos (retired) of the Eighth Division of the Court of Appeals; rollo, pp. 36-42.
2 Docketed as POEA Case No. (M) 90-01-041.
3 NLRC Decision, NLRC-NCR-CA-001457-91.
4 NFD International Manning Agents, Inc. v. NLRC, 336 Phil. 466 (1997).
5 NLRC Decision dated December 23, 1998.
6 Manotok Realty, Inc. v. CLT Realty Development Corporation, G.R. No. 123346, Araneta Institute of Agriculture, Inc. v. Heirs of Jose B. Dimson, G.R. No. 134385 and Sto. Niño Kapitbahayan Association, Inc. v. CLT Realty Development Corporation, G.R. No. 148767, 29 November 2005.
August 31, 2006
Before us for resolution is the Petition for Review on Certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended, assailing the Decision1 dated September 14, 2000 of the Court of Appeals in CA-G.R. CV No. 50921.
The facts as found by the Court of Appeals are:
From 1971 to 1991, Conrado Fajardo, herein respondent, and Maura Pascual, petitioner, lived together as husband and wife without the benefit of marriage. On October 15, 1982, respondent purchased from Josefina Jacinto a parcel of land2 located in Sta. Barbara, Baliuag, Bulacan, with an area of 13,929 square meters, covered by Transfer Certificate of Title (TCT) No. T-41670. The parties executed the corresponding Deed of Sale witnessed, among others, by Daniel T. Gregorio, also a respondent. It was executed in Malolos, Bulacan and notarized by Atty. Elenita A. Corpus.
Sometime in 1991, respondent Fajardo found several falsified documents perpetrated by petitioner transferring the ownership of his property. These are:
a) Deed of Absolute Sale dated August 2, 1978 executed by and between Josefina Jacinto, as vendee, and respondent Conrado Fajardo, as vendor, involving the subject property;
b) Deed of Absolute Sale dated August 3, 1978 of a 1,000-square meter portion of the subject property conveyed by respondent to petitioner;
c) Deed of Absolute Sale dated August 6, 1978 of another 1,000-square meter portion of the same property transferred by respondent to petitioner; and
d) Deed of Absolute Sale dated August 8, 1978 involving a house and lot located on a 1,000-square meter portion of the same property transferred by respondent to petitioner.
All these documents were executed in Cabanatuan City and notarized by Atty. Primitivo B. Punzalan.
Upon investigation, respondent also found that petitioner caused the registration in her name of TCT No. 288789 issued by the Register of Deeds of Bulacan on October 11, 1984 covering another 3,000-square meter portion of the property.
Enraged by such findings, respondent, in January 1991, decided to separate from petitioner. Thereafter, he filed with the Office of the Provincial Prosecutor of Bulacan a complaint against her. In turn, the Provincial Prosecutor, finding probable cause, charged her with falsification of private documents before the Regional Trial Court (RTC), same Province.
Subsequently, respondents Conrado Fajardo and Daniel Gregorio filed with the RTC, Branch 11, Malolos, Bulacan, a complaint for nullification of the questioned Deeds of Sale, cancellation of TCT No. 288789, and damages against petitioner, docketed as Civil Case No. 276-M-91.
On July 10, 1991, respondent Conrado Fajardo died. He was substituted by his legitimate children, namely: Antonio, Conrado, Jr., Alicia, Corazon, and Leonida, all surnamed Fajardo.
On January 18, 1996, after hearing, the trial court rendered a Decision3 in favor of respondents and against petitioner. The dispositive portion reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and against the defendant:
1) Declaring the Deed of Absolute Sale executed by Josefina Jacinto and Conrado Fajardo on August 2, 1978 at Cabanatuan City null and void;
2) Declaring the three (3) Deeds of Absolute Sale executed between Conrado Fajardo and defendant on August 3, 1978 and August 6, 1978, respectively, null and void;
3) Ordering the cancellation of Transfer Certificate of Title No. T-288789 in the Register of Deeds of Bulacan and reconveyance to herein plaintiffs the property consisting of 3,000 square meters including the residential house and seven (7) door apartment;
4) Directing defendant to account for and return all the proceeds of the monthly rentals she has collected from the tenants to herein plaintiffs, substituted heirs of Fajardo;
5) Directing defendant to pay the plaintiffs, substituted heirs of Conrado Fajardo, namely: Antonio, Conrado, Jr., Alicia, Corazon and Leonida, all surnamed Fajardo:
a) the amount of P200,000.00 as actual damages;
b) the amount of P200,000.00 as moral damages;
c) the amount of P100,000.00 as exemplary damages;
d) the amount of P50,000.00 as attorney’s fees; and
e) the costs of suit.
The trial court held that the questioned documents are void, thus:
First, with respect to the alleged deed of absolute sale dated August 3, 1978, entered into between Josefina Jacinto and Conrado Fajardo, no less than the listed witness therein, Daniel Gregorio, has denounced his signature appearing in the document as a forgery to the extent that, aside from this case, he even joined the late Conrado Fajardo in charging defendant with falsification of public document before the Fiscal’s Office. Defendant practically put up nothing to refute the witness’ claim. Atty. Punzalan himself did not meet the issue head on at the witness stand, choosing instead to take the general position that the document is authentic and that the signatories all affixed their signatures in his presence. This Court finds no reason, however, to doubt the veracity of the witness. His association and relationship with the late Fajardo and Josefina Jacinto as well have been clearly established. It is plain that he came to court not take a partisan posturing but to straighten out the record, testifying in the process that the sale transaction between Fajardo and Jacinto over the same property in which he stood as witness took place in 1982.
Second, Atty. Punzalan’s notarial authority is dubious. Admittedly, at the time he allegedly notarized subject documents, he was employed with the government, specifically with the PNB (TSN, July 14, 1974, p. 23). As such, it is hardly believable that he was in a position to act upon the documents as a notary public. Lawyers in the government service, as a rule, are prohibited in engaging in the practice of notary public unless a specific written authority from the department head mandates otherwise, which appears not to be so in the instant case (TSN, ibid.). Atty. Punzalan himself cannot even account for copies of the questioned deeds of sale which is rather unusual of a notary public he claims to be. Worse, as testified to by Alicia Fajardo, upon verification from the Bureau of Archives, it was found that Atty. Punzalan has no notarial record on file with said office, with particular reference to the deeds of sale in question (TSN, A. Fajardo, December 9, 1993, p. 5). Further, the appearance in court of rebuttal witnesses (for the plaintiff), Fortunato Fajardo and Teofilo Manalaysay, denying any transaction with Atty. Punzalan in the year 1978 concerning the parcels of land they purchased from Conrado Fajardo clashes with the lawyer’s contention. With such evidence, the sham character of the disputed documents becomes increasingly clear.
Third, defendant’s act in not taking the witness stand weighs heavily against her cause. x x x, such an actuation did much in showing the weakness of her defense no less different in implication to an admission by silence as provided for in the Rules on Evidence. In the fact of the denunciations against the authenticity and integrity of the deeds of sale in her favor, her testimony was of vital importance in laying out the circumstances behind the supposed transactions, more so that her relationship with Fajardo had been brought to the fore. Without it, her cause is doomed to failure.4
On appeal, the Court of Appeals affirmed the trial court’s judgment, but with modification on the award of damages, thus:
WHEREFORE, premises considered, the appealed decision in Civil Case No. 276-M-91 is hereby AFFIRMED with MODIFICATIONS in that the award of actual damages in the sum of P200,000.00 is DELETED while the award of moral and exemplary damages are hereby REDUCED to P100,000.00 and P50,000.00, respectively.
Costs against the defendant-appellant.
Petitioner filed a Motion for Reconsideration of the appellate court’s Decision, but it was denied in its Resolution dated January 9, 2001.5
Hence, this Petition for Review on Certiorari alleging that the Court of Appeals erred:
1. In nullifying the Deed of Absolute Sale executed by Josefina Jacinto on August 2, 1978;
2. In nullifying the Deeds of Sale executed by Conrado Fajardo in favor of petitioner;
3. In ordering the cancellation of TCT No. T-288789 and the reconveyance of the subject lots to respondents; and
4. In ordering petitioner to account for and turn over the rents to respondents and to pay them damages.
Obviously, the above issues being raised by petitioner are factual in nature, the determination of which involves a review and evaluation of the evidence presented by the parties during the trial. We have consistently held that this Court is not a trier of facts and it is not its function to examine the evidence all over again.6 Basic is the rule that in a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended, as in this case, only questions of law shall be entertained since factual issues are beyond the province of this Court. Such petition will be granted only when there are special and important reasons therefor.7 Petitioner, however, utterly failed to show any of such reasons. Likewise, we have ruled that where, as here, the factual findings of the trial court are affirmed by the Court of Appeals, the same are binding and conclusive upon this Court and, generally, will not be disturbed on appeal.8 Our pronouncement in Ocampo v. Ocampo is relevant, thus:
It is a settled doctrine that in a civil case, final and conclusive are the factual findings of the trial court if supported by clear and convincing evidence on record. Usually, the Supreme Court does not review those findings ? especially when affirmed by the Court of Appeals, as in this case x x x. From the records of the present case, no cogent evidence appears that would impel us to apply the above doctrine differently. The courts below have not overlooked essential facts that, if considered, may, produce a different outcome.
WHEREFORE, we DENY the instant petition and AFFIRM the challenged Decision of the Court of Appeals in CA-G.R. CV No. 50921. Costs against petitioner.
Puno, Chairperson, Corona, Azcuna, Garcia, J.J., concur.
1 Penned by Associate Justice Martin S. Villarama, Jr. and concurred in by Associate Justice Salome A. Montoya (retired) and Associate Justice Romeo J. Callejo, Sr. (now a member of this Court), Rollo, pp. 182-187.
2 A portion of Lot 3072-A of the subdivision plan PSD-41307 of the cadastral survey of Baliuag, GLRO Cad. Rec. No. 784.
3 Rollo, pp. 91-96.
4 Id., pp. 93-94.
5 Id., p. 204.
6 Rubiato v. Heirs of Jovito Rubiato, G.R. No. 137451, July 28, 2005, 464 SCRA 296, citing Langkaan Realty Development, Inc. v. United Coconut Planters Bank, 347 SCRA 542 (2000), Lantin v. Court of Appeals, 402 SCRA 202 (2003), Heirs of William Sevilla v. Sevilla, 402 SCRA 501 (2003).
7 Central Bank of the Philippines v. Castro, G.R. No. 156311, December 16, 2005, 478 SCRA 235, 246.
8 Id., citing Ma. Consolacion Lazaro v. Hon. Court of Appeals, et al., 372 SCRA 308 (2001).
August 31, 2006
This treats of the "Petition for Annulment of Judgment" that seeks the annulment of the Decision of the Court of Appeals in CA- G.R. CV No. 44411 promulgated on 14 December 1999 and the Resolution issued on 24 February 2000 denying petitioners? motion for reconsideration.
The Court of Appeals in its Decision1 dismissed the appeal interposed by petitioners from the decision of the Regional Trial Court (RTC) of Quezon City dismissing their complaint for recovery of ownership and reconveyance of the subject property on the ground of lack of cause of action. The RTC Decision2 concluded that the subject property was covered by a Torrens title as early as 1914 and it was only in 1984, or 70 years after the issuance of the title, that petitioners filed their action for recovery of ownership and reconveyance. During the interregnum, ownership of the property was acquired by respondent University of the Philippines as an innocent purchaser for value, so the RTC found and the appellate court upheld.
Petitioners, through their former counsel, received a copy of the Court of Appeals? Decision on 28 December 1998, and a copy of the Resolution denying their motion for reconsideration on 17 March 2000. However, petitioners failed to elevate the rulings of the Court of Appeals to this Court. They claim that their former counsel had neglected to inform them of the receipt of the Resolution denying their motion for reconsideration.3 As a result, the Decision of the Court of Appeals dated 14 December 1999 became final and executory as of 12 April 2000, with the corresponding entry of judgment duly issued.4
It was only on 29 June 2001, more than a year after the appellate court?s rulings had become final, that petitioners filed with this Court the present "Petition for Annulment of Judgment," seeking the nullification of the rulings. Respondent points out that the procedure undertaken by petitioners finds no sanction under the Rules of Court.
We agree, and add more. Accordingly, we dismiss the petition.
The annulment of judgments, as a recourse, is equitable in character, allowed only in exceptional cases, as where there is no available or other adequate remedy.5 It is generally governed by Rule 47 of the 1997 Rules of Civil Procedure. Section 1 thereof expressly states that the Rule "shall govern the annulment by the Court of Appeals of judgments or final orders and resolutions in civil action of Regional Trial Courts for which the ordinary remedies of new trial, appeal, petition for relief or other appropriate remedies are no longer available through no fault of the petitioner."6 Clearly, Rule 47 applies only to petitions for the nullification of judgments rendered by regional trial courts filed with the Court of Appeals. It does not pertain to the nullification of decisions of the Court of Appeals.
Petitioners argue that although Rule 47 is a newly-established rule, the procedure of annulment of judgments has long been recognized in this jurisdiction. That may be so, but this Court has no authority to take cognizance of an original action for annulment of judgment of any lower court. The only original cases cognizable before this Court are "petitions for certiorari, prohibition, mandamus, quo warranto, habeas corpus, disciplinary proceedings against members of the judiciary and attorneys, and cases affecting ambassadors, other public ministers and consuls."7 Petitions for annulment of judgment are not among the cases originally cognizable by this Court.
Moreover, if what is desired is an appeal from a decision of the Court of Appeals, which petitioners could have been entitled to under ordinary circumstances, the only mode of appeal cognizable by this Court is "a petition for review on certiorari."8 That is governed by and disposed of in accordance with the applicable provisions of the Constitution, laws, Rules 45; 48; Sections 1, 2, and 5 to 11 of Rules 51; 52; and 56.9 Notably, Rule 47 on annulment of judgments has nothing to do with the provisions which govern petitions for review on certiorari. Thus, it is totally inappropriate to extend Rule 47 to the review of decisions of the Court of Appeals. Then too, appeals by certiorari to this Court must be filed within fifteen (15) days from notice of the judgment or the final order or resolution appealed from.10 Even if we were to treat the petition for annulment of judgment as an appeal by certiorari, the same could not be given due course as it had been filed several months after the Court of Appeals decision had already lapsed to finality.
Admittedly, this Court has discretionary power to take cognizance of a petition over which it ordinarily has no jurisdiction "if compelling reasons, or the nature and importance of the issues raised, warrant the immediate exercise of its jurisdiction."11 Hence, in Del Mar v. Phil. Amusement and Gaming Corp.,12 the Court took cognizance of an original petition for injunction after determining that the allegations therein revealed that it was actually one for prohibition. We, however, cannot adopt that tack for purposes of this case. Ostensibly, even if the averments in the present petition sufficiently present the existence of grave abuse of discretion amounting to lack or excess of jurisdiction and on that basis it could be treated as a special civil action for certiorari under Rule 65, still it could not be given due course since it was filed way beyond the period for filing such special civil action. Moreover, certiorari can only lie if there is no appeal, nor any plain, speedy and adequate remedy in the ordinary course of law.
Our ruling in Alabanzas v. Intermediate Appellate Court13 bears citation. Counsel for private respondent therein failed to file the appellant?s brief with the Court of Appeals. The lapse led to the dismissal of the appeal and the subsequent finality of the lower court judgment. Disallowing the annulment of judgment sought by private respondent on the ground of negligence of her lawyer, this Court held:
It is well-settled that once a decision becomes final and executory, it is removed from the power or jurisdiction of the Court which rendered it to further amend, much less revoke it (Turquieza v. Hernando, 97 SCRA 483 ; Heirs of Patriaca v. CA, 124 SCRA 410 ; Javier v. Madamba, Jr., 174 SCRA 495 ; Galindez v. Rural Bank of Llanera, Inc., 175 SCRA 132 ; Olympia International, Inc. v. CA, 180 SCRA 353 ). Decisions which have long become final and executory cannot be annulled by courts (United CMC Textile Workers Union v. Labor Arbiter, 149 SCRA 424 ) and the appellate court is deprived of jurisdiction to alter the trial court’s final judgment (Carbonel v. CA, 147 SCRA 656 ; Republic v. Reyes, 155 SCRA 313 ).
The doctrine of finality of judgment is grounded on fundamental considerations of public and sound practice that at the risk of occasional error, the judgments of the courts must become final at some definite date set by law (Turquieza v. Hernando, supra; H[e]irs of Patriaca v. CA, supra; Edra v. Intermediate Appellate Court, 179 SCRA 344 ). Reopening of a case which has become final and executory is disallowed (Philippine Rabbit Bus Lines, Inc. v. Arciaga, 148 SCRA, [sic] 433 ; Edra v. Intermediate Court, supra.). The subsequent filing of a motion for reconsideration cannot disturb the finality of a judgment and restore jurisdiction which had already been lost (Pfleider v. Victorino, 98 SCRA 491 ; Heirs of Patriaca v. CA, supra).
After the judgment has become final, no addition can be made thereto and nothing can be done therewith except its execution; otherwise, there can be no end to litigation, thus setting at naught the main role of Courts of Justice, which is to assist in the enforcement of the rule of law and the maintenance of peace and order, by settling justiciable controversies with finality (Farescal Vda. de Emnas v. Emnas, 95 SCRA 470 ; Heirs of Patriaca v. CA, supra).
Moreover, it is an equally well-settled rule that the client is bound by his counsel’s conduct, negligence and mistake in handling the case, and the client cannot be heard to complain that the result might have been different had his lawyer proceeded differently (Vivero v. Santos, 52 O.G. 1424; Tupas v. CA, 193 SCRA 597).
It is only in case of gross or palpable negligence of counsel when the courts must step in and accord relief to a client who suffered thereby. (Legarda v. CA, 195 SCRA 418). In the present case, the private respondents have not shown such carelessness or negligence in their lawyer’s discharge of his duties to them as to justify a deviation from the rule that “clients should be bound by the acts of their counsel, including his mistakes.”14
Petitioners cite quite a few cases in support of their claim that the purported negligence of their former counsel sufficiently justifies the annulment of the judgment of the Court of Appeals. We are not impressed. Only Apex Mining, Inc. v. Court of Appeals15 involved a petition for annulment of judgment but the petition therein was regular and in order, assailing as it did a decision of the Regional Trial Court before the Court of Appeals. Unlike in Apex, the present petition is bereft of mooring under procedural law. Hence, Apex is not a governing precedent in this case.
It is also worthy of note that the challenge to the decisions of the Court of Appeals and the RTC ultimately involve questions of fact, even necessitating an examination of the boundaries of the subject property. Both the RTC and the Court of Appeals arrived at common findings on all decisive factual issues, and the Court is not wont to engage in another factual review. The original complaint was filed in 1984 and the judgment dismissing the complaint became final and executory in 2001. There is a need to lay the matter to rest once and for all. Entertaining the present petition, which bears no approbation under the Rules of Court in the first place, defeats the ends of justice and the principle of finality of judgment.
A last note. Since the filing of the petition, a collateral issue has arisen between the counsel who originally filed the petition in behalf of petitioners and the new counsel who subsequently entered his appearance allegedly in behalf of all petitioners. The former counsel had sought to record a contingent contract she had earlier forged with petitioners, assuring her of around one-third (1/3) of the value of the "recovery by petitioners in this case" as her contingent fee. This motion was opposed by the new counsel. No action need be taken on the motion, it having been mooted by this Decision. With the dismissal of the petition and reaffirmance of the final and executory judgment against petitioners, any inquiry into the contingent fee agreement has become a purely theoretical exercise.
WHEREFORE, the petition is DISMISSED. Costs against petitioners.
Quisumbing, Chairperson, Carpio, Carpio-Morales, Velasco, Jr., J.J., concur.
* Petitioner Estanislao Quibal, representing the heirs of Rosita Grande-Quibal, is also identified as Estanislao Quibial, representing the heirs of Rosita-Qubial, in the decisions of the Court of Appeals and Regional Trial Court of Quezon City.
1 Decision and Resolution penned by Associate Justice C. Ibay-Somera, concurred in by Associate Justices O. Agacaoli and M. Umali; rollo, pp. 20-106..
2 Penned by Judge Godofredo L. Legaspi; rollo, pp. 110-134.
3 Rollo, pp. 3-4.
4 Id. at 223.
5 Barco v. Court of Appeals, G.R. No. 120587, 20 January 2004, 420 SCRA 162.
6 See 1997 Rules of Civil Procedure, Rule 47, Sec. 1.
7 1997 Rules of Civil Procedure, Rule 56, Sec. 1.
8 See 1997 Rules of Civil Procedure, Rule 56, Sec. 3.
9 See 1997 Rules of Civil Procedure, Rule 56, Sec. 4.
10 See 1997 Rules of Civil Procedure , Rule 45, Sec. 2.
11 See Del Mar v. Phil. Amusement and Gaming Corp., 400 Phil. 307, 326-327 (2000).
13 G.R. No. 74679, 29 November 1991, 204 SCRA 304.
14 Id. at 307-309.
15 377 Phil. 482 (1999).
August 31, 2006
This petition for review on certiorari1 seeks to reverse the Decision2 promulgated on 19 June 2001 of the Court of Appeals in CA-G.R. SP No. 59269. The Court of Appeals affirmed the Resolution and Order of Judge Marcial G. Empleo ("Judge Empleo") of the Regional Trial Court of Dipolog City, Branch 9 ("trial court"), directing the prosecutor to amend the two Informations filed by filing only a single Information.
On 6 October 1999, a search warrant3 was issued for the search and seizure of shabu and paraphernalia at the room rented by private respondent Dante Mah ("private respondent") at the LS Lodge located at the corner of Quezon Avenue and Mabini Street in Dipolog City.
During the search, the police officers seized the following from private respondent’s room:
1. Thirty-two small plastic sachets containing white crystalline granules believed to be shabu, weighing 2 grams;
2. Six big plastic sachets containing white crystalline granules believed to be shabu, weighing 4.4 grams;
3. One roll/stick of dried Indian hemp ("marijuana") leaves weighing 0.2 gram; and
4. One small plastic sachet containing white crystalline granules believed to be shabu, weighing 0.05 grams.4
Police Superintendent Virgilio T. Ranes, Dipolog City Chief of Police, filed two criminal complaints for violation of Section 8, Article II and Section 16, Article III of Republic Act No. 64255 (RA 6425), as amended, against private respondent. After preliminary investigation, State Prosecutor Rodrigo T. Eguia filed two Informations before the Regional Trial Court in Dipolog City:
Criminal Case No. 9272
The undersigned Prosecutor of Region 9 accuses DANTE MAH y Cabilin of the crime of VIOLATION OF SECTION 16, ARTICLE III of R.A. 6425, as amended, committed as follows:
That on October 6, 1999 at 10:30, more or less at corner Quezon Avenue and Mabini Streets, Barra, Dipolog City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, knowing fully well that unauthorized possession and control of regulated drug is punishable by law, did then and there willfully, unlawfully and feloniously have in his possession and control Thirty Two (32) pieces small plastic sachets and six (6) pieces big plastic sachet containing Methamphetamine Hydrochloride, more popularly known as "shabu," weighing a total of 6.4 grams, without any legal authority to possess the same, in gross Violation of Section 16, Article III, of R.A. 6425, as amended.
CONTRARY TO LAW.6
Criminal Case No. 9279
The undersigned State Prosecutor of Region 9 accuses DANTE MAH y Cabilin alias "Dodoy Mah" of the crime of "Violation of Section 8, Article II of Republic Act No. 6425, as amended", committed as follows:
That on October 6, 1999 at 10:30 in the morning, more or less, at corner Quezon Avenue and Mabini Streets, Barra, Dipolog City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, knowing fully well that possession and use of prohibited drugs is punishable by law, did then and there willfully, unlawfully and feloniously have in his possession and control One (1) roll/stick dried marijuana leaves, without legal authority to possess the same, in gross Violation of Section 8, Article II of Republic Act No. 6425, as amended.
CONTRARY TO LAW.7
Upon his arraignment on 28 October 1999, private respondent pleaded not guilty to the two charges.
On 17 February 2000, private respondent filed a motion8 to dismiss Criminal Case No. 9279. Private respondent alleged that the single act of possession of drugs committed at the same time and at the same place cannot be the subject of two separate Informations. Since the prosecution already filed Criminal Case No. 9272, then the filing of Criminal Case No. 9279 is tantamount to splitting a single cause of action into two separate cases.
The prosecution opposed the motion, claiming that unauthorized possession of marijuana and shabu are punishable under Section 8, Article II and Section 16, Article III of RA 6425. Hence, these acts constitute two separate and distinct offenses with separate penalties.9
In a Resolution10 dated 3 April 2000, Judge Empleo directed the prosecutor to file only a single Information. The Resolution reads in part:
It is to be noted that the stuffs, "SHABU" and Marijuana Leaves are all prohibited and regulated drugs. But what is important is that the search and seizure was done at one time, the same place and at one occasion. Hence, there could be no two crimes committed, regardless of the two kinds of prohibited/regulated drugs that were confiscated from the accused. There is in this case a clear case of splitting one single criminal act into two separate crimes.
Considering, however, that the penalty of this kind of offenses are based on the number of grams of the regulated/prohibited drugs, instead of having these cases dismissed, the Office of the City Prosecutor of Dipolog City is hereby directed to amend its information by filing one single information.11
The prosecution filed a motion for reconsideration,12 arguing that violation of any of the provisions of RA 6425 constitutes a separate and distinct offense. The prosecution maintained that private respondent cannot be charged with violating Articles II and III of RA 6425 in one Information because that would be tantamount to charging him with more than one offense in a single Information. The trial court denied the motion in an Order13 dated 2 May 2000.
Petitioner filed a petition for certiorari with the Court of Appeals, which dismissed the petition. Hence this petition.
Meanwhile, in an Order14 dated 12 May 2000, the trial court suspended further proceedings in Criminal Case Nos. 9272 and 9279 pending resolution of the petition. However, in a Resolution15 dated 27 April 2004, the trial court, upon private respondent’s motion, dismissed Criminal Case Nos. 9272 and 9279 for unreasonable delay in the prosecution of the cases which is violative of the right of the accused to speedy trial.16 Upon the prosecution’s motion for reconsideration, the trial court issued an Order17
dated 17 June 2004, setting aside its Resolution dated 27 April 2004 and reinstating Criminal Case Nos. 9272 and 9279, with the proceedings still suspended pending outcome of the appeal in the Supreme Court.
The Ruling of the Court of Appeals
In a Decision promulgated on 19 June 2001, the Court of Appeals affirmed the Order and Resolution of the trial court. The Court of Appeals held that the filing of only one Information is proper because only one violation was committed ? possession of dangerous drugs as penalized by RA 6425. The Court of Appeals ruled that:
In the case at bar, such intent to possess is the possession of a dangerous drug, however, without regard to the kind of substance involve[d], since both pertain to dangerous drugs, provided it will be duly established during trial, it shall make the accused liable for a violation of the Dangerous Drugs Act. As the possession of the dangerous drugs happened at the same time, same occasion, same place, it cannot be denied that only one violation [was] committed under the Dangerous Drugs Act, which is the possession of dangerous drugs. It is not controverted that at the time of the apprehension, what was found in his possession were [a] "marijuana" and "shabu." We shall not discount the fact that the circumstances surrounding the search and seizure point to none other but a single intent to possess a dangerous drug; not to mention that there is only one occasion, as compared to other cases wherein the alleged offense happened on different occasions, that with respect to the latter situation clearly it may not be said [that] there is only one intent. It can be inferred from the action of the accused and the surrounding circumstances that there was clearly one act intended by the former to perpetrate; it is apparent, that the accused seems to have a single intention, which is his intention to possess the said dangerous drugs. Thus, not just because it involves two different kinds of dangerous drugs make the said act to constitute two offenses. As has been repeatedly said by this Court, dangerous drugs refer to both prohibited and regulated drug.
x x x x
Petitioner contends that since there are two acts of possession, one is possession of a prohibited drug and the other is possession of a regulated drug, for that reason, there are two separate offenses that the accused may be held liable for. Petitioner puts forward the argument that it is immaterial that the "marijuana" and "shabu" were seized in the same place and on the same occasion. Petitioner further asserts that since two separate provisions of the Dangerous Drugs Act were violated, concomitantly, herein private respondent may be held liable for two distinct crimes under the said law. We hold otherwise. A careful look into the Dangerous Drugs Act would show that it specified the manner of commission of the particular acts that would amount to a violation of the said law, and one of which is the possession or use of a prohibited or regulated drug. Although the law has provided for two separate articles covering the possession or use of a prohibited and a regulated drug, it does not mean that there are two separate offenses that it speaks of. What the Dangerous Drugs Act penalizes is the specific act of possession or use of dangerous drugs, among others, regardless of the fact that it is a prohibited or a regulated drug.18 (Emphasis in the original)
The main issue in this case is whether the prosecution should file only one Information for illegal possession of shabu and marijuana.
The Ruling of the Court
The petition is meritorious.
The Court of Appeals affirmed the Order and Resolution of the trial court that the prosecution should file only one Information. The Court of Appeals held that where possession of both prohibited and regulated drugs occurs at the same time, on the same occasion, and in the same place, only one offense is committed under RA 6425, which is possession of dangerous drugs.
We cannot subscribe to the appellate court’s ruling. Such interpretation dilutes the severity of the crimes committed. RA 6425 does not prescribe a single punishment for the various offenses enumerated in the law. On the contrary, RA 6425 enumerates the punishable acts and its corresponding penalty. RA 6425 also specifies the particular drugs and the corresponding quantity in the imposition of penalty. For instance, under Section 20 of RA 6425, as amended, the minimum quantity of marijuana and shabu for purposes of imposing the maximum penalties are not the same. For marijuana, the quantity must be 750 grams or more while for shabu, it is 200 grams or more.
The prosecution was correct in filing two separate Informations for the crimes of illegal possession of shabu and illegal possession of marijuana. Clearly, the Legislature did not intend to lump these two separate crimes into just one crime of "possession of dangerous drugs." Otherwise, there would be no need to specify the different kinds of drugs and the corresponding quantity in the application of the appropriate penalty. Multiple offenses can be committed under RA 6425 even if the crimes are committed in the same place, at the same time, and by the same person. Thus, this Court has upheld rulings of the lower courts convicting an accused charged with two separate crimes of illegal possession of shabu and illegal possession of marijuana, even if the crimes were committed at the same time and in the same place.19
Besides, in People v. Tira, we have already ruled that illegal possession of shabu and marijuana constitutes two separate crimes and therefore, two Informations should be filed. We held:
The trial court convicted the appellants of violating Section 16, in relation to Section 20, of Rep. Act No. 6425, as amended. The Office of the Solicitor General (OSG) asserts that the appellants should be convicted of violating Section 8 of Rep. Act No. 6425, as amended. We do not agree with the trial court and the OSG. We find and so hold that the appellants are guilty of two separate crimes: (a) possession of regulated drugs under Section 16, in relation to Section 20, of Rep. Act No. 6425, as amended, for their possession of methamphetamine hydrochloride, a regulated drug; and, (b) violation of Section 8, in relation to Section 20 of the law, for their possession of marijuana, a prohibited drug. Although only one Information was filed against the appellants, nevertheless, they could be tried and convicted for the crimes alleged therein and proved by the prosecution. In this case, the appellants were charged for violation of possession of marijuana and shabu in one Information which reads:
"That on or about March 9, 1998, in the Municipality of Urdaneta, province of Pangasinan, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together, did then and there willfully, unlawfully and feloniously have in their possession, control and custody the following:
- Three (3) pieces (sic) sachets of shabu
- Six (6) pieces opened sachets of shabu residue
- One (1) brick of dried marijuana leaves weighing 721 grams
- Twenty-four (24) tea bags of dried marijuana leaves weighing 86.3 grams
- Six  disposable lighter
- One (1) roll Aluminum foil
- Several empty plastics (tea bag)
- Cash money amounting to P12,536.00 in different denominations believed to be proceeds of the contraband.
without first securing the necessary permit/license to posses[s] the same.
CONTRARY to Sec. 8, in relation to Sec. 20 of R.A. 6425, as amended."
The Information is defective because it charges two crimes. The appellants should have filed a motion to quash the Information under Section 3, Rule 117 of the Revised Rules of Court before their arraignment. They failed to do so. Hence, under Rule 120, Section 3 of the said rule, the appellants may be convicted of the crimes charged.20
Just like Tira, this case involves illegal possession of both shabu and marijuana. Hence, it was only proper for the prosecution to file two separate Informations since there were two distinct and separate crimes involved. This is in accordance with the rule that a complaint or information must charge only one offense, except when the law prescribes a single punishment for various offenses.21
WHEREFORE, we SET ASIDE the Decision promulgated on 19 June 2001 of the Court of Appeals. We ANNUL the Resolution and the Order, dated 3 April 2000 and 2 May 2000, respectively, of the Regional Trial Court of Dipolog City, Branch 9. We ORDER Judge Marcial G. Empleo to continue with the proceedings in Criminal Case Nos. 9272 and 9279.
Quisumbing, Chairperson, Carpio-Morales, Tinga, Velasco, Jr., J.J., concur.
1 Under Rule 45 of the 1997 Rules of Civil Procedure.
2 Penned by Associate Justice Teodoro P. Regino, with Associate Justices Mercedes Gozo-Dadole and Josefina Guevara-Salonga, concurring.
3 Rollo, p. 47.
4 Id. at 51.
5 Known as "The Dangerous Drugs Act of 1972."
6 Rollo, p. 52.
7 Id. at 54.
8 Id. at 57-60.
9 Id. at 61-62.
10 Id. at 63-66.
11 Id. at 65-66.
12 Records, pp. 27-28.
13 Rollo, p. 68.
14 Records, p. 32.
15 Id. at 104-106.
16 The trial court noted that private respondent has been detained since 6 October 1999. The trial court stated that there is no showing whether the prosecution indeed elevated the case to the Supreme Court.
17 Records, pp. 148-150.
18 Rollo, pp. 39-41.
19 See Gutang v. People, 390 Phil. 805 (2000); People v. Crespo, 352 Phil. 57 (1998).
20 G.R. No. 139615, 28 May 2004, 430 SCRA 134, 153-154.
21 See Rules of Court, Rule 110, Sec. 13.
August 31, 2006
This is a Petition For Review on certiorari under Rule 45 of the 1997 Rules of Court, as amended, seeking to set aside a Decision1 of the Court of Appeals dated 21 November 2000 finding the petitioner liable for the illegal dismissal of the respondents. The Court of Appeals in its assailed Decision reversed the Decision2 of the National Labor Relations Commission (NLRC) dated 8 June 1998 affirming the Decision3 of the Labor Arbiter in Case No. 08-05365-96 dated 11 July 1997.
Petitioner Aboitiz Haulers, Inc. is a domestic corporation principally engaged in the nationwide and overseas forwarding and distribution of cargoes.4
Private respondents Monaorai Dimapatoi, Cecilia Agawin, Raul Mamate, Emmanuel Guerrero and Gemeniano Bigaw worked as checkers in the Mega Warehouse, which is owned by the petitioner, located at the Tabacalera Compound, United Nations Avenue, Manila.5
The parties rendered conflicting recital of facts.
Petitioner claims that respondents are not its employees, rather they are the employees of Grigio Security Agency and General Services (Grigio), a manpower agency that supplies security guards, checkers and stuffers. It allegedly entered into a Written Contract of Service with Grigio on 1 March 1994. By virtue of the aforementioned Written Contract of Service, Grigio supplied petitioner with security guards, checkers and stuffers for petitioner?s Mega Warehouse. The respondents were among the checkers that were assigned to the petitioner?s warehouse.6
Petitioner emphasizes that Grigio retained control over the respondents by providing their own supervisors to oversee Grigio?s personnel, as well as time cards to monitor the attendance of its personnel.7
Petitioner also alleges that on 9 May 1996, the respondents left the warehouse and did not report to work thereafter. As a result of the respondents? sudden abandonment of their work, there was no orderly and proper turnover of papers and other company property in connection with the termination of the Written Contract for Services.8
Respondents, on the other hand, claim that most of them worked as checkers in petitioner?s warehouse even before 1 March 1994. They started to work in the warehouse on the dates hereunder provided9:
Date of Employment
1. Monaorai Dimapatoi
15 September 1992
2. Ma. Cecilia Agawin
3. Raul Mamate
15 May 1992
4. Emmanuel Guerrero
15 November 1992
5. Gemeniano Bigaw
15 December 1992
Respondents maintain that during their employment with the petitioner, they were not paid their regular holiday pay, night shift differential, 5-day service incentive leave, and overtime premium. They also averred that illegal deductions were being made on their wages, particularly the contributions for a Mutual Assistance Fund, a Cash Bond, and claims for damaged and misrouted cargoes incurred by petitioner.10
Respondents allege that on 15 May 1996, petitioner dismissed them on the pretext that the Written Contract of Service between Grigio and the petitioner had been terminated. To controvert the allegations of the petitioner that respondents did not report for work starting 9 May 1996, the respondents presented a copy of the pertinent pages of the logbook which served as their daily time record. Respondents also presented a Certification issued by petitioner?s Warehouse Supervisor in favor of respondent Monaorai Dimapatoi affirming that she worked with the Petitioner as a Warehouse Checker and Document Clerk until 15 May 1996.11
On 17 May 1996, respondent Raul Mamate filed a complaint before the Department of Labor and Employment (DOLE) for nonpayment of wages and other benefits, as well as illegal deductions. The other respondents filed their own complaints. Since the claims of the respondents exceeded Five Thousand Pesos (P5,000.00), the case was referred to the NLRC. Thereafter, respondents filed their complaint for illegal dismissal and other money claims before the Arbitration Branch of the NLRC.12
In a Decision, dated 11 July 1997, the labor arbiter ruled that the complainants? failure to offer any evidence showing that Grigio had no substantial capital denotes that Grigio was a legitimate independent job contractor. Thus, the employer-employee relationship existed between Grigio and the respondents, not between the petitioner and the respondents. Nevertheless, petitioner and Grigio were held solidarily liable for the unpaid wages of the respondents. The labor arbiter also ruled that the respondents were not illegally dismissed by Grigio. Of the money claims made by the respondents, the labor arbiter granted five-day Service Incentive Leave Pay and the proportionate 13th month pay for the year 1996.13 The dispositive portion of the said Decision14 is quoted hereunder:
PREMISES CONSIDERED, respondent GRIGIO SECURITY AGENCY AND GENERAL SERVICES and ABOITIZ HAULERS, INC. are hereby ordered to jointly and severally pay complainants herein the total amount of TWENTY-FIVE THOUSAND EIGHTY-FIVE (P25,085.00) PESOS, as discussed above.
On appeal, the NLRC affirmed the findings of the labor arbiter, modifying the appealed decision only insofar as the award of service leave pay for the year 1996 was made to apply to the entire period from 1993 to 1996. An error in computing respondent Dimapatoi?s proportionate 13th month pay was also noted.15 The dispositive portion of the said Decision16 dated 8 June 1998 reads:
WHEREFORE, the decision of the Labor Arbiter dated July 11, 1997 is hereby MODIFIED. Respondents Grigio Security Agency and General Services and Aboitiz Haulers, Inc. are ordered jointly and severally to pay each of the complainants the amount of SIX THOUSAND SEVEN HUNDRED TWENTY-SEVEN PESOS (P6,727.00) representing their unpaid wages for the period April 22 to May 6, 1996, proportionate 13th month pay, and fifteen (15) days service incentive leave pay for the period 1993-1996.17
A Motion for Reconsideration was filed by the respondents, but the same was denied by the NLRC in an Order dated 29 September 1998.18
The respondents filed an appeal by Certiorari under Rule 65 of the 1997 Rules of Court. In a Decision dated 21 November 2000, the Court of Appeals granted their Petition. The dispositive portion of said Decision reads:
WHEREFORE, the petition is GRANTED and the assailed decision of the NLRC dated June 8, 1998 in so far as it affirmed the decision of the Labor Arbiter dated July 11, 1997 finding no illegal dismissal is SET ASIDE. Respondent AHI is ordered to REINSTATE petitioners with full status and rights of regular employees and to PAY, along with respondent Grigio, jointly and severally, unto petitioners: (a) full back wages and other benefits computed from the time their compensations were withheld up to the time of their actual reinstatement, as provided for under Art. 279, Labor Code; (b) separation pay, in case reinstatement is no longer viable; (c) the amount of P6,727.00 representing the individual petitioners? Service Incentive Leave pay for the period 1993-1996, proportionate 13th month pay, and withheld wages; (d) attorney?s fees equivalent to ten (10%) percent of all money claims hereby awarded; and (e) the costs of this suit.19
In reversing the factual findings of the NLRC and the labor arbiter, the Court of Appeals determined that Grigio was not an independent job contractor, despite its claim that it has sufficient capital. Grigio does not carry on an independent business, since the respondents? work as warehouse checkers is necessary and desirable to the petitioner?s business of forwarding and distribution of cargoes. Grigio also does not undertake the performance of its contract free from the control and supervision of its principal since respondents? work is performed in the petitioner?s warehouse under the direct supervision and control of the petitioner?s officials.
After ruling that petitioner was the employer of the respondents, the Court of Appeals resolved that the respondents were illegally dismissed by the petitioner since the latter failed to comply with the procedural requirements of notice and hearing. Thus, it awarded back wages and separation pay, if reinstatement was no longer possible, in favor of the respondents.
The Court of Appeals, however, affirmed the NLRC and the labor arbiter in deciding that the respondents were not entitled to their claims for payment of holiday pay, night shift differentials, overtime and illegal deductions as these claims were not sufficiently proven. It likewise ruled that respondents were only entitled to the Service Incentive Leave Pay, proportionate 13th month pay, and unpaid wages.
The petitioner filed a Motion for Reconsideration of the Decision dated 21 November 2000 rendered by the Court of Appeals. On 15 June 2001, the Court of Appeals issued a Resolution denying their motion.20
Hence this petition, wherein petitioner raised the following assignment of errors:
THE COURT OF APPEALS ERRED IN HOLDING THAT GRIGIO IS NOT AN INDEPENDENT JOB CONTRACTOR.
THE COURT OF APPEALS ERRED IN HOLDING THAT THE RESPONDENTS ARE EMPLOYEES OF HEREIN PETITIONER.
THE COURT OF APPEALS ERRED IN HOLDING THAT RESPONDENTS ARE NOT GUILTY OF ABANDONMENT.21
The issues that need to be resolved in this case are factual in nature ? (1) whether or not Grigio is a "labor-only" contractor; and (2) whether the respondents were lawfully dismissed due to abandonment. Under Rule 45 of the 1997 Rules of Court, this Court?s review of decisions is confined to questions of law. Generally, the findings of fact made by the labor arbiter and the NLRC, as the specialized agencies presumed to have the expertise on matters within their respective fields, are accorded much respect and even finality, when supported by ample evidence.22 However, when the findings of the labor arbiter and the NLRC are contrary to the evidence on record, this Court shall lay aside such erroneous findings.23
The first issue that needs to be resolved is whether Grigio is a "labor-only" contractor, which is tantamount to a finding that the petitioner is the employer of the respondents.
Article 106 of the Labor Code24 explains the relations which may arise between an employer, a contractor and the contractor?s employees thus:
ART. 106. Contractor or subcontractor. ? Whenever an employer enters into a contract with another person for the performance of the former?s work, the employees of the contractor and of the latter?s subcontractor, if any, shall be paid in accordance with the provisions of this Code.
In the event that the contractor or subcontractor fails to pay the wages of his employees in accordance with this Code, the employer shall be jointly and severally liable with his contractor or subcontractor to such employees to the extent of the work performed under the contract in the same manner and extent that he is liable to employees directly employed by him.
The Secretary of Labor may, by appropriate regulations, restrict or prohibit the contracting out of labor to protect the rights of workers established under this Code. In so prohibiting or restricting, he may make appropriate distinctions between labor only contracting and job contracting as well as differentiations within these types of contracting and determine who among the parties involved shall be considered the employer for purposes of this Code, to prevent any violation or circumvention of any provision of this Code.
There is "labor-only" contracting where the person supplying workers to an employer does not have substantial capital or investment in the form of tools, equipment, machineries, work premises, among others, and the workers recruited and placed by such persons are performing activities which directly related to the principal business of such employer. In such cases, the person or intermediary shall be considered merely as an agent of the employer who shall be responsible to the workers in the same manner and extent as if the latter were directly employed by him.
The first two paragraphs of Art. 106 set the general rule that a principal is permitted by law to engage the services of a contractor for the performance of a particular job, but the principal, nevertheless, becomes solidarily liable with the contractor for the wages of the contractor?s employees. The third paragraph of Art. 106, however, empowers the Secretary of Labor to make distinctions between permissible job contracting and "labor-only" contracting, which is a prohibited act further defined under the last paragraph. A finding that a contractor is a "labor-only" contractor is equivalent to declaring that there is an employer-employee relationship between the principal and the employees of the supposed contractor, and the "labor-only" contractor is considered as a mere agent of the principal, the real employer.25 Section 7 of the Rules Implementing Articles 106 to 109 of the Labor Code, as amended,26 reiterates the rules in determining the existence of employer-employee relationship between employer, contractor or subcontractor, and the contractor?s or subcontractor?s employee.
Section 7. Existence of an employer-employee relationship. ? The contractor or subcontractor shall be considered the employer of the contractual employee for purposes of enforcing the provisions of the Labor Code and other social legislation. The principal, however, shall be solidarily liable with the contractor in the event of any violation of any provision of the Labor Code, including the failure to pay wages.
The principal shall be deemed the employer of the contractual employee in any of the following cases, as declared by a competent authority:
a. where there is a labor-only contracting; or
b. where the contracting arrangement falls within the prohibitions provided in Section 6 (Prohibitions) hereof.
In determining whether or not a "labor-only" contracting exists, Art. 106 of the Labor Code and Section 5 of the Rules Implementing Articles 106 to 109 of the Labor Code, as amended,27 provides the following criteria: (1) where the person supplying workers to an employer does not have substantial capital or investment in the form of tools, equipment, machineries, work premises, among other things; (2) the workers recruited and placed by such persons are performing activities which are directly related to the principal business of such employer; and (3) the contractor does not exercise the right to control the performance of the work of the contractual employee. In order that one is considered by law as a "labor-only" contractor, all three aforementioned criteria need not be present. If the contractor enters into an arrangement characterized by any one of the criteria provided, this would be a clear case of "labor-only contracting." The clear phrasing of Section 5 of the Rules Implementing Articles 106 to 109 of the Labor Code, as amended, support this interpretation.
Section 5. Prohibition against labor-only contracting. ? Labor-only contracting is hereby declared prohibited. For this purpose, labor-only contracting shall refer to an arrangement where the contractor or subcontractor merely recruits, supplies or places workers to perform a job, work or service for a principal, and any of the following elements are [is] present:
i) The contractor or subcontractor does not have substantial capital or investment which relates to the job, work or service to be performed and the employees recruited, supplied or placed by such contractor or subcontractor are performing activities which are directly related to the main business of the principal; or
ii) the contractor does not exercise the right to control over the performance of the work of the contractual employee.
The forgoing provisions shall be without prejudice to the application of Article 248 (C) of the Labor Code, as amended.
"Substantial capital or investment" refers to capital stocks and subscribed capitalization in the case of corporations, tools, equipment, implements, machineries and work premises, actually and directly used by the contractor or subcontractor in the performance or completion of the job, work or service contracted out.
The "right to control" shall refer to the right reserved to the person for whom the services of the contractual workers are performed, to determine not only the end to be achieved, but also the manner and means to be used in reaching that end.
The allegation of the petitioner that Grigio is an independent job contractor, and, therefore, this case is one of permissible job contracting, is without basis. In this case, the respondents? work, as warehouse checkers, is directly related to the principal business of the petitioner. Petitioner also exercises the right to control and determines not only the end to be achieved, but also the manner and means to be used in reaching that end. Lastly, petitioner failed to sufficiently prove that Grigio had "substantial capital or investment."
The respondents, as checkers, were employed to check and inspect these cargoes,28 a task which is clearly necessary for the petitioner?s business of forwarding and distributing of cargoes. The petitioner did not dispute the fact that the respondents were hired as checkers as early as 1992. The fact that they were employed before the Written Contract of Services took effect on 24 February 1994, and continued with their jobs until 1996, after the said contract had already expired on 24 February 1995,29 indicates that the respondents? work was indeed necessary for the petitioner?s business. In a similar case, Guarin v. National Labor Relations Commission,30 the workers? contracts were repeatedly renewed to perform services necessary for the employer?s business. Thus, the Court described the arrangement as "labor-only" contracting:
The jobs assigned to the petitioners as mechanics, janitors, gardeners, firemen and grasscutters were directly related to the business of Novelty as a garment manufacturer. In the case of Philippine Bank of Communications vs. NLRC, 146 SCRA 347, we ruled that the work of a messenger is directly related to a bank?s operations. In its Comment, Novelty contends that the services which are directly related to manufacturing garments are sewing, textile cutting, designs, dying, quality control, personnel, administration, accounting, finance, customs, delivery and similar other activities; and that allegedly, "it is only by stretching the imagination that one may conclude that the services of janitors, janitresses, firemen, grasscutters, mechanics and helpers are directly related to the business of manufacturing garments" (p. 78, Rollo). Not so, for the work of gardeners in maintaining clean and well-kept grounds around the factory, mechanics to keep the machines functioning properly, and firemen to look out for fires, are directly related to the daily operations of a garment factory. That fact is confirmed by Novelty?s rehiring the workers or renewing the contract with Lipercon every year from 1983 to 1986, a period of three (3) years.
As Lipercon was a "labor-only" contractor, the workers it supplied Novelty became regular employees of the latter.
Where the employees are tasked to undertake activities usually desirable or necessary in the usual business of the employer, the contractor is considered as a "labor-only" contractor and such employees are considered as regular employees of the employer.31
In addition, Grigio did not undertake the performance of its service contract according to its own manner and method, free from the control and supervision of its principal. The work activities, work shifts, and schedules of the respondents, including the time allowed for "recess" were set under the Written Contract of Services.32 This clearly indicates that these matters, which consist of the means and methods by which the work is to be accomplished, were not within the absolute control of Grigio. By stipulating these matters in a contract, Grigio is constrained to follow these provisions and would no longer be able to exercise the freedom to alter these work shifts and schedules at its own convenience. Such being the case, Grigio cannot be considered as an independent job contractor.
Petitioner?s allegation that Grigio retained control over the respondents by providing supervisors to monitor the performance of the respondents cannot be given much weight. Instead of exercising their own discretion or referring the matter to the officers of Grigio, Grigio?s supervisors were obligated to refer to petitioner?s supervisors any discrepancy in the performance of the respondents with their specified duties. The Written Contract of Services33 provided that:
5.c. That the GRIGIO personnel, particularly the supervisors, shall perform the following:
The Supervisor for the warehouse operation shall monitor the performance and productivity of all the checkers, jacklifters, stuffers/strippers, forklift operators, drivers, and helpers. He shall coordinate with AHI?s supervisors regarding the operations at the Warehouse to ensure safety at the place of work.
He shall see to it that the cargoes are not overlanded, shortlanded, delivered at a wrong destination, or misdelivered to consignee?s port of destination. Any discrepancy shall be reported immediately to AHI?s Logistic Manager, Mr. Andy Valeroso.
The control exercised by petitioner?s supervisors over the performance of respondents was to such extent that petitioner?s Warehouse Supervisor, Roger Borromeo, confidently gave an evaluation of the performance of respondent Monaorai Dimapatoi, who likewise felt obliged to obtain such Certification from Borromeo.
Petitioner?s control over the respondents is evident. And it is this right to control the employee, not only as to the result of the work to be done, but also as to the means and methods by which the same is to be accomplished, that constitutes the most important index of the existence of the employer-employee relationship.34
Lastly, the law casts the burden on the contractor to prove that it has substantial capital, investment, tools, etc. Employees, on the other hand, need not prove that the contractor does not have substantial capital, investment, and tools to engage in job-contracting.35 In this case, neither Grigio nor the petitioner was able to present any proof that Grigio had substantial capital. There was no evidence pertaining to its capitalization nor its investment in tools, equipment or implements actually used in the performance or completion of the job, work, or service that it was contracted to render. Grigio was merely expected to supply petitioner with manpower to carry out work necessary for its business, to be carried out in the manner which petitioner provided in the contract.
Thus, Grigio is obviously a "labor-only? contractor since it did not have substantial capital or investment which relates to the service performed; the respondents performed activities which were directly related to the main business of the petitioner; and Grigio did not exercise control over the performance of the work of the respondents. Consequently, the petitioner is considered as the employer of the respondents.
In prohibiting "labor-only" contracting and creating an employer-employee relationship between the principal and the supposed contractor?s employees, the law intends to prevent employers from circumventing labor laws intended to protect employees. In the case of Aurora Land Projects Corp. v. National Labor Relations Commission, 36 this Court pronounced:
The question as to whether an employer-employee relationship exists in a certain situation continues to bedevil the courts. Some businessmen try to avoid the bringing about of an employer-employee relationship in their enterprises because that judicial relation spawns obligations connected with workmen?s compensation, social security, medicare, minimum wage, termination pay, and unionism. In light of this observation, it behooves this Court to be ever vigilant in checking the unscrupulous efforts of some of our entrepreneurs, primarily aimed at maximizing their return on investments at the expense of the lowly workingman.
The second issue raised was whether the respondents have been illegally dismissed. The petitioner alleges that the respondents were lawfully dismissed for abandoning their work on 9 May 1996, six days before the contract between Grigio and the petitioner was terminated on 15 May 1996. This allegation was supported by the complaint by one of the respondents, Mamate, for unpaid salaries from 22 April 1996 to 9 May 1996.
However, respondents submitted copies of the pertinent pages of the logbook showing that they had in fact reported for work on the dates they were supposed to have abandoned their jobs, from 9 May 1996 until 15 May 1996.37 One of the respondents, Monaorai Dimapatoi, even submitted a Certification issued by petitioner?s very own Warehouse Supervisor, Roger R. Borromeo, that Dimapatoi effectively performed her job as warehouse checker and documentation clerk from 16 September 1992 to 15 May 1996.38
Petitioner?s allegation that respondents abandoned their work is therefore devoid of legal and factual bases. The Court has repeatedly held that abandonment as a just and valid ground for dismissal requires the deliberate and unjustified refusal of the employee to resume his employment. Mere absence of failure to report for work, after notice to return, is not enough to amount to such abandonment. For a valid finding of abandonment, two factors must be present: (1) the failure to report for work or absence without valid or justifiable reason; and (2) a clear intention to sever employer-employee relationship, with the second element as the more determinative factor being manifested by some overt acts.39 In abandonment, there must be a concurrence of the intention to abandon and some overt acts from which an employee may be deduced as having no more intention to work.40
The burden of proof to show that there was unjustified refusal to return to work rests on the employer.41 Petitioner, however, failed to prove this. It not only failed to contradict or challenge the evidence presented by the respondents, it also failed to present daily time records showing that the respondents had been absent since 9 May 1996. The records also fail to show that the petitioner or Grigio sent the respondents any letter or memoranda ordering the respondents to return to work or seeking any explanation for their absences. Absent any contrary proof, the evidence presented by the respondents becomes conclusive.
The Complaint42 filed by Raul M. Mamate on 17 May 1996 before the DOLE cannot be construed as direct proof of respondents? abandonment. Records show that in the Complaint43 filed by respondents Monaorai Dimapatoi and Cecilia Agawin before the NLRC on 29 August 1996, they indicated that they were dismissed on 15 May 1996. Nor can it be reasonably concluded that Mamate abandoned his job on 9 May 1996. Although Mamate claimed nonpayment of salaries from "April 22 to May 9 1996", he only alleged that he was not yet paid for that period. This does not mean that he had not worked after 9 May 1996 or that he intended to abandon his job as of 9 May 1996. He clearly considered himself still employed as of 17 May 1996 since on the blank space provided for the period of employment, Mamate wrote "March 15/92 ? present." The logbook presented by respondents as evidence, and the validity of which was not negated by petitioner, shows that Mamate had reported for work until 15 May 1996. Moreover, the fact that the respondents subsequently filed a complaint for illegal dismissal is incompatible with the charge of abandonment.44
Even assuming there was abandonment, petitioner did not comply with the statutory requirement of notice and hearing. The law requires the employer to furnish the worker sought to be dismissed two written notices. The first notice apprises the employee of the particular acts or omissions for which dismissal is sought, while the second notice informs the employee of the employer?s decision to dismiss him.45 In the present case, the petitioner failed to serve the respondents either of the two notices. Neither did petitioner afford the respondents an opportunity to contest their dismissal. Having failed to establish the requirements of notice and hearing, the dismissal of the respondents is tainted with illegality. Respondents, having been illegally dismissed, are, therefor, entitled to (1) reinstatement, or separation pay, if reinstatement is no longer viable; and (2) full back wages.46
There is a need, though, to clarify the dispositive portion of the assailed Decision of the Court of Appeals awarding to the respondents " (a) full back wages and other benefits computed from the time their compensations were withheld up to the time of their actual reinstatement, as provided under Art. 279, Labor Code," as well as "(c) the amount of P6,727.00 representing the individual petitioners? Service Incentive Leave pay for the period 1993-1996, proportionate 13th month pay, and withheld wages." As the amount of P6,727.00 already includes part of the wages that were withheld from the respondents, the back wages separately awarded to the respondents should exclude the wages already covered by the lump sum of P6,727.00 in order to avoid any double payment. Based on the Decision of the labor arbiter, dated 11 July 1977, the total amount of P6,727.00 covers the total wages withheld from 22 April 1996 to 6 May 1996.47 In order to avoid any confusion, the full back wages should be computed from 7 May 1996 until the reinstatement of the respondents.
WHEREFORE, premises considered, this Court DENIES this petition and AFFIRMS the Decision of the Court of Appeals in CA-G.R. SP No. 52718 dated 21 November 2000, with modifications, ordering petitioner to reinstate respondents with full status and rights of regular employees and to pay, along with Grigio, jointly and severally, to the respondents (1) full back wages and other benefits computed from 7 May 1996 up to the time of their actual reinstatement; (2) separation pay, in case reinstatement is no longer viable; (3) the amount of P6,727.00 representing the individual respondents? Service Incentive Leave pay for the period 1993 to 1996, proportionate 13th month pay, and withheld wages for the period of 22 April 1996 to 6 May 1996; and (4) attorney?s fees equivalent to ten (10%) of all money claims awarded. Accordingly, the case is remanded to the labor arbiter for further proceedings solely for the purpose of determining the monetary liabilities of the petitioner. Costs against petitioner.
Panganiban, C.J., Chairman, Ynares-Santiago, Austria-Martinez, Callejo, Sr., J.J., concur.
1 Penned by Associate Justice Rebecca De Guia-Salvador with Associate Justices Ruben T. Reyes and Mariano M. Umali, concurring, rollo, pp. 31-41.
2 Id. at 91-100.
3 Id. at 74-90.
4 Id. at 38.
5 Id. at 32.
6 Id. at 12.
7 Id. at 12
8 Id. at 13.
9 Id. at 108.
11 Id. at 108 and 125.
12 Id. at 33 and 188.
13 Id. at 84-90.
In computing for the liabilities of Grigio Security Agency and General Services and Aboitiz Haulers, Inc., the labor arbiter gave the following computations:
Thus, complainants therefore are entitled to their five (5) days incentive leave pay and proportionate 13th month pay, to wit:
Five (5) days Service Incentive Leave Pay
1. Monaorai Dimapatoi
2. Ma. Cecilia Agawin
3. Raul Mamate
4. Emmanuel Guerrero
5. Gemeniano Bigaw
It is not only undisputed but likewise admitted by no less than respondent Grigio Security Agency and General Services that complainants were not paid of their salary for the period of April 22, 1996 to May 6, 1996, thus, the former is likewise ordered to pay complainants? salary for the said period, to wit:
1. Monaorai Dimapatoi
P 2, 595.00
2. Ma. Cecilia Agawin
3. Raul Mamate
4. Emmanuel Guerrero
5. Gemeniano Bigaw
This liability however is joint and several pursuant to the provision of Article 106 of the Labor Code, as amended and the aforecited jurisprudence on the matter (PCI Automation Center, Inc. v. National Labor Relations Commission, [322 Phil. 536 (1996)]).
14 Rollo, p. 90.
15 Id. at 98.
In the Decision, dated 8 June 1998, the NLRC ruled:
However, We find that the Labor Arbiter erred in awarding complainants? service leave pay only for the year 1996, considering complainants? categorical assertion that they were not paid the mandatory benefit for the period 1993-1996. Contrary to the Labor Arbiter?s conclusion, complainants? computation of claims includes unpaid service leave pay for the stated period, and there being no proof of payment on record, service leave pay equivalent to fifteen (15) days should be awarded to the complainants.
Moreover, We deem it necessary to rectify the computation error on the proportionate 13th month pay of complainant Dimapatoi, which should be P1,537 instead of the awarded P1,557.
16 Rollo, p. 99.
17 CA rollo, p. 103.
18 Rollo, p. 167.
19 Id. at 41.
20 Id. at 43-44.
21 Id. at 18-19.
22 Jo v. National Labor Relations Commission, 381 Phil. 428, 435 (2000); and PNOC Dockyard and Engineering Corporation v. National Labor Relations Commission, 353 Phil. 431, 441 (1998).
23 Acevedo v. Advanstar Company, Inc., G.R. No. 157656, 11 November 2005, 474 SCRA 657, 664.
24 Presidential Decree No. 442 (1974).
25 Baguio v. National Labor Relations Commission, G.R. Nos. 79004-08, 4 October 1991, 202 SCRA 465, 472-473; Acevedo v. Advanstar Company, Inc., supra note 23 at 667.
26 Department Order No. 18-02 (2002).
28 Rollo, p. 47. The Written Contract of Service between Grigio Security Agency and General Services and Aboitiz Haulers Inc. provided that:
5.b That the GRIGIO personnel, particularly the Checkers, shall perform the following:
a) The Stuffing checkers shall have to maximize the cargo volume per TEU but will take into account the inspection and checking the right stuffing of the cargoes, i.e., flammables, breakables, toxic, hardwares, perishables, and the like in transit.
b) All cargoes must be properly mixed with others. Its total weight must be equally distributed inside the container to have a proper balance. If container is not being filled up in full get the attention of AHI?s supervisors.
c) The Receiving checkers shall check to cargoes of the Shippers at the Unloading Bay area. They shall check the cargoes if they are properly sealed to avoid spillage of fluids, dried goods, and to restrict odorous substances from floating in the air.
29 Id. at 50.
30 G.R. No. 86010, 3 October 1989, 178 SCRA 267, 273.
31 Guinnux Interiors, Inc. v. National Labor Relations Commission, 339 Phil. 75, 78-79 (1997); Manila Water Company Inc. v. Peña, G.R. No. 158255, 8 July 2004, 434 SCRA 53, 60-61.
32 Rollo, p. 46. The Written Contract of Service between Grigio Security Agency and General Services, Inc. and Aboitiz Haulers, Inc. provided that:
4.b. That nine (9) checkers shall be utilized as STUFFING CHECKERS. They shall be divided into four (4) shifts as follows:
First Shift – is from 7 a.m. to 4 p.m., with three (3) checkers;
Second Shift – is from 8 a.m. to 5 p.m., with one (1) checker;
Third Shift – is from 3 p.m. to 11 p.m., with three (3) checkers; and the
Fourth Shift – is from 11 p.m. to 7 a.m.
4.c. That five (5) checkers shall be utilized as RECEIVING CHECKERS. They shall be divided into three (3) shifts as follows:
First Shift – is from 7 a.m. to 4 p.m., with one (1) checker;
Second Shift – is from 3 p.m. to 11 p.m., with two (2) checkers; and the
Third Shift – is from 11 p.m. to 7 a.m., with two (2) checkers.
With regards to the Checkers, each of them shall have a Recess for an hour within their sheduled (sic) workshift. x x x
33 Rollo, p. 47.
34 Aurora Land Projects Corp. v. National Labor Relations Commission, 334 Phil. 44, 48 (1997).
35 Guarin v. National Labor Relations Commission, supra note 30 at 273.
36 Supra note 34 at 48.
37 Rollo, pp. 201-202.
38 Id. at 200.
39 Masagana Concrete Products v. National Labor Relations Commission, 372 Phil. 459, 477-478 (1999); ACD Investigation Security Agency, Inc. v. Daquera, G.R. No. 147473, 30 March 2004, 426 SCRA 494, 499; Golden Thread Knitting Industries, Inc. v. National Labor Relations Commission, 364 Phil. 215, 231-232 (1999); Premier Development Bank v. National Labor Relations Commission, 354 Phil. 851, 862-863 (1998); and Philippine Advertising Counselors, Inc. v. National Labor Relations Commission, 331 Phil. 694, 702 (1996).
40 Masagana Concrete Products v. National Labor Relations Commission, id.
41 ACD Investigation Security Agency, Inc v. Daquera, supra note 39 at 499; Philippine Industrial Security Agency Corp. v. Dapiton, 377 Phil. 952, 960 (1999); Labor v. National Labor Relations Commission, G.R. No. 110388, 14 September 1995, 248 SCRA 183,198.
42 Rollo, p. 188.
43 Id. at 52-53.
44 Golden Thread Knitting Industries, Inc. v. National Labor Relations Commission, supra note 39 at 232; Masagana Concrete Products v. National Labor Relations Commission, supra note 39 at 479.
45 Masagana Concrete Products v. National Labor Relations Commission, supra note 39 at 479-480; Premier Development Bank v. National Labor Relations Commission, supra note 39.
46 Vinoya v. National Labor Relations Commission, 381 Phil. 460, 483 (2000); Aurora Land Projects Corp. v. National Labor Relations Commission, 344 Phil. 44, 57-58 (1997); Masagana Concrete Products v. National Labor Relations Commission, supra note 39 at 479-480.
47 Rollo, p. 89-90.
August 31, 2006
Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court filed by Marilyn Valdecantos (petitioner) assailing the Resolutions dated December 7, 20001 and June 22, 20012 of the Court of Appeals (CA) which dismissed herein petitioner’s petition for review and denied her motion for reconsideration, respectively, issued in CA-G.R. CR No. 24645.
Petitioner was charged in the Metropolitan Trial Court (MTC) of Caloocan City, Branch 49, with violation of Batas Pambansa Bilang 22, docketed as Criminal Case No. C-178508. The Information reads:
That on or about the 28th day of February, 1997 in Caloocan City, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously made and issue Check No. 035539 dated February 28, 1997 in the amount of P13,100.00 drawn against UNION BANK, to apply for value in favor of FERNANDO GOKIOKO, well knowing at the time of issue that she/he had no sufficient funds in or credit with the drawee bank for the payment of such check in full presentment, which check was subsequently dishonored for insufficiency of funds or credit, had not said accused, without any valid reason, ordered the bank to stop the payment of said check, and with intent to defraud, failed and still fails to pay said FERNANDO GOKIOKO the amount of P13,100.00 despite receipt of notice from the drawee bank that said check had been dishonored and had not been paid. 3
Upon arraignment, petitioner entered a plea of not guilty. Trial thereafter ensued.
On June 30, 1999, the MTC rendered its Decision,4 the dispositive portion of which reads:
WHEREFORE, after a careful consideration of the foregoing evidence, the Court finds accused Marilyn Valdecantos y Valmoseña, GUILTY beyond reasonable doubt of the offense of issuing a worthless check defined and penalized in Batas Pambansa Blg. 22 and hereby sentences the said accused to a penalty of imprisonment of six (6) months and to pay a fine of twenty-six thousand pesos (P26,000.00) with subsidiary imprisonment in case of insolvency.
Accused is further ordered to indemnify complainant Fernando Gokioko the amount of thirteen thousand one hundred pesos (P13,100.00) representing the amount of the dishonored check with interest thereon at the rate of 12% per annum starting February 28, 1997 until the amount is fully paid, to reimburse to the said complainant the amount of twenty-thousand pesos (P20,000.00) as and for attorney’s fees and to pay the costs of this suit. 5
Petitioner appealed the decision to the Regional Trial Court (RTC), Caloocan City, docketed as Criminal Case No. C-58312 and raffled to Branch 126. The RTC affirmed the MTC in its Decision dated July 24, 2000;6 and denied petitioner’s motion for reconsideration in its Order dated October 16, 2000.7
Dissatisfied, petitioner filed a petition for review with the CA on November 28, 2000, docketed as CA-G.R. CR No. 24645. On December 1, 2000, petitioner filed a "Submission of Verification and Certification Against Forum Shopping"8 attaching thereto the Verification and Certification signed by petitioner on November 27, 2000.
On December 7, 2000, the CA issued the assailed Resolution dismissing the petition on the following grounds:
(a) The Regional Trial Court was not furnished a copy thereof as required by Section 1, Rule 42 of the present Rules of Court;
(b) It is not verified and failed to contain a non-forum shopping certification as mandated by Section 2, Rule 42, supra, and
(c) Only the two (2) lower court’s decision and order denying the motion for reconsideration are attached without the other pleadings and material portion of the records as would support the allegations of the petition, such as, the information, position papers and appeal memoranda of the parties filed below, as provided for in Section 2, Rule 42, supra.
Section 3, Rule 42, same, considers the above omissions as sufficient grounds for the dismissal of the petition.9
Upon receipt of the CA Resolution on December 18, 2000, petitioner filed her Motion for Reconsideration stating that her counsel’s failure to attach the verification and certification against forum shopping which she had already signed was due to inadvertence or oversight of the latter’s secretary who forgot to attach the same to the petition; that three days after the filing of her petition with the CA, she filed on December 1, 2000 a "Submission of Verification and Certification Against Forum Shopping" where she had attached her verification and certification thereto. She likewise attached to her motion for reconsideration copies of the following documents: (a) Information in Criminal Case No. 178508; (b) Memorandum of petitioner’s appeal in the RTC; (c) Memorandum of private respondent in the RTC; (d) Motion for Reconsideration of the decision of the RTC; (e) Opposition to the Motion for Reconsideration; (f) Transcript of Stenographic Notes of the testimony of Union Bank representative Ariel Puno taken on May 11, 1999; (g) Union Bank Check No. 035539 dated February 28, 1997 in the sum of P13,100.00; and the proof of service of a copy of her petition which she furnished the RTC on December 19, 2000.
In a Resolution dated June 22, 2001, the CA denied petitioner’s motion for reconsideration in this wise:
x x x
Petitioner seasonably submitted a Motion for Reconsideration claiming inadvertence and oversight of his secretary in failing to comply with the missing requirements and altogether attaching the pertinent documents including a verification and certification against forum-shopping.
It should be stressed, however, that failure to file a certificate of non-forum shopping is mandatory and failure to comply with this requirement cannot be excused by the fact that plaintiff is not guilty of forum shopping, and that subsequent compliance with the certification requirement on non-forum shopping cannot excuse a party’ failure to comply in the first instance.10
Hence, the instant Petition for Review on Certiorari anchored on the following issues:
1) Whether or not the Court of Appeals erred in dismissing petitioner’s petition despite the fact that petitioner has submitted all the required documents, and instead ignored and disregarded the clear and manifest errors in the decisions of the MTC and RTC in convicting the petitioner.
2) Whether or not, on the basis of the evidence presented in the MTC, the petitioner could be convicted of having violated BP 22.11
Petitioner reiterates her contentions raised in her motion for reconsideration filed before the CA. She also claims that it is the declared policy of the courts to afford every litigant amplest opportunity for determination of his case freed from constraints of technicalities. Petitioner likewise contend that although our jurisdiction is confined to questions of law, it may extend its hand to accord justice to petitioner considering that the decision of the MTC finding her guilty of BP 22 was not supported and was even contrary to the evidence on record.
A Comment was filed by the Office of the Solicitor General praying for the dismissal of the petition. The parties submitted their respective Memoranda as required by the Court.
Preliminarily, we find it necessary to give proper perspective to the instant petition. Originally filed as a petition for review on certiorari under Rule 45 of the Rules of Court, the same should be considered as a petition for certiorari under Rule 65 of the Rules of Court as there is nothing to review on the merits due to its outright dismissal by the CA, for being insufficient in form and substance.12 Ordinarily, the proper recourse of an aggrieved party from a decision of the CA is a petition for review on certiorari under Rule 45 of the Rules of Court. However, if the error, subject of the recourse, is one of jurisdiction, or the act complained of was perpetrated by a court with grave abuse of discretion amounting to lack or excess of jurisdiction, the proper remedy available to the aggrieved party is a petition for certiorari under Rule 65 of the said Rules.13 Inasmuch as the present petition principally assails the dismissal of the petition on ground of procedural flaws involving the jurisdiction of the court a quo to entertain the petition, it falls within the ambit of a special civil action for certiorari under Rule 65 of the Rules of Court.14
The CA dismissed the petition for review due to petitioner’s failure (1) to attach the required verification and the certification on non-forum shopping, (2) to furnish the RTC with a copy of the petition, and (3) to attach the pleadings and material portions of the records of the case pursuant to Sections 1, 2 and 3 of Rule 42 of the Rules of Court.15
The Court grants the petition.
The requirement regarding verification of a pleading is formal, not jurisdictional.16 Such requirement is simply a condition affecting the form of pleading, the non-compliance of which does not necessarily render the pleading fatally defective.17 Verification is simply intended to secure an assurance that the allegations in the pleading are true and correct and not the product of the imagination or a matter of speculation, and that the pleading is filed in good faith.18 The court may order the correction of the pleading if verification is lacking or act on the pleading although it is not verified, if the attending circumstances are such that strict compliance with the rules may be dispensed with in order that the ends of justice may thereby be served.19
While the lack of certification against forum shopping is generally not cured by its submission after the filing of the petition, and the submission of a certificate against forum shopping is deemed obligatory, it is not jurisdictional.20 Not being jurisdictional, the requirement has been relaxed under justifiable circumstances under the rule on substantial compliance.
In Roadway Express v. CA,21 the Court considered as substantial compliance the filing of a certification against forum shopping 14 days before the dismissal of the petition for review. In the same case, the Court stated that:
x x x If subsequent compliance, citing Sanchez vs. CA, G.R. 111255, February 7, 1994, First Division, Minute Resolution, with Circular 28-91, after a petition was dismissed for non-compliance was considered by the court as substantial compliance, citing Fajardo, Jr. vs. CA, G.R. 112558, en banc, Minute Resolution, with more reason should the petition for review be allowed in this case, in view of the compliance prior to the dismissal of the petition.22
In Uy v. Landbank,23 the Court dismissed Uy’s petition for lack of verification and certification against non-forum shopping. However, the Court subsequently reinstated the petition after Uy submitted a motion to admit certification and non-forum shopping certification and justified the reinstatement.
In this case, on December 1, 2000, three days after petitioner filed her petition for review on November 28, 2000, she immediately rectified her error by filing a "Submission of Verification and Certification Against Forum Shopping" attaching thereto her Verification and Certification. Significantly, such verification and certification was submitted even before the petition was dismissed by the CA on December 7, 2000.
In addition, the Court notes that petitioner had appended a verification and certification against forum shopping in her motion for extension of time to file petition for review with the CA which further lends credence to her claim that indeed it was only due to inadvertence that she failed to submit the certification in her petition for review.
These circumstances mitigate the oversight. It is in the interest of substantial justice that the subsequent filing of the verification and certification of non-forum shopping be considered as substantial compliance of the rule.
Petitioner likewise attached the missing pleadings and pertinent documents of the case when she filed her motion for reconsideration. Jurisprudence dictates that the subsequent and substantial compliance of a petitioner may call for the relaxation of the rules of procedure.
In Cusi-Hernandez v. Diaz,24 Piglas-Kamao v. National Labor Relations Commission,25 Mendoza v. David,26 the Court ruled that the subsequent submission of the missing documents with the motion for reconsideration amounts to substantial compliance. The reasons behind the failure of the petitioners in these cases to comply with the required attachments were no longer scrutinized.27 Noteworthy in each case was the fact that the petitioners therein substantially complied with the formal requirements when they filed their motion for reconsideration.28
In Donato v. CA,29 the Court reversed the CA’s dismissal of a petition on the grounds that the (a) certificate of non-forum shopping was signed by petitioner’s counsel and not by petitioner himself; and (b) only a certified copy of the questioned decision was annexed to the petition. Petitioner filed a motion for reconsideration where he attached a certification of non-forum shopping duly signed by him as well as copies of the material portions of the records of the lower courts. On petitioner’s failure to attach material portions of the records, the Court held:
In like manner, the failure of the petitioner to comply with Section 3, paragraph b, Rule 6 of the RIRCA, that is, to append to his petition copies of the pleadings and other material portions of the records as would support the petition, does not justify the outright dismissal of the petition. It must be emphasized that the RIRCA gives the appellate court a certain leeway to require parties to submit additional documents as may be necessary in the interest of substantial justice. Under Section 3, paragraph d of Rule 3 of the RIRCA, the CA may require the parties to complete the annexes as the court deems necessary, and if the petition is given due course, the CA may require the elevation of a complete record of the case as provided for under Section 3(d)(5) of Rule 6 of the RIRCA. At any rate, petitioner attached copies of the pleadings and other material portions of the records below with his motion for reconsideration x x x. (Emphasis supplied)30
The same leniency should also be extended to petitioner considering that petitioner, one day after receipt of the CA Resolution dismissing her petition for review, immediately complied with the rules and submitted the relevant pleadings and documents with her motion for reconsideration.
The Court also takes note of the fact that petitioner had furnished the RTC with a copy of the petition the following day after her receipt of the CA Resolution dismissing her petition.
Thus, petitioner’s substantial compliance with Sections 1 and 2, Rule 42 of the Rules of Court should have prompted the CA to reconsider the dismissal of the petition for review on technical grounds. In dismissing the petition, the CA clearly put a premium on technicalities at the expense of a just resolution of the case 31 which should be avoided.
In the Cusi-Hernandez32 case, where the formal requirements and substantial compliance were liberally construed, the Court held:
We must stress that cases should be determined on the merits, after full opportunity to all parties for ventilation of their causes and defenses, rather than on technicality or some procedural imperfections. In that way, the ends of justice would be served better. Moreover, the Court has held:
"Dismissal of appeals purely on technical grounds is frowned upon and the rules of procedure ought not to be applied in a very rigid, technical sense, for they are adopted to help secure, not override, substantial justice, and thereby defeat their very aims."
Rules of procedure are mere tools designed to expedite the decision or resolution of cases and other matters pending in court. A strict and rigid application of rules that would result in technicalities that tend to frustrate rather than promote substantial justice must be avoided.33
Petitioner contends that the MTC and RTC erred in finding that Union Bank Check No. 035539 was not sufficiently funded on the date of its presentment and that the bank statement presented failed to establish that it was the same account of petitioner against which the check was to be drawn. Petitioner points out that the evidence showed that there was sufficient fund to cover the check upon presentment and that Account No. 007-31719-2 which was in petitioner as well as in Felimon and Lydia Valdecantos’s names from which account the check was supposed to be drawn was only changed with a new account number, i.e., Account No. 074-000206-5; that these accounts are one and the same which had sufficient fund to cover the check upon presentment. Petitioner also avers that the burden of proof lies with the prosecution, thus it should be the prosecution which must prove that petitioner did not maintain sufficient fund or credit in her account to pay the check within ninety days from the date of the check which it failed to do.
Furthermore, in her petition for review filed with the CA, petitioner contends that the trial court erred in finding that the sole ground for her stop payment order was the loss of the Lancer car and that respondent Gokioko had still demanded for the issuance of five additional checks in the total amount of P65,500.00 as additional payment for the car.
The Court will not resolve these issues in the present petition for certiorari. The issues involved are factual issues which require the weighing of evidence that is best addressed to the CA in the petition for review filed before it. Thus, the case should be remanded to the CA for the just resolution of the substantive issues.
WHEREFORE, the petition is GRANTED. The Resolutions dated December 7, 2000 and June 22, 2001 of the Court of Appeals are REVERSED and SET ASIDE. The case is REMANDED to the Court of Appeals for proper disposition.
Panganiban, C.J., Chairperson, Ynares-Santiago, Callejo, Sr., Chico-Nazario, J.J., concur.
1 Penned by Justice Conrado M. Vasquez, Jr. and concurred in by Justices Presbitero J. Velasco, Jr. (Now a Member of this Court) and Juan Q. Enriquez, Jr.; CA rollo, pp. 45-46.
2 Id. at 135-136.
3 CA rollo, p.57.
4 Id. at 30-37; Penned by Judge Belen B. Ortiz.
5 Id. at 37.
6 Id. at 38-42; Penned by Judge Luisito C. Sardillo.
7 Id. at 43.
8 Id. at 47-49.
9 Id. at 45-46.
10 Id. at 135-136.
11 Rollo, p. 24.
12 Delgado v. Court of Appeals, G.R. No. 137881, December 21, 2004, 447 SCRA 402, 411 citing Donato v. Court of Appeals, G.R. No. 129638, December 8, 2003, 417 SCRA 216, 223.
15 SECTION 1. How appeal was taken; time of filing. ? A party desiring to appeal from a decision of the Regional Trial Court rendered in the exercise of its appellate jurisdiction may file a verified petition for review with the Court of Appeals, ?. and furnishing the Regional Trial Court and the adverse party with a copy of the petition.
SECTION 2. Form and contents. – The petition shall be filed in seven (7) legible copies, with the original copy intended for the court being indicated as such by the petitioner and shall (a) state the full names of the parties to the case, without impleading the lower courts or judges thereof either as petitioners or respondents; (b) indicate the specific material dates showing that it was filed on time ; (c) set forth concisely a statement of the matters involved, the issues raised, the specification of errors of fact or law, or both, allegedly committed by the Regional Trial Court, and the reasons or arguments relied upon for the allowance of the appeal; (d) be accompanied by clearly legible duplicate originals or true copies of the judgments or final orders of both lower courts, certified correct by the clerk of court of the Regional Trial Court, the requisite number of plain copies thereof and of the pleadings and other material portions of the record as would support the allegations of the petition.
The petitioner shall also submit together with the petition a certification under oath 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.
SECTION 3. Effect of failure to comply with requirements. ? The failure of petitioner to comply with any of the foregoing requisites regarding the payment of the docket and, other lawful fees, the deposit for costs, proof of service of the petition, and the contents of and the documents which should accompany the petition shall be sufficient ground for the dismissal thereof. (Emphasis supplied.)
16 Uy v. Land Bank of the Philippines, 391 Phil. 303, 312 (2000) citing Sy v. Habacon-Garayblas, Adm. Matter No. MTJ-93-860, December 21, 1993, 228 SCRA 644, 646; Buenaventura v. Halili-Uy, No. L-28156, March 31, 1987, 149 SCRA 22, 26; Quimpo v. Victoria, 150-B Phil. 124, 131 (1972); Valino v. Munoz, 146 Phil. 412, 418 (1970); Republic v. Lee Wai Lam, 139 Phil. 265, 269 (1969).
17 Id. citing Republic v. Lee Wai Lam at 276.
18 Id. citing Buenaventura v. Uy at 26; Republic v. Lee Wai Lam at 269.
19 Id. citing Sy v. Habacon-Garayblas at 646; Republic v. Lee Wai Lam at 269-270.
20 Torres v. Specialized Packaging Development Corporation, G.R. No. 149634, July 6, 2004, 433 SCRA 455, 465 citing Robern Development Corporation v. Judge Quitain, 373 Phil. 773, 787 (1999).
21 332 Phil. 733 (1996).
22 Id. at 738.
23 Supra note 16.
24 390 Phil. 1245 (2000).
25 G.R. No. 138556, May 9, 2001, 357 SCRA 640.
26 G.R. No. 147575, October 22, 2004, 441 SCRA 172.
27 Jaro v. Court of Appeals, 427 Phil. 532, 547 (2002).
28 Id. at 547.
29 Supra note 12.
30 Id. at 225-226.
31 Id. at 226.
32 Supra note 24.
33 Id. at 1252.
August 31, 2006
This is a Petition for Review on Certiorari of the Decision1 of the Court of Appeals (CA) in CA-G.R. SP No. 50884, which granted the petition filed by respondent Philip Luis F. Marin and reversed the ruling of the Labor Arbiter and affirmed by the National Labor Relations Commission (NLRC) dismissing his complaint for illegal dismissal; likewise assailed is the Resolution of the CA denying the motion for reconsideration thereof.
Marin used to work for Saudia Airlines as a ticketing agent. When he applied for employment as a Reservation Officer in Cathay Pacific Airways, Ltd. (Cathay), he was interviewed by the following: Senior Supervisor Nenita Montallana, Reservations Manager Elizabeth Leviste, Staff and Administrative Supervisor M.A. Canizares, and Country Manager (Philippines) Peter W. Foster.
In a letter2 dated March 30, 1992, Foster confirmed Marin’s appointment as Reservations Officer effective April 6, 1992 for a probationary period of six months. He was to receive a monthly salary of P5,334.00, including holidays and rest days, with a promise of a salary review upon satisfactory completion of the probationary period. The letter also stated that Cathay reserved the right to "terminate [Marin's] services during the probationary period if [his] performance proves to be unsatisfactory, in which case, [he] will receive the salary due [him] at the time of the termination of [his] services." It was also understood that Marin "had accepted the [recognized] terms of employment," and that he would be "reconfirmed as a member of [the] regular staff upon completion of the probationary period."3
On October 2, 1992, Marin received the following letters from Foster:
02 October 1992
Mr. Philip Luis Marin
Cathay Pacific Airways, Ltd.
It is with regret that we accept your resignation as Reservations Officer with effect 03 October 1992.
We wish you success in your endeavors.
x x x x
02 October 1992
Mr. Philip Luis Marin
Cathay Pacific Airways, Ltd.
After a thorough review of your performance during the past six months, we found that it is unsatisfactory. We are, therefore, terminating your services with effect from 03 October 1992.
On October 15, 1992, Marin filed a complaint6 for illegal dismissal against Cathay and Foster before the NLRC. The complaint was later amended to include claims for 13th month pay, moral and exemplary damages, and attorney’s fees.7
The Case for Complainant
Marin insisted that he was dismissed from employment without cause, and that the same was arbitrary and capricious. Although he was a probationary employee, he was entitled to security of tenure. He claimed that he never received any letters or documents informing him of Cathay’s employment standards. When he assumed office, he was never briefed regarding his duties and functions as reservation officer and started working without knowing Cathay’s rules and regulations.8 He was briefed only on April 13, 1992 on the rules regarding phone calls, break time, and others.9 He also came to know of the rules and regulations of the company on his own initiative.10
Marin pointed out that he did not commit any infraction during his probationary employment, and that those alleged by Gozun and Montallana were mere fabrications and "products of afterthought." As shown by his performance ratings during the months from May to July 1992, his work performance was good.11 While he received copies of some documents which were to be used to evaluate his performance, he was not briefed on what the documents were about. He likewise never received any memorandum calling his attention to any such infraction. He was not furnished a copy of the October 14, 1991 Memorandum12 of M.A. Canizares, as well as the staff assessment13 made by Gozun.
Marin also denied having resigned from employment. He claimed that, on October 2, 1992, Leviste gave him two white bond papers and asked him to make a letter of resignation. When he refused, he was given another letter terminating his probationary employment allegedly due to unsatisfactory performance.14 Marin claimed that he suffered sleepless nights and depression, humiliation and embarrassment on account of his illegal and capricious dismissal from employment; hence, he was entitled to moral damages.15
The Case for Respondents
For their part, respondents claimed that, as reservation officer, Marin was tasked to book passengers, answer queries related to their itinerary in the telesales area, and respond to telexes from one port to another.16 He was prohibited from receiving or making personal calls in the telesales area17 and had to use the lounge during coffee breaks.18 There was a separate room and telephone which could be used for personal calls. During the first three (3) months, Marin’s performance was below than what was expected of him as reservation officer, as can be gleaned from the staff assessments conducted by Gozun, who had direct supervision over Marin, and that of Reservation Supervisor Montallana. The assessments dated July 6, 1992 and September 30, 1992 were duly noted by the Reservations Manager.19 Thus, since Marin failed to meet the standards of Cathay for the position of reservation officer, it was decided that a regular employment contract would not be extended to Marin.
Montallana testified that Marin was not furnished with a copy of the pink-colored documents containing the standards of contract, nor was the latter briefed on Cathay’s rules and regulations. However, upon instruction of Foster and as mandated in the October 14, 1991 Memorandum of M.A. Canizares, she briefed Marin on the standards and expectations of Cathay for probationary employees, as well as its rules and regulations. She informed Marin of the work expected of him: he had to have 25 calls per hour from the public and should be able to satisfy queries of the traveling public; aside from regular attendance, he should likewise be open to suggestions, constructive criticism, as well as being given instructions by his supervisors; and gossiping and chatting while on duty were strictly prohibited. Marin was also enjoined to follow the rules and regulations issued by Cathay to the staff of the Reservation Department.
According to Gozun, Marin’s direct supervisor, the latter was caught conversing noisily with co-employee Aileen Lao during office hours20 (Marin and Lao were seated back-to-back in a cubicle). Consequently, Gozun called their attention and told them that they were a little bit noisy. They were then instructed to go back to work.21
On June 26, 1992, Gozun again found Marin conversing noisily with a co-employee during office hours, distracting other employees and leaving several calls unattended. Marin repeated his infractions twice in July 1992 in the telesales area. He was advised by Montallana and Leviste of the results of the staff assessment on July 6, 1992, and was told to stop his disruptive conduct in his work station and to mend his ways.
However, in August 1992, Marin was found taking his coffee break at the telesales area which was used exclusively for receiving and entertaining calls from the public. He was again found chatting noisily with his co-employees, in fine disrupting their work; and even received personal calls from the telesales area on September 18, 1992, thus, blocking customers’ calls. Taking into account his repeated infractions and the recommendation in the staff assessments, Cathay decided not to extend regular employment to Marin.22
On the other hand, Leviste testified that, after her vacation, the staff supervisors informed her that Marin had already been briefed on the standards, rules and regulations of the company. When she asked Marin if he had already been briefed by the supervisors, Marin replied in the affirmative, and confirmed that the standards, rules and regulations were "okay" with him.23 She likewise claimed to have briefed Marin on the staff assessment made by Gozun on July 6, 1992 in the presence of Montallana. After the briefing, she advised him to continue with his good points but to improve on his distractive behavior. Marin even asked what she meant by distractive behavior, and she replied that she was referring to Gozun’s observations that he (Marin) had been chatting noisily around the telesales area and that he had left his working area, leaving calls from the public unattended. Sometime in August 1992, Gozun called her attention about Marin, who was again seen chatting with his co-employees in the work area during breaktime; she directed Marin to attend to his work.
On October 2, 1992, Gozun and Montallana submitted to Leviste the staff assessment report of Marin dated September 30, 1992. They later had a conference, during which Gozun and Montallana recommended that the probationary employment of Marin be terminated. She agreed with the recommendation. She then informed Marin of the staff assessment, the recommendation of the reservation supervisors, as well as Cathay’s decision not to regularize his employment on account of his "below normal work performance." So as not to prejudice his chance for employment in other companies, Leviste suggested that Marin had the option to voluntarily resign from Cathay, and showed him the two letters signed by Foster dated October 2, 1992, one accepting his voluntary resignation, and the other terminating his probationary employment. Marin opted to seek advice from Foster and talked to him on October 5, 1992. Foster rejected Marin’s request to be extended regular employment, and told Marin that Cathay had given him all the chances and opportunities but that he failed to live up to the standards and expectations of the company. Foster suggested that Marin would be better off resigning voluntarily his probationary employment. However, Marin threatened to take legal action against Cathay, to which Foster replied that Cathay would then have to take the appropriate legal recourse. Foster never demanded that Marin resign from his employment.24
To rebut the testimony of Marin, Gozun, Montallana and Leviste testified that Marin was briefed on April 13, 1992 by Montallana on Cathay’s standards and expectations for new employees, specifically for the position he was hired. Marin was again briefed regarding the company standards and expectations on July 6, 1992.25
In their comment on Marin’s formal offer of evidence, Cathay offered in evidence a copy of the House Rules in the Reservation Department26 which it was claimed that Marin was briefed on when he started working in Cathay.
On September 28, 1995, the Labor Arbiter rendered judgment ordering the dismissal of the complaint, holding that Marin had admitted to knowing the rules and regulations of the company.27 Marin’s below normal performance was evidenced by the two staff assessments of Gozun and Montallana;28 hence, there was factual basis for the termination of his probationary employment.
Marin appealed the decision to the NLRC. He alleged that the Labor Arbiter erred in finding that he was apprised of the requisites and standards related to the performance of his duties and that he committed infractions of company rules and regulations while at work. He averred that respondents merely presented Gozun, Montallana and Leviste, and their staff assessment, but failed to present any of the employees of respondent Cathay who were allegedly distracted by his behavior. His co-employees, Marin alleged, are the best witnesses to testify on his alleged infractions. He insisted that Gozun and Montallana were themselves busy in their work and could not have observed him; hence, their separate accounts had no factual basis. He claimed that he was deprived of his right to be notified of the staff assessments against him and his right to controvert the same.
On July 31, 1998, the NLRC issued a Resolution29 dismissing the appeal and affirming the decision of the Labor Arbiter. The NLRC ratiocinated that Gozun, Montallana, and Leviste were tasked to supervise and assess Cathay’s employees, which necessarily included watching their actuations. There was no need to corroborate their alleged testimonies by those of Marin’s former co-employees. Moreover, these officers testified on matters of their own personal knowledge; thus, the fact that they were actually busy with the performance of their functions when Marin was observed to have committed infractions is irrelevant.
The NLRC further declared that the option of who to present as witness lies on the party offering the same, not on the opposing party. It was erroneous for Marin to assume that the employees with whom he conversed were the best witnesses on the conversation, as the employees would certainly not testify that they were chatting so noisily and that others were disturbed by Marin’s behavior. The NLRC noted that, for her disruptive conversation with Marin, Aileen Lao’s attention was called and was subjected to company rules and regulations. Marin was served a written notice of the particular acts for which his dismissal was sought, and was afforded the opportunity to be heard and defend himself. He was served a written notice of the decision to dismiss him and the cause thereof. With the two appraisals made on his over-all performance at the end of the third and sixth month, including the discussion between him and his supervisors, Marin could not claim lack of prior hearing. The NLRC further noted that two assessments of Marin’s performance was conducted, as evidenced by the staff assessment form indicating that his over-all performance was short of normal, which was clearly explained by Gozun and Montallana during the hearing of the case.30
Marin filed a motion for reconsideration which the NLRC denied. He forthwith filed a petition for certiorari in the CA for the nullification of the NLRC ruling, alleging that:
1. IN DECLARING THAT PETITIONER WAS SERVED OR FURNISHED THE REQUIRED WRITTEN NOTICE WHICH APPRISED HIM OF HIS PARTICULAR ACTS OR OMISSIONS FOR WHICH HIS DISMISSAL WAS SOUGHT WHEN ABSOLUTELY NOTHING IN THE RECORDS WOULD SUPPORT SUCH CONCLUSION.
2. IN DECLARING THAT PETITIONER WAS AFFORDED DUE HEARING ON SAID ACTS OR OMISSIONS WHEN COMPLETELY NOTHING IN THE RECORDS WOULD SUPPORT SUCH CONCLUSION.
3. IN DISREGARDING DOCUMENTARY AND TESTIMONIAL EVIDENCE WHICH WOULD PROVE THE ILLEGALITY OF THE ACT AND MANNER OF DISMISSAL OF THE PETITIONER COMMITTED BY CATHAY PACIFIC AIRWAYS, LTD.
4. IN DECLARING THAT PETITIONER WAS BRIEFED OF THE STANDARDS HE HAD TO MEET TO BE EXTENDED REGULAR EMPLOYMENT WHEN DOCUMENTARY AND TESTIMONIAL EVIDENCE WOULD SHOW THAT PETITIONER WAS NOT FORMALLY BRIEFED OF SUCH STANDARDS UPON AND AFTER THE ENGAGEMENT OF HIS EMPLOYMENT AS PROBATIONARY EMPLOYEE.31
On December 19, 2000, the CA rendered judgment granting the petition and reversed the assailed resolution of the NLRC.32 According to the CA, Cathay did not observe the two-notice requirement before terminating Marin’s probationary employment. Marin was likewise not given any opportunity to be briefed on the company rules and regulations, as well as the standards to be complied with in order to become a regular employee.
Cathay filed a motion for reconsideration, which was denied by the CA, hence, the present petition where petitioners assert that the appellate court erred as follows:
THE COURT OF APPEALS HAS DECIDED IN A WAY NOT IN ACCORD WITH LAW BY REVERSING THE RESOLUTIONS OF THE LABOR ARBITER AND THE NATIONAL LABOR RELATIONS COMMISSION (NLRC) DESPITE THE ABSENCE OF ANY ABUSE OF DISCRETION ON THE PART OF THESE LOWER TRIBUNALS.
THE COURT OF APPEALS, DEPARTING FROM THE USUAL COURSE OF JUDICIAL PROCEEDINGS, SUPPLANTED THE LOWER TRIBUNALS’ FACTUAL FINDINGS WITH ITS OWN THAT ARE CONTRARY TO EVIDENCE ON RECORD.33
Petitioner alleges that respondent failed to prove that the NLRC committed grave abuse of its discretion amounting to excess or lack of jurisdiction in issuing its resolutions. Moreover, the rule is that the findings of fact of the Labor Arbiter as affirmed by the NLRC and the appellate court are considered with finality, the reason being that a quasi-judicial agency like the NLRC has acquired a unique expertise because its jurisdiction is confined to specific matters.
It is pointed out that both the Labor Arbiter and the NLRC did not give credence to respondent’s evidence, and relied on the evidence of petitioner. Contrary to the CA’s findings, the records show that respondent was, in fact, briefed by Gozun and Montallana on the standards to qualify for regularization after the probationary period. Gozun briefed respondent on the rules and regulations of the Reservations Department of petitioner before his employment, and was adequately informed of the basis of the termination, conformably with Rule 28, Department Order No. 9, Series of 1997 of the Department of Labor and Employment. Respondent was further served a copy of Foster’s October 2, 1992 letter stating that he would not be given regular employment on account of his unsatisfactory performance, as mandated by Article 281 of the Labor Code of the Philippines.
As gleaned from the staff assessment report of Gozun and Montallana, respondent’s performance during his employment is as follows:
1. "The staff have a good relationship with him, however, it disrupts the operations of the department as he is always chatting noisily with others during office hours."
2. "Philip is an average worker. But he cannot be depended/relied upon as he always leaves his work area and chats noisily with other staff leaving calls unanswered."
3. "Conductwise, he needs a big improvement. He is noisy and always talking with staff even if there are lots of calls. He takes his coffee breaks in the work area. He disrupts his colleagues who are at work during his lunch breaks. He is restless and cannot stay in the work area during work hours."
4. "He still needs maturity in tackling daily reservations work. He needs improvement in some CX entries to facilitate his daily transaction in Cupid. More practice in Abacus. He will be recommended for training in HKG, in Cupid and Abacus courses."34
Petitioner insists that it did not merely inform respondent of its decision not to extend regular employment on account of his below normal performance; Leviste and Foster went out of their way to suggest that he voluntarily resign so that his chances of employment in other companies would not be adversely affected. Respondent instead filed the instant complaint against petitioner.
For his part, respondent avers that the NLRC committed grave abuse of discretion amounting to excess of jurisdiction when it
x x x 1) upheld the finding of the Labor Arbiter that respondent Marin was furnished or served a written notice which apprised him of the particular acts or omissions for which his (Marin) dismissal is sought when absolutely nothing in the records would support such declaration; 2) declared that respondent Marin was afforded due hearing when completely nothing in the records would support such a conclusion; 3) declared that respondent Marin was briefed of the standards he had to meet to be extended regular employment when documentary and testimonial evidence would show that there was no such formal briefing.35
He maintains that the findings and conclusion of the Labor Arbiter and NLRC were based on surmises, speculations and conjectures. He insists that the only documents he received from petitioner Cathay related to his employment were the following:
1. Employment Contract dated 30 March 1992
2. CX Reservations Update 1992
3. Minutes of Reservations Meeting
4. Computer Generated Individual Performance Reports
5. Letters (Notices) dated 02 October 1992 of Peter Foster36
Even Foster’s October 2, 1992 letter did not state whether his performance was below par; neither was a copy of the staff assessments of Gozun attached to said letter. He was not even furnished a copy of any memorandum related to his supposed infractions and alleged below par work performance before his meeting with Leviste on October 2, 1992.
Respondent posits that the staff assessment reports of Gozun and Montallana were merely the products of afterthoughts of petitioners made only after the termination of his employment.
The petition is meritorious.
Article 281 of the Labor Code provides:
ART. 281. Probationary employment. ? Probationary employment shall not exceed six months from the date the employee started working, unless it is covered by an apprenticeship agreement stipulating a longer period. The services of an employee who has been engaged on a probationary basis may be terminated for a just cause or when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his engagement. An employee who is allowed to work after a probationary period shall be considered a regular employee.37
It is settled that a probationary employee enjoys only a temporary employment status, not a permanent status. In general terms, he is terminable anytime as long as such termination is made before the expiration of the six-month probationary period.38 The employment of a probationary employee may only be terminated either (1) for a just cause; or (2) when the employee fails to qualify as a regular employee in accordance with the reasonable standards made known to him by the employer at the start of his employment. The power of the employer to terminate an employee on probation is thus subject to the following conditions: (1) it must be exercised in accordance with the specific requirements of the contract; (2) the dissatisfaction on the part of the employer must be real and in good faith, not prejudicial so as to violate the contract or the law; and (3) there must be no unlawful discrimination in the dismissal. The burden of proving just or valid cause for dismissing an employee rests on the employer.39
In Secon Philippines, Ltd. v. NLRC,40 this Court held that the probationary employment of an employee may be terminated when he fails to qualify as regular employee in accordance with reasonable standards made known to him by his employer at the time of employment and after due process; in Manlimos v. National Labor Relations Commission,41 it was held that the constitutional protection on the probationary employee ends upon the expiration of the period provided for in the probationary contract of employment. Thus, a probationary employee remains secure in his or her employment during the time that the employment contract remains in effect, but the moment the probationary employment period expires, the employee can no longer invoke the constitutional protection. Thereafter, the parties are free to renew the contract or not; or for the employer to extend to such employee a regular or permanent employment. If the employee is not given a permanent or regular employment contract on account of his unsatisfactory work performance, it cannot be said that he was illegally dismissed. In such case, the contract merely expired.42
We agree with the rulings of the Labor Arbiter and NLRC that respondent’s employment was not terminated during the period of his probationary employment, and that he was not extended a regular employment by petitioner Cathay on account of his unsatisfactory work performance during the probationary period.43
As gleaned from the evidence on record, petitioner Cathay’s decision not to extend any regular or permanent employment to respondent was based on findings that his work performance during the six-month probationary period was unsatisfactory, based on the staff assessment reports of Gozun and Montallana dated July 6, 1992 and September 30, 1992, respectively. The job performance of respondent was found to be below normal performance or was less than normally expected of the position of a reservation officer. Per the July 1992 Staff Assessment Report of Gozun and Montallana which Leviste noted, while respondent had a good relationship with the staff and was able to accomplish his work, he had been seen chatting noisily with them during office hours, thus disrupting the operations of the reservation department. Worse, he always left his work area and chatted leaving calls from the public unanswered.
Leviste called the attention of respondent on the said reports and urged him to avoid the same infractions and to improve on his work performance. Despite these reminders, respondent remained adamant and still entertained personal calls not only in his own workstation but in others’ as well, and also passed on to colleagues the calls he received on his own. Respondent could not be relied upon to carry out the obligation of his position as he took a lot of personal calls from one cubicle to another. Thus, Leviste testified:
Will you please describe to this Court how you explain it with Mr. Marin?
Mrs. Montallana was holding the staff assessment in front of Mr. Marin and I was seated here. Mrs. Montallana went through the assessment form one by one telling him his strong points and weak points. And after that assessment, after Mrs. Montallana finished, I told Mr. Marin, "you know now already your over-all performance for the first three months. You know now your good points and you know your weak points. You continue with your good points but you must improve to your weak point." But I am very particularly concerned about his distructive behavior. I said to him that I am particularly more concerned about your distructive behavior. Then he said, what do you mean by distructive?
Your Honor please, the answer of the witness is too far from the question already.
The question was, will you please describe how she explained it with Mr. Marin.
I myself told him about his distructive behavior. Then, he told me, "what do you mean by distructive?" I said, "I am specifically referring to comments made by his supervisor that you are chatting noisily around the area." According to his supervisor, he is chatting noisily around the area and he is leaving his working area and leaving calls unattended.
Sometime in August 1992, do you recall any unusual incident involving Philip Marin?
And what is this?
At that time, Mr. Gozun called me out to the office and told me, "Tingnan mo si Philip, naka-break iyan, pero nasa working area, nakikipagdaldalan."
I just simply told him "get Mr. Marin out of the working area so that the staff on duty can continue their work."
Now, how about on September 7, 1992, do you recall any unusual incident involving Mr. Marin again?
What is that?
On September 17, I called his attention. Actually, that particular time, I called Mrs. Montallana to my office and told her, "look Philip, he is standing up and going to another ADC position and he was taking personal calls."
How did you know that it was a personal call?
Because my phone is equipped with a monitoring device. If you lift that up and put on monitoring, you can immediately find out that it is personal call. And at that time, I told Mrs. Montallana to call and ask Mr. Marin to come to my office and I said to him, "Why are you taking personal call on another ACD position?" You know that you are not permitted to do that because you are not or it is not allowed to take personal call on the ADC position.
What do you mean by ACD position?
Automatic call distribution. Let say, for example, you are assigned to TCI, you will be occupying that position and that is ADC position. If you take a personal call to another cubicle, it is not allowed. He confirmed that he was taking personal call. I told him that "you know, Philip, you are not supposed to take personal calls." He told me that the caller was a friend of her sister. I said, "please make sure that you do not do that again. You are disrupting the operations. If you do that, if you get out of your table, your ACD position, that phone will be clogged. If you go to another area, the local will clogged again." So I told him, "please make sure that you do not do that again because are disrupting the flow of calls."
How about on September 18, 1992, do you recall an unusual incident involving Mr. Philip Marin?
Yes. I have to call his attention again.
What was that incident?
At that time, there was no floor supervisor to the office because at that time, Mr. Gozun was on leave. At that time, Mrs. Montallana and myself were in my room and we were discussing of a particular report. You know, it is a habit of mine to glance at or to look at the telephone sales area because this area has a window in front of it and I saw Mr. Marin taking personal call again on an ADC position. Immediately, I said, "Nenita, let us monitor this." And after that, he went back to the desk and after awhile, another staff call him to go to take a personal call and we monitored this again. I said, "naku, malala na talaga ito." Normally, if it is a personal call, we don’t listen. You will know that it is a personal call. So we put it down. After that, another staff called him again. This time, when he went there, we listened again and this time, we listened longer because we were taking a lunch. It was another Cathay Pacific staff on a ADC talking to him. They were talking about a trip and about the pasalubong. So we called him at that time. I asked Mrs. Montallana to call him and I told, "Philip, yesterday I just told you that you are not supposed to take personal call. Why did you do it again?"44
Conductwise, respondent needed a big improvement. He was noisy and was always talking with the staff even if there were a lot of calls. He took his coffee breaks in the work area; he disrupted his colleagues who were at work during lunch breaks; he was restless and could not stay in the work area during work hours; he needed maturity in tackling his daily tasks, and needed "improvement on some CX entries to facilitate his daily transactions in Cupid Mare practice and in Abacus."45
Respondent failed to realize that, in a working environment, conduct is very important as part of a related field. Respondent had to improve on the functionalities and techniques of his work which his former job did not emphasize on. In fine, respondent’s conduct violated Rules II(c), IV and V of House Rules of the Reservation Department, which read:
x x x x
C. Breaks shall be taken only in the Staff Room and/or the Staff Lounge. No breaks shall be taken in the work areas.
Example: TELESALES AREA, QUEUE HANDLING AREA and FLIGHT REVIEW AREA46
x x x x
IV. PERSONAL CALLS
A. Personal calls maybe done only during break time and only through telephone number 8122691.
B. Taking or making personal calls is strictly prohibited during an employee’s tour of duty or company time.
C. Taking of personal calls from the ACD (Automatic Call Distribution System) or Business lines is strictly prohibited at all times unless it is an emergency.
D. Incoming personal calls from the ACD and direct lines shall be noted down and message deposited in the message board of the Department.
V. ORDER AND DISCIPLINE IN THE WORK AREA
A. Order and discipline must, at all times, be maintained in the work area.
B. No employee shall be allowed to take his/her break in the work area.
Example: TELESALES AREA, QUEUE HANDLING AREA and FLIGHT REVIEW AREA
C. Chatting, gossiping or talking noisily in the work areas at all times are strictly prohibited.
D. No employee shall leave his/her designated work stations or area unless with prior knowledge of his/her Supervisors.47
Respondent cannot feign ignorance of these rules. On April 13, 1992, after the comptrollers’ strike at the airport was settled, respondent was briefed by Montallana on petitioner’s rules and regulations, as well as those regarding the work expected of him as a reservation officer,48 stressing the need for him to totally commit and be enthusiastic about his work.49
Indeed, when he testified, respondent declared that the said rules were relayed to him, and that he found out about them on his own initiative.50 Respondent was bound to comply with and follow the rules and regulations. One of his responsibilities was to answer calls or queries from the public related to the itinerary of passengers and bookings, and to respond to telexes from one port to another in the telesales area. He was prohibited from making or receiving personal calls in the telesales area, which was also off-limits during coffee or lunch breaks. He was prohibited from leaving his booth in the area except during coffee or lunch breaks.51
Respondent’s claim that the infractions contained in the staff assessment reports were fabricated by Gozun, Montallana and Leviste, has no factual basis. Admittedly, neither of them issued a Memorandum to respondent relative to his infractions or misdeeds; respondent was merely verbally apprised of the staff assessments. However, Gozun, Montallana and Leviste merely complied with the Memorandum of M.A. Canizares on October 14, 1992 to all department heads of the probationary staff, which states that "written memorandum may be dispensed with for administrative convenience but the employee’s attention should be called at all times and discussed with the employee concerned." The supervisors were required to give the probationary employees every opportunity to qualify as regular employees."52
Likewise barren of merit is respondent’s claim that his infractions/misdeeds are mere fabrications or products of the afterthought of Gozun, Montallana and Leviste. He failed to adduce proof to show that his previous supervisors had any ill motive to falsely ascribe to him the infractions/misdeeds. The rule is settled that where there is nothing to indicate that a witness was actuated by improper motive his positive and categorical declaration on the stand, made under solemn oath, should be given full faith and credence.53 Indeed, Leviste denied the claim of respondent that he was illegally dismissed. Her testimony is as follows:
Philip Marin mentioned here in his affidavit that allegedly you told him that his performance was very good. What can you say about this claim of Mr. Philip Marin?
That is totally untrue. I was there in the first assessment. Mrs. Montallana told me that his performance was below normal. On the second assessment, that was also the same. The conclusion of Mr. Philip Marin was contrary to what our assessment.
Philip Marin also claimed that in his complaint/affidavit that you allegedly illegally dismissed him. What can you say about truth or falsity of this accusation?
That is certainly not true. I think, that is, baseless. I think, no employer in his right mind who spent lump sum of money, time and effort in training him, that is, almost 36 months, would just dismiss a good employee. But in the case of Mr. Marin, after assessment of the supervisors which I thorough (sic) reviewed, we found out that his performance was below normal.
Mrs. Leviste x x x
As a matter of fact, it was a difficult decision on our part because we have to sacrifice such investment because, otherwise, we know that we will have a problem in our hand.54
In fact, Leviste even went out of her way to suggest to respondent to resign voluntarily, or else face the adverse consequences of not being extended regular employment on account of unsatisfactory work performance; had he resigned voluntarily before the expiry of the probationary period, he would have brighter prospects of employment with another airline or other business entities. This is gleaned from Leviste’s testimony:
Mrs. Leviste, you mentioned that you submitted ? You mentioned that after you talked with Philip Marin regarding your suggestion in good faith for him to resign voluntarily so that his prospect for future employment may not be prejudiced, otherwise he could not truthfully say to his future employer that he was not extended his regular employment?
Your affidavit mentioned that apparently Mr. Marin saw the wisdom of your suggestion. What were these letters? Which of the two letters simultaneously gave to Philip Marin?
One was the letter of resignation.
Letter of resignation or letter accepting his resignation?
Letter accepting his resignation and the letter terminating his probationary employment.
After you have given these letters accepting his resignation and the other letter terminating his probationary employment, do you recall what, if any, was the reaction of Philip Marin?
The witness would be incompetent.
On the basis of her observation. All right, I will rephrase my question.
Did you give these two letters?
That was October 2. That was in the afternoon.
These two letters were given by you simultaneously?
However, respondent rejected the suggestion and opted to file his complaint with the NLRC. A decision of petitioner to afford respondent a graceful exit is perfectly within its discretion.56
While it is true that respondent was not furnished with the pink-colored set of regulations of petitioner Cathay and with copies of the staff assessment reports, nevertheless, respondent was briefed by Montallana on their contents. When Leviste inquired from respondent if he understood the rules and regulations, and if job specifications were clear to him, the latter responded in the affirmative.57 Respondent admitted having received from petitioner Cathay copies of documents to be used to evaluate his performance. Petitioner thus complied with the statutory requirement.58
In the light of his intransigent refusal to mend his ways and follow company rules and regulations, respondent cannot expect his employment to be regularized simply because he was not furnished with a copy of the document containing the standards promulgated by it. On this matter, the following pronouncement of the Court in Aberdeen Court, Inc. v. Agustin, Jr.59 is instructive:
The above rule, however, should not be used to exculpate a probationary employee who acts in a manner contrary to basic knowledge and common sense, in regard to which there is no need to spell out a policy or standard to be met. This is what the NLRC found to be the fact in this case. Said the NLRC:
It bears stressing that even if technically the reading of air exhaust balancing is not within the realm of expertise of the complainant, still it ought not to be missed that prudence and due diligence imposed upon him not to readily accept the report handed to him by the workers of Centigrade Industries. Required of the complainant was that he himself proceed to the work area, inquire from the workers as to any difficulties encountered, problems fixed and otherwise observe for himself the progress and/or condition/quality of the work performed.
As it is, We find it hard to believe that complainant would just have been made to sign the report to signify his presence. By saying so, complainant is inadvertently degrading himself from an electrical engineer to a mere watchdog. It is in this regard that We concur with the respondents that by his omission, lack of concern and grasp of basic knowledge and common sense, complainant has shown himself to be undeserving of continued employment from probationary employee to regular employee.60
It bears stressing that the decision of petitioner not to regularize the employment of respondent was based on the recommendation of Gozun, Montallana and Leviste, based on their assessment of respondent’s performance:
2. The overall performance of the probationary staff shall be assessed by the Department Head and Supervisor at the end of the third month of the probationary period. A second and final assessment of the overall performance of the probationary staff shall be conducted before the end of the sixth month of the probationary period to determine whether the probationary staff may be confirmed as a regular employee.
3. Department Heads and Supervisors shall be directly responsible for the discipline of probationary staff in the departments giving them every opportunity of qualifying as regular employees. Written memos may be dispensed with for administrative convenience, but the employee’s attention should, at all times, be called and discussed with the employee(s) concerned.
4. Probationary staff may be confirmed as regular employees based on the recommendation to Manager Philippines of the Department Heads and/or Supervisor.61
Thus, respondent cannot validly claim that he was denied due process simply because he was not given a copy of the September 30, 1992 Staff Assessment Report of Gozun. The evidence on record shows that Leviste briefed respondent on the staff assessments and petitioner’s decision not to regularize his employment upon the expiry of the probationary period, including the basis of said decision.62 Respondent was even allowed to confer with and appeal to Foster for him to be extended regular employment, but Foster found no merit in his plea.
IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Decision of the Court of Appeals is REVERSED. The decision of the National Labor Relations Commission affirming, on appeal, the decision of the Labor Arbiter is AFFIRMED. No costs.
Panganiban, C.J., Chairperson, Ynares-Santiago, Austria-Martinez, Chico-Nazario, J.J., concur.
1 Penned by Associate Justice B.A. Adefuin-De la Cruz (retired), with Associate Justices Salome A. Montoya (retired) and Renato C. Dacudao, concurring; rollo, pp. 32-39.
2 Exhibit "B," records, p. 160.
4 Exhibit "F," records, p. 170.
5 Exhibit "G," id. at 171.
6 Records, p. 2.
7 Id. at 24.
8 TSN, August 15, 1994, p. 51.
9 TSN, July 28, 1994, p. 18.
10 Id. at 27-28.
11 Exhibits "D" to "E," records, pp. 167-169.
12 Exhibit "5," id. at 142.
13 Exhibits "3" and "4," records, pp. 134-141.
14 TSN, April 7, 1994, p. 55.
15 Id. at 59-60.
16 TSN, July 28, 1994, pp. 38-39.
17 Id. at 34-35.
18 Id. at 39.
19 Exhibits "3" and "4," records, pp. 134-141.
20 TSN, April 26, 1992, p. 42.
21 Id. at 44.
22 Records, pp. 67-69.
23 TSN, February 22, 1994, p. 45.
24 Records, p. 94.
25 Id. at 131-133.
26 Exhibit "6," records, p. 176.
27 Rollo, pp. 60-67.
28 Exhibits "3" and "4," records, pp. 134-141.
29 Rollo, pp. 44-59.
30 Id. at 52-58.
31 Id. at 35.
32 Id. at 32-39.
33 Id. at 11.
34 Id. at 22.
35 Id. at 161.
36 Id. at 164.
37 The Secretary of Labor issued Department Order No. 10, Series of 1997, which took effect on June 22, 1997. The Order reads:
Probationary employment. ? There is probationary employment where the employee, upon his engagement, is made to undergo a trial period during which the employer determines his fitness to qualify for regular employment, based on reasonable standards made known to him at the time of engagement.
Probationary employment shall be governed by the following rules:
x x x
(c) The services of an employee who has been engaged on probationary basis may be terminated only for a just cause, when he fails to qualify as a regular employee in accordance with the reasonable standards prescribed by the employer.
(d) In all cases of probationary employment, the employer shall make known to the employee the standards under which he will qualify as a regular employee at the time of his engagement. Where no standards are made known to the employee at that time, he shall be deemed a regular employee.
38 De la Cruz, Jr. v. National Labor Relations Commission, G.R. No. 145417, December 11, 2003, 418 SCRA 226, 236.
39 Dusit Hotel Nikko v. Gatbartos, G.R. No. 161654, May 5, 2006, p. 5.
40 377 Phil. 711, 717 (1999).
41 G.R. No. 113337, March 2, 1995, 242 SCRA 145, 156.
42 Colegio de San Agustin v. National Labor Relations Commission, G.R. No. 87333, September 6, 1991, 201 SCRA 398, 403.
43 TSN, February 22, 1994, pp. 63-64.
44 TSN, February 22, 1994, pp. 15-24.
45 Exhibit "3" and "4," records, pp. 134-141.
46 Exhibit "6," id. at 176.
47 Exhibit "6-A," id. at 177.
48 Exhibits "1" and "2."
49 TSN, September 16, 1993, pp. 15-16.
50 TSN, July 28, 1994, pp. 29-30.
51 Id. at 25-47.
52 Exhibit "5"; TSN, February 22, 1994, p. 49.
53 People v. Dela Cruz, 402 Phil. 138, 151 (2001).
54 TSN, February 22, 1994, pp. 29-31.
55 Id. at 71-74.
56 Willi Hahn Enterprises v. Maghuyop, G.R. No. 160348, December 17, 2004, 447 SCRA 349, 354.
57 Id. at 45.
58 Alcira v. National Labor Relations Commission, G.R. No. 149859, June 9, 2004, 431 SCRA 508, 514.
59 G.R. No. 149371, April 13, 2005, 456 SCRA 32.
60 Id. at 42-43.
61 Exhibit "5," records, p. 142.
62 TSN, February 22, 1994, p. 27.
August 31, 2006
In this Special Civil Action for Certiorari under Rule 65 of the Rules of Court, petitioner seeks the nullification of a 22 May 2001 Court of Appeals Resolution denying her Motion for Reconsideration of a 31 March 2000 Decision.2
The Court of Appeals found the facts to be as follows:
On January 2, 1995, [herein respondent] Ernesto Bogñalbal, an architect-contractor doing business under the name and style of E.B. Bogñalbal Construction, entered into an "Owner-Contractor Agreement" with [herein petitioner] Victoria Ong, a businesswoman, for the construction of a proposed boutique owned by the latter to be known as Les Galeries de Paris located at the 3rd Floor of the Shangri-La Plaza, Epifanio Delos Santos Avenue corner Shaw Boulevard, Mandaluyong City (Exhibits "A" and "1", pp. 100-102, ibid). The agreement provides that in consideration of the sum of two hundred thousand pesos (P200,000.00), the contractor agrees to furnish labor, tools and equipment to complete the work on the boutique as per specification within forty-five (45) days excluding Sundays from the date of delivery of the construction materials. Payment by the owner shall be made by progress billing to be collected every two (2) weeks based on the accomplishment of work value submitted by the contractor to the owner as certified for payment by the architect assigned on site. The agreement likewise provides for a change order as a result of fluctuation in the cost of labor. Moreover, should the owner require the contractor to perform work over and above that required, the additional cost shall be added to the contract amount and if ordered to omit work as required by their agreement, the cost of work omitted shall be deducted from the contract amount.
Actual work on the project commenced on January 19, 1995. For work accomplished during the period January 19 to 28, 1995, [respondent Bogñalbal] submitted and was paid his progress billing no. 1 in the sum of P35,950.00 equivalent to 17.975% of the total job to be performed (Exh. "E", p. 106, ibid). Partial billing nos. 2 and 3 for the period from January 29 to February 15, 1995 and February 16 to March 3, 1995 in the sum of P69,000.00 and P41,500.00, equivalent to 34.65% and 20.63% of the total job, respectively, were likewise made to respondent and paid for by the latter (Exhs. "F" and "G", pp. 107-108, ibid.).
It is with respect to progress billing no. 4 that the present controversy arose. When [respondent Bogñalbal] submitted the fourth progress billing on March 31, 1995 for the period covering March 4 to 18, 1995, in the sum of P30,950.00 equivalent to 15.47% of the total job (Exh. "B", p. 103, ibid.), [petitioner Ong] refused to pay the same. As in the previous three billings, the fourth billing was first evaluated and recommended for payment by Supervising Architect John Noel R. Cano, an employee of Balce-Sindac and Associates, the principal designer of the [petitioner Ong's] boutique (Exh. "H-1", p. 110, ibid.).
The reason for [petitioner Ong's] refusal to pay the fourth (4th) progress billing is not clear on the record. It is [respondent Bogñalbal's] contention that [petitioner Ong] refused to pay since she was insisting that the flooring, which she asked to be changed from vinyl tiles to kenzo flooring where polyurethane is to be used as coating, be first completed within three (3) days from April 22, 1995. [Respondent Bogñalbal], however, insisted that the same is not possible because the floor needed to be cured first to avoid adverse chemical reaction of the polyurethane on the color of the flooring. Due to the insistence of [petitioner Ong] that the flooring be finished in time for the arrival of the furniture from abroad, [respondent Bogñalbal] proceeded with the work but the rushed work resulted in the reddish reaction of the polyurethane on the floor, which was not acceptable to respondent (TSN, March 28, 1996, pp. 30-32; June 21, 1996, pp. 15-18).
On the other hand, [petitioner Ong] contends that her refusal to pay was because the fourth billing was allegedly in excess and over the value of the work accomplished during the period. To settle the matter, the parties purportedly met whereby [respondent Bogñalbal] supposedly agreed to finish the kenzo flooring on or before April 24, 1995 before [petitioner Ong] would pay the fourth (4th) progress billing. However, instead of complying with his commitment, [respondent Bogñalbal] abandoned the project on April 24, 1995 when it became apparent that he could not complete the kenzo flooring on the date agreed upon.
Due to [petitioner Ong's] continued refusal to pay [respondent Bogñalbal's] fourth (4th) progress billing despite written demands from his counsel (Exhs. "C" and "D", pp. 104-105, ibid), the latter was constrained to file an action for sum of money with damages with the Metropolitan Trial Court (MeTC) of Caloocan City.
The complaint, which was docketed as Civil Case No. 22143 and raffled to Branch 49 of the court, prayed for actual damages in the total sum of P50,450.00 representing P30,950.00 (4th progress billing), P16,000.00 on the change order from vinyl tiles to kenzo flooring and an unidentified amount. It likewise prayed for moral and exemplary damages, as well as attorney’s fees.
In her answer with counterclaim, [petitioner Ong] refused payment of the fourth (4th) progress billing since [respondent Bogñalbal] failed to perform what was incumbent upon him under their agreement, but instead abandoned the job to her great damage and prejudice. As to the P16,000.00 value of the change order, she alleged that the same was premature since she had never received any billing for said change order duly certified for payment and approved by the Architect assigned on site. Besides, [petitioner Ong] averred that the P16,000.00 being charged by [respondent Bogñalbal] was grossly disproportionate with the quantity of the work actually accomplished by the former. By way of counterclaim, [petitioner Ong] prayed for actual damages by reason of [respondent Bogñalbal's] refusal to finish the job agreed upon which forced her to hire a new contractor to complete the same for which she paid the sum of P78,000.00 and for loss of business opportunity in the amount of P50,000.00. She likewise prayed for moral, exemplary and liquidated damages, as well as attorney’s fees.
After trial on the merits, the [MeTC], in a Decision dated June 18, 1998, ruled in favor of [respondent Bogñalbal,] awarding to him the sum of P30,950.00 representing the fourth progress billing, P13,000.00 representing the value of the accomplished work on the kenzo flooring, P15,000.00 as attorney’s fees, P20,000.00 and P25,000.00 as moral and exemplary damages, respectively (p. 175, ibid.).
Aggrieved by the decision of the court, [petitioner Ong] elevated the case on appeal to the Regional Trial Court (RTC) of Caloocan City. The appeal was docketed as Civil Case No. C-18466 and raffled to Branch 126 thereof.
The court a quo, after requiring the parties to submit their respective memoranda, reversed and set aside the ruling of the MTC and rendered judgment in favor of [petitioner Ong] in a Decision dated February 18, 1999 (p. 407, ibid.). It is worthy to note that although the RTC ruled in favor of [petitioner Ong], it did not specify the relief granted to her in the dispositive portion of its decision.3
Respondent Bogñalbal then filed a Petition for Review with the Court of Appeals. On 31 March 2000, the Court of Appeals granted the Petition, disposing of the case as follows:
WHEREFORE, IN VIEW OF THE FOREGOING, the petition is hereby GRANTED. The Decision of the Regional Trial Court dated February 18, 1999 is REVERSED and SET ASIDE, and the Decision of the Metropolitan Trial Court dated June 18, 1998 is REINSTATED. No pronouncement as to costs.4
The dispositive portion of the reinstated 18 June 1998 Metropolitan Trial Court (MeTC) Decision is as follows:
WHEREFORE, after a careful consideration of the foregoing evidence, the Court finds the same to strongly preponderates (sic) in favor of the plaintiff and hereby orders defendant Victoria Ong to pay plaintiff Ernesto Bognalbal the amount of THIRTY THOUSAND NINE HUNDRED FIFTY PESOS (P30,950.00) representing the value of his accomplished work for the period from March 4 to March 18, 1995, the amount of (P13,000.00) THIRTEEN THOUSAND PESOS representing the value of his accomplished work on the kenzo flooring equivalent to 60% of the agreed fee of P25,000.00 minus the amount of P2,000.00 paid under the third progress billing, the amount of FIFTEEN THOUSAND (P15,000.00) PESOS as and for attorney’s fees, the amount of TWENTY THOUSAND (P20,000.00) PESOS AS MORAL damages and the amount of TWENTY-FIVE THOUSAND (P25,000.00) PESOS as exemplary damages. Defendant is further ordered to pay the costs of this suit.
For lack of sufficient basis, the counterclaim of the defendant is hereby dismissed.5
On 22 May 2001, the Court of Appeals denied petitioner Ong’s Motion for Reconsideration in the assailed Resolution, a copy of which was received by petitioner, through counsel, on 11 June 2001.
In the instant Petition for Certiorari, filed on 10 August 2001, petitioner Ong alleges that:
THE RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION IN DENYING THE MOTION FOR RECONSIDERATION AND IN RESOLVING THE ABOVE-ENTITLED CASE IN FAVOR OF THE PRIVATE RESPONDENT.6
Propriety/Impropriety of Special Civil Action
for Certiorari under Rule 65
Petitioner claims that a special civil action for certiorari is proper since appeal by certiorari under Rule 45 is limited only to questions of law. This is wrong. The writ of certiorari is proper to correct errors of jurisdiction committed by the lower court, or grave abuse of discretion which is tantamount to lack of jurisdiction. Where the error is not one of jurisdiction but an error of law or fact which is a mistake of judgment, appeal is the remedy.7
It is true that, as a general rule, in the exercise of the Supreme Court’s 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 considering that the findings of facts of the Court of Appeals are conclusive and binding on the Court. However, the Court had recognized several exceptions to this rule, to wit: (1) when the findings are grounded entirely on speculation, surmises or conjectures; (2) when the inference made is manifestly mistaken, absurd or impossible; (3) when there is grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings of facts are conflicting; (6) when in making its findings the Court of Appeals went beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and the appellee; (7) when the findings are contrary to the trial court; (8) when the findings are conclusions without citation of specific evidence on which they are based; (9) when the facts set forth in the petition as well as in the petitioner’s main and reply briefs are not disputed by the respondent; (10) when the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record; and (11) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties, which, if properly considered, would justify a different conclusion.8
If the allegedly erroneous findings of fact by the Court of Appeals amounts to grave abuse of discretion amounting to lack of or excess of jurisdiction, the proper remedy would indeed be a petition for certiorari under Rule 65. However, if the allegedly erroneous findings of fact constitute only a mistake of judgment, the proper remedy is a petition for review on certiorari under Rule 45. Since the petition filed in the case at bar is one under Rule 65, we would be constrained to dismiss the same if we find a mere error of judgment.
Credibility of Architect Noel Cano
The contract between petitioner and respondent provides:
4.01 Progress Billing will commence 15 days after the Contractor receive[s] the notice to proceed from the Owner.
4.02 Balance will be collected every 2-weeks, based on the accomplishment of work value submitted by the contractor to the Owner and to be certified for payment by the architect assigned on site.
4.03 Final and full payment of the consideration herein above-mentioned shall be made by the owner to the contractor upon fulfilling the condition set forth and approved by the architect assigned on site.9
Pursuant thereto, the architect on site, Architect John Noel Cano, certified for payment four progress billings, which petitioner Ong paid on the following dates10:
Partial Progress Billing
Part of Project Accomplished (contract price: P 200,000.00)
Date of Partial Payment
Date of Full Payment
28 January 1995
6 February 1995
15 February 1995
29 January to 15 February
22 February 1995
4 March 1995
8 March 1995
16 February to 3 March
24 March 1995
6 April 1995
31 March 1995
As earlier stated, this controversy arose with respect to the fourth partial billing. Petitioner Ong claims that the fourth partial billing is not yet due and demandable, since only 60% of the work has been accomplished. Petitioner Ong claims that Architect Cano’s certification as to the accomplishment of the work cannot be trusted, since Architect Cano was allegedly biased in favor of respondent Bogñalbal.11
Petitioner Ong claims that "Arch. Cano was an associate of [respondent Bogñalbal] in his construction business, and because of this, he was partial, biased and unprofessional about his work."12 Petitioner Ong adds that work was conducted on the job site seven days a week, but Architect Cano was present only twice or thrice a week, and therefore "[h]e was in no position to determine whether or not [respondent Bogñalbal] performed as claimed."13
The afore-quoted Article 4.02 of the Owner-Contractor Agreement between petitioner Ong and respondent Bogñalbal, which provides that the "[b]alance shall be collected every 2-weeks, based on the accomplishment of work value submitted by the contractor to the Owner and to be certified for payment by the architect on site,"14 makes the second paragraph of the following provision of the Civil Code applicable:
Art. 1730. If it is agreed that the work shall be accomplished to the satisfaction of the proprietor, it is understood that in case of disagreement the question shall be subject to expert judgment.
If the work is subject to the approval of a third person, his decision shall be final, except in case of fraud or manifest error.
The existence of fraud or manifest error, being an exception to the finality of the decision of a third person under Article 1730, should be adequately proven by petitioner Ong.
Petitioner Ong, however, miserably failed to prove the same. Petitioner Ong’s allegation that "the certifications may have been purposely doctored or engineered in such a fashion as to unduly favor [respondent Bogñalbal], in the desire of Architect Cano to return a favor or repay a debt of gratitude"15 is a bare speculation that cannot be given any credence. It is utterly inappropriate for petitioner Ong to paint Architect Cano as "biased, partial, and unprofessional" just because Architect Cano’s architectural firm, Balce-Sindac & Associates, was allegedly recommended to her by respondent Bogñalbal. The fact remains that it was petitioner Ong and Balce-Sindac & Associates which had privity of contract with each other, petitioner Ong having contracted with the latter firm for its project architectural design and plan. Balce-Sindac & Associates, in turn, assigned Architect Cano as supervising architect on site. The alleged recommendation by respondent Bogñalbal is enormously inadequate to prove bad faith on the part of Architect Cano. Good faith is always presumed.16 It is the one who alleges bad faith who has the burden to prove the same.17
Neither was petitioner able to prove manifest error on the part of Architect Cano. The presence of Architect Cano only twice or thrice a week was not adequately proven to have made him incompetent to determine the completion of the project. Determination of project completion requires inspection of a product rather than a process. Besides, whereas Architect Cano provided a detailed progress report that substantiate respondent Bogñalbal’s allegation that 88.45% of the project had been accomplished,18 petitioner Ong was not able to demonstrate her repeated claim that only 60% of the project has been completed.19 Petitioner Ong alleged that the same was admitted by respondent Bogñalbal in the pleadings filed with this Court,20 but we were unable to find any such admission. It seems that petitioner Ong was referring to the Kenzo flooring, 60% of which respondent claims to have finished.21
Time and again, this Court has ruled that the findings of the lower court respecting the credibility of witnesses are accorded great weight and respect since it had the opportunity to observe the demeanor of the witnesses as they testified before the court. Unless substantial facts and circumstances have been overlooked or misunderstood by the latter which, if considered, would materially affect the result of the case, this Court will undauntedly sustain the findings of the lower court.22 In the case at bar, the credibility of Architect Cano was upheld by the MeTC, which had the opportunity to observe Architect Cano’s demeanor as he testified. Neither the Court of Appeals, nor the RTC, questioned such credibility, the RTC having ruled in favor of petitioner Ong pursuant to an interpretation of law.23
Alleged novation of the Owner-Contractor Agreement
Petitioner Ong also claims, as a defense against payment of the fourth progress billing, that "the only reason why the fourth billing was not paid was because [respondent Bogñalbal] himself agreed and committed to collect the fourth progress billing after he completed the Kenzo flooring."24 Petitioner Ong claims that, because of this promise, her obligation to pay respondent Bogñalbal has not yet become due and demandable.25
The Court of Appeals rejected this argument, ruling that respondent Bogñalbal’s stoppage of work on the project prior to its completion cannot justify petitioner Ong’s refusal to pay the fourth progress billing and the value of respondent Bogñalbal’s accomplished work on the Kenzo flooring. On the contrary, according to the Court of Appeals, respondent Bogñalbal was justified to refuse to continue the project due to petitioner Ong’s failure to pay the fourth progress billing.26 According to the Court of Appeals:
Records reveal that [herein respondent Bogñalbal] submitted his fourth (4th) progress billing for work accomplished on [herein petitioner Ong's] boutique for the period covering March 4 to 18, 1995 (Exh. "B", ibid.). Said billing was in accordance with the parties’ agreement that it will be collected every two (2) weeks, based on the accomplishment of work value submitted by the contractor to the owner and certified for payment by the architect assigned on site (Article 4.02, Owner-contractor Agreement; Exh. "A-1", p. 101, ibid.). However, [petitioner Ong], immediately upon her receipt of said billing, refused to pay the same since it was allegedly "in excess and over the value of the work accomplished during the period." This was, in fact, part of the statement/findings of the facts of the lower court’s decision (p. 2, RTC Decision; p. 400, ibid.).
[Petitioner Ong], at the very outset, refused to pay the fourth (4th) billing despite actual work accomplished on her botique which was certified by the architect on site, John Noel Cano, all in accordance with the agreement of the parties. [Respondent Bogñalbal's] eventual decision not to proceed anymore with the contract cannot be used as a reason to justify [petitioner Ong's] refusal to pay her obligation. This notwithstanding the parties’ supposed verbal agreement that collection of said billing will be held on abeyance until after [respondent Bogñalbal] finished the work on the kenzo flooring which [petitioner Ong] requested to be changed from its original plan of vinyl tile flooring. The proven fact is that there was work accomplished on [petitioner Ong's] boutique equivalent to the bill being charged her in the fourth (4th) progress billing in accordance with their contract. While the fourth (4th) billing covered the accomplished work therefor as certified by the architect assigned on site, the agreement as to the kenzo flooring is subject to another bill covered by the change order. (Emphasis supplied.)27
The Court of Appeals is in error. If the parties indeed had a verbal agreement that collection of said billing will be held on abeyance until after respondent Bogñalbal finished the work on the Kenzo flooring, there would have been a novation of petitioner Ong’s obligation to pay the price covered by the fourth billing by changing the principal conditions therefor. This falls under the first type of novation under Article 1291 of the Civil Code which provides:
Article 1291. Obligations may be modified by:
(1) Changing their object or principal conditions;
(2) Substituting the person of the debtor;
(3) Subrogating a third person in the rights of the creditor.
While the subject of novation is, in the Civil Code, included in Book IV, Title I, Chapter 4, which refers to extinguishment of obligations, the effect of novation may be partial or total. There is partial novation when there is only a modification or change in some principal conditions of the obligation. It is total, when the obligation is completely extinguished.28 Also, the term principal conditions in Article 1291 should be construed to include a change in the period to comply with the obligation. Such a change in the period would only be a partial novation, since the period merely affects the performance, not the creation of the obligation.29
If petitioner Ong’s allegation was true, then the fourth partial billing’s principal condition — that the "(b)alance shall be collected every 2-weeks, based on the accomplishment of work value submitted by the contractor to the Owner and to be certified for payment by the architect assigned on site"30 ? would have been modified to include another condition, that of the finishing of the Kenzo flooring by respondent Bogñalbal.
As previously discussed, the Court of Appeals did not bother to review the evidence on petitioner Ong’s allegation of respondent Bogñalbal’s promise to finish the Kenzo flooring before the fourth progress billing shall be paid. The Court of Appeals instead brushed off the contention with its explanation that "[respondent Bogñalbal's] eventual decision not to proceed anymore with the contract cannot be used as a reason to justify [petitioner Ong's] refusal to pay her obligation, x x x notwithstanding the parties’ supposed verbal agreement that collection of said billing will be held on abeyance until after [respondent Bogñalbal] finished the work on the kenzo flooring which [petitioner Ong] requested to be changed from its original plan of vinyl tile flooring."
Novation is never presumed. Unless it is clearly shown either by express agreement of the parties or by acts of equivalent import, this defense will never be allowed.31
The evidence preponderates in favor of respondent Bogñalbal that there had been no novation of the contract. At best, what was proven was a grudging accommodation on the part of respondent Bogñalbal to continue working on the project despite petitioner Ong’s failure to pay the fourth progress billing. Respondent Bogñalbal’s fourth partial billing demand letters dated 21 April 1995 and 15 May 1995, both of which were served upon petitioner Ong after the alleged 20 April 1995 meeting,32 is inconsistent with the theory that the meeting had produced a novation of the petitioner Ong’s obligation to pay the subject billing.
More importantly, assuming that there was indeed a novation of the obligation of petitioner Ong to pay the fourth billing so as to include as additional condition the completion of the Kenzo flooring, such new condition would, nevertheless, be deemed fulfilled. This is pursuant to Article 1186 of the Civil Code, which provides:
Article 1186. The condition shall be deemed fulfilled when the obligor voluntarily prevents its fulfillment.
According to petitioner Ong herself:
Petitioner sent [respondent Bogñalbal] letters demanding that he should return to the jobsite with his people and comply with his commitment. When the demand letters were ignored, petitioner was constrained to hire the services of another contractor, for which she had to unnecessarily incur expenses in the amount of P78,000.00. But just the same, the completion of the project was delayed for eighty two (82) days, which also caused petitioner additional damages.33
The Civil Code indeed provides that, "(i)f a person obliged to do something fails to do it, the same shall be executed at his cost. This same rule shall be observed if he does it in contravention of the tenor of the obligation. Furthermore, it may be decreed that what has been poorly done be undone."34 There is no question, however, that such allegation constitutes an admission that Petitioner Ong had voluntarily prevented the fulfillment of the condition which should have given rise to her obligation to pay the amount of the fourth billing. Respondent Bogñalbal would no longer have the opportunity to finish the Kenzo flooring if another contractor had already finished the same. Such condition would, hence, be deemed fulfilled under Article 1186 of the Civil Code, and, therefore, petitioner Ong’s obligation to pay the amount of the fourth billing has been converted to a pure obligation.
Authority of respondent Bogñalbal to abandon work
This Court has held that, even if respondent Bogñalbal unjustifiably withdrew from the project, petitioner Ong’s obligation is nevertheless due and demandable because of the third-party certification by Architect Cano on the completion of the fourth project billing as required by their contract. This Court has also held that petitioner Ong has not sufficiently proven the alleged contract novation adding a new condition for her payment of the fourth progress billing.
The following arguments of petitioner Ong are already inconsequential as to whether she should be held liable for the fourth billing: (1) that the power to resolve contracts under Article 119135 of the Civil Code cannot be invoked extrajudicially in the absence of stipulation to the contrary;36 (2) that petitioner never rushed respondent Bogñalbal to complete the Kenzo flooring in three days;37 (3) and that respondent Bogñalbal failed to complete the Kenzo flooring on time because of his incompetence.38 All these arguments merely amplify petitioner Ong’s primary contention that respondent Bogñalbal was not justified in abandoning the project.39
The issue of whether or not respondent Bogñalbal is justified in abandoning the project is relevant to the resolution of petitioner Ong’s counterclaim against respondent Bogñalbal.
The Court rules in favor of petitioner Ong on this score. There is nothing in the record which would justify respondent Bogñalbal’s act of abandoning the project.
However, contrary to the finding of the RTC, Article 1724 is inapplicable to this case. Article 1724 provides:
Art. 1724. The contractor who undertakes to build a structure or any other work for a stipulated price, in conformity with plans and specifications agreed upon with the landowner, can neither withdraw from the contract nor demand an increase in the price on account of the higher cost of labor or materials, save when there has been a change in the plans and specifications, provided:
(1) Such change has been authorized by the proprietor in writing; and
(2) The additional price to be paid to the contractor has been determined in writing by both parties.
According to the RTC, the exception in Article 1724 (change in plans and specifications authorized by the proprietor in writing, and the additional price therefor being determined by the proprietor in writing) applies only with respect to the prohibition to "demand an increase in the price on account of the higher cost of labor or materials" and not with respect to the prohibition to "withdraw from the contract." There is therefore no exception allowed by law insofar as withdrawal from the contract is concerned, and, hence, respondent Bogñalbal cannot claim the change order as a justification for his abandonment of the project. 40
This is incorrect. According to this Court in Arenas v. Court of Appeals,41 Article 1724 contemplates disputes arising from increased costs of labor and materials. Article 1724 should, therefore, be read as to prohibit a contractor from perpetrating two acts: (1) withdrawing from the contract on account of the higher cost of the labor or materials; and (2) demanding an increase in the price on account of the higher cost of the labor or materials.42 This focus on disputes arising from increased cost of labor and materials is even more evident when the origin of Article 1754 is reviewed. Article 1754 of the 1950 Civil Code is based on Article 159343 of the Spanish Civil Code, which states:
Art. 1593. An architect or contractor who, for a lump sum, undertakes the construction of a building, or any other work to be done in accordance with a plan agreed upon with the owner of the ground, may not demand an increase of the price, even if the cost of the materials or labor has increased; but he may do so when any change increasing the work is made in the plans, provided the owner has given his consent thereto.
Article 1593 of the Spanish Civil Code did not contain a similar prohibition against abandonment, and was entirely focused on its apparent objective to providing an exception to the rule that a contracting party cannot unilaterally amend (by increasing the contract price) the contract despite supervening circumstances.
Neither party is claiming that the abandonment arose from increased costs of labor and materials. Petitioner Ong claims that respondent Bogñalbal failed to complete the Kenzo flooring on time because of his incompetence.44 Respondent Bogñalbal claims, on the other hand, that he abandoned the work because of petitioner Ong’s continuing refusal to pay the fourth progress billing in violation of their contract.45 Since the dispute has nothing to do with increased costs of labor and materials, Article 1724 is not applicable.46
Thus, it is the general rules on contracts which are applicable. Expounding on the argument by respondent Bogñalbal, the Court of Appeals held:
It should be noted that the power to rescind obligations is implied in reciprocal ones, in case one of the obligors should not comply with what is incumbent upon him (par. 1, Art. 1191, Civil Code).
[Herein petitioner Ong's] breach of contract was her failure to pay what she was legally bound to pay under her contract with [respondent Bogñalbal]. Payment, being the very consideration of the contract, is certainly not a mere casual or slight breach but a very substantial and fundamental breach as to defeat the object of the parties making the agreement, due to which rescission of the contract may be had (Ang vs. Court of Appeals, 170 SCRA 286, 296). [Petitioner Ong's] contention that [respondent Bogñalbal] should have had more capital to absorb a little delay in her payment is not quite tenable (TSN, June 21 1996; p. 7).47
This Court, however, has held in Tan v. Court of Appeals,48 that:
[T]he power to rescind obligations is implied in reciprocal ones in case one of the obligors should not comply with what is incumbent upon him x x x. However, it is equally settled that, in the absence of a stipulation to the contrary, this power must be invoked judicially; it cannot be exercised solely on a party’s own judgment that the other has committed a breach of the obligation. Where there is nothing in the contract empowering [a party] to rescind it without resort to the courts, [such party's] action in unilaterally terminating the contract x x x is unjustified.
In the case at bar, there is nothing in the Owner-Contractor Agreement empowering either party to rescind it without resort to the courts. Hence, respondent Bogñalbal’s unilateral termination the contract without a court action is unjustified.
Petitioner Ong’s Counterclaim
Since respondent Bogñalbal is unjustified in abandoning the project, should this Court award damages to petitioner Ong? Considering that both parties committed a breach of their respective obligations, Article 1192 of the Civil Code is on all fours:
Art. 1192. In case both parties have committed a breach of the obligation, the liability of the first infractor shall be equitably tempered by the courts. If it cannot be determined which of the parties first violated the contract, the same shall be deemed extinguished, and each shall bear his own damages.
Under this provision, the second infractor is not liable for damages at all;49 the damages for the second breach, which would have been payable by the second infractor to the first infractor, being compensated instead by the mitigation of the first infractor’s liability for damages arising from his earlier breach. The first infractor, on the other hand, is liable for damages, but the same shall be equitably tempered by the courts, since the second infractor also derived or thought he would derive some advantage by his own act or neglect.50 Article 2215, however, seems contradictory, as it gives the court the option whether or not to equitably mitigate the damages, and does not take into account which infractor first committed breach:
Art. 2215. In contracts, quasi-contracts, and quasi-delicts, the court may equitably mitigate the damages under circumstances other than the case referred to in the preceding article,51 as in the following instances:
(1) That the plaintiff himself has contravened the terms of the contract; x x x
It is a cardinal principle that a statute must be so construed as to harmonize all apparent conflicts, and give effect to all its provisions whenever possible.52
Articles 1192 and 2215 of the Civil Code are not irreconcilably conflicting. The plaintiff referred to in Article 2215(1) should be deemed to be the second infractor, while the one whose liability for damages may be mitigated is the first infractor. Furthermore, the directions to equitably temper the liability of the first infractor in Articles 1192 and 2215 are both subject to the discretion of the court, despite the word "shall" in Article 1192, in the sense that it is for the courts to decide what is equitable under the circumstances.
In the case at bar, both respondent Bogñalbal and petitioner Ong claim that it was the other party who first committed a breach of contractual obligations.53 Considering this Court’s finding that there had been no contract novation requiring respondent Bogñalbal to finish the Kenzo flooring before the fourth progress billing shall be paid, it is crystal clear that it was petitioner Ong who first violated the contract. As such, it is petitioner Ong who is liable to pay damages, which may, however, be reduced, depending on what is equitable under the circumstances. On the other hand, since respondent Bogñalbal is the second infractor, he is not liable for damages in petitioner Ong’s counterclaim.
Care must, however, be judiciously taken when applying Article 1192 of the Civil Code to contracts such as this where there has been partial performance on the part of either or both reciprocal obligors. Article 1192, in making the first infractor liable for mitigated damages and in exempting the second infractor from liability for damages, presupposes that the contracting parties are on equal footing with respect to their reciprocal principal obligations. Actual damages representing deficiencies in the performance of the principal obligation should be taken out of the equation.54
In the case at bar, the partial performance of respondent Bogñalbal (88.85%55 of the original contract and 60% of the Kenzo flooring) is more than the partial payment of petitioner Ong (73.375%56 of the original contract and 0% of the Kenzo flooring).
For reference, the MeTC Decision, which was reinstated by the Court of Appeals, awarded the following to respondent Bogñalbal:
Value of accomplished work on the original contract
for the period 4 to 18 March 1995:
Value of accomplished work on the Kenzo flooring
(60% of the agreed fee of P 25,000, minus P2,000
paid under the third progress billing)
Petitioner Ong should first be obliged to pay the value of the accomplished work (P30,950.00 and P13,000.00), before the damage scheme under Article 1192 of the Civil Code is applied. Therefore, this Court would have been limited to determining how much of the moral and exemplary damages, for which petitioner Ong is liable, may be mitigated by the amount of damages caused by respondent Bogñalbal, as provided under Article 1192.
As earlier discussed, however, this mitigation is subject to the discretion of the court, depending on what is equitable under the circumstances. It would have been within this Court’s power to mitigate the moral and exemplary damages for which petitioner Ong is liable if she had only filed an ordinary appeal under Rule 45 of the Rules of Court. It would be an exaggeration to consider such non-mitigation by the Court of Appeals as grave abuse of discretion leading to lack of or excess of jurisdiction, which would have been reviewable by this Court in a certiorari proceeding under Rule 65.57 Grave abuse of discretion implies a capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, when the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty enjoined or to act at all in contemplation of law.58 Mere abuse of discretion is not enough — it must be grave.59
All of the foregoing shows that while there had been some errors of law on the part of the Court of Appeals, the Petition would still fail even if it were a Petition for Review under Rule 45. With more reason is this Court constrained to dismiss a Petition for Certiorari under Rule 65, which requires not a mere error in judgment, but a grave abuse of discretion amounting to lack of or excess of jurisdiction.
Finally, this Court notices that the prayer in the instant Petition for Certiorari only seeks to nullify the Resolution of the Court of Appeals on petitioner Ong’s Motion for Reconsideration, without praying for the nullification of the Decision itself sought to be reconsidered. The reason seems to be the fact that petitioner Ong, through counsel, received the Decision more than sixty days prior to the filing of the Petition. A Petition seeking to nullify such Decision was, thus, perceived to be violative of Section 4, Rule 65 of the 1997 Rules of Civil Procedure, which originally provides:
SEC. 4. Where petition filed. ? The petition may be filed not later than sixty (60) days from notice of the judgment, order or resolution sought to be assailed in the Supreme Court or, if it relates to the acts or omissions of a lower court or of a corporation, board, officer or person, in the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed in the Court of Appeals whether or not the same is in aid of its appellate jurisdiction, x x x.
Section 4, Rule 65 was, however, amended on 1 September 2000, several months before the filing of this Petition, to insert the following provision:
In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the sixty (60) day period shall be counted from notice of the denial of said motion.
This insertion gives petitioner Ong a fresh 60-day period to assail the Decision via a Petition for Certiorari, which is what this Petition really seeks and which is how this Court has treated the same.
WHEREFORE, the Decision of the Court of Appeals reinstating the Decision of the Metropolitan Trial Court holding petitioner Victoria Ong liable for damages is affirmed. The instant Petition for Certiorari is hereby DISMISSED for lack of merit. Costs against petitioner.
Panganiban, C.J., Chairperson, Ynares-Santiago, Austria-Martinez, Callejo, Sr., J.J., concur.
1 Spelled as Bognalbal in some parts of the rollo.
2 Penned by Associate Justice Fermin A. Martin, Jr. with Associate Justices Romeo A. Brawner and Andres B. Reyes, concurring; rollo, pp. 31-41.
3 Id. at 32-36.
4 Id. at 40-41.
5 Id. at 53-54.
6 Id. at 11.
7 De Gala-Sison v. Maddela, G.R. No. L-24584, 30 October 1975, 67 SCRA 478, 485; Matute v. Macadaeg, 99 Phil. 340, 344 (1956).
8 The Insular Life Assurance Company, Ltd. v. Court of Appeals, G.R. No. 126850, 28 April 2004, 428 SCRA 79, 86.
9 Rollo, p. 165.
10 Id. at 33-34.
11 Id. at 192-196.
12 Id. at 192.
13 Id. at 195.
14 Id. at 165.
15 Id. at 196.
16 Cf. Civil Code, Article 527.
17 Rev. Ao-As v. Hon. Court of Appeals, G.R. No. 128464, 20 June 2006.
18 Rollo, pp. 168-169.
19 Id. at 176, 182-183, 198.
20 Id. at 182.
21 Id. at 152.
22 People v. Lua, 326 Phil. 556, 563-564 (1996).
23 Cf. rollo, p. 60.
24 Rollo, p. 183.
25 Id. at 188.
26 Id. at 37.
27 Id. at 37-38.
28 IV Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines, 1991 Ed., p. 382.
29 Inchausti & Co. v. Yulo, 34 Phil. 978, 986 (1914); Zapanta v. de Rotaeche, 21 Phil. 154, 159 (1912).
30 Rollo, p. 165.
31 Aboitiz v. De Silva, 45 Phil. 883, 890 (1924), citing Zapanta v. De Rotaeche, supra note 29; Martinez v. Cavives, 25 Phil. 581, 586 (1913); Vaca v. Kosca, 26 Phil. 388 (1913).
32 Rollo, p. 187. The demand letters are Exhibits "C" and "D" (rollo, p. 35). Take note also that the first demand letter was served before the 24 April 1995 abandonment.
33 Id. at 177.
34 Article 1167, Civil Code.
35 Article 1191 of the Civil Code provides:
Art. 1191. The power to rescind obligations is implied in reciprocal ones, in case one of the obligors should not comply with what is incumbent upon him.
The injured party may choose between fulfillment and rescission of the obligation, with the payment of damages in either case. He may also seek rescission, even after he has chosen fulfillment, if the latter should become impossible.
The court shall decree the rescission claimed, unless there be just cause authorizing the fixing of a period.
This is understood to be without prejudice to the rights of third persons who have acquired the thing, in accordance with Articles 1385 and 1388 of the Mortgage Law.
36 Rollo, pp. 182-183.
37 Id. at 184-188.
38 Id. at 188-192.
39 Id. at 179-182.
40 Id. at 59.
41 G.R. No. L-56524, 27 January 1989, 169 SCRA 558, 564-565, citing Weldon Construction Corporation v. Court of Appeals, G.R. No. L-35721, 12 October 1987, 154 SCRA 618, 631-632.
42 Cf. V Paras, 1995 Ed., p. 482: "[As a general rule, a contractor] CANNOT withdraw or demand a higher price EVEN IF there be a higher cost of labor or materials".
43 ARTICULO 1.593
El Arquitecto o contratista que se encarga por un a juste alzado de la construccion de un edificio u otra obra en vista de un plano convenido con el proprietario del suelo, no puede pedir aumento de precio aunque se haya aumentado el de los jornales o materiales; pero podra hacerlo cuando se haya hecho algun cambio en el plano que produzca aumento de obra, siempre que hubiese dado su autorizacion el propietario.
44 Rollo, pp. 188-192.
45 Id. at 158.
46 Arenas v. Court of Appeals, supra note 41, citing Weldon Construction Corporation v. Court of Appeals, supra note 41.
47 Rollo, p. 39.
48 G.R. No. 80479, 28 July 1989, 175 SCRA 656, 661-662.
49 Cf. Civil Code, Article 1169, par. 3: "In reciprocal obligations, neither party incurs in delay if the other does not comply or is not ready to comply in a proper manner with what is incumbent upon him. From the moment one of the parties fulfills his obligation, delay by the other begins."
This provision completely exculpates the second party who defers performance of his obligation from damages under Article 1170 until the other party performs what is incumbent upon him. On the other hand, Article 1192 does not really exculpate the second infractor from liability, as the second infractor is actually punished for his breach by mitigating the damages to be awarded to him from the previous breach of the other party.
Article 1169, paragraph 3 is, however, only meant to provide an exception to the first paragraph of the same article, wherein delay is determined to commence at the time the obligee makes a judicial or extrajudicial demand. The purpose of the entire Article 1169 is to determine the commencement of delay, since Article 1170 makes the obligor liable for damages in case of fraud, negligence, delay, or contravention of the tenor of the obligation. Article 1169 should be applied only when there is an eventual performance of the obligation, the issue being whether there was delay before the eventual performance, as to hold the obligor liable for damages under Article 1170 by reason of the delay, despite eventual performance of the obligation.
In the case at bar, the damages prayed for by both parties are allegedly brought about not by mere delay, but by total breach of the obligation, as shown by the invocation of Articles 1724 (abandonment) and 1191 (resolution/rescission) of the Civil Code. There was no eventual performance on the part of either petitioner Ong or respondent Bogñalbal.
50 Report of the Code Commission, p. 130.
51 Article 2214 refers to quasi-delicts:
Art. 2214. In quasi-delicts, the contributory negligence of the plaintiff shall reduce the damages that he may recover.
52 People v. Palmon, 86 Phil. 350, 353-354 (1950); People v. Peñas, 86 Phil. 596, 598 (1950); Esperat v. Avila, 126 Phil. 965, 971 (1967); People v. Laba, 139 Phil. 313, 321 (1969); Aisporna v. Court of Appeals, 198 Phil. 838, 847 (1982).
53 Respondent Bogñalbal claims that he was constrained to stop working on the remaining portion of the project after petitioner allegedly refused, and still refuses, to pay the fourth progress billing (Rollo, p. 151); petitioner Ong, on the other hand, claims that respondent Bogñalbal agreed to collect the fourth progress billing after he has completed the Kenzo flooring (Rollo, p. 183).
54 For example, S sells 10 boxes of mangoes to B for P1,000 each (or a total of P10,000). B made a partial payment of P5,000, defaulting in the payment of the other P5,000, but S had previously delivered only 7 boxes and defaulted in the delivery of the other 3 boxes. If the parties did not eventually perform their respective obligations (such that there is breach and not mere delay), the courts should first put the parties in equal footing with respect to their reciprocal principal obligations. Hence, B, the second infractor, would indeed be exempt from the payment of damages, but this exemption should only be applied after she pays P2,000 in actual damages representing the excess of S’s partial performance of her reciprocal principal obligation.
55 Cf. table within this Decision’s subheading "Credibility of Architect Cano."
56 Id.; We get 73.375% by adding together the partial accomplishments in the first three progress billings: 17.975% + 34.650% + 20.750% = 75.375%.
57 Rigor v. Tenth Division of the Court of Appeals, G.R. No. 167400, 30 June 2006, citing Travelaire & Tours Corp. v. National Labor Relations Commission, 355 Phil. 932, 937 (1998).
58 Akbayan-Youth v. Comelec, 355 Phil. 318, 342 (2001).
59 Montecillo v. Civil Service Commission, 412 Phil. 524. 529 (2001), citing Tomas Claudio Memorial College, Inc. v. Court of Appeals, G.R. No. 124262, 12 October 1999, 316 SCRA 502, 508; Tañada v. Angara, G.R. No. 118295, 2 May 1997, 272 SCRA 18, 79.
August 31, 2006
Assailed and sought to be set aside in this petition for certiorari under Rule 65 of the Rules of Court is the August 6, 2001 Decision1 of the Court of Appeals (CA) in CA-G.R. SP No. 63907 which affirmed an earlier decision of the National Labor Relations Commission (NLRC) dismissing the petitioner’s complaint for illegal dismissal against the herein private respondents, St. Paul’s College of Manila and its president and college dean, Sister Natividad De Jesus Ferraren, S.P.C.
In brief, the pertinent facts are:
Petitioner, a professor in the respondent St. Paul’s College of Manila for 22 years, verbally accepted sometime in February, 1998 a tutorial and a summer teaching load for the summer of 1998. Subsequently, the petitioner decided to leave for the United States in response to an urgent request from her brother and sister-in-law thereat to help them take care of their children, thus necessitating a revision of her summer schedule. Hence, in a letter dated March 31, 1998 and addressed to respondent Sister Natividad De Jesus Ferraren, president and college dean of the respondent college, the petitioner proposed a change in her teaching schedule to accommodate her departure for abroad on April 27, 1998.
Unfortunately, it was only on April 26, 1998 when Sister Ferraren received a copy of said letter as attached to another letter by the petitioner dated April 25, 1998. In that letter of April 25, 1998, the petitioner apologized for not being able to seek Sister Ferraren’s prior approval of change in her teaching schedule but explained that the change had been made with the approval of her (petitioner’s) department chairperson, Ms. Shirley Agatep and the college’s registrar, Ms. Lilia B. Santos.
It was only upon the belated receipt of the said April 25 letter that Sister Ferraren learned for the first time of the petitioner’s plan to depart for abroad and of her proposal to alter her summer teaching schedule. Despite her knowledge of the need for a schedule change as early as March of 1998, the petitioner never bothered to mention about it even when she signed her conformity to the summer load schedule fixed by the college and despite an April 15, 1998 memorandum reminding all teachers to comply with their teaching schedules or risk disciplinary action.
Conformably with the existing college’s policy whereby only its president and college dean can approve changes in the schedules of classes and applications for leave, Sister Ferraren wrote department chairperson Ms. Shirley Agatep and college registrar Ms. Lilia B. Santos to submit their written explanations regarding the petitioner’s allegations that the two had approved the change in her summer teaching schedule. Both denied the imputed approval and even stated in their respective written explanations that because they are without authority to act on the matter, they merely advised the petitioner to secure the approval of Sister Ferraren. While admitting to having merely endorsed the petitioner’s request for a change of schedule, Ms. Agatep further expressed surprise on how it came about that it was only on April 25, 1998 when the endorsed request was delivered by the petitioner to Sister Ferraren.
Thereafter, in a memorandum dated May 19, 1998 to which was attached the aforementioned written explanations of Ms. Agatep and Ms. Santos, the petitioner was required to show cause within five (5) days from receipt of said memorandum why she should not be subjected to disciplinary action, including dismissal, for: (1) taking a leave without the explicit approval of the college dean and president; (2) abandonment of employment; (3) fraud and willful breach of trust; (4) failure to observe contractual obligations with the school; (5) serious misconduct or willful disobedience in connection with work; and (6) insubordination, all punishable under the College’s Faculty Manual.
On June 2, 1998, the respondent college officially started the school year 1998-1999 with a seminar for all faculty members. Petitioner was neither present thereat nor did she communicate her whereabouts. At this time, the respondent college had not yet even received any response from her to the show-cause memorandum adverted to.
Classes commenced with the petitioner still nowhere to be found, compelling the respondent college to hire the services of a substitute teacher to take over some of her more important subjects while her other classes were left unattended. Meanwhile, the petitioner continued to remain in the college’s payroll as a full-time professor for the subjects assigned to her, including those momentarily taken over by the substitute teacher.
On June 10, 1998, the petitioner surfaced and came forward to personally deliver to Sister Ferraren her written compliance to the show-cause memorandum. In it, she admitted having changed her schedule without first seeking Sister Ferraren’s approval but with the explanation that she had been constantly trying as early as March of that year to write for an approval of adjustment in her teaching schedule but to no avail. She further explained that it was only when she ran out of time that she decided to leave her letter-request for schedule adjustment with Sister Ferraren’s secretary on April 25, 1998.
Upon handing over her aforesaid written compliance to Sister Ferraren, the petitioner verbally requested the latter to simply set it aside and pleaded to Sister Ferraren to forgo conducting an administrative hearing on her case so as not to apprise the other teachers of the details of the incident, and expressed her desire to merely retire instead. Sister Ferraren immediately accommodated her desire for early retirement but directed the petitioner to reduce the same in writing to facilitate the release of her unpaid salaries and benefits as an early retiree. The petitioner told Sister Ferraren that she would bring a written request therefor the following day. In turn, Sister Ferraren assured her of the expedient release of her salaries and benefits. Hence, after the petitioner left, Sister Ferraren instructed the college’s accounting department to compute all the salaries and benefits due the petitioner and distributed her remaining classes to other teachers. The accounting department accordingly struck the petitioner’s name off the payroll of the college starting June 10, 1998 after computing her unpaid salaries and benefits.
As things turned out later, however, the petitioner failed to submit her promised written request for early retirement despite several attempts on the part of the college to contact her for the purpose. Sensing that the petitioner was deliberately avoiding Sister Ferraren and that she may be contemplating of filing a case for illegal dismissal, the respondent college decided to hold an administrative hearing on the various charges proferred against her in the show-cause memorandum, which charges remained pending before she optionally retired on June 10, 1998. Accordingly, formal notices dated July 9, 1998 were separately sent to the petitioner, Ms. Agatep and Ms. Santos directing them to appear at a formal hearing on July 17, 1998 to explain their sides.
A day before the scheduled hearing, the petitioner came back and verbally informed Sister Ferraren of her intention to attend the hearing whereat she would admit her mistake and put on record her decision to simply retire. During the hearing, however, the petitioner, in a complete turn about of what she verbally told to Sister Ferraren, did not admit her mistake nor make of record her decision for an early retirement. Instead, she excused herself from the hearing for allegedly feeling ill and asked for a resetting thereof in two (2) weeks, after which she left even as the hearing committee informed her that the hearing would nonetheless proceed as to Ms. Agatep and Ms. Santos who were then ready to present their sides. Before leaving, however, the petitioner was assured by the committee that she would be informed of the minutes of the hearing and that she may respond in writing should she be unable to attend the next hearing. This was noted in the minutes of the July 17 hearing, which minutes were duly sent to the petitioner on July 21, 1998, together with a notice for the next hearing date on July 30, 1998.
On July 29, 1998, or a day before the next hearing, the respondent college and Sister Ferraren received a letter from the petitioner’s counsel to the effect that his client does not intend anymore to attend any hearings. In the same letter, the counsel demanded for his client’s reinstatement with full backwages and without loss of seniority rights and benefits. The following day, the investigating committee proceeded with the hearing, and eventually reached the conclusion that the petitioner was guilty of the charges stated in the show-cause memorandum. Even then, the committee recommended to allow the petitioner’s early retirement and the payment of her benefits in acknowledgment of her desire to simply retire.
It was against the foregoing backdrop of events when, on October 6, 1998, the petitioner filed with the Labor Arbiter a complaint for illegal dismissal and non-payment of salaries against the herein private respondents.
In his decision of December 22, 1999, Labor Arbiter Romulo S. Protacio found for the petitioner. But on appeal by the private respondents, the NLRC, in its decision of December 29, 2000, reversed that of the labor arbiter.
From the NLRC’s reversal decision, the petitioner went to the CA in CA-G.R. SP No. 63907. As stated at the threshold hereof, the appellate court, in its decision dated August 6, 2001, affirmed that of the NLRC.
Hence, the petitioner’s present recourse under Rule 65 of the Rules of Court raising the following issues:
1. Whether the CA committed grave abuse of discretion in affirming the NLRC’s finding that the private respondents have granted the petitioner an early retirement;
2. Whether the CA committed grave abuse of discretion in affirming the NLRC’s finding that the private respondents have not illegally dismissed the petitioner and hence not entitled to reinstatement with backwages and without loss of seniority rights and other benefits appertaining to her position;
3. Whether the CA committed grave abuse of discretion in affirming the NLRC’s finding that Sister Ferraren cannot be held personally liable for the petitioner’s claims; and
4. Whether the CA committed grave abuse of discretion in not awarding moral and exemplary damages and attorney’s fees to the petitioner.
It bears emphasis that the petitioner has come to this Court via the vehicle of certiorari under Rule 65 of the Rules of Court. In their Comment2 to the petition, the private respondents very much put in issue the propriety of the remedy resorted to by the petitioner. We sustain the private respondents.
One of the requisites for the issuance of a writ for certiorari is that there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law. Section 1, Rule 65 of the Rules of Court is emphatic on this. It reads:
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. [Emphasis supplied]
xxx       xxx       xxx
The special civil action of certiorari cannot be allowed when a party to a suit fails to appeal a judgment to the proper forum despite the availability of the remedy of appeal.3 Certiorari is not and cannot be used as a substitute for appeal, where the latter remedy is available.4 If any, the petitioner’s proper recourse would have been to elevate the assailed CA decision to this Court via a petition for review under Rule 45 of the Rules of Court.
Moreover, let alone the fact that the petitioner erroneously resorted to Rule 65 when appeal by way of a petition for review under Rule 45 was available, the error is worse compounded by the circumstance that the petitioner did not file any motion for reconsideration with the CA prior to the filing of the present petition. The general rule is that a previous motion for reconsideration in the court of original proceeding is necessary before invoking the certiorari jurisdiction of a higher court. A petition for certiorari will not generally be entertained unless the public respondent has had, through a motion for reconsideration, a chance to correct or rectify the error imputed to him.5
But even if we were to overlook the error in the mode of appeal and suspend the application of procedural rules, as urged by the petitioner, still the petition must fail.
As it is, the questions raised in this recourse, be it under Rule 45 or Rule 65 of the Rules of Court, are basically one of facts.
Hornbook is the rule that in a petition for review, only errors of law may be raised.6 Section 1 of Rule 45 expressly says so, to wit:
Section 1. Filing of petition with the Supreme Court. – A party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or other courts whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition shall raise only questions of law which must be distinctly set forth. [Emphasis supplied]
On the other hand, in a petition for certiorari under Rule 65, only jurisdictional issues may be raised, as when a court or tribunal has acted "without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction." The extraordinary writ of certiorari cannot legally be used for any other purpose. In a special civil action for certiorari, the Court cannot correct errors of fact which the lower court or tribunal may have committed.
Deference to the expertise acquired by the NLRC and the limited scope granted in the exercise of certiorari jurisdiction restrain any probe into the correctness of the NLRC’s evaluation of evidence.7 Factual findings of agencies exercising quasi-judicial functions, like the NLRC, are accorded not only respect but even finality, aside from the consideration that this Court is essentially not a trier of facts.8
Hence, in certiorari proceedings under Rule 65, judicial review does not go as far as to evaluate the sufficiency of evidence upon which the NLRC based its determinations, the inquiry being limited essentially to whether said tribunal has acted without or in excess of its jurisdiction or with grave abuse of discretion. And an act of a court or tribunal may only be considered as in grave abuse of discretion when it is performed in a capricious or whimsical exercise of judgment which is equivalent to lack of jurisdiction. The abuse of discretion must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or personal hostility.9
Here, there is no indication whatsoever that any grave abuse of discretion attended the proceedings below. For sure, the findings of fact were well substantiated by the evidence presented. We see no reason to disturb such findings. Further, those findings fully support the decision reached by the NLRC as affirmed by the CA.
WHEREFORE, the petition is DISMISSED and the assailed decision of the CA is hereby AFFIRMED.
Costs against the petitioner.
Puno, Chairperson, Sandoval-Gutierrez, Corona, Azcuna, J.J., concur.
1 Penned by Associate Justice Eugenio S. Labitoria with Associate Justices Eloy R. Bello and Perlita J. Tria Tirona, (all ret.), concurring; Rollo pp. 87-99.
2 Id. at 325-345.
3 De La Paz v. Panis, G.R. No. 57023, June 22, 1995, 245 SCRA 242.
4 Del Rosario v. Balagot, G.R. No. L-55377, October 18, 1988, 166 SCRA 429.
5 Amante v. Sison and Manzanero, 60 Phil. 949, 951 (1934).
6 Villarico v. Court of Appeals, G.R. No. 132115, January 4, 2002, 373 SCRA 23.
7 Travelaire & Tours Corp. et al. v. National Labor Relations Commission et. al., G.R. No. 131523, 20 August 1998, 294 SCRA 505.
8 Bataan Shipyard and Engineering Corporation v. National Labor Relations Commission, et. al., G.R. No. 102876, March 4, 1997, 269 SCRA 199.
9 Intestate Estate of Carmen de Luna v. IAC, G.R. No. 72424, February 13, 1989, 170 SCRA 246, 254.
August 31, 2006
Before this Court is a petition for review of the Decision1 of the Court of Appeals (CA) in CA-G.R. CV No. 59254 dated June 8, 2001 which reversed the Decision of the Regional Trial Court (RTC) Branch 8 of Aparri, Cagayan, as well as the CA’s Resolution2 dated August 22, 2001 which denied petitioners’ Motion for Reconsideration.
The undisputed facts of the case, as found by the CA, are as follows:
Plaintiff, Federico U. Gorospe, is the registered owner of a parcel of land (Exhibit "H") situated in Maddalero, Buguey, Cagayan, having bought the same from Maria Ugale (Exhibit "A") and Enrique Unciano (Exhibit "B"), evidenced by two separate Deeds of Sale. As a consequence, Transfer Certificate of Title No. 85450 was issued in his name. When Gorospe tried to exercise attributes of ownership of the lot, he was prevented from doing so by defendants Danny Ugale, Jerry Ugale and Pablo Ugale, claiming to be the installed tenants of defendant Juanita A. Vibangco and her brother, Ninoy Altura. Hence, the present case to remove the clouds over Gorospe’s title and for the recovery of possession of the controversial realty.3
On November 14, 1997, the RTC ruled in favor of Danny Ugale, Jerry Ugale, Pablo Ugale, Ninoy Altura and Juanita Vibangco (petitioners) and disposed of the case in this wise:
WHEREFORE, premises considered, the court renders judgment as follows, to wit:
a) Plaintiff’s complaint is hereby dismissed;
b) To pay them [sic] moral damages in the amount of Forty Thousand (P40,000.00) Pesos;
c) To pay exemplary damages in the amount of Twenty Thousand (P20,000.00) Pesos;
d) To pay attorney’s fees in the amount of Fifteen Thousand (P15,000.00) Pesos plus litigation expenses in the amount of Five Thousand (P5,000.00) Pesos; and
e) To pay the costs of suit.
The RTC upheld the stand of petitioners Juanita and Ninoy and concluded that respondent’s title is void having been obtained through fraud.5
Respondent appealed to the CA claiming that the trial court erred: in declaring that Maria and Enrique are no longer owners of the land in question and that the land in Civil Case No. 557-A is the same land subject matter of this case; in declaring that the deeds of sale executed by Maria and Enrique are forgeries; in assuming that TCT No. T-85450 is null and void for being fraudulently issued; and in awarding damages which had no basis.6
The CA found the appeal of respondent meritorious and ruled that the attempt of petitioners to have respondent’s title be declared null on the ground of fraud is a collateral attack on the decree of registration which is prohibited by law, and even assuming that the issues of fraud and ownership can be raised in this case, still the respondent is entitled to the affirmation of ownership as well as the recovery of possession of the land considering that he was able to present TCT No. T-40562 in the name of his predecessors-in-interest, he was able to show that Enrique and Maria sold the property to him, he presented TCT No. T-85450 which was issued in his name, as well as numerous tax declarations and receipts covering the said land.7
The CA also noted that: petitioners failed to produce any deed of conveyance in their name; what petitioners presented were an uncertified photocopy of an Original Certificate of Title (OCT) purportedly covering the lot and an undated and unnotarized Deed of Absolute Sale executed in favor of Juanita allegedly over the property; petitioners relied chiefly on uncorroborated and self-serving testimonies of their witnesses; they are guilty of laches as Juanita failed to have the land declared in her name from the time it was allegedly sold to her; she did not take steps to secure the land despite knowledge of respondent’s attempt to place a monument therein in 1991; petitioners did not move for the annulment of TCT No. T-85450 issued on February 3, 1992 through in rem proceedings; while petitioners alleged forgery, no evidence was adduced to substantiate such claim; petitioners also cannot contest the sale between respondent and his predecessors-in-interest since they are not parties thereto; petitioners cannot impugn the validity of a Torrens title with mere self-serving allegations as it is generally a conclusive evidence on the ownership of the land referred therein; the disputed land is different from the one referred to in Civil Case No. 557-A because apart from the decision in the latter case and the photocopy of an OCT in the name of Pablo Cariño which was not even certified by the Register of Deeds, no other proof was presented by the petitioners to show that said case involved the same land subject of the present petition; petitioners’ possession could just have been by mere tolerance which cannot ripen into a title no matter how long it is continued or however exclusive it may be.8
The CA then disposed of the appeal thus:
IN VIEW OF THE ALL THE FOREGOING, the appealed Decision is hereby REVERSED and SET ASIDE and a new one is entered declaring and affirming ownership of the disputed land in favor of appellant as against herein appellees, ordering the appellees to deliver possession of the subject property to the appellant, ordering the appellees to desist from committing any act of dispossession or molestation of the controversial lot against the appellant, and to pay the costs of this suit. Other prayer for damages and counterclaims are dismissed for insufficiency of evidence.9
Petitioners’ Motion for Reconsideration having been denied, they now come before this Court claiming that the CA gravely erred:
I. IN DELVING BEYOND THE GROUNDS RAISED BY RESPONDENT IN HIS APPEAL.
II. IN NOT UPHOLDING THE FINDINGS OF THE TRIAL COURT THAT PETITIONER JUANITA VIBANGCO AND HER PREDECESSORS-IN-INTEREST ARE THE RIGHTFUL OWNERS OF THE DISPUTED PROPERTY.
III. IN NOT DECLARING THAT RESPONDENT IS GUILTY OF FRAUD IN CAUSING THE REGISTRATION OF THE LAND IN QUESTION NOT ONLY ON THE BASIS OF THE FORGED DEEDS OF SALE BUT ALSO BY REASON OF HIS PRIOR KNOWLEDGE THAT OTHERS WERE OCCUPYING THE SUBJECT PROPERTY PRIOR TO THE PURPORTED EXECUTION OF THE SAID DOCUMENTS.
IV. IN NOT UPHOLDING THE AWARD OF DAMAGES IN FAVOR OF PETITIONERS.10
Petitioners argue that: the CA went beyond the grounds raised by respondent in his appeal when it delved on the issue of indefeasibility of title issued under the Torrens system; it is not accurate to state that since respondent was able to register the subject property in his name, he is the legal owner thereof as registration is not equivalent to title; ownership over the land was already granted to the Alturas in 1953 by the CFI in Civil Case No. 557-A and therefore, Maria and Enrique had no right to sell the property; Juanita’s predecessor-in-interest were purchasers for value and were in open, continuous and peaceful possession thereof while respondent’s predecessors-in-interest never possessed the subject lot neither did they pay any realty taxes thereon; respondent admitted that he was aware that there were persons in possession of the property, he therefore cannot be deemed a buyer in good faith; the principle on indefeasibility of Torrens titles, such that certificates of title could not be collaterally attacked, is not applicable in the present case as such principle does not extend to a transferee who takes the certificate of title with notice of a flaw in his title; respondent paid taxes on the property only so that the title of the property could be transferred to his name; Juanita and her predecessors-in-interest meanwhile have been paying taxes long before respondent made such payments; Juanita did not register the property under her name as she and her predecessors-in-interest have never been disturbed in their possession and they never suspected that any insidious scheme would be committed by anyone; forgery may be deduced from the face of the purported deeds themselves; it was incumbent upon respondent to present the alleged vendors to prove that their signatures were not forged; the deeds of sale were notarized in Tuguegarao, Cagayan, about 100 kilometers from Buguey, although there were notaries public in the town and the nearby municipalities, and even while both Enrique and Maria were already too old and sickly to travel; respondent admitted that no actual survey was made as all that was done was mere table survey.11
Petitioners pray that the CA Decision and Resolution be reversed and set aside and that a new decision be rendered by this Court reinstating the RTC Decision.12
In his Comment, the respondent argued that the petition does not involve lack of jurisdiction, grave abuse of discretion or mistake of law, and its verification was not done in the proper form.13
Petitioners in their Reply disagreed and contended that the present petition under Rule 45 involves questions of law; that they have substantially complied with the rules on verification; and that since respondent only raised procedural issues rather than traverse the merits of the instant petition, he is deemed to have admitted petitioners’ allegations.14
Petitioners submitted their Memorandum asserting the arguments they raised in their petition.15
Respondent in his Memorandum reiterated his stance that he is the absolute owner of the property in litigation as evidenced by TCT No. T-85450 having been issued to him by virtue of the deeds of sale executed by Maria and Enrique; that the land in litigation is not the same land subject in Civil Case No. 557-A of the CFI of Aparri, Cagayan, as said land is not identified; and that the signatures of the vendors in the two Deeds of Sale cannot be collaterally attacked in a counterclaim.16
We resolve to deny the petition.
While it is true that respondent failed to raise the defense of indefeasibility of his title in the proceedings before the RTC and in his appeal before the CA, still the CA can and was correct in ruling on this matter.
The general rule is that no issue may be raised on appeal unless it has been brought before the lower tribunal for its consideration. Such rule, however, is subject to exceptions, such as when there are:
(a) grounds not assigned as errors but affecting jurisdiction over the subject matter; (b) matters not assigned as errors on appeal but are evidently plain or clerical errors within contemplation of law; (c) matters not assigned as errors on appeal but consideration of which is necessary in arriving at a just decision and complete resolution of the case or to serve the interests of justice or to avoid dispensing piecemeal justice; (d) matters not specifically assigned as errors on appeal but raised in the trial court and are matters of record having some bearing on the issue submitted which the parties failed to raise or which the lower court ignored; (e) matters not assigned as errors on appeal but closely related to an error assigned; and (f) matters not assigned as errors on appeal but upon which the determination of a question properly assigned, is dependent.17
This is in the interest of justice, to reserve to the appellate court the right, resting in public duty to take cognizance of palpable error on the face of the record and proceedings; to notice errors which are obvious upon inspection and of a controlling character, in order to prevent the miscarriage of justice from oversight. Indeed, an appellate court has wide discretion to correct a fundamental error or one which lies at the base of the proceeding and affects the judgment necessarily.18
In this case, the CA correctly held that the claim of petitioners in their Answer that respondent’s title was acquired through fraud is nothing less than a collateral attack on the decree of registration and title which is against the principle of indefeasibility and incontrovertibility of the title in favor of the person whose name appears therein and the rule that any attack on the validity of such title should be threshed out only in an action directly or expressly filed for that purpose.
This is consistent with the precept that the validity of a torrens title cannot be assailed collaterally.19 Section 48 of Presidential Decree No. 1529 provides that:
Certificate not Subject to Collateral attack.- A certificate of title shall not be subject to collateral attack. It cannot be altered, modified, or cancelled except in a direct proceeding in accordance with law.
Indeed, a certificate of title, once registered, should not thereafter be impugned, altered, changed, modified, enlarged or diminished, except in a direct proceeding permitted by law.20 Otherwise, reliance on registered titles would be lost.21
Here, the attack on the validity of private respondent’s certificate of title was raised as a defense in petitioners’ Answer filed with the trial court.
In her Answer, Juanita averred that:
26. The alleged registration made by plaintiff is fraudulent and illegal, even as no notice was given to answering defendant (Juanita) or her tenant, and, hence, the same is ineffective.
27. Accordingly, the purported deeds of sale allegedly executed in favor of plaintiff, as well as the registration made by plaintiff, should be annulled and voided and that the title of answering defendant over the subject property should be judicially affirmed.22
Ninoy, in his Answer meanwhile stated that:
23. The alleged registration caused by plaintiff over the property is null, void and ineffective, the same having been effected through fraud and without notice to the actual occupants of the property, even as the same was based on a null, void, ineffective, forged, fake and spurious documents.23
Such defense is in the nature of a collateral attack which is not allowed by law as the issue of 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. 24
Petitioners argue that respondent cannot invoke the principle of indefeasibility of title since he knew of petitioners’ possession of the property since time immemorial; that he was not in good faith.
While there are rulings stating that a buyer of a real property which is in the possession of persons other than the seller must be wary and should investigate the rights of those in possession, otherwise such buyer cannot be regarded as a buyer in good faith,25 petitioners in this case, however, failed to show that they have a better right over the subject property. As respondent has presented TCT No. T-85450 in his name, the burden of proof has shifted to petitioners who must establish by preponderance of evidence their allegation that they have a better right over the subject property.26 This petitioners failed to do.
In claiming their right over the property, petitioner Juanita invokes the judgment of the CFI in Civil Case No. 557-A which purportedly awarded to her predecessors-in-interest the property in question. A scrutiny of said judgment however reveals the weakness of her claim.
Said judgment reads in part:
When this case was called for hearing, the parties submitted the following stipulation of facts:
Come now the parties in the above-entitled case and to this Honorable Court respectfully state:
1. That the plaintiff Caridad Ugale hereby sells to the defendants any and all rights and interests she has in the homestead covered by Original Certificate of Title No. 80, particularly the land in question herein which contains an area of 1.6785 hectares;
x x x x
WHEREFORE, the Court hereby renders judgment in accordance with the terms and conditions of said stipulation and orders the parties to strictly follow and observe the terms and conditions thereof. Without costs.
SO ORDERED.27 (Emphasis supplied)
It did not specify what particular portion of the land covered by OCT No. 80 Caridad was referring to and all that is clear is that what Caridad sold to petitioners are only her rights and interests in the homestead containing an area of 1.6785 hectares covered by OCT No. 80 which according to petitioners’ evidence covers a land consisting of 12 hectares.28 Moreover, petitioners failed to show how this tract of land was partitioned and how the property they are now occupying was transferred to Caridad from whom they allegedly bought said property.
On the other hand, the property described in TCT No. T-40562 in the name of Anacleta Ugale, predecessor-in-interest of Maria29 and Enrique, is the same property described in TCT No. T-85450 in the name of respondent,30 both of which originated from Original Certificate of Title No. 80 (112).
We fully agree and adopt the CA’s findings on this matter, to wit:
Finally, We sustain plaintiff-appellant’s assertion that the disputed land is different from the one referred to in Civil Case No. 557-A. Apart from the Decision in the latter case, no other proof was presented by the appellees to show that the case involved with the same land. The purported Original Certificate of Title in the name of Pablo Carino is not much of help either considering that it is but a photocopy of the original and was not even certified by the Register of Deeds. It is but a mere scrap of paper and has no evidentiary value whatsoever. Further still, a perusal of the title number would seem to indicate that the number "80" was just superimposed before it was photocopied in order to make it appear that it is the same land referred to in Civil Case No. 577-A. This seems to underscore appellees’ vain attempt to cloak with legal color their design to retain the parcel of land at the expense of the rightful owner.31
And even if we assume, en arguendo, that the land claimed by petitioners is the same as that claimed by respondent, the argument of petitioners that they have been in possession of the subject property since time immemorial does not persuade us. Petitioner Ninoy in his testimony admitted that the property they are occupying was covered by a title in the name of Pablo Cariño and that he (Ninoy) personally cultivated the land only from 1929 to 1960. While he claims that his father cultivated the land before him, he did not specify however from what year, his father possessed the same.32 On the other hand, TCT No. T-40562, from which respondent’s title was derived, was issued on November 22, 1977; this in turn was derived from OCT No. 80 (112) issued on July 5, 1923.33 It therefore appears that the title of respondent’s predecessor issued in 1923 preceded the alleged possession of petitioners in 1929. Lands covered by title cannot be acquired by prescription or by adverse possession and allegations of uninterrupted possession for many years cannot prevail over respondent’s certificate of title, which is the best proof of ownership thereof.34
As preponderance of evidence tilt in favor of respondent, there can be no other conclusion but that respondent, being the registered owner of the subject property, should be placed in possession thereof.
WHEREFORE, the petition is DENIED for lack of merit. The Decision of the Court of Appeals in CA-G.R. CV No. 59254 dated June 8, 2001 is hereby AFFIRMED.
No pronouncement as to costs.
Panganiban, C.J., Chairperson, Ynares-Santiago, Callejo, Sr., Chico-Nazario, J.J., concur.
1 Penned by Associate Justice Conrado M .Vasquez, Jr. and concurred in by Associate Justices Martin S. Villarama, Jr., and Alicia L. Santos, rollo, pp. 28-39.
2 Id. at 40.
3 Id. at 28-29.
4 Records, pp. 237-238.
5 Id. at 237.
6 Rollo, p. 30.
7 Id. at 33.
8 Id. at 31-38.
9 Id. at 38.
10 Id. at 17.
11 Id. at 18-26.
12 Id. at 27.
13 Id. at 56-57.
14 Id. at 59-66.
15 Id. at 99-124.
16 Id. at 82-84.
17 Mendoza v. Bautista, G.R. No. 143666, March 18, 2005, 453 SCRA 691, 702-703.
18 Id. at 707.
19 Vda. de Gualberto v. Go, G.R. No. 139843, July 21, 2005, 463 SCRA 671, 677; Foster-Gallego v. Galang, G.R. No. 130228, July 27, 2004, 435 SCRA 275, 290; Seville v. National Development Company, 403 Phil. 843, 858 (2001).
20 Seville v. National Development Company, supra at 859; De Pedro v. Romasan Development Corp., G.R. No. 158002, February 28, 2005, 452 SCRA 564, 575.
21 Seville v. National Development Company, supra at 859.
22 Records, p. 44.
23 Id. at 62.
24 Caraan v. Court of Appeals, G.R. No. 140752, November 11, 2005, 474 SCRA 543, 549-550; S.J. Vda. de Villanueva v. Court of Appeals, 403 Phil. 721, 732 (2001); Eduarte v. Court of Appeals, 370 Phil. 18, 27 (1999).
25 Occeña v. Esponilla, G.R. No. 156973, June 4, 2004, 431 SCRA 116, 124-125; Lu v. Spouses Manipon, 431 Phil. 569, 583 (2002); David v. Malay, 376 Phil. 825, 839 (1999).
26 Caraan v. Court of Appeals, supra note 24, at 548.
27 Records, pp. 186-187.
28 Id. at 182 and 185.
29 Id. at 119-120.
30 Id. at 128, Exh. "H".
31 CA rollo, p. 165.
32 TSN, Alfredo Altura, June 6, 1995, pp. 3-4.
33 Records, p. 120, Exh. "C".
34 Caraan v. Court of Appeals, supra note 24, at 553, 554.