Digests

[G.R. No. 139396. August 15, 2000] EFREN O. LOQUIAS, ANTONIO V. DIN, JR., ANGELITO L. MARTINEZ II, LOVELYN J. BIADOR, GREGORIO FACIOL, JR.,  petitioners, vs. OFFICE OF THE OMBUDSMAN, and DR. JOSE PEPITO H. DALOGDOG, D ALOGDOG, DR. AURORA BEATRIZ BEATRIZ A. ROMANO, MA. TERESITA C. ABASTAR, JESSICA S. ALLAN, MA. TERESA ANIVERSARIO, respondents.

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In a sworn complaint filed with the office of the o mbudsman, private respondents charged  petitioners with violation of RA 3019 (anti graft and corrupt practices act) for their alleged failure to give the salary increases and benefits provided in sec 20 of the magna carta of public pub lic health workers and certain local budget b udget circulars for the health personnel of the local government of San Miguel.

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Private respondents were officers of the Municipal Health office who instituted the complaint on behalf of 490 members of the association. The petitioners are the mayor, vice-mayor and members of the Sangguniang Bayan of the municipality

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Public respondent Ombudsman Desierto approved the resolution of graft investigation officer, Coresis, of the office of the ombudsman finding probable cause to conclude that the crime of  violation of sec3(e) or RA 3019 has been committed by the mayor, vice mayor and members of  the sandiganbayan, and that the appropriation will be filed with the Sandiganbayan.

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Petitioners filed a motion for reinvestigation with prayer to defer arraignment and pre-trial They recognize the salary increases of the health personnel as mandatory statutory o obligation but it could not be implemented because of lack of funds The failure to give salary increases and other benefits were due to circumstances beyond be yond o their control

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June 11, 1999 Memorandum Special prosecution officer Ongpauco-Cortel recommended the dismissal of the case o Deputy Special Prosecutor Kallos approved o Special prosecutor Tamayo concurred o

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Ombudsman Desierto disapproved the memorandum stating that the crime has long been committed

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June 29, 1998- Petitioners filed an MR alleging that there is no probable cause ca use that they violated sec3(e) of RA 3019 and that the joint affidavits of the private complainants have made the case too weak that could not even create a probable cause. They also allege that the order  disapproving the dismissal of the case constitutes a den ial of their MR 

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Ombudsman commented through the Solicitor General that the petition of the petitioners did not comply with Section 5 Rule 7 Verification and certification of nonforum shopping was signed o nly by Din (one of the o  petitioners) and not all the respondents.

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There was no showing that Din was authorized by his co-petitioners to represent them in this case Petitioners replied that there was substantial compliance with sec5 Rule 7 notwithstanding that only one of the petitioners signed the verification and certification of nonforum shopping.

ISSUE: WON the petition was defective because of the lack of signatures of the other petitioners •

We agree with the Solicitor General that the petition is defective. Section 5, Rule 7 expressly provides that it is the plaintiff or principal party who shall certify under oath that he has not commenced any action involving the same issues in any court, etc . Only petitioner Din, the Vice-Mayor of San Miguel, Zamboanga del Sur, signed the certification. There is no showing that he was authorized by his co-petitioners to represent the latter and to sign the certification. It cannot likewise be presumed that petitioner Din knew, to the best of his knowledge, whether his co-petitioners had the same or similar actions or claims filed or   pending. We find that substantial compliance will not suffice in a matter involving strict observance by the rules. The attestation contained in the certification on non-forum shopping requires personal knowledge by the party who executed the same. Petitioners must show reasonable cause for failure to personally sign the certification. Utter disregard of the rules cannot justly be rationalized by harking on the policy of liberal construction.

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Eto side note lang about the ombudsman and the affidavits: With respect to the joint affidavits of waiver allegedly executed by private complainants for the purpose of requesting the Special Prosecutor to move for the dismissal of the criminal case, this Court ruled in Alba vs. Nitorreda that a joint affidavit of desistance is not binding on the Office of the Ombudsman and cannot  prevail over the provision of law which categorically allows the Office of the Ombudsman to investigate and prosecute on its own any act or omission of a public officer or employee, office or agency which appears to be illegal, unjust, improper or inefficient.

G.R. No. L-36786 April 17, 1989 PEDRO LIM, plaintiff-appellant, vs. PERFECTO JABALDE, defendant- appellee.

Facts:

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Plaintiff-appellant deposited a sum of money with defendant-appellee Philippine National Bank  (PNB)

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Plaintiff filed this complaint, seeking the recovery of said amount o

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Basis: a passbook 

Defendant filed an answer denying the dates indicated in the passbook  o

PNB alleged that there were discrepancies in said passbook, likely due to tampering on the part of plaintiff 

Issue: W/N defendant PNB's failure to deny under oath the entries in the passbook as 'copied' in the

complaint constitutes an admission of the genuineness and due execution of the document Decision/Ratio: NO - General rule: such failure is tantamount to such an admission

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But this rule is inapplicable in the case at bar because the plaintiff submitted evidence indicating what was allegedly the dates of deposit, but did not raise an objection when witnesses testified on different dates of deposit

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By this omission, the plaintiff waived the defendant's failure to deny under oath the genuineness and execution of the passbook entries

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Hence, PNB may interpose a defense assailing the genuineness and due execution of the  passbook entries

G.R. No. 87917 August 7, 1990 SPS. JUAN B. DULOS and MARIA C. DULOS  petitioners, vs. COURT OF APPEALS, SPS. MARIANO NOCOM and ANACORETA NOCOM and SPS. LORENZO ONG ENG CHONG and CARMEN SOCO, and DEPUTY SHERIFF HONORIO SANTOS of the Office of the Sheriff of Makati, Metro Manila, respondents. Facts: •

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A special civil action of certiorari and prohibition to nullify the CA resolution affirming the decision of the MTC declaring petitioners in default. June 24, 1988. Sps. Dulos were sued for forcible entry by Sps. Nocom filed at MTC, Las Pinas. And a pre-trial conference was scheduled on August 18, 1988, with due notice to th e parties. August 16, 1988. Sps. Nocom filed a complaint for annulment of sale, reconveyance of title with the RTC, Makati. Aug. 17, 1988. The counsel of Nocom filed a motion to suspend proceeding in the forcible entry case on the ground of prejudicial question of ownership. He set the hearing for the said motion on Aug. 18, 1988. But petitioners failed to appear on the said date. Only the sister of  Juan, Ananita Rectra, appeared with a SPA from Juan. The MTC declared petitioners in default holding that the issue of ownership is not a prejudicial question in ejectment case. Evidence of the respondents was received in the absence of   petitioners amd ruled in favor of the Nocoms. Oct. 10, 1988. Petitioners received a copy of the decision, and filed a MR on Oct. 18, 1988. But was denied. Dec. 9, 1988. Instead of filing an appeal, the petitioners filed a special civil action of certiorari and prohibition with the RTC of Makati praying for the nullification of the judgment of MTC and for declaring them in default. RTC dismissed the petition on the grounds that: (1) the petitioners had been properly declared in default for failure to appear at the scheduled hearing; (2) the filing of the action for  nullification in the RTC was not a valid reason for the suspension of the hearing in the MTC; (3) the motion for reconsideration was fatally defective because it was not verified and accompanied by an affidavit of merit; and (4) the grant of the motion for suspension or   postponement was discretionary upon the court.

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Petitioners elevated the matter to the CA, but was denied.

Issue: W/N the MTC erred in declaring the petitioners in default despite the appearance of a representative with a SPA. NO. W/N the party declared in default can be furnished with copies of the subsequent proceedings of the court. NO. Held: Petition was DISMISSED. Rationale: The Court said that the case may be dismissed for failure of a party to appear at a pre-trial • conference as provided in the Rules of Court. In this case, while it is true that Rectra, the sister  of Juan did appear at the hearing but she did not present to the court the SPA to represent Juan or the medical certificate of the operation. Further, the petitioners can avail of other lawyers, if  their counsel is not able to represent them in the pre-trial conference.

The Court also said the denial of the application for preliminary injunction was justified  because the petitioners did not employ the proper remedy prescribed by the Rules of Court. As enumerated in Lina v. Court of Appeals: o

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The defendant in default may, at any time after discovery thereof and before  judgment, file a motion under oath to set aside the order of default on the  ground that was failure to answer or appear on the date set for pre-trial was due to fraud, accident, mistake or excusable negligence, and that he has a meritorious defense;  If the judgment has already been rendered when the defendant discovered the default, but before the same has become final and executory, he may file a  petition for new trial under Sec. 1(a) of Rule 37;  If the defendant discovered the default after the judgment has become final  and executory, he may file a petition for relief under Sec. 2, Rule 38; and   He may also appeal from the judgment rendered against him as contrary to the evidence or the law, even if no petition to set aside the order of default  has been presented by him.

In this case, the petitioners filed a petition for certiorari in the RTC, which correctly dismissed it. It is settled that the special civil action of  certiorari  is not and cannot be made a substitute for an appeal, where the latter remedy is available . The petitioners also made no move to set aside the order of default rendered by the MTC, although they knew it. The petitioners have failed to take into account the pertinent provisions of the Rules of Court concerning notices in case a party is declared in default. The Court said that the term used in the Rules is discovery, not notice. And the defendant declared in default is not entitled to notice of subsequent proceedings.

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 Effect of order of default . — Except as provided in Section 9 of Rule 13, a  party declared in default shall not be entitled to notice of subsequent  proceedings, nor to take part in the trial.;  Service upon party in default . — No service of papers other than substantially amended or supplemental pleadings and final orders or   judgments shall be necessary on a party in default unless he files a motion to set aside the order of default in which event he shall be entitled to notice of  all further processings regardless of whether the order of default is set aside or not.;  Relief from order of default . — A party declared in default may at any time after  discovery thereof and before judgment file a motion under oath to set aside the order of default upon proper showing that his failure to answer was due to fraud, accident, mistake or excusable neglect and that he has a meritorious defense. In such case the order of default may be set aside on such terms and conditions as the judge may impose in the interest of justice.

In Suzara v. Caluag , a motion for reconsideration of a judgment of default may be considered a  petition for relief under Section 2 of Rule 38 only if the following requisites are present: (1) it must be verified ; (2) it must be filed within 60 days from the time petitioner learns of the decision but not more than 6 months from entry thereof, and (3) in case of failure to file an answer, the motion must be accompanied by affidavits of merit showing the fraud, accident, mistake and excusable negligence relied upon. In Yap v. Tañada 6 a motion for reconsideration may be considered a motion for new trial under  Sec. 2, Rule 37, if it is accompanied by an affidavit of merit. Since petitioners assert that their  rights were impaired because they were prevented from presenting evidence of their defenses, it was a fatal omission for them not to attach to their motion an affidavit of merit , i.e., an affidavit showing the facts constituting the valid defense which the movant may prove in case a new trial is granted. The requirement of such an affidavit is essential because a new trial would  be only a waste of the time of the court if the complaint turns out to be groundless or the defense ineffective.