Remedial Velasco Cases

Dean’s Circle 2016 UNIVERSITY OF SANTO TOMAS Digested by: DC 2016 Members Editors: Tricia Lacuesta Lorenzo Gayya Cristopher Reyes Macky Siazon Janine Arenas Ninna Bonsol Lloyd Javier

REMEDIAL LAW Supreme Court decisions penned by Associate Justice Presbitero J. Velasco, Jr.

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016

Table of Contents General Principles............................................................................................................................................................. 4 Nature of the Philippine Courts .................................................................................................................................. 4 Principle of Judicial Hierarchy ..................................................................................................................................... 4 Doctrine of Non-interference or Doctrine of Judicial Stability ......................................................................... 5 Jurisdiction ........................................................................................................................................................................... 6 Over the Subject Matter ................................................................................................................................................. 6 Meaning of Jurisdiction over the Subject Matter ............................................................................................. 6 Doctrine of Adherence of Jurisdiction....................................................................................................................... 7 Jurisdiction of Courts ...................................................................................................................................................... 8 Supreme Court ............................................................................................................................................................. 8 Court of Appeals ....................................................................................................................................................... 10 Sandiganbayan ......................................................................................................................................................... 11 Regional Trial Courts.............................................................................................................................................. 12 Shari’a Courts ............................................................................................................................................................ 13 Civil Procedure ................................................................................................................................................................. 14 Cause of Action............................................................................................................................................................... 14 Meaning of Cause of Action .................................................................................................................................. 14 Failure to State Cause of Action ............................................................................................................................... 15 Parties to Civil Actions ................................................................................................................................................ 17 Pleadings.......................................................................................................................................................................... 19 Complaint ................................................................................................................................................................... 19 Answer ........................................................................................................................................................................ 20 Counterclaims ........................................................................................................................................................... 21 Verification and Certification against Forum Shopping ............................................................................. 22 Allegations in a Pleading ....................................................................................................................................... 28 Amendment ............................................................................................................................................................... 29 Summons ......................................................................................................................................................................... 30 Motions ............................................................................................................................................................................. 32 Motion to Dismiss .................................................................................................................................................... 32 Pre-Trial ........................................................................................................................................................................... 37 Notice of Pre-Trial ................................................................................................................................................... 37

1|P a ge

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Appearance of Parties; Effect of Failure to Appear ...................................................................................... 38 Alternative Dispute Resolution ................................................................................................................................ 38 Trial ................................................................................................................................................................................... 41 Consolidation or Severance of Hearing or Trial ............................................................................................ 41 Judgments and Final Orders ...................................................................................................................................... 43 Summary Judgment ................................................................................................................................................ 43 Rendition of Judgments and Final Orders ....................................................................................................... 44 Post-Judgment Remedies ........................................................................................................................................... 49 Motion for New Trial or Reconsideration ....................................................................................................... 49 Appeals in General .................................................................................................................................................. 50 Modes of Appeal ................................................................................................................................................ 52 Issues to be Raised on Appeal ............................................................................................................................. 53 Perfection of Appeal ............................................................................................................................................... 54 Appeal from Judgments or Final Orders of the RTC..................................................................................... 55 Review of Final Judgments or Final Orders of the Ombudsman.............................................................. 56 Execution, Satisfaction, and Effects of Judgments.............................................................................................. 57 Discretionary Execution ........................................................................................................................................ 58 Issuance and Contents of a Writ of Execution................................................................................................ 59 Provisional Remedies .................................................................................................................................................. 61 Preliminary Attachment ........................................................................................................................................ 61 Preliminary Injunction........................................................................................................................................... 62 Receivership .............................................................................................................................................................. 66 Special Civil Actions ..................................................................................................................................................... 68 Review of Judgments and Final Orders or Resolution of the COMELE and COA ................................ 68 Application of Rule 65 under Rule 64 ............................................................................................................... 68 Certiorari, Prohibition and Mandamus ............................................................................................................ 69 Expropriation ............................................................................................................................................................ 71 Forcible Entry and Unlawful Detainer ............................................................................................................. 71 Contempt ......................................................................................................................................................................... 74 Special Proceedings........................................................................................................................................................ 75 Settlement of the Estate of Deceased Person, Venue and Process ............................................................... 75 Letters Testmentary and of Administration ........................................................................................................ 76 Writ of Habeas Corpus ................................................................................................................................................ 77 Rules on Custody of Minors and Writ of Habeas Corpus in relation to Custody of Minors ...... 77

2|P a ge

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Criminal Procedure ........................................................................................................................................................ 78 Prosecution of Offenses .............................................................................................................................................. 78 Venue of Criminal Actions.......................................................................................................................................... 79 Preliminary Investigation .......................................................................................................................................... 80 Arrest ................................................................................................................................................................................ 81 Arrest Without Warrant, When Lawful............................................................................................................ 81 Bail ..................................................................................................................................................................................... 84 Nature .......................................................................................................................................................................... 84 Motion to Quash ............................................................................................................................................................ 86 Double Jeopardy....................................................................................................................................................... 86 Trial ................................................................................................................................................................................... 87 New Trial or Reconsideration................................................................................................................................... 88 Evidence............................................................................................................................................................................... 89 General Principles......................................................................................................................................................... 89 Admissibility of Evidence ........................................................................................................................................... 89 Positive and Negative Evidence ............................................................................................................................... 92 Burden of Proof and Burden of Evidence ............................................................................................................. 96 Presumptions ................................................................................................................................................................. 97 Disputable Presumptions...................................................................................................................................... 97 Quantum of Evidence .................................................................................................................................................. 98 Proof Beyond Reasonable Doubt........................................................................................................................ 98 Judicial Notice and Judicial Admissions ................................................................................................................ 99 Object (real) Evidence ...............................................................................................................................................100 Chain of Custody in relation to Section 21 of the Comprehensive Dangerous Drug Act ...............100 Documentary Evidence .............................................................................................................................................105 Best Evidence Rule ................................................................................................................................................105 Testimonial Evidence ................................................................................................................................................108 Credibility and Competency of a Witness......................................................................................................108 Examination of a Witness ...................................................................................................................................110 Admissions and Confessions..............................................................................................................................111 Offer and Objection ....................................................................................................................................................112 Offer of Evidence....................................................................................................................................................112 Special Proceedings..................................................................................................................................................... 113 Writ of Kalikasan.........................................................................................................................................................113

3|P a ge

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Miscellaneous Topics.................................................................................................................................................. 114 General Principles Nature of Philippine courts Principle of judicial hierarchy CONSTANCIO F. MENDOZA AND SANGGUNIANG BARANGAY OF BALATASAN, BULALACAO, ORIENTAL MINDORO v. MAYOR ENRILO VILLAS AND BRGY. KAGAWAD LIWANAG HERATO AND MARLON DE CASTRO, MANAGER, PINAMALAYAN BRANCH, LAND BANK OF THE PHILIPPINES G.R. No. 187256, February 23, 2011, J. Velasco, Jr. The Principle of Hierarchy of Courts should be observed in filing a petition for certiorari. Facts: In the 2007 Barangay Elections, Constancio Mendoza obtained the highest number of votes and was proclaimed as Punong Barangay of Balatasan, Bulalacao, Oriental Mindoro. However, the losing candidate for the same position, Thomas Pajanel, filed a petition for Quo Warranto with the MTC which subsequently disqualified Mendoza. Thus, Comelec declared Liwanag Herato as the Punong Barangay having obtained the highest number of votes for Barangay Kagawad. Mendoza appealed to the Comelec. While the appeal was pending, the incumbent mayor of the Municipality of Bulalacao, Enrilo Villas, issued a memorandum directing all department heads of the Municipal Government to act only on documents signed or authorized which Herato signed or authorized. Thereafter, the Municipality of Bulalacao advised the Land Bank of the Philippines not to honor any transactions which Mendoza has entered on behalf of Barangay Balatasan pursuant to the memorandum of Mayor Villas. Aggrieved, Mendoza filed a petition for Mandamus with Damages and prayer for Writ of Preliminary Injunction with the Regional Trial Court (RTC) which was dismissed. He then filed a petition directly with the Supreme Court but failed to cite under what rule under the Rules of Court the said petition was based. Issue: Whether or not Mendoza’s petition with the Supreme Court was proper. Ruling: No. If the petition is to be treated as a petition filed under Rule 65 of the Rules of Court, the petition must be dismissed outright for having been filed prematurely. The principle of hierarch of courts should be applied. Verily, a direct invocation of the Supreme Court’s original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefore, clearly and specifically set out in the petition. In this case, there are no special and important reasons that petitioners cite to justify their direct recourse to this Court under Rule 65. On the other hand, direct recourse to this Court has been allowed for petitions filed under Rule 45 when only questions of law are raised, as in this case. Thus, the Court ruled in Barcenas v. Tomas that Section 1 of Rule 45 clearly states that the following may be appealed to the Supreme Court through a petition for review by certiorari: 1) judgments; 2) final orders; or 3) resolutions of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or similar courts, whenever

4|P a ge

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 authorized by law. The appeal must involve only questions of law, not of fact. Thus, the Court shall exercise liberality and consider the instant petition as one filed under Rule 45. In ArtisticaCeramica, Inc. v. Ciudad Del Carmen Homeowners Association, Inc., citing Republic v. Court of Appeals, the Court noted that with the liberal spirit pervading the Rules of Court and in the interest of justice, it has the discretion to treat a petition for certiorari as having been filed under Rule 45, especially if filed within the reglementary period for filing a petition for review.

Doctrine of non-interference or doctrine of judicial stability ROMBE EXIMTRADE (PHILS.), INC. and SPOUSES ROMEO PERALTA and MARRIONETTE PERALTA vs. ASIATRUST DEVELOPMENT BANK G.R. No. 164479, February 13, 2008, Velasco J. There is no interference by one co-equal court with another when the case filed in one involves corporate rehabilitation and suspension of extrajudicial foreclosure in the other. Facts: Rombe Eximtrade (Phils), Inc. (Rombe) filed a Petition for the Declaration of a State of Suspension of Payments with Approval of Proposed Rehabilitation Plan with the RTC (RTC A) which then issued. RTC A then issued a stay order suspending the enforcement of all claims against Rombe. The SEC and other creditors of Rombe opposed the petition. Thereafter, RTC A dismissed the petition for rehabilitation of Rombe and lifted the stay order in its favor because it found out that Rombe misrepresented its financial status in its petition for suspension of payments. On the other hand, respondent Asiatrust initiated a foreclosure proceeding against Rombe’s properties. However, it was prevented by the issuance of TRO and injunction by another RTC (RTC B) which was filed by Rombe. The CA later annulled the TRO and injunction issued by the RTC Branch B, saying that the petition for TRO and injunction interfered with and set aside the order of RTC Branch A, which dismissed the petition for rehabilitation of Rombe. Issue: Whether or not the issuance of TRO by RTC Branch 15 affected the order of dismissal of the petition for rehabilitation filed by Rombe with RTC Branch 7. Ruling: No. The rehabilitation case is distinct and dissimilar from the annulment of foreclosure case, in that the first case is a special proceeding while the second is a civil action. A civil action is one by which a party sues another for the enforcement or protection of a right or the prevention or redress of a wrong. Strictly speaking, it is only in civil actions that one speaks of a cause of action. A cause of action is defined as the act or omission by which a party violates a right of another. Thus, in the annulment of foreclosure case, the cause of action of Rombe is the act of Asiatrust in foreclosing the mortgage on Rombe’s properties by which the latter’s right to the properties was allegedly violated. Indeed, the two cases are different with respect to their nature, purpose, and the reliefs sought such that the injunctive writ issued in the annulment of foreclosure case did not interfere with the rehabilitation case. The purpose of the rehabilitation case and the reliefs prayed for by Rombe are the suspension of payments because it "foresees the impossibility of meeting its debts when they respectively fall due," and the approval of its proposed rehabilitation plan. The objective

5|P a ge

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 and the reliefs sought by Rombe in the annulment of foreclosure case are, among others, to annul the unilateral increase in the interest rate and to cancel the auction of the mortgaged properties. Hence, being dissimilar as to the nature, purpose and reliefs sought, the order granting the injunctive writ in the annulment of foreclosure case did not interfere with the order dismissing the rehabilitation petition and lifting of the stay order issued by RTC Branch 7.

Jurisdiction Over the subject matter Meaning of jurisdiction over the subject matter EDUARDO M. COJUANGCO, JR. v. REPUBLIC OF THE PHILIPPINES G.R. No. 180705, November 27, 2012, VELASCO, JR., J. Subject matter jurisdiction is conferred by law, not by the consent or acquiescence of any or all of the parties. Facts: R.A. 6260 was enacted creating the Coconut Investment Company(CIC) to administer the Coconut Investment Fund(CIF), which, under Section 8 thereof, was to be sourced from a P0.55 levy on the sale of every 100 kg. of copra. Charged with the duty of collecting and administering the Fund was Philippine Coconut Administration(PCA). Like COCOFED with which it had a legal linkage, the PCA, by statutory provisions scattered in different coco levy decrees, had its share of the coco levy. And per Cojuangco’s own admission, PCA paid, out of the CCSF, the entire acquisition price for the 72.2% option shares. The list of FUB stockholders included Cojuangco with 14,440 shares and PCA with 129,955 shares. It would appear later that, pursuant to the stipulation on maintaining Cojuangco’s equity position in the bank, PCA would cede to him 10% of its subscriptions to (a) the authorized but unissued shares of FUB and (b) the increase in FUB’s capital stock. In all, from the "mother" PCA shares, Cojuangco would receive a total of 95,304 FUB (UCPB) shares broken down as follows: 14,440 shares + 10% (158,840 shares) + 10% (649,800 shares) = 95,304. Issue: Whether or not the Sandiganbayan has jurisdiction over the subject matter of the subdivided amended compalints including the shares allegedly acquired by Cojuangco by virtue of the PCA agreements. Ruling: Yes. Subject matter jurisdiction is conferred by law, not by the consent or acquiescence of any or all of the parties. In turn, the issue on whether a suit comes within the penumbra of a statutory conferment is determined by the allegations in the complaint, regardless of whether or not the suitor will be entitled to recover upon all or part of the claims asserted. From the allegations, it is fairly obvious that they partake, the nature of ill-gotten wealth suits. Both deal with the recovery of sequestered shares, property or business enterprises claimed, as alleged in the corresponding basic complaints, to be ill-gotten assets of President Marcos, his cronies and nominees and acquired by taking undue advantage of relationships or influence and/or through or as a result of improper use,

6|P a ge

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 conversion or diversion of government funds or property. Prima facie ill-gotten falls within the unquestionable jurisdiction of the Sandiganbayan. The Republic’s averments in the amended complaints, particularly those detailing the alleged wrongful acts of the defendants, sufficiently reveal that the subject matter thereof comprises the recovery by the Government of ill-gotten wealth acquired by then President Marcos, his cronies or their associates and dummies through the unlawful, improper utilization or diversion of coconut levy funds aided by P.D. No. 755 and other sister decrees. President Marcos himself issued these decrees in a brazen bid to legalize what amounts to private taking of the said public funds. ANTONIO B. BALTAZAR, petitioner, vs. HONORABLE OMBUDSMAN, EULOGIO M. MARIANO, JOSE D. JIMENEZ, JR., TORIBIO E. ILAO, JR. and ERNESTO R. SALENGA, respondents. G.R. No. 136433, December 6, 2006, Velasco The nature of an action is determined by the material averments in the complaint and the character of the relief sought, not by the defenses asserted in the answer or motion to dismiss. Facts: Paciencia Regala was the owner of a fishpond which was leased by her Attorney-in-Fact, Faustino Mercado, to Eduardo Lapid, who, in turn, subleased it to Rafael Lopez. Meanwhile, Ernesto Salenga was hired to be the fishpond’s watchman. Claiming that he was not paid his salaries, Salenga filed a complaint before the Provincial Agrarian Reform Adjudication Board (PARAB) for Maintenance of Peaceful Possession, Collection of Sum of Money and Supervision of Harvest. A TRO was issued by Provincial Adjudicator, Ilao, Jr. Antonio Baltazar (the nephew of Mercado) contended that the case filed by Salenga was not an agrarian dispute, because the latter was not an agricultural tenant but a mere watchman. Issue: Whether or not the case be considered as an Agrarian Dispute. Ruling: Yes. Jurisdiction over the subject matter is determined by the allegations of the complaint. The nature of an action is determined by the material averments in the complaint and the character of the relief sought, not by the defenses asserted in the answer or motion to dismiss. Given that respondent Salenga’s complaint and its attachment clearly spells out the jurisdictional allegations that he is an agricultural tenant in possession of the fishpond and is about to be ejected from it, clearly, respondent Ilao, Jr. could not be faulted in assuming jurisdiction as said allegations characterize an agricultural dispute. Besides, whatever defense asserted in an answer or motion to dismiss is not to be considered in resolving the issue on jurisdiction as it cannot be made dependent upon the allegations of the defendant.

Doctrine of adherence of jurisdiction PEOPLE OF THE PHILIPPINES v. THE HONORABLE COURT OF APPEALS G.R. No. 154557, February 13, 2008, Velasco, Jr., J.

7|P a ge

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Where a court acquired jurisdiction over an action, its jurisdiction continues to the final conclusion of the case. Such jurisdiction is not affected by new legislation placing jurisdiction over such dispute in another court or tribunal unless the statute provides for retroactivity. Facts: A criminal case was filed before the Regional Trial Court (RTC) against Rico Lipao and Rickson Lipao for violating section 68 of P.D. 705, as amended by E.O. 277. The information filed alleged that the latter illegally possessed 160 bundles of firewood without securing license issued by the Department of Environment and Natural Resources (DENR) the penalty of which is prisiόn correccional in its medium period (imprisonment from 2 years, 4 months and 1 day to 4 years and 2 months) and prisiόn correccional in its maximum period (imprisonment from 4 years, 2 months and 1 day to 6 years). Before the RTC rendered its Judgment, RA 7691. The new law expanded the exclusive original jurisdiction of the Metropolitan Trial Courts (MeTCs), Municipal Trial Courts (MTCs), and Municipal Circuit Trial Courts (MCTCs) in criminal cases to cover all offenses punishable with imprisonment not exceeding six years irrespective of the amount of fine and regardless of other imposable accessory or other penalties, including civil penalties arising from such offenses or predicated thereon, irrespective of kind, nature, value or amount thereof. Issue: Whether or not the passage of RA 7691 ipso facto relieved the RTC of the jurisdiction to hear and decide the criminal case against the two accused. Ruling: No. As a general rule, the jurisdiction of a court to try a criminal action is to be determined by the law in force at the time of the institution of the action. Where a court has already obtained and is exercising jurisdiction over a controversy, its jurisdiction to proceed to the final determination of the cause is not affected by new legislation placing jurisdiction over such proceedings in another tribunal. The exception to the rule is where the statute expressly provides, or is construed to the effect that it is intended to operate as to actions pending before its enactment. Where a statute changing the jurisdiction of a court has no retroactive effect, it cannot be applied to a case that was pending prior to the enactment of a statute. A perusal of R.A. 7691 will show that its retroactive provisions apply only to civil cases that have not yet reached the pre-trial stage. Neither from an express proviso nor by implication can it be understood as having retroactive application to criminal cases pending or decided by the Regional Trial Courts prior to its effectivity.

Jurisdiction of courts Supreme Court STAR ELECTRIC CORPORATION vs. R & G CONSTRUCTION DEVELOPMENT AND TRADING, INC. G.R. No. 212058, December 07, 2015 The Supreme Court only resolves questions of law and not questions of facts, subject to certain exceptions. FACTS:

8|P a ge

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Star Electric entered into a Construction Contract with R&G where it undertook the installation of electrical, plumbing, and mechanical works in Grami Empire Hotel payable via progress billing method. R&G refused to pay Star Electric’s progess billings despite repeated demands thus Star Electric informed R&G that it would not continue to work unless paid. The next day, Star Electric recieved a letter from R&G that it was terminating its Contract with them claiming that most delivered breakers were second-hand and the rough-in materials were installed improperly. The overall progress of work has also been paid with according to R&G as per the downpayment. Thereafter, Star Electric filed a complaint with the RTC to collect the unpaid billings. According to R&G, they refused to pay the progress bills because Star Electric was allegedly guilty of delay and unacceptable workmanship that they even had to contract with CP Giron and PTL Power to repair the alleged defective work of Star Electric. The RTC ruled in favor of Star Electric finding that R&G's allegation of defective works as self-serving and considered petitioner to have faithfully performed its obligations in accordance with the Construction Contract. The CA reversed the RTC’s decision petitioner's work was, indeed, defective and that the materials it installed in the building were substandard. On the other hand, respondent likewise violated its obligations under the Construction Contract when it entered into agreements with CP Giron and PTL Power without giving petitioner the opportunity to repair its defective work. Being both guilty of breach of contract, the CA declared that each party should bear its own loss. Hence, Star Electric filed a petition for review with the Supreme Court. ISSUE: Whether or not it is proper for the Supreme Court to resolve questions of facts in this case. RULING: Yes. It is an established rule that in the exercise of its power of review under Rule 45, the Supreme Court only resolves questions of law and not questions of facts. However, this rule is not absolute. Jurisprudence has recognized several exceptions in which factual issues may be resolved by the Supreme Court, such as: (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 the judgment is based on a misapprehension of facts; (4) when the findings of facts are conflicting; (5) 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; (6) when the findings are contrary to the trial court; (7) 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; (8) when the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record; or (9) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties, which, if properly considered, would justify a different conclusion. In this case, the findings of the CA are contrary to those of the trial court. Further, it appears that the appellate court manifestly overlooked undisputed facts which, when properly considered, would justify a different conclusion. With the foregoing exceptions to the general rule present in this case, the resolution of this petition through a review of the facts is in order.

9|P a ge

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016

ESTATE OF THE LATE ENCARNACION VDA. DE PANLILIO, represented by GEORGE LIZARES v GONZALO DIZON, RICARDO GUINTU, ROGELIO MUNOZ, ELISEO GUINTU, ROBERTO DIZON, EDILBERTO CATU, HERMINIGILDO FLORES, CIPRIANO DIZON, JUANARIO MANIAGO, GORGONIO CANLAS, ANTONIO LISING, CARLOS PINEDA, RENATO GOZUN, ALFREDO MERCADO, BIENVENIDO MACHADA, and the REGIONAL DIRECTOR of the DEPARTMENT OF AGRARIAN REFORM, REGION III G.R. No. 148777, October 18, 2007, Velasco Jr. J. The Supreme Court is not a trier of facts Facts: Deceased Encarnacion Vda De Panilio (Panlilio) is the owner of various tracts of land located in Pampanga. Several tenant-farmers, herein private respondents, were planting rice plant upon the aforementioned tracts of land. On January 20, 1988, Panlilio executed an affidavit which states that she has placed under the coverage of PD 27 the vast tracts of land without and exception and therefore be later sold to the tenant-farmers tending the same. Thus pursuant to the January 20 affidavit, Emancipation Patents (EP) were issued to the tenant-farmers tending the aforementioned tracts of land. On December 29, 1986 Panlilio died. Thereafter George Lizares (Lizares) herein petitioner and administrator of the estate of Panlilio filed a complaint for cancellation of the EP issued to the tenant-farmers on the ground that Panlilio executed a subsequent affidavit dated February 3, 1977 effectively revoking the prior affidavit executed last January 20 of the same year. The complaint was filed with the Provincial Agrarian Reform Adjudicator (PARAD) The PARAD ruled that the affidavit executed on Feb. 3, 1977 and dismissed the complaint, which was affirmed by the Department of Agrarian Reform Adjudication Board (DARAB) and which was further affirmed by the CA. Issue: Whether or not it is proper for the Supreme Court to review the factual findings by the PARAD, DARAB and the CA. Ruling: No. The Supreme Court is not a trier of facts, and is not tasked to calibrate and assess the probative weight of evidence adduced by the parties during trial all over again. However, in rare occasions, exceptions are allowed. One exception is when there are competing factual findings by the different triers of fact, such as those made by the quasi-agencies on the one hand and the CA on the other, this Court is compelled to go over the records of the case, as well as the submissions of the parties, and resolve the factual issues. In this case, however, there is coalescence in the findings of the appellate court with that of the two quasi-judicial agencies below the PARAD and DARAB on the issue of the authenticity of the affidavit.

Court of Appeals DIESEL CONSTRUCTION CO., INC. v. UPSI PROPERTY HOLDINGS, INC. G.R. No. 154885, 24 March 2008, Second Division, (Velasco, Jr., J.)

10 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 The CA may validly review and even overturn such conclusion of the facts by the CIAC when the matter of its being adequately supported by substantial evidence duly adduced on record comes to the fore and is raised as an issue. Facts: Diesel and UPSI entered into a Construction Agreement for the construction of UPSI Building. Under the agreement, Diesel is obliged to pay, in case of unjustifiable delay, to pay UPSI liquidated damages in the amount of one-fifth of one percent of the total project cost for each calendar day of delay. Diesel sent a letter notice to UPSI stating that the Project has been completed. UPSI however disregarded the notice, and refused to accept delivery of the contracted premises claiming that Diesel abandoned the project unfinished. UPSI also refused to pay the unpaid balance of the contract price. Diesel then filed a complaint before the CIAC to compel UPSI to pay the unpaid balance of the contract price. The arbitral tribunal ruled in favor of Diesel. The CA modified the ruling of the CIAC, granting UPSI liquidated damages which it reduced from the unpaid balance of the contract price. Issue: Whether or not the CA may annul the findings of a highly specialized agency such as CIAC. Ruling: Yes. The CA was correct in holding that it may validly review and even overturn such conclusion of the facts by the CIAC when the matter of its being adequately supported by substantial evidence duly adduced on record comes to the fore and is raised as an issue. The CA did not cast aspersion on the competence let alone the bona fides of the members of the Arbitral Tribunal to arbitrate. In context, what the appellate court said, is that the said members do not really enjoy a special advantage over the members of the CA in terms of fleshing out the facts from the evidence on record. The fact remains that the CA stands justified in reviewing the CIAC decision.

Sandiganbayan Rodolfo Cuenca and Cuenca Investment Corp vs. Presidential Commission on Good Government G.R. Nos. 159104-05, October 5, 2007, Velasco, Jr. J Under Sec. 2 of EO 14, “The Presidential Commission on Good Government shall file all such cases, whether civil or criminal, with the Sandiganbayan, which shall have exclusive and original jurisdiction thereof.” Facts: UHC is a wholly owned subsidiary of Independent Realty Corporation. Cuenca and his family holdings (CIC) negotiated and reached an agreement with respondents IRC and UHC that the Cuenca would purchase all the shares of stock and subscription rights of IRC in UHC which he would transfer all of his shares to PNCC, Sta. Ines and Resorts Hotel Corporation which Cuenca is a controlling stockholder to UHC. The instant controversy between Cuenca and respondent IRC was overtaken by dramatic political events. President Marcos was ousted in a bloodless revolution and left behind an unbelievably large amount of funds and assets that were sequestered by the new government of President Aquino through PCGG. Respondent PCGG directed the President of IRC, to dissolve all the

11 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 boards of directors of IRCs fully-owned subsidiaries. Cuenca filed a complaint against IRC and UHC before the RTC to compel IRC to transfer all its stock and subscription rights in UHC to them or order IRC and UHC to return and re-convey to them all the assets and shares of stock in CDCP, Sta. Ines, and Resort Hotels that they had transferred to UHC. IRC and UHC filed motion to dismiss on the ground of lack of jurisdiction claiming that the exclusive jurisdiction was lodged in the Sandiganbayan and not in the RTC and on the ground of litis pendentia as Cuenca had a pending case filed by respondent PCGG before the Sandiganbayan and docketed as Civil Case which involved respondent UHC and several other corporations beneficially owned or controlled by Cuenca for and in behalf of the Marcoses. Cuenca argued that UHC was not sequestered, and even if it was sequestered, the trial court still has the jurisdiction to hear the case for rescission of contract or specific performance. Issue: Whether or not Sandiganbayan has the exclusive jurisdiction over PGCC cases Ruling: Yes. Under EO 14, Section 2: The Presidential Commission on Good Government shall file all such cases, whether civil or criminal, with the Sandiganbayan, which shall have exclusive and original jurisdiction thereof. Thus, it is clear that it is the Sandiganbayan and not the Makati City RTC that has jurisdiction over the disputed UHC and PNCC shares, being the alleged ill-gotten wealth of former President Ferdinand E. Marcos and petitioner Cuenca. The fact that the Makati City RTC civil case involved the performance of contractual obligations relative to the UHC shares is of no importance. The benchmark is whether said UHC shares are alleged to be ill-gotten wealth of the Marcoses and their perceived cronies. More importantly, the interests of orderly administration of justice dictate that all incidents affecting the UHC shares and PCGGs right of supervision or control over the UHC must be addressed to and resolved by the Sandiganbayan. Indeed, the law and courts frown upon split jurisdiction and the resultant multiplicity of suits, which result in much lost time, wasted effort, more expenses, and irreparable injury to the public interest.

Regional Trial Courts SURVIVING HEIRS OF ALFREDO R. BAUTISTA, namely: EPIFANIA G. BAUTISTA and ZOEY G. BAUTISTA v. FRANCISCO LINDO and WELHILMINA LINDO; and HEIRS OF FILIPINA DAQUIGAN, namely: MA. LOURDES DAQUIGAN, IMELDA CATHERINE DAQUIGAN, IMELDA DAQUIGAN and CORSINO DAQUIGAN, REBECCA QUIAMCO and ANDRES QUIAMCO, ROMULO LORICA and DELIA LORICA, GEORGE CAJES and LAURA CAJES, MELIDA BANEZ and FRANCISCO BANEZ, MELANIE GOFREDO, GERV ACIO CAJES and ISABEL CAJES, EGMEDIO SEGOVIA and VERGINIA SEGOVIA, ELSA N. SAM, PEDRO M. SAM and LINA SAM, SANTIAGO MENDEZ and MINA MENDEZ, HELEN M. BURTON and LEONARDO BURTON, JOSE JACINTO and BIENVENIDA JACINTO, IMELDA DAQUIGAN, LEO MA TIGA and ALICIA MATIGA, FLORENCIO ACEDO JR., and LYLA VALERIO G.R. No. 208232, March 10, 2014, Velasco, Jr., J. In determining whether an action is one the subject matter of which is not capable of pecuniary estimation, the nature of the principal action or remedy sought must first be ascertained. Facts: In 1991, Alfredo Bautista, petitioner's predecessor, sold to several vendees a free patent land he inherited. In 1994, he filed a complaint for repurchase against respondents before the RTC of Lupon, Davao Oriental anchoring his cause of action on Section 119 of Commonwealth Act No. (CA) 141. Respondents Francisco and Welhilmina Lindo later entered into a compromise agreement

12 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 which was approved by the said court. However, the other respondents moved for the dismissal of the case on the ground of lack of jurisdiction since the property which Bautista seeks to repurchase having the value of P16,500 is below the PhP 20,000 jurisdictional ceiling. The RTC then dismissed the complaint finding that Bautista failed to allege in his complaint that the value of the subject property exceeds 20 thousand pesos. Issues: Whether or not the RTC erred in granting the motion for the dismissal of the case on the ground of lack of jurisdiction over the subject matter. Ruling: Yes. In determining whether an action is one the subject matter of which is not capable of pecuniary estimation, the Court has adopted the criterion of first ascertaining the nature of the principal action or remedy sought. If it is primarily for the recovery of a sum of money, the claim is considered capable of pecuniary estimation, and whether jurisdiction is in the municipal courts or in the RTCs would depend on the amount of the claim. But where the basic issue is something other than the right to recover a sum of money, where the money claim is purely incidental to, or a consequence of, the principal relief sought, the Court has considered such actions as cases where the subject of the litigation may not be estimated in terms of money, and, hence, are incapable of pecuniary estimation. These cases are cognizable exclusively by RTCs. (See Rusell v. Vestil, 304 SCRA 738, March 17, 1999) The instant cause of action to redeem the land is one for specific performance. Bautista filed a complaint to enforce his right granted by law to recover the lot subject of free patent. It is clear that his action is for specific performance, or if not strictly such action, then it is akin or analogous to one of specific performance. Such being the case, his action for specific performance is incapable of pecuniary estimation and cognizable by the RTC. Having fully participated in all stages of the case, and even invoking the RTC’s authority by asking for affirmative reliefs, respondents can no longer assail the jurisdiction of the said trial court. Simply put, considering the extent of their participation in the case, they are, as they should be, considered estopped from raising lack of jurisdiction as a ground for the dismissal of the action.

Shari’a Courts SULTAN YAHYA JERRY M.TOMAWIS, Petitioner, versus HON. RASAD G. BALINDONG, AMNA A. PUMBAYA, JALILAH A. MANGOMPIA, and RAMLA A. MUSOR, Respondents. G.R. No. 182434, March 5, 2010, Velasco BP 129 was enacted to reorganize only existing civil courts and is a law of general application to the judiciary. In contrast, PD 1083 is a special law that only applies to Sharia courts. Facts: Private respondents filed with the Sharia District Court (SDC) an action for quieting of title of a parcel of land against Tomawis who argued that the regular courts have jurisdiction over the case. The respondent judge asserted that SDC has original jurisdiction over the case, concurrently with the RTC by force of Article 143, paragraph 2(b) of Presidential Decree No. (PD) 1083 or the Code of Muslim Personal Laws of the Philippines. Issue:

13 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Whether or not SDC can validly take cognizance of the case Ruling: Yes. The allegations, as well as the relief sought by private respondents, the elimination of the cloud of doubts on the title of ownership on the subject land, are within the SDCs jurisdiction to grant. A reading of the pertinent provisions of BP 129 and PD 1083 shows that the former, a law of general application to civil courts, has no application to, and does not repeal, the provisions found in PD 1083, a special law, which only refers to Sharia courts. BP 129 was enacted to reorganize only existing civil courts and is a law of general application to the judiciary. In contrast, PD 1083 is a special law that only applies to Sharia courts. We have held that a general law and a special law on the same subject are statutes in pari materia and should be read together and harmonized, if possible, with a view to giving effect to both. In the instant case, we apply the principle generalia specialibus non derogant. A general law does not nullify a special law. The general law will yield to the special law in the specific and particular subject embraced in the latter. We must read and construe BP 129 and PD 1083 together, then by taking PD 1083 as an exception to the general law to reconcile the two laws. In order to give effect to both laws at hand, we must continue to recognize the concurrent jurisdiction enjoyed by SDCs with that of RTCs under PD 1083. Moreover, the jurisdiction of the court below cannot be made to depend upon defenses set up in the answer, in a motion to dismiss, or in a motion for reconsideration, but only upon the allegations of the complaint. Jurisdiction over the subject matter of a case is determined from the allegations of the complaint and the character of the relief sought. In the instant case, private respondents petition in Civil Case No. 102-97 sufficiently alleged the concurrent original jurisdiction of the SDC.

Civil Procedure Cause of action Meaning of cause of action ST. MICHAEL SCHOOL OF CAVITE, INC. AND SPOUSES CRISANTO S. CLAVERIA AND GLORIA M. CLAVERIA v. MASAITO DEVELOPMENT CORPORATION AND REXLON REALTY GROUP, INC. G.R. No. 166301, 29 February 2008, Second Division, (Velasco, Jr., J.) For a complaint to state a cause of action in an easement case, more specifically, Art. 649 of the Civil Code has laid down the following requirements: (1) the dominant estate is surrounded by other immovables and has no adequate outlet to a public highway; (2) there is payment of proper indemnity; and (3) the isolation is not due to the acts of the proprietor of the dominant estate. Facts: St. Michael together with four other homeowners filed a complaint against Masaito for easement of right-of-way because Masaito threatened to fence off and close the only gate of the school which serves as both the entry and exit points for the entire school population. According to Masaito, the initiatory pleading does not aver the first to basic requirements for the establishment of a legal easement of right-of-way. The RTC dismissed the case for lack of cause of action. Issue:

14 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Whether or not petitioners’ complaint constitutes a sufficient cause of action for a complaint for easement of right-of-way. Ruling: For a complaint to state a cause of action in an easement case, more specifically, Art. 649 of the Civil Code has laid down the following requirements: (1) the dominant estate is surrounded by other immovables and has no adequate outlet to a public highway; (2) there is payment of proper indemnity; and (3) the isolation is not due to the acts of the proprietor of the dominant estate. The Complaint, first, asserts that petitioners have a right to an easement of right-of-way that cuts across respondents’ property; second, it refers to respondents’ correlative obligation not to fence off and close the single gate which is used as the only entry and exit points of the school population; and third, it refers to respondents’ expansion and excessive terms and conditions, constituting the acts violating petitioners’ right. Hence, the Complaint’s material allegations are enough to entitle petitioners to a favorable judgment if these are assumed to be true.

Failure to state a cause of action ALICE VITANGCOL and NORBERTO VITANGCOL V. NEW VISTA PROPERTIES, INC. G.R. No. 176014, September 17, 2009, VELASCO, JR., J. What is dismissible via a motion to dismiss is failure of the complaint to state a cause of action and not lack of cause of action. Facts: Maria and Clemente A. Alipit, with the marital consent of the latters wife, executed a SPA constituting Milagros A. De Guzman as their attorney-in-fact to sell their property. Pursuant to her authority under the SPA, De Guzman executed a Deed of Absolute Sale conveying to New Vista Properties, Inc. a parcel of land. A decade later when respondent New Vista learned that the parcel of land it paid for and occupied was being claimed by Vitangcol on the strength of a Deed of Absolute Sale. New Vista first filed a notice of adverse claim followed by commencing a suit for quieting of title before the RTC. Before Alipit and Vitangcol could answer, New Vista filed an amended complaint, appending thereto a copy of the 1989 deed of absolute sale De Guzman, as agent authorized agent of the Alipits, executed in its favor. Thereafter, Vitangcol filed a motion to dismiss, followed by a similar motion interposed by Maria Alipit which New Vista countered with an opposition. Unlike in its original complaint, New Vistas amended complaint did not have, as attachment, the June 18, 1989 SPA. It, however, averred that Clemente and Maria Alipit had ratified and validated the sale of the lot by their having delivered possession of said lot to New Vista after receiving and retaining the purchase price therefor. Issue: Whether the Amended Complaint, with the June 18, 1989 SPA submitted by petitioners Vitangcol duly considered, sufficiently states a cause of action. Ruling:

15 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Yes. Lack of cause of action is not a ground for a dismissal of the complaint through a motion to dismiss under Rule 16 of the Rules of Court, for the determination of a lack of cause of action can only be made during and/or after trial. What is dismissible via that mode is failure of the complaint to state a cause of action. The rule is that in a motion to dismiss, a defendant hypothetically admits the truth of the material allegations of the ultimate facts contained in the plaintiff’s complaint. When a motion to dismiss is grounded on the failure to state a cause of action, a ruling thereon should, as rule, be based only on the facts alleged in the complaint. New Vista’s threshold contention that De Guzmans SPA to sell should not be considered for not having been incorporated as part of its amended complaint is incorrect since Vitangcol duly submitted that piece of document in court in the course of the hearing on the motion to dismiss. Thus, the trial court acted within its discretion in considering said SPA relative to the motion to dismiss the amended complaint.

BF CORPORATION v. MANILA INTERNATIONAL AIRPORT AUTHORITY G.R. No. 177161 June 30, 2008, Velasco, Jr., J. A cause of action is defined as an act or omission by which a party violates a right of another. It has three elements: (1) a right existing in favor of the plaintiff, (2) a duty on the part of the defendant to respect the right of the plaintiff, and (3) a breach of the defendant’s duty. Facts: BF Corporation, Tokyu Construction Co., Lt., and two other corporations formed the MTOB Consortium, a distinct corporation, for purposes of bidding for the construction of the NAIA II Project. The Manila International Airport Authority (MIAA) awarded the contract to MTOB Consortium. The members of the consortium soon had serious business differences, including division of the contract price. This prompted BF Corporation to file a complaint against the other members of the consortium to receive what it alleges to be its share in the project. BF Corp. also filed a complaint against MIAA to enjoin it from directly paying Tokyu, but later dropped MIAA upon amendment. When the NAIA II Project was nearing completion, BF Corp. filed a second complaint against Tokyu et al. for its proportionate share of the money based on the consortium agreement. BF Corp. also asked to have MIAA be re-impleaded as party-defendant so it could obtain complete relief. Issues: Whether or not BF has a cause of action against MIAA. Ruling: No. A cause of action is defined as an act or omission by which a party violates a right of another. It has three elements: (1) a right existing in favor of the plaintiff, (2) a duty on the part of the defendant to respect the right of the plaintiff, and (3) a breach of the defendant’s duty. In this case, BF Corp. failed to show the acts or omissions of MIAA that would constitute a violation of BF Corp.’s rights. In the first place, there is no contractual relations between MIAA and BF Corp. The agreement over the NAIA Terminal II Project was between MIAA and MTOB Consortium, as the contractor. From the start, MIAA recognized MTOB Consortium as a corporation with a distinct personality from its component corporations. Second, the reliefs prayed for by BF Corp. are based on the consortium agreement, which is a contract among BF Corp. and the other members of the

16 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 consortium. MIAA is not privy of, and is therefore a stranger to the consortium agreement. If BF Corp. wants its share in the consortium, its recourse is against MTOB Consortium, not MIAA. Parties to civil actions SAMAHANG MAGSASAKA NG 53 HEKTARYA represented by ELVIRA BALADAD v. WILFREDO MOSQUERA, ROSARIO R. ROMAN, DANILO RELUCIO, and EDGARDO GUEVARRA G.R. No. 152430, 22 March 2007, J. Velasco, Jr. A real party-in-interest is the party who stands to be benefited or injured by the judgment in the suit or the party entitled to the avails of the suit. Facts: Petitioner is an association of farmer-beneficiaries duly recognized by the DAR. They alleged that that its members had been cultivating the disputed land for many years prior to the effectivity of the CARL. Respondents, on the other hand, are the registered owners of three parcels of land located in Macabud, Rizal. Petitioner alleged that in 1994, the landholding was sold to respondents without any DAR clearance, in violation of Section 6-D of CARL. Respondents applied for exemption from the coverage of CARL based on its provision in Sec. 10, that is, the property is above 18% slope and unfit for cultivation. The Executive Secretary set aside DAR’s initial order denying the application and thus exempted the property from CARL coverage. The case subsequently reached the CA where it ruled that petitioner was not a real party-in-interest and had no legal standing to sue. The CA followed the ruling in Fortich v. Corona, where it was enunciated that “the petitioner, not being actual grantee of the land but mere qualified beneficiary, has no legal standing to sue and is not the real party in interest.” Issue: Whether or not petitioners are real parties-in-interest in this case. Held: No. According to Sec. 2 of Rule 3 of the Rules of Court, a real party-in-interest is the party who stands to be benefited or injured by the judgment in the suit or the party entitled to the avails of the suit. The Supreme Court stood by its ruling in Fortich v. Corona that farmer-beneficiaries, who are not approved awardees of CARP, are not real parties-in-interest. In Fortich, the farmers who intervened in the case were mere recommendees. In the case at bar, members of petitioner Samahan are mere qualified beneficiaries of CARP. The certification that CLOAs were already generated in their names, but were not issued because of the present dispute, does not vest any right to the farmers since the fact remains that they have not yet been approved as awardees, actually awarded lands, or granted CLOAs. HERITAGE PARK MANAGEMENT CORPORATION(HPMC) v. CIAC and ELPIDIO UY, doing business under name and style of EDISON DEVELOPMENT AND CONSTRUCTION(EDC) G.R. No. 148133, October 8, 2008, VELASCO, JR., J. A transferee pendente lite stands in exactly the same position as its predecessor-in-interest, the original defendant, and is bound by the proceedings had in the case before the property was transferred to it. Facts:

17 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Public Estates Authority (PEA) was designated by the Bases Conversion Development Authority(BCDA) to develop the Heritage Park. PEA engaged the services of Uy under EDC, in an agreement. EDC undertook to perform all landscaping works on the Heritage Park, to be completed within 450 days. Due to delays, the contract period was extended to 693 days. Among the causes of delay was PEA’s inability to deliver to EDC 45 hectares of the property due to the existence of squatters and a public cemetery. EDC instituted a Complaint seeking to collect from PEA damages. PEA executed a Deed of Assignment in favor of Heritage. Heritage filed a petition for prohibition/injunction with TRO against the CIAC and EDC, claiming that when PEA transferred its rights and obligations over the Project to Heritage, the CIAC lost its jurisdiction, and that is is an indispensable party to the CIAC case. Issue: Whether or not Heritage is an indispensable party to the CIAC case thus its non-inclusion in the proceedings violated it’s right to due process. Ruling: No. Jurisdiction once acquired is not lost upon the instance of the parties but continues until the case is terminated. Certainly, it would be the height of injustice to allow parties that disagree with the decision of a judicial tribunal to annul the same through the expedient of transferring their interests or rights involved in the case. Moreover, Heritage is mistaken when it claims that it is an indispensible party to the case and that it was not included in the case before the CIAC. Being a transferee of the interests of PEA over the Project during the pendency of the case before the CIAC, it is bound by the proceedings in like manner as PEA. A transferee pendente lite stands in exactly the same position as its predecessorin-interest, the original defendant, and is bound by the proceedings had in the case before the property was transferred to it. It is a proper but not an indispensible party as it would in any event be bound by the judgment against his predecessor. This would follow even if it is not formally included as a defendant through an amendment of the complaint. Hence, the non-inclusion of Heritage in the proceedings before the CIAC is of no moment as Rule 3 of Section 19 of the ROC specifically allows the proceedings to proceed with the original parties while binding the transferee.

18 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016

Pleadings Complaint VIVIAN Y. LOCSIN, YAO SHIONG SHIO, OSCAR MANUEL, RAMON LINAN, PAZ Y. FLORES, for and on their own behalf, and SIXTO O. RACELIS, for and on behalf of ORIENTAL PETROLEUM AND MINERAL CORPORATION v. THE HONORABLE SANDIGANBAYAN, PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT, ASSET PRIVATIZATION TRUST, REV. EMETERIO BARCELON, S.J., EDUARDO F. HERNANDEZ, GUILLERMO PABLO, JR., AMPARO BARCELON, ANTONIO CAGUIAT, RAMON A. PEDROSA, JAIME L. LEDESMA, SIMPLICIO J. ROXAS, VALERIANO FUGOSO, WILFREDO SAARES, ULTRANA MINERALS CORP., INDEPENDENT REALTY CORP., PERFORMANCE INVESTMENT CORP., MID-PASIG LAND DEVELOPMENT CORP., FABIAN VER, PIEDRAS PETROLEUM CORP., and RIZAL COMMERCIAL BANKING CORPORATION G.R. No. 134458 August 9, 2007 VELASCO, JR., J. Ultimate facts mean the important and substantial facts which either directly form the basis of the plaintiffs primary right and duty or directly make up the wrongful acts or omissions of the defendant. FACTS: Petitioners Yao Shiong Shio, Oscar Manuel, and Ramon Linan filed a Complaint for Declaration of Nullity of PCGG Deed of Sale, Sequestration Orders, Prayer for Issuance of TRO and/or Preliminary Injunction and Appointment of Receiver, with Damages against respondents. The petition was denied, thus, petitioners filed an amended complaint but later filed Notice of Dismissal of both the original and amended complaints which were approved by the Sandiganbayan. Thereafter, petitioners filed a new complaint which was identical to the prior amended complaint. The Sandiganbayan denied the prayer for a preliminary injunction. Petitioners then filed their Motion for Leave to Admit Amended Complaint seeking to state more fully their averments in express terms which were only implied from the ultimate facts in their original Complaint. The Sandiganbayan denied admittance of petitioner’s amended complaint. ISSUE: Whether or not the Sandiganbayan committed grave abuse of discretion in denying the admission of petitioners proposed amended complaint. RULING: No. Sec. 1, Rule 8 of the Rules of Court provides: “Every pleading shall contain in a methodical and logical form, a plain, concise and direct statement of the ultimate facts on which the party pleading relies for his claim or defense, as the case may be, omitting the statement of mere evidentiary facts.” Ultimate facts mean the important and substantial facts which either directly form the basis of the plaintiffs primary right and duty or directly make up the wrongful acts or omissions of the defendant. In this case, the Sandiganbayan found that the real objective of petitioners in amending the complaint is to supply the missing or omitted date which omission had resulted in the denial of the petition for the issuance of the writ of preliminary injunction. In short, what the court a quo found is that the whole exercise of amending the complaint is not to correct or enhance the alleged ultimate

19 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 facts in the original complaint but to supply evidentiary support to their prayer for injunction. Being merely evidentiary facts, the proposed amendments then are unnecessary to justify admission by the Sandiganbayan.

Answer ILEANA DR. MACALINAO v. BANK OF THE PHILIPPINE ISLANDS G.R. No. 175490, September 17, 2009, Velasco, Jr., J. A plaintiff should not be made to suffer for the respondent’s failure to file an answer and concomitantly, to allow the latter to submit additional evidence by dismissing or remanding the case for further reception of evidence. Facts: Macalinao is a card holder of a BPI credit facility. Upon failure of Macalinao to pay for its balance when it became due, BPI demanded payment of 3% per month interest and an additional 3% per month penalty charge. After the summons and a copy of the complaint were served upon petitioner Macalinao and her husband, they failed to file their Answer. Thus, respondent BPI moved that judgment be rendered in accordance with Section 6 of the Rule on Summary Procedure, which was granted. The MTC ruled in favor of BPI. Macalinao claims that the basis of the re-computation of the CA was not the amount of the principal obligation. Thus, this allegedly necessitates a reexamination of the evidence presented by the parties. For this reason, Macalinao further contends that the dismissal of the case or its remand to the lower court would be a more appropriate disposition of the case. Issue: Whether or not the case shall be dismissed. Ruling: No. Based on the records, the summons and a copy of the complaint were served upon petitioner Macalinao and her husband on May 4, 2004. Nevertheless, they failed to file their Answer despite such service. Thus, respondent BPI moved that judgment be rendered accordingly. Consequently, a decision was rendered by the MeTC on the basis of the evidence submitted by respondent BPI. Thus, respondent BPI should not be made to suffer for petitioner Macalinao's failure to file an answer and concomitantly, to allow the latter to submit additional evidence by dismissing or remanding the case for further reception of evidence. Significantly, petitioner Macalinao herself admitted the existence of her obligation to respondent BPI, albeit with reservation as to the principal amount. Thus, a dismissal of the case would cause great injustice to respondent BPI. Similarly, a remand of the case for further reception of evidence would unduly prolong the proceedings of the instant case and render inutile the proceedings conducted before the lower courts.

20 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Counterclaims METROPOLITAN BANK AND TRUST COMPANY v. CPR PROMOTIONS AND MARKETING, INC. and SPOUSES CORNELIO P. REYNOSO, JR. and LEONIZA * F. REYNOSO G.R. No. 200567; June 22, 2015; VELASCO, JR., J. A claim for recovery of an excess in the bid price should be set up in the action for payment of a deficiency as a compulsory counterclaim. Facts: Respondent CPR Promotions and Marketing, Inc. (CPR Promotions) obtained loans from petitioner MBTC from February to October 1997, covered by fifteen (15) promissory notes (PNs) all signed by respondents, spouses Reynoso, as Treasurer and President of CPR Promotions, respectively. To secure the loans, the spouses Reynoso executed two deeds of real estate mortgage on separate dates. Thereafter, on December 8, 1997, the spouses Reynoso executed a continuing surety agreement binding themselves solidarily with CPR Promotions to pay any and all loans CPR Promotions may have obtained from petitioner MBTC, including those covered by the said PNs, but not to exceed PhP 13 million. Upon maturity of the loans, respondents defaulted, prompting MBTC to file a petition for extra-judicial foreclosure of the real estate mortgages. Notwithstanding the foreclosure of the mortgaged properties for the total amount of PhP 13,614,000, petitioner MBTC alleged that there remained a deficiency balance of PhP 2,628,520.73, plus interest and charges as stipulated and agreed upon in the PNs and deeds of real estate mortgages. Despite petitioner’s repeated demands, however, respondents failed to settle the alleged deficiency. Thus, petitioner filed an action for collection of sum of money against respondents. The RTC Makati City ruled in favor of petitioner. The CA however, reversed the court a quo and ruled in favor of respondents and ordered the plaintiff-appellee Metrobank to refund or return to the defendants-appellants spouses Reynoso the amount of PhP722,602.22 representing the remainder of the proceeds of the foreclosure sale. Petitioner asserts that the CA’s grant of a refund valued at PhP 722,602.22 plus legal interest of six percent (6%) in favor of respondents is erroneous for two reasons: first, respondents never set up a counterclaim for refund of any amount;18 and second, the total outstanding obligation as of February 10, 1998, to which the full amount of the bid prices was applied, is PhP11,216,783.99 and not PhP 12,891,397.78, which was used by the CA in its computation. Issue: Whether or not the CA erred in ordering MBTC to refund the or return to the defendantsappellants spouses Reynoso the amount of PhP722,602.22 representing the remainder of the proceeds of the foreclosure sale. Ruling: Yes. Respondents belatedly raised their compulsory counterclaim. A counterclaim is compulsory if: (a) it arises out of or is necessarily connected with the transaction or occurrence which is the subject matter of the opposing party’s claim; (b) it does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction; and (c) the court has jurisdiction to entertain the claim both as to its amount and nature, except that in an original action before the RTC, the counterclaim may be considered compulsory regardless of the amount. It is evident that a claim for recovery of the excess in the bid price vis-à-vis the amount due should be interposed as a compulsory counterclaim in an action for recovery of a deficiency filed by the mortgagee against the debtor-mortgagor. First, in both cases, substantially the same evidence is

21 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 needed in order to prove their respective claim. Second, adjudication in favor of one will necessarily bar the other since these two actions are absolutely incompatible with each other; a debt cannot be fully paid and partially unpaid at the same time. Third, these two opposing claims arose from the same set of transactions. And finally, if these two claims were to be the subject of separate trials, it would definitely entail a substantial and needless duplication of effort and time by the parties and the court, for said actions would involve the same parties, the same transaction, and the same evidence. In this case, what respondents initially claimed herein were moral and exemplary damages, as well as attorney’s fees. Then, realizing, based on its computation, that it should have sought the recovery of the excess bid price, respondents set up another counterclaim, this time in their Appellant’s Brief filed before the CA. Unfortunately, respondents’ belated assertion proved fatal to their cause as it did not cure their failure to timely raise such claim in their Answer. Consequently, respondents’ claim for the excess, if any, is already barred.

Verification and Certification against Forum Shopping CLARK DEVELOPMENT CORPORATION v. MONDRAGON LEISURE AND RESORTS CORPORATION, et al. G.R. No. 150986, 2 March 2007, J. Velasco, Jr. The test to determine whether forum shopping exists is whether the elements of litis pendencia are present or where a final judgment in one case will amount to res judicata in the other. Facts: Petitioner, a GOCC authorized to develop the Clark Special Economic Zone, entered into a Lease Agreement with respondents, covering the area now known as Mimosa Leisure Estate. Petitioner made a written demand on Mondragon to pay rental arrears within 30 days from receipt of the demand; otherwise, the Lease Agreement would be terminated. Mondragon filed before the Angeles City RTC an action for specific performance with prayer for injunctive reliefs pendente lite against petitioner entitled Mondragon Leisure and Resorts Corporation, et al. v. Clark Development Corporation (First Mondragon Case). In said case, Mondragon sought for a judicial writ for the parties dispute on the rental arrearages to be submitted to arbitration. The trial court granted a TRO and later, a writ of preliminary injunction restraining petitioner, in the interim, from terminating the Lease Agreement and taking over the Mimosa Estate. The case eventually reached the SC where the parties executed a Compromise Agreement, which this Court incorporated in its Resolution. On November 12, 1999, Mondragon filed a Petition for Declaratory Relief and Specific Performance before the Angeles City RTC, Branch 60, which was docketed as Civil Case No. 9596 entitled Mondragon Leisure and Resorts Corporation, et al. v. Clark Development Corporation (Second Mondragon Case). Thereafter, petitioner filed a motion to dismiss the second Mondragon case alleging (1) that Mondragon is guilty of forum shopping; (2) that petition was barred by prior judgment; and (3) petition stated no cause of action. Issue: Whether or not the CA erred when it ruled that there was no forum shopping and allowed continuance of the Second Mondragon Case when in fact res judicata had already set in. Held: Yes. The test to determine whether forum shopping exists is whether the elements of litis pendencia are present or where a final judgment in one case will amount to res judicata in the

22 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 other. Res judicata means a matter or thing adjudged, judicially acted upon or decided, or settled by judgment. Its requisites are: (1) the former judgment or order must be final; (2) the judgment or order must be one on the merits; (3) it must have been rendered by a court having jurisdiction over the subject matter and parties; and (4) between the first and second actions, there must be identity of parties, subject matter, and causes of action. In the case at bar, there is no question that the first requirement of identity of parties was met. As regards the rights asserted and reliefs sought, we depart from the findings of the CA and hold that there existed an identity of causes of action and reliefs based on the same objective standard enunciated in the aforecited cases. Mondragon had only one objective in filing the two cases, that is, the perpetuation of its lease. Rodolfo M. Cuenca v. Hon. Alberto P. Atas G.R. No. 146214, October 5, 2007 There is forum shopping when a party repetitively avails of several judicial remedies in different courts, simultaneously or successively, all substantially founded on the same transactions and the same essential facts and circumstances, and all raising substantially the same issues either pending in or already resolved adversely by some other court. Facts: Rodolfo Cuenca was an incorporator, President, and Chief Executive Officer of the then Construction Development Corporation of the Philippines (CDCP), now PNCC and was granted a franchise under Presidential Decree No. 1113 to construct, operate, and maintain toll facilities of the North and South Luzon Expressway. In the course of its operations, it incurred substantial credit obligations from both private and government sources up to the point that it could not settle its maturing and overdue accounts with various GFIs. Thereafter, President Marcos issued a letter of Instruction (LOI) No. 1295 directing the creditor GFIs to convert into CDCPs shares of stock. It issued shares and increased its authorized capital stock. It was renamed as PNCC later on and became a government-acquired asset corporation. Cuenca filed a complaint before SEC to determine and declare whether the GFIs were registered stockholders of PNCC, their respective number of shares, and averred that some GIF’s refused to cancel and never did cancel the loans in their books as payments for the shares. Despite the pendency of SICD SEC Cuenca filed a Third Amended Complaint before the RTC for the enforcement and compliance of LOI 1295. Issue: Whether or not Cuenca is guilty of Forum Shopping Ruling: Yes. There is forum shopping "when a party repetitively avails of several judicial remedies in different courts, simultaneously or successively, all substantially founded on the same transactions and the same essential facts and circumstances, and all raising substantially the same issues either pending in or already resolved adversely by some other court." Forum shopping is an act of malpractice that is prohibited and condemned because it trifles with the courts and abuses their processes. It degrades the administration of justice and adds to the already congested court dockets. A close perusal of both the Amended Complaint in SEC and the Amended Complaint in Civil Case shows that both cases are derived from the same factual issues involving substantially the same

23 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 parties. Although the actions seem to be different, yet it can be seen that there is a splitting of a cause of action. While, on one hand, the Amended complaint in SEC was for the determination whether the GFIs are indeed stockholders of PNCC and their respective number of shares, and on the other, Civil Case was for the enforcement and compliance of LOI 1295, yet both actions involved substantially the same parties, stemming from the same factual antecedent of the debt-to-equity conversion mandated by LOI 1295 and involved the same cause of action that Cuenca anchors both complaints, that is, that LOI 1295 was not fully implemented. The Supreme Court rejected Cuenca’s pretense that no identity exists between Civil Case and the SEC, both of which substantially involve the same parties, having the same cause of action and which stem from the same factual antecedents. The fact remains that in Civil Case No. 95-1356, Cuenca’s prayed for the enforcement and compliance of LOI 1295, the same relief he could have asked for in the instant case before the SEC proceedings below. Thus he is guilty of Forum Shopping. CATALINA L. SANTOS, represented by her attorney-in-fact, LUZ PROTACIO and DAVID A. RAYMUNDO v. PARAÑAQUE KINGS ENTERPRISES, INC. G.R. No. 143562 October 23, 2006, Velasco, Jr., J. Forum shopping exists where the elements of litis pendentia are present or where a final judgment in one case will amount to res judicata in the other. Facts: Parañaque Kings Enterprises, Inc. (PKE) filed a complaint for breach of contract with damages against the petitioners. The trial court and CA dismissed the complaint. However, the SC reversed the order of dismissal and held that the lessor Catalina Santos should have offered the property first to the lessee PKE for P9M before selling it to a third person. The case was remanded to the trial court for further proceedings. In their Joint Answer with Counterclaims, petitioners alleged that the purchase price of P9M had been offered to PKE. PKE moved that this allegation be stricken off on the ground of res judicata, since the SC already made a finding of fact that petitioners failed to offer the property to PKE for P9M. PKE’s prayer and motion for reconsideration were denied, thus prompting it to file its first Petition for Certiorari under Rule 65 before the CA. PKE moved for the cancellation of the pre-trial of the civil case on the ground of the pendency of the petition for certiorari before the CA. The motion was again denied and PKE was ordered to present the statement of its case in the pre-trial but it refused. As a result, the complaint was dismissed for failure to prosecute. PKE’s motion for reconsideration and appeal were denied. Hence, PKE filed its second Petition for Certiorari under Rule 65 before the CA. Issue: Whether or not respondent is guilty of forum shopping. Ruling: No. Forum shopping exists where the elements of litis pendentia are present or where a final judgment in one case will amount to res judicata in the other. In the case at bar, there is no identity of transactions, facts and issues in the first and second CA Petitions. The first CA Petition questioned the May 18 and June 11, 1998 Orders of the Makati City RTC relative to the striking out of the allegations made by petitioners Santos and David in their answer. The second CA Petition, on the other hand, questions the Orders of the RTC relative to the dismissal of the Civil Case No. 91-786 for non-suit and the denial of the Notice of Appeal—events

24 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 which transpired after the filing of the first CA Petition. The causes of action are clearly distinct. Although private respondent PKE alleged in both petitions that there was grave abuse of discretion of the acting presiding judge, that prayer alone does not imply that there are similar facts, issues, and causes of action. CAGAYAN VALLEY DRUG CORPORATION vs. COMMISSIONER OF INTERNAL REVENUE G.R. No. 151413, February 13, 2008, Velasco J. The following officials or employees of the company can sign the verification and certification without need of a board resolution: (1) the Chairperson of the Board of Directors, (2) the President of a corporation, (3) the General Manager or Acting General Manager, (4) Personnel Officer, and (5) an Employment Specialist in a labor case. Facts: Cagayan Valley Drug Corporation granted 20% discount to senior citizens and treated the same as deductions from the gross sales instead of treating them as tax credit in order to arrive at the net sales. However, the corporation filed with BIR a claim for tax refund/credit of the full amount of the 20% sas discount it granted to senior citizens for the year 1995. Due to the inaction of BIR, the corporation appealed to CTA in order to forestall the 2-year prescriptive period provided by the law, but the CTA dismissed the petition. Aggrieved, the corporation elevated the matter to CA which dismissed the petition on procedural grounds. It held that the person who signed the verification and certification of absence of forum shopping, a certain Jacinto J. Concepcion, President of petitioner, failed to adduce proof that he was duly authorized by the board of directors to do so. Issue: Whether or not the verification and certification of non-forum shopping signed by the President of the corporation without the approval of the Board of Directors is a sufficient compliance with the rules. Ruling: Yes. The following officials or employees of the company can sign the verification and certification without need of a board resolution: (1) the Chairperson of the Board of Directors, (2) the President of a corporation, (3) the General Manager or Acting General Manager, (4) Personnel Officer, and (5) an Employment Specialist in a labor case. While the above cases do not provide a complete listing of authorized signatories to the verification and certification required by the rules, the determination of the sufficiency of the authority was done on a case to case basis. The rationale applied in the foregoing cases is to justify the authority of corporate officers or representatives of the corporation to sign the verification or certificate against forum shopping, being "in a position to verify the truthfulness and correctness of the allegations in the petition." In the case at bar, we so hold that the corporation substantially complied with Secs. 4 and 5, Rule 7 of the 1997 Revised Rules on Civil Procedure. First, the requisite board resolution has been submitted albeit belatedly by petitioner. Second, we apply our ruling in Lepanto with the rationale that the President of petitioner is in a position to verify the truthfulness and correctness of the allegations in the petition. Third, the President of petitioner has signed the complaint before the CTA at the inception of this judicial claim for refund or tax credit.

25 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 SUBIC TELECOMMUNICATIONS COMPANY, INC v. SUBIC BAY METROPOLITAN AUTHORITY and INNOVE COMMUNICATIONS, INC., G.R. No. 185159, October 12, 2009, J. VELASCO JR. For litis pendentia to exist, the following requisites or elements must concur: (a) identity of parties, or at least such parties who represent the same interests in both actions; (b) identity of rights asserted and relief prayed for, the relief being founded on the same facts; and (c) identity with respect to the two (2) preceding particulars in the two (2) cases is such that any judgment that may be rendered in the pending case, regardless of which party is successful, would amount to res judicata in the other case. FACTS: Subic Telecom and SBMA entered into a Joint Venture Agreement (JVA) for a period of ten years in 1994. The JVA has an exclusivity clause which provides that as to telecommunication services this function must be exclusively exercised by Subic Telecom. In 2004 however, months before the JVA is about to expire, SBMA started accepting applications for Certificate of Public Convenience and Necessity (CPCN) as to the telecommunication services. Among the applicants was Innove Communications, Inc. However, Subic Telecom opposed Innove’s application. Thereafter, when the JVA was already expired, Subic Telecom filed a civil action for specific performance to extend the JVA. SBMA moved for its dismissal on the ground of litis pendentia. ISSUE: Whether or not there is litis pendentia in this case. RULING: No. For litis pendentia to exist, the following requisites or elements must concur: (a) identity of parties, or at least such parties who represent the same interests in both actions; (b) identity of rights asserted and relief prayed for, the relief being founded on the same facts; and (c) identity with respect to the two (2) preceding particulars in the two (2) cases is such that any judgment that may be rendered in the pending case, regardless of which party is successful, would amount to res judicata in the other case. In the first case involving the application of Innove, SBMA was not a party but was the quasijudicial body hearing the application. In the second case, SBMA was the principal party (defendant) for specific performance and mandatory injunction, while Innove was impleaded for having been granted a temporary franchise by SBMA. Thus, as between the administrative case and the civil case, there was no identity of parties. The remedies Subic Telecom sought in the first case hinge on the acceptance by SBMA of Innoves application and the consequent proceedings. The second case was based on and was triggered by the denial by SBMA of Subic Telecoms notices to exercise the renewal of its alleged exclusivity rights under the JVA which the latter viewed as violation of the formers contractual obligations under the JVA. It can plausibly be conceded that both cases, insofar as Subic Telecom’s defense in the first case and cause of action in the second case are concerned, touch and deal with the interpretation of the pertinent JVA provisions. It cannot be over-emphasized, however, that both cases are not based on the same set of controlling facts, for when Subic Telecom opposed Innoves application, its notices of renewal to SBMA have not yet been rejected or denied. While, in the second case, its notices of renewal have already been denied, prompting it to file a suit for specific performance that entailed a determination by the RTC of the rights of the parties, i.e., primarily those of Subic Telecom and SBMA, based on the June 29, 1994 JVA through the interpretation of its pertinent provisos. From the

26 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 foregoing distinction, it is clear that there is, as between the two actions, no identity of rights asserted and reliefs prayed for; and the facts whence the reliefs are sought are different. FORBES PARK ASSOCIATION, INC. v. PAGREL, INC., PILAR R. DE LAGDAMEO, ENRIQUE B. LAGDAMEO, ATTY. MILA B. FLORES in her capacity as the Register of Deeds of Makati City, and the Hon. CESAR D. SANTAMARIA in his capacity as Presiding Judge of Branch 145 of the RTC of Makati G.R. No. 153821, February 13, 2008, Velasco, Jr., J. The same subject matter should not be the subject of controversy in court more than once in order that possible conflicting judgments may be avoided, for the sake of the stability of the rights and status of persons. Facts: Members of the Forbes Park Association, Inc. (FPA) agreed to have a deed of restrictions annotated on their certificates of title (TCTs). Consequently, they organized a meeting to decide on the extension of their association’s corporate existence and the deed of restrictions. But they failed to muster a quorum. Despite this, the meeting still pursued and majority of the members voted for the extension of FPA’s corporate existence and deed of restrictions annotated on the members’ TCTs. Some members filed separate cases before the Home Insurance Guaranty Corporation (HIGC) seeking the annulment of the resolutions passed extending the corporate life of FPA and the Deed of Restrictions were vitiated for lack of quorum. FPA filed an application with the Register of Deeds of Makati City for the registration by FPA of notices of lis pendens over certain Forbes Park lots in connection with consolidated HIGC Cases but it was denied. The Land Registration Authority and the CA likewise denied FPA’s appeal. Consequently, PAGREL, Inc., represented by Gregorio Araneta III, respondent Pilar R. De Lagdameo, and respondent Lagdameo, separately filed ex parte petitions with the Makati RTC to cancel the restrictions over their respective lot titles, claiming that the Deed of Restrictions had expired. This was granted by the RTC. And, FPA sought for the annulment of the final order of the RTC before the CA but it was denied on the ground of litis pendentia. Issue: Whether or not the CA erred in finding FPA guilty of litis pendentia. Ruling: Yes. The essential elements of litis pendentia are as follows: (1) identity of parties or representation in both cases; (2) identity of rights asserted and reliefs prayed for; (3) reliefs founded on the same facts and the same basis; and (4) identity of the two preceding particulars should be such that any judgment, which may be rendered in the other action, will, regardless of which party is successful, amount to res judicata in the action under consideration. The aforesaid elements are not present in this case. First, there is no identity of parties: the respondent in the lis pendens case is the Makati Register of the Deeds, and in the PAGREL case, the respondent is PAGREL. Second, there is no identity of causes of action: One seeks for the annotation of notices of lis pendens relating to several pending cases, while the other is for re-annotations of the liens on the titles of lot owners which were canceled. Lastly, there is no identity of reliefs prayed for:

27 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 in the lis pendens case, the prayer is for the annotation of the notice of lis pendence, while in the PAGREL case, FPA asked for no such relief.

Allegations in a pleading Casent Realty Development Corporation vs. PhilBanking Corporation G.R. No. 150731, September 14, 2007, Velasco, Jr. J Where the defense in the Answer is based on an actionable document, a Reply specifically denying it under oath must be made; otherwise, the genuineness and due execution of the document will be deemed admitted. Facts: Casent Realty Development Corporation executed two promissory notes in favor of Rare Realty Corporation which was payable on June 27, 1985. These promissory notes were assigned to PhilBanking Corporation through a Deed of Assignment. Upon due date Philbanking demanded payment but despite repeated demands Casent has failed to pay its obligations. Thereby it filed a collection case against Casent. Casent answered that the complaint stated no cause of action and that the parties executed a Dacion en Pago which ceded and conveyed its Iloilo properties to PhilBanking with the intention of totally extinguishing its obligations. It presented a confirmation statement issued by PhilBanking stating that Casent had no more outstanding loan. PhilBanking has failed to answer which prompted Casent on filing a Motion for Judgment on Demurrer to the Evidence, pointing out that PhilBankings failure to file a Reply to the Answer which raised the Dacion and Confirmation Statement constituted an admission of the genuineness and execution of said documents; and that since the Dacion obliterated Casents obligation covered by the promissory notes, the bank had no right to collect anymore. PhilBanking subsequently filed an Opposition which alleged that: (1) the grounds relied upon by Casents in its demurrer involved its defense and not insufficiency of evidence; (2) the Dacion and Confirmation Statement had yet to be offered in evidence and evaluated; and (3) since Philbanking failed to file a Reply, then all the new matters alleged in the Answer were deemed controverted. Casents claimed that even though it failed to file a Reply, all the new matters alleged in the Answer are deemed controverted anyway, pursuant to Rule 6, Section 10. Issue:

Whether or not Casents failure to reply to the answer of PhilBanking constituted an admission of the genuineness and execution of said documents. Ruling: Yes. Rule 8, Section 8 specifically applies to actions or defenses founded upon a written instrument and provides the manner of denying it which must be under oath and specifically denies the instrument otherwise its genuineness and due execution shall be admitted. It is more controlling than Rule 6, Section 10 which merely provides the effect of failure to file a Reply which is all the new matters alleged in the Answer were deemed controverted. Thus, where the defense in the Answer is based on an actionable document, a Reply specifically denying it under oath must be made; otherwise, the genuineness and due execution of the document will be deemed admitted. Since respondent failed to deny the genuineness and due execution of the Dacion and Confirmation Statement under oath, then these are deemed admitted and must be considered by the court in resolving the demurrer to evidence. However, admission of the genuineness and due execution of the Dacion and Confirmation Statement does not prevent the introduction of evidence showing that the

28 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Dacion excludes the promissory notes. Casents, by way of defense, should have presented evidence to show that the Dacion includes the promissory notes.

Amendment Irene Marcos-Araneta, Daniel Rubio, Orlando G. Reslin, and Jose G. Reslin v. Court of Appeals, Julita C. Benedicto, and Francisca Benedicto-Paulino G.R. No. 154096 August 22, 2008, Velasco, Jr., J. Responsive pleadings are those which seek affirmative relief and/or set up defenses. A motion to dismiss is not a responsive pleading. Facts: Ambassador Roberto S. Benedicto and his associates (Benedicto group) organized Far East Managers and Investors, Inc. (FEMII) and Universal Equity Corporation (UEC). Both corporations were organized pursuant to a contract or arrangement whereby Benedicto, as trustor, placed in his name and in the name of his associates, as trustees, the shares of stocks of FEMII and UEC with the obligation to hold those shares and their fruits in trust and for the benefit of Irene Marcos-Araneta (Irene) to the extent of 65% of such shares. Several years after, Irene demanded reconveyance of the 65% stockholdings, but the Benedicto group refused to oblige. So, Irene instituted a complaint for the conveyance of shares of stock, accounting and receivership against the Benedicto group. The respondents herein filed a motion to dismiss alleging that the venue is improperly laid. The RTC granted the motion to dismiss ruling that the action is partly a personal action and therefore the complaint must filed in the place wherein the plaintiff resides. The complaint was filed in Batac, Ilocos Norte and it was proven that Irene did not reside therein. Before finality of the decision, Irene filed an amended complaint adding Daniel Rubio, Orlando Reslin and Jose Reslin as plaintiffs. According to Irene, the inclusion of additional plaintiffs who reside in Batac, Ilocos Norte cures the defect of venue. The RTC entertained the amended complaint since Irene, according to the RTC, may opt to file an amended complaint as a matter of right, and such filing cures the defect in venue. The CA reversed the RTC decision. Issues: Whether or not Irene may file an amended complaint Ruling: Yes. According to Sec. 2 Rule 10 of the Rules of Court, A party may amend his pleading once as a matter of right at any time before a responsive pleading is served. Responsive pleadings are those which seek affirmative relief and/or set up defenses. A motion to dismiss is not a responsive pleading. The RTC did not err in admitting petitioner’s amended complaint, respondents not having yet answered the original complaint when the amended complaint was filed. Irene, by force of said Sec. 2 of Rule 10, had, as a matter of right, the option of amending her underlying reconveyance complaint. Also, the RTC decision granting respondents’ motion to dismiss has not yet attained finality at the time Irene filed her amended complaint. However, the filing of the amended complaint does not cure the defect in venue. The action is a personal action. According the Sec. 2 Rule 4 indicates quite clearly that when there is more than one plaintiff in a personal action case, the residences of the principal parties should be the basis for determining proper venue. Irene is the real party in interest since she is the beneficiary so entitled to the avails of the present suit. Not one of her co-plaintiffs can be considered principal parties because

29 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 they are mere representative of Irene. The co-plaintiffs may be residents of Batac, but Irene is the principal party. She is not a resident of Batac, therefore the venue is improperly laid. Summons CLARITA DEPAKAKIBO GARCIA vs. SANDIGANBAYAN and REPUBLIC OF THE PHILIPPINES G.R. No. 170122 October 12, 2009 J. Velasco The following are the requirements for substituted service of summons to be valid: (1) Impossibility of prompt personal service; (2) Specific details in the return; and (3) Substituted service effected on a person of suitable age and discretion residing at defendant’s house or residence; or on a competent person in charge of defendant’s office or regular place of business. Facts: A forfeiture case (F1) was filed against Garcia to recover unlawfully acquired wealth from their family as amassed by retired Maj. General Carlos Garcia. It was followed by another forfeiture case (F2). Prior to F2 but subsequent to F1, the Ombudsman charged the Garcias and three others with violation of RA 7080. After the filing of F1, the following events transpired: (1) The corresponding summons were issued and all served on Gen. Garcia at his place of detention. Instead of an answer, the Garcias filed a motion to dismiss on the ground of Sandiganbayan’s lack of jurisdiction over separate civil actions for forfeiture., (2) The Sandiganbayan denied the motion to dismiss and declared the motion as pro forma and without tolling effect on the period to answer. They declared the Garcias on default., (3) The Garcias moved for the transfer and consolidation of F1 with the plunder case. The Sandiganbayan denied the motion for reason that the forfeiture case is not the corresponding civil action for the recovery of civil liability arising from the criminal case of plunder. (4) The Garcias filed another motion to dismiss and/or to quash F1 on the ground that the plunder case ousted the Sandiganbayan 4th division of jurisdiction over the forfeiture case and that the consolidation is imperative in order to avoid possible double jeopardy. Clarita argued that there was a lack of proper and valid service of summons. Issue: Whether or not there is a valid service of summons. Ruling: No. The following are the requirements for substituted service of summons to be valid: (1) Impossibility of prompt personal service; (2) Specific details in the return; and (3) Substituted service effected on a person of suitable age and discretion residing at defendant’s house or residence; or on a competent person in charge of defendant’s office or regular place of business. From the foregoing requisites, it is apparent that no valid substituted service of summons was made on petitioner and her children, as the service made through Maj. Gen. Garcia did not comply with the first two (2) requirements mentioned above for a valid substituted service of summons. Moreover, the third requirement was also not strictly complied with as the substituted service was made not at petitioner’s house or residence but in the PNP Detention Center where Maj. Gen. Garcia is detained, even if the latter is of suitable age and discretion. Hence, no valid substituted service of summons was made.

30 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 It was also held that Garcia did not voluntarily appear before the court, because the pleadings filed by petitioner were filed solely for special appearance with the purpose of challenging the jurisdiction of the Sandiganbayan over her person and that of her three children. MA. IMELDA M. MANOTOC v. HONORABLE COURT OF APPEALS and AGAPITA TRAJANO on behalf of the Estate of ARCHIMEDES TRAJANO G.R. No. 130974 August 16, 2006, Velasco, Jr., J. When the defendant does not voluntarily submit to the court’s jurisdiction or when there is no valid service of summons, any judgment of the court which has no jurisdiction over the person of the defendant is null and void. Facts: Agapita Trajano sought the enforcement of a foreign court’s judgment involving the wrongful death of Archimedes Trajano committed by the Philippine Military Intelligence Officials allegedly under the command of Imelda Manotoc. The trial court issued summons at the house of Manotoc. The summons and copy of the Complaint were allegedly served upon the alleged caretaker, Macky de la Cruz. The trial court declared Manotoc in default for failure to file her Answer. Manotoc moved to dismiss on the ground of lack of jurisdiction of the trial court over her peson due to an invalid substituted service of summons. The court denied the motion to dismiss. Hence, Manotoc filed a Petition for Certiorari and Prohibition before the CA, but said petition was dismissed. Issue: Whether or not there was a valid substituted service of summons for the trial court to acquire jurisdiction over petitioner. Ruling: No. In an action strictly in personam, personal service on the defendant is the preferred mode of service, that is, by handing a copy of the summons to the defendant in person. If defendant, for excusable reasons, cannot be served with the summons within a reasonable period, then substituted service can be resorted to. While substituted service of summons is permitted, "it is extraordinary in character and in derogation of the usual method of service." Hence, it must faithfully and strictly comply with the prescribed requirements and circumstances authorized by the rules. For the presumption of regularity in the performance of official duty to apply, the Sheriff’s Return must show that serious efforts or attempts were exerted to personally serve the summons and that said efforts failed. These facts must be specifically narrated in the Return. It must clearly show that the substituted service must be made on a person of suitable age and discretion living in the dwelling or residence of defendant. Otherwise, the Return is flawed and the presumption cannot be availed of. In this case, the Sheriff’s Return lacks information as to residence, age, and discretion of Mr. Macky de la Cruz, aside from the sheriff’s general assertion that de la Cruz is the "resident caretaker" of petitioner. The Return of Sheriff Cañelas did not comply with the stringent requirements of Rule 14, Section 8 on substituted service.

31 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Motions Motion to dismiss VILMA QUINTOS, REPRESENTED BY HER ATTORNEY-IN-FACT FIDEL I. QUINTOS, JR.; FLORENCIA I. DANCEL, REPRESENTED BY HER ATTORNEY-IN-FACT FLOVY I. DANCEL; AND CATALINO L. IBARRA, Petitioners, v. PELAGIA I. NICOLAS, NOLI L. IBARRA, SANTIAGO L. IBARRA, PEDRO L. IBARRA, DAVID L. IBARRA, GILBERTO L. IBARRA, HEIRS OF AUGUSTO L. IBARRA, NAMELY CONCHITA R., IBARRA, APOLONIO IBARRA, AND NARCISO IBARRA, AND THE SPOUSES RECTO CANDELARIO AND ROSEMARIE CANDELARIO G.R. No. 210252, June 25, 2014, Velasco, J. Dismissal with prejudice under Rule 17, Sec. 3 of the Rules of Court cannot defeat the right of a co-owner to ask for partition at any time, provided that there is no actual adjudication of ownership of shares yet. Facts: Petitioners and respondents are siblings. In 1999, both their parents passed away, leaving them their parents’ properties. An action for partition was subsequently brought before the RTC. However, for failure of the parties and their counsels to prosecute despite due notice, the case was dismissed. In 2009, petitioners filed a complaint for Quieting of Title and Damages against the respondents. The latter opposed and sought, by way of counterclaim, the partition of the property. The RTC dismissed the petitioner’s complaint, ruling that the respondent siblings were entitled to their respective shares and ordered the partition of the subject lots between the plaintiffs and the defendants-spouses Candelarios. CA affirmed the decision of the RTC. Aggrieved, petitioners countered that the action for partition has already been barred by res judicata. Issue:

Whether or not the counterclaim for partition is barred by prior judgment.

Ruling: No. Dismissal with prejudice under Rule 17, Sec. 3 of the Rules of Court cannot defeat the right of a co-owner to ask for partition at any time, provided that there is no actual adjudication of ownership of shares yet. Pertinent hereto is Article 494 of the Civil Code. Between dismissal with prejudice under Rule 17, Sec. 3 and the right granted to co-owners under Art. 494 of the Civil Code, the latter must prevail. To construe otherwise would diminish the substantive right of a co-owner through the promulgation of procedural rules. Substantive law cannot be amended by a procedural rule. This further finds support in Art. 496 of the New Civil Code. Thus, for the Rules to be consistent with statutory provisions, the Court held that Art. 494 is an exception to Rule 17, Sec. 3 of the Rules of Court to the effect that even if the order of dismissal for failure to prosecute is silent on whether or not it is with prejudice, it shall be deemed to be without prejudice. In the case at bar, since the co-ownership is still subsisting 30-70 in favor of respondent spouses Candelario, there is no legal bar preventing herein respondents from praying for the partition of the property through counterclaim.

32 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 P.L. UY REALTY CORP. v. ALS MANAGEMENT AND DEV. CORP. and ANTONIO S. LITONJUA G.R. No. 166462, October 24, 2012, VELASCO, J. Absolute identity of parties is not required for res judicata to apply; substantial identity is sufficient. Facts: PLU(vendor) and ALS(vendee) executed a Deed of Absolute Sale with Mortgage covering a parcel of land. Subsequently, the parties executed a Partial Release of Mortgage attesting to the payment by ALS of the first installment. ALS, however, failed to pay the 2nd payment despite demands. PLU filed a Complaint for Foreclosure of Mortgage and Annulment of Documents. RTC dismissed the case for being premature. CA affirmed. PLU again filed a Complaint for Judicial Foreclosure of Real Estate Mortgage under Rule 68 of the ROC. RTC again dismissed the case for being premature. CA affirmed. Issue: Whether or not the 2 cases filed by PLU constituted as res judicata. Ruling: Yes. Under Section 1, Rule 9 of the Rules of Court, the Court may motu proprio dismiss a case when any of the 4 grounds: (a) lack of jurisdiction over the subject matter; (b) litis pendentia; (c) res judicata; and (d) prescription of action, is present. Correlatively, Secs. 47(b) and (c) of Rule 39 provides for the 2 concepts of res judicata: bar by prior judgment and conclusiveness of judgment, respectively. The elements of res judicata are: (1) the judgment sought to bar the new action must be final; (2) the decision must have been rendered by a court having jurisdiction over the subject matter and the parties; (3) the disposition of the case must be a judgment on the merits; and (4) there must be as between the first and second action, identity of parties, subject matter, and causes of action. Should identity of parties, subject matter, and causes of action be shown in the 2 cases, then res judicata in its aspect as a "bar by prior judgment" would apply. If as between the 2 cases, only identity of parties can be shown, but not identical causes of action, then res judicata as "conclusiveness of judgment" applies. All the elements of res judicata, as a "bar by prior judgment," are present here. The previous complaint for foreclosure of mortgage was dismissed by the trial court for being premature. The dismissal action, when eventually elevated to CA was affirmed and the affirmatory resolution of the Court becoming final and executory. Further, the element of identity of parties is considered existing even though Litonjua was only impleaded in the 2nd case. Absolute identity of parties is not required for res judicata to apply; substantial identity is sufficient. Clearly, the instant complaint must be dismissed. RUPERTA CANO and JESUS CARLO GERARD VDA DE VIRAY v. SPS JOSE and AMELITA USI G.R. No. 192486, November 21, 2012, VELASCO, JR., J. Res judicata operates as bar by prior judgment if the following requisites concur: (1) the former judgment or order must be final; (2) the judgment or order must be on the merits; (3) the decision must have been rendered by a court having jurisdiction over the subject matter and the parties; and (4) there must be, between the first and second action, identity of parties, of subject matter and of causes of action.

33 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Facts: Lot 733, registered in the name of Mendoza is the subject of this case. Geodetic Engr Fajardo prepared the Fajardo Plan, in which Lot 733 was divided into 6 smaller parcels of differing size dimensions: Lot 733(A-F). Mendoza executed 2 separate deeds of absolute sale, the first, transferring Lot 733-F to Jesus and the 2nd deed conveying Lot 733-A to Sps Viray. Vda. de Viray is the surviving spouse of Jesus. The subdivision of Lot 733, per the Galang Plan, and the 2 SAs concluded based on that plan, virtually resulted in the loss of the identity of what under the Fajardo Plan were Lot 733-A and Lot 733-F. The Sps. Viray and the late Jesus purchased Lot 733-A and Lot 733-F, respectively, from Mendoza. As to be expected, the foregoing overlapping transactions involving the same property or portions thereof spawned several suits and counter- suits. Issue: Whether or not the last two cases which are reinvidicatory and possessory actions are barred by res judicata. Ruling: Yes. Notably, the Sps. Viray and Vda. de Viray, after peremptorily prevailing in their cases supportive of their claim of ownership and possession of Lots 733-A and 733-F cannot now be deprived of their rights by the expediency of the Sps. Usi maintaining, as here, an accion publiciana and/or accion reivindicatoria, two of the three kinds of actions to recover possession of real property. The third, accion interdictal, comprises two distinct causes of action, namely forcible entry and unlawful detainer, the issue in both cases being limited to the right to physical possession or possession de facto, independently of any claim of ownership that either party may set forth in his or her pleadings, albeit the court has the competence to delve into and resolve the issue of ownership but only to address the issue of priority of possession. Both actions must be brought within one year from the date of actual entry on the land, in case of forcible entry, and from the date of last demand to vacate following the expiration of the right to possess, in case of unlawful detainer. When the dispossession or unlawful deprivation has lasted more than one year, one may avail himself of accion publiciana to determine the better right of possession, or possession de jure, of realty independently of title. On the other hand, accion reivindicatoria is an action to recover ownership which necessarily includes recovery of possession. Res judicata operates as bar by prior judgment if the following requisites concur: (1) the former judgment or order must be final; (2) the judgment or order must be on the merits; (3) the decision must have been rendered by a court having jurisdiction over the subject matter and the parties; and (4) there must be, between the first and second action, identity of parties, of subject matter and of causes of action. All the requisites are present in the instant case. The better right to possess and the right of ownership of Vda. de Viray and the Sps. Viray over the disputed parcels of land cannot, by force of the res judicata doctrine, be re-litigated thru actions to recover possession and vindicate ownership filed by the Sps. Usi. The Court has in effect determined that the conveyances and necessarily the transfers of ownership made to the Sps. Viray and Vda. de Viray were valid. This determination operates as a bar to the Usis reivindicatory action to assail the conveyances and precludes the relitigation between the same parties of the settled issue of ownership and possession arising from ownership. It may be that the spouses Usi did not directly seek the recovery of title or possession of the property in question in their action for annulment of the deed sale of sale. But it cannot be gainsaid that said action is closely intertwined with the issue of ownership, and affects the title, of the lot covered by the deed. The prevalent doctrine is that an action for the annulment or rescission of a sale of real property does not operate to efface the fundamental and prime objective and nature of the case, which is to recover said real property.

34 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 BLISS DEVELOPMENT CORP./HOME GUARANTY CORPORATION v. MONT ANO DIAZ, DOMINGO TAPAY, and EDGAR H. ARREZA G.R. No. 213233; August 5, 2015; VELASCO, JR., J. In cases involving res judicata, the parties and the causes of action are identical or substantially the same in the prior as well as the subsequent action. Facts: Petitioner Bliss Development Corporation (BDC) the registered owner of Lot No. 27, Block 30, located in Quezon City, and covered by TCT No. 331582. On October 19, 1984, it entered into and executed a Deed of Sale over the said property in favor of Spouses Emiliano and Leonila Melgazo (Sps. Melgazo), both of whom are now deceased. By virtue of the several deeds of transfer of rights, Diaz, who got hold of his alleged right from Domingo Tapay, then paid BDC the amortizations due on the property, amounting to PHP 406,915.15, and BDC issued a permit to occupy the property in favor of Diaz. Diaz then introduced improvements on the property, amounting to PHP 700,000.00. In 1992, BDC executed a Contract to Sell in favor of Diaz. In 1994, BDC informed Diaz that respondent Edgar Arreza (Arreza) was claiming that the heirs of Sps. Melgazo sold to him the rights over the property and placed Diaz’s account in “inactive status.” To resolve the conflicting claims of Arreza and Diaz, BDC filed a complaint for Interpleader against them, before the RTC, Makati City. The RTC ruled that Arreza had a better right over the property. This decision became final and executory. In 1996, Diaz filed the present complaint for sum of money against BDC before the RTC, Makati. This was later amended to include Arreza and Tapay as defendants. Both BDC and Tapay argued that their respective acts were lawful and done in good faith. Arreza filed a Motion to Dismiss, citing res judicata, arguing that the claim of Diaz is a compulsory counterclaim that should have been pleaded in the Interpleader case. The RTC denied the Motion to Dismiss, which the CA, on certiorari, affirmed. When the issue reached the SC in G.R. No. 133113 the Court ruled that the claim as against Arreza is barred by res judicata. Issue: Whether or not the CA erred in not dismissing the appeal in view of the application of the doctrine of immutability of judgment in the decision of the court in GR No. 133113. Ruling: No. The present claim is not barred by the court’s ruling in G.R. No. 133113—to the effect that Diaz can no longer claim reimbursement from Arreza because of res judicata—for his failure to allege the claim in the interpleader case between them. In G.R. No. 133113, the Court ruled that the claim against Arreza is barred by res judicata, because of a prior Interpleader case between Arreza and Diaz. It further ruled that the claim for reimbursement should have been alleged and proved in the prior case, and failure to do so bars any future action on such claims. In the case at bar, the essential elements of res judicata are not present. First, the interpleader case was between Arreza and Diaz. While it was BDC that initiated the interpleader case, the opposing parties in that prior case is, in fact, Arreza and Diaz. Second, the issues resolved in the interpleader case revolved around the conflicting claims of Arreza and Diaz, and not whatever claim either of them may have against BDC. Thus, there is no identity of parties, nor identity of subject matter, between the interpleader case and the one at bar.

35 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 ORIENTAL SHIPMANAGEMENT CO., INC. v. ROMY B. BASTOL G.R. No. 186289, 29 June 2010, J. Velasco, Jr. These concepts (bar by former judgment and conclusiveness of judgment) of res judicata are applicable to second actions involving substantially the same parties, the same subject matter, and cause or causes of action. Facts: After being repatriated for having a heart attack while deployed, Bastol had a follow-up examination with the company-designated physician and sought a second opinion from another doctor. This prompted him to claim medical disability benefits, illness allowance, medical benefits for his treatments, moral damages, and attorney’s fees gainst OSCI. OSCI countered that Bastol is not entitled to his indemnity claims for his failure to properly submit himself for treatment and examination by the company-designated physician, who is the only one authorized to set disability grades. LA Mayor, Jr. saw no need to conduct formal hearings and ruled that the determination of the disability degree Bastol obtained during the second opinion examination sufficed. OSCI assailed this decision, the NLRC issued it July 30, 1999 resolution vacating and setting aside LA’s ruling and remanding the case for further proceedings. LA Lustria ruled in favour of Bastol. On appeal before the NLRC, it reversed LA’s decision and held that it is only the company-designated physician who could declare the fitness of the seafarer to work; or establish the degree of his disability. The CA reinstated LA Mayor, Jr.’s decision. Issue: 1) Whether or not the Complaint filed before the LA ought to be submitted for lack of certification against forum shopping as required by the rules. 2) Whether or not the July 30, 1999 NLRC decision constitute res judicata. Held: 1) No. OSCI’s argument is untenable. For the expeditious and inexpensive filing of complaints by employees, the Regional Arbitration Branch (RAB) of the NLRC provides pro-forma complaint forms. This is to facilitate the exercise and protection of employees rights by the convenient assertion of their claims against employers untrammeled by procedural rules and complexities. To comply with the certification against forum shopping requirement, a simple question embodied in the Complaint form answerable by yes or no suffices. Employee-complainants are not even required to have a counsel before they can file their complaint. An officer of the RAB, duly authorized to administer oaths, is readily available to facilitate the execution of the required subscription or jurat of the complaint. 2) No. The doctrine of res judicata is inapplicable. The July 30, 1999 NLRC Decision cannot and does not constitute res judicata to the instant case. Res judicata has two concepts: (a) bar by former judgment and (b) conclusiveness of judgment. These concepts of the doctrine of res judicata are applicable to second actions involving substantially the same parties, the same subject matter, and cause or causes of action. In the instant case, there is no second action to speak of, involving as it is the very same action albeit the NLRC remanded it to the Labor Arbiter for further proceedings.

36 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Pre-trial Notice of pre-trial PHILIPPINE NATIONAL BANK v. SPOUSES ANGELITO PEREZ AND JOCELYN PEREZ G.R. No. 187640, 15 June 2011, First Division, Velasco, Jr., J. The notice of pre-trial seeks to notify the parties of the date, time and place of the pre-trial and to require them to file their respective pre-trial briefs within the time prescribed by the rules. Its absence, therefore, renders the pre-trial and all subsequent proceedings null and void. Facts: Spouses Perez obtained a credit line from PNB which was secured by several chattel mortgages and real estate mortgages. The spouses defaulted on their financial obligations, prompting PNB to institute extra-judicial foreclosure proceedings over the aforementioned securities. The spouses filed a complaint for the release of the mortgaged properties. The spouses and their counsel consistently failed to appear in the proceedings, which caused the RTC to dismiss the case. However, the CA in an amended decision and reinstated the civil case before the RTC. The RTC issued an order setting the case for hearing, but on the day of the hearing, only the counsel for Spouses Perez appeared. Since there was no opposition, the Spouses was allowed by the RTC to present evidence ex parte in a hearing which the RTC ordered to be considered as a pre-trial conference. The RTC ruled in favor of the spouses and issued a writ of execution over the properties of PNB. Issue: Whether a pre-trial notice is mandatory and, as a consequence, whether the lack of notice of pre-trial voids a subsequently issued decision Ruling: Yes. Section 3, Rule 18 of the 1997 Rules on Civil Procedure unequivocally requires that the notice of pre-trial shall be served on counsel, or on the party who has no counsel. The notice of pretrial seeks to notify the parties of the date, time and place of the pre-trial and to require them to file their respective pre-trial briefs within the time prescribed by the rules. Its absence, therefore, renders the pre-trial and all subsequent proceedings null and void. In the case at bar, the order issued by the trial court merely spoke of a “hearing” and required PNB “to prepare a complete statement of account.” The order does not mention anything about a pre-trial to be conducted by the trial court. The CA aptly held that the Order which declared the haring to be a pre-trial and allowed the Spouses to adduce evidence ex parte, is void. Similarly, its ruling that the Decision and all subsequent orders issued pursuant to said judgment are also null and void, is proper.

37 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Appearance of Parties; Effect of Failure to Appear SPOUSES LORETO LEYBA and MATEA LEYBAv. RURAL BANK OF CABUYAO, INC. and ZENAIDA REYES G.R. No. 172910, November 14, 2008, VELASCO, JR., J. While a court can dismiss a case on the ground of non prosequitur, the real test of such power is whether, under the circumstances, plaintiff is chargeable with want of due diligence in failing to proceed with reasonable promptitude. Facts: Petitioners spouses Loreto and Matea Leyba filed a complaint for Nullification of Real Estate Mortgage and Special Power of Attorney (SPA) against respondents Rural Bank of Cabuyao, Inc. (RBCI) and Zenaida Reyes alleging that Matea was made to sign an SPA, granting Reyes the authority to mortgage the subject land; that Reyes used the SPA to obtain loan from RBCI guaranteed by a real estate mortgage over the subject land.A pre-trial conference was set for April 1, 2005. Petitioners and their counsel, however, failed to attend it. Citing Sec. 5, Rule 18 of the Rules of Court, the RTC dismissed the complaint for lack of interest to prosecute the case, which was affirmed by the CA. Issue: Whether or not the dismissal of the complaint was proper. Ruling: No. It is the policy of the Court to afford party-litigants the amplest opportunity to enable them to have their cases justly determined, free from the constraints of technicalities. It is undisputed that petitioners were present in all the scheduled pre-trial conferences, except for the last one set on April 1, 2005. The postponement of the pre-trial was made several times upon agreement by the parties and once upon motion of RBCI. Petitioners claim that they are both advance in age and that, on April 1, 2005, their blood pressure shot up. They reason that the lack of medical certificates explaining their medical condition was due to their non-consultation with a physician as they opted to take sufficient rest instead. The Court noted that the subject matter of the complaint is to petitioners a valuable parcel of land measuring 259 square meters. Petitioners stand to lose a lot on account of a mere technicality. They have manifested their interest to pursue the case even on appeal. They also have adequately explained their failure to attend the pre-trial conference. In the interest of substantive justice, we allow the petitioners an opportunity to present their side during a trial on the merits, to obviate jeopardizing substantive justice. This liberality underscores the importance of an appeal in our judicial grievance structure to give party-litigants the amplest opportunity for the just disposition of their cause freed from the noose of technicalities.

Alternative Dispute Resolution (ADR) EQUITABLE PCI BANKING CORPORATION (EPCIB) v. RCBC CAPITAL CORPORATION G.R. No. 182248, December 18, 2008, VELASCO, JR., J. The proper mode of appeal assailing the decision of the RTC confirming as arbitral award is an appeal before the CA pursuant to Sec. 46 of Republic Act No. (RA) 9285, otherwise known as the Alternative Dispute Resolution Act of 2004.

38 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Facts: EPCIB and the individual shareholders of Bankard, Inc., as sellers, and RCBC, as buyer, executed a Share Purchase Agreement (SPA) for the purchase of EPCIB’s interests in Bankard. Under the SPA, EPCIB jointly and severally represent and warrant Financial Condition of Bankard. RCBC paid the balance of the contract price. Thereafter, RCBC informed EPCIB of its having overpaid the purchase price of the subject shares, claiming that there was an overstatement of valuation of accounts amounting to PhP 478 million, resulting in the overpayment of over PhP 616 million. Thus, RCBC claimed that EPCIB violated their warranty, as sellers, embodied in the SPA and prayed for the rescission of the SPA, restitution of the purchase price, payment of actual damages and legal interest. RCBC, in accordance with the SPA, filed a Request for Arbitration. The tribunal ruled in favor of RCBC which later on filed with the RTC a Motion to Confirm Partial Award. EPCIB countered with a Motion to Vacate the Partial Award. RTC issued the first assailed order confirming the Partial Award and denying the adverted separate motions to vacate and to suspend and inhibit. From the assailed orders, EPCIB came directly to this Court through this petition for review. Issue: Whether or not EPCIB erroneously filed an appeal before the SC instead of CA. Ruling: Yes. The proper mode of appeal assailing the decision of the RTC confirming as arbitral award is an appeal before the CA pursuant to Sec. 46 of Republic Act No. (RA) 9285, otherwise known as the Alternative Dispute Resolution Act of 2004. As a rule, the award of an arbitrator cannot be set aside for mere errors of judgment either as to the law or as to the facts since any other rule would make an award the commencement, not the end, of litigation. Errors of law and fact, or an erroneous decision of matters submitted to the judgment of the arbitrators, are insufficient to invalidate an award fairly and honestly made. Nonetheless, arbitrators cannot resolve issues beyond the scope of the submission agreement. The parties to such an agreement are bound by the arbitrators award only to the extent and in the manner prescribed by the contract and only if the award is rendered in conformity thereto. Finally, while a court is precluded from overturning an award for errors in determination of factual issues, nevertheless, if an examination of the record reveals no support whatever for the arbitrators determinations, their award must be vacated. In the same manner, an award must be vacated if it was made in manifest disregard of the law. BENGUET CORPORATION vs. DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES MINES ADJUDICATION BOARD and J.G. REALTY AND MINING CORPORATION G.R. No. 163101, February 13, 2008, Velasco J. Availment of voluntary arbitration before resort is made to the courts or quasi-judicial agencies of the government is a valid contractual stipulation that must be adhered to by the parties. Facts: Benguet Corporation and J.G. Realty entered into a Royalty Agreement with Option to Purchase (RAWOP), wherein J.G. Realty was acknowledged as the owner of four mining claims. Thus, on August 9, 1989, the Executive Vice-President of Benguet issued a letter informing J.G. Realty of its intention to develop the mining claims. However, the relationship did not go so well, so J.G. Realty informed Benguet that it was terminating the RAWOP.

39 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Thereafter, J.G. Realty filed a Petition for Declaration of Nullity/Cancellation of the RAWOP with the Legaspi City Panel of Arbitrators (POA) which cancelled the RAWOP and subsequently affirmed by Mining Adjudication Board (MAB). Benguet pointed out that the case should have first been submitted to voluntary arbitration pursuant to its agreement with J.G. Realty. Issue: Whether or not the controversy should have first been submitted to arbitration before the POA took cognizance of the case. Ruling: Yes. Availment of voluntary arbitration before resort is made to the courts or quasi-judicial agencies of the government is a valid contractual stipulation that must be adhered to by the parties. In other words, in the event a case that should properly be the subject of voluntary arbitration is erroneously filed with the courts or quasi-judicial agencies, on motion of the defendant, the court or quasi-judicial agency shall determine whether such contractual provision for arbitration is sufficient and effective. If in affirmative, the court or quasi-judicial agency shall then order the enforcement of said provision. Hence, POA had no jurisdiction over the dispute which is governed by RA 876, the Arbitration Law. However, estoppel applies in the case at hand. The Court ruled that the jurisdiction of POA and that of MAB can no longer be questioned by Benguet at this late hour. What Benguet should have done was to immediately challenge the POA's jurisdiction by a special civil action for certiorari when POA ruled that it has jurisdiction over the dispute. To redo the proceedings fully participated in by the parties after the lapse of seven years from date of institution of the original action with the POA would be anathema to the speedy and efficient administration of justice. KOREA TECHNOLOGIES CO., LTD. v. HON. ALBERTO A. LERMA, in his capacity as Presiding Judge of Branch 256 of Regional Trial Court of Muntinlupa City, and PACIFIC GENERAL STEEL MANUFACTURING CORPORATION G.R. No. 143581, January 7, 2008, Velasco, Jr., J. (civpro; adr) Facts: Korean Technologies Co., Ltd. (KOGIES) and Pacific General Steel Manufacturing Corporation (PGSMC) entered into a contract whereby the former shall construct a liquefied gas cylinder manufacturing plant in the Philippines for a total contract price of $1,530,000. PGSMC issued checks as payment of the contract but were dishonored. Dispute arose between the two parties, with KOGIES suing PGSMC for BP 22 and PGSMC suing KOGIES for estafa, alleging that it supplied sub-par quality equipment. Meanwhile, KOGIES insisted that their disputes should be settled by arbitration as agreed upon in Article 15, the arbitration clause of their contract. Thereafter, KOGIES instituted an Application for Arbitration before the Korean Commercial Arbitration Board (KCAB) in Seoul, Korea pursuant to Art. 15 of the Contract as amended. Subsequently, KOGIES filed a complaint for specific performance before the Regional Trial Court (RTC), and prayed that a Temporary Restraining Order (TRO) be issued to restrain PGSMC from dismantling and transferring the machinery and equipment installed in the plant which the latter threatened to do. PGSMC filed an opposition to the TRO arguing that KOGIES was not entitled to the TRO since Art. 15, the arbitration clause, was null and void for being against public policy as it ousts the local courts of jurisdiction over the instant controversy.

40 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Issue: Whether or not the Article 15 of the arbitration clause of the contract is contrary to public policy and ousted the court of its jurisdiction over the case at bar. Ruling: No. The Court, reiterating its ruling in LM Power Engineering Corporation v. Capitol Industrial Construction Groups, Inc., held: Being an inexpensive, speedy and amicable method of settling disputes, arbitrationalong with mediation, conciliation and negotiationis encouraged by the Supreme Court. Aside from unclogging judicial dockets, arbitration also hastens the resolution of disputes, especially of the commercial kind. It is thus regarded as the wave of the future in international civil and commercial disputes. Brushing aside a contractual agreement calling for arbitration between the parties would be a step backward. The arbitration clause was mutually and voluntarily agreed upon by the parties. It has not been shown to be contrary to any law, or against morals, good customs, public order, or public policy. There has been no showing that the parties have not dealt with each other on equal footing. Submission to arbitration is a contract and that a clause in a contract providing that all matters in dispute between the parties shall be referred to arbitration is a contract. Furthermore, the provision to submit to arbitration any dispute arising therefrom and the relationship of the parties is part of that contract and is itself a contract.

Trial Consolidation or severance of hearing or trial Steel Corporation of the Philippines v. Equitable PCI Bank Inc. G.R. No. 190462 & G.R. No. 190538, November 17, 2010, Velasco, JR, J. The purpose of consolidation of cases is to avoid multiplicity of suits, guard against oppression and abuse, prevent delays, clear congested dockets, and simplify the work of the trial court. Facts: SCP is a domestic corporation engaged in the manufacturing and distribution of cold-rolled and galvanized steel sheets and coils. During its operations, SCP encountered and suffered from financial difficulties and temporary illiquidity, aggravated by the 1997 Asian Financial Crisis. And shortage in working capital and reduced operating capacity compounded its problem. As a result, SCP was unable to service its principal payments for its liabilities. Equitable PCI Bank, Inc., which accounted for 27.45% of the total liabilities of SCP, filed a creditor-initiated petition to place the SCP under corporate rehabilitation pursuant to the provisions of Section 1, Rule 4 of the Interim Rules of Procedure on Corporate Rehabilitation entitled In the Matter of the Petition to have Steel Corporation of the Philippines Placed under Corporate Rehabilitation with Prayer for the Approval of the Proposed Rehabilitation Plan. BDO-EPCIB included its proposed rehabilitation plan in the said petition. Rehabilitation Court approved the rehabilitation and likewise appointed Atty. Santiago T. Gabionza, Jr. as the Rehabilitation Receiver for SCP. SCP did not oppose the petition but instead filed its own counter rehabilitation plan and submitted it for the consideration of the Rehabilitation Court. Other creditors filed their respective comments on the petition. Atty. Gabionza submitted his recommended rehabilitation plan. The said plan contained the salient features of the rehabilitation

41 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 plans separately submitted by SCP and BDO-EPCIB, as well as his own comments. RTC approved Rehabilitation Plan. Therefrom, several creditors went to the CA via separate Petitions for Review on Certiorari including IPFI. The petitions of SCP and IPFI were eventually consolidated under CA-G.R. SP No. 101732. However, the CA denied BDO-EPCIBs motion to consolidate with CA-G.R. SP No. 101732. As to CA-G.R. SP No. 101881, the Court takes judicial notice of the fact that it has also been consolidated with CA-G.R. SP No. 101732 in a Resolution issued by the CA. CA issued the assailed decision in CAG.R. SP No. 101881, ordering the termination of the rehabilitation. SCP argued that the CA deviated from its own Internal Rules when it failed to consolidate the four (4) appeals arising from the same decision of the rehabilitation court. BDO-EPCIB refutes SCPs arguments by saying that the consolidation of cases is only discretionary, not mandatory, upon the court. Issue: Whether or not consolidation of cases was proper Ruling: Yes. Consolidation of actions is expressly authorized under Sec. 1, Rule 31 of the Rules of Court. The purpose of this rule is to avoid multiplicity of suits, guard against oppression and abuse, prevent delays, clear congested dockets, and simplify the work of the trial court. In short, consolidation aims to attain justice with the least expense and vexation to the parties-litigants. It contributes to the swift dispensation of justice, and is in accord with the aim of affording the parties a just, speedy, and inexpensive determination of their cases before the courts. Further, it results in the avoidance of the possibility of conflicting decisions being rendered by the courts in two or more cases, which would otherwise require a single judgment. In the instant case, all four (4) cases involve identical parties, subject matter, and issues. In fact, all four (4) arose from the same decision rendered by the Rehabilitation Court. As such, it became imperative upon the CA to consolidate the cases. Even though consolidation of actions is addressed to the sound discretion of the court and normally, its action in consolidating will not be disturbed in the absence of manifest abuse of discretion, in this instance, we find that the CA gravely erred in failing to order the consolidation of the cases. By refusing to consolidate the cases, the CA, in effect, dispensed a form of piecemeal judgment that has veritably resulted in the multiplicity of suits. Such action is not regarded with favor, because consolidation should always be ordered whenever it is possible.

42 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Judgments and Final Orders Summary Judgments D.M. CONSUNJI, INC. v. DUVAZ CORPORATION G.R. No. 155174. August 4, 2009. Third Division. Velasco, Jr., J. Where the pleadings tender an issue, that is, an issue of fact the resolution of which calls for a presentation of evidence, summary judgment is not proper. Facts: In a Construction Contract entered into by D.M. Consunji, Inc. (DMCI) and Duvaz Corporation (Duvaz), DMCI undertook to construct the foundation of the Alfaro’s Peak for Duvaz. After the completion of the project, DMCI claimed that substantial amount of the contractual price remained unpaid. Later, Duvaz filed a petition for the declaration of a state of suspension of payments with the SEC for its assets are insufficient to covers its entire matured obligation. The SEC granted such petition prompting DMCI to file with the RTC Makati City a petition for the annotation of contractor’s lien on the property of Duvaz. The Makati City RTC later granted the petition for annotation of DMCI’s contractor’s lien on the property of Duvaz. Later, DMCI filed a collection suit against Duvaz. In its Answer with Compulsory Counterclaims, Duvaz specifically denied DMCI’s averment that it owes the latter a sum of money and further set up affirmative defenses against DMCI such as serious defects in the construction of the building and cost for rectification works. Thereafter, DMCI moved for summary judgment, alleging that Duvaz is already estopped from questioning his liability as the same is already settled in the case decided by Makati City RTC and in the reply it sent to DMCI. Furthermore, DMCI contends that the Makati City RTC’s order in LRC Case No. M-3839 is, under the principle of res judicata, conclusive upon Duvaz. Issue: Whether or not summary judgment is proper. Ruling: No. Rule 34, Section 3 of the Rules of Court provides two (2) requisites for summary judgment to be proper: (1) there must be no genuine issue as to any material fact, except for the amount of damages; and (2) the party presenting the motion for summary judgment must be entitled to a judgment as a matter of law. In this case, genuine issues exist. DMCI’s posture on estoppel is untenable. Far from containing an admission of liability, Duvaz’s Answer contained a specific denial of petitioner’s claim. Be that as it may, the answer in Civil Case No. 99-1354 diluted any admission, if there were indeed admissions, made in the SEC and LRC cases and, as the CA put it, “engenders a cloud of doubt as to the certainty of the facts as alleged.” Such doubt should be resolved against the grant of the motion for summary judgment. When faced with a motion for summary judgment, should resolve doubts in favor of the party against whom it is directed, giving such party the benefit of all favorable inferences. DMCI’s contention that the Makati City RTC’s order in LRC Case No. M-3839 is, under the principle of res judicata, conclusive as between it and Duvaz as regards the contractor’s claim for the

43 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 unpaid balance against Duvaz strikes the Court as a bit incredulous. LRC Case No. M-3839, to stress, was an action to annotate a contractor’s lien, not a collection suit where the purported debtor is expected to present its defenses and counterclaims, if there be any, to defeat the suitor’s claim. With the parties’ conflicting postures on, among others, the issues of estoppel, prescription, and DMCI’s liability and Duvaz’s corollary right for damages arising from the alleged mal-execution of the construction works, the only way to ascertain whose position jibes with facts on the ground is obviously through the presentation of evidence by the parties in a full blown trial on the merits. This is as it should be for any doubt as to the propriety of the rendition of a summary judgment must be resolved against it. With the tender of genuine issues before it, the RTC acted properly, and within its sound discretion, in denying petitioner’s motion for summary judgment.

Rendition of Judgments and Final Orders METROPOLITAN MANILA DEVELOPMENT AUTHORITY, et. al. v. CONCERNED RESIDENTS OFMANILA BAY, et. al. G.R. Nos. 171947-48, February 15, 2011, Velasco, Jr., J. Final judgment includes not only what appears upon its face to have been so adjudged but also those matters actually and necessarily included therein or necessary thereto. Certainly, any activity that is needed to fully implement a final judgment is necessarily encompassed by said judgment. Facts: In 2008, the Supreme Court (SC) rendered a Decision in G.R. Nos. 171947-48 ordering various government agencies to clean up, rehabilitate and preserve Manila Bay in their different capacities. Having failed to file any motion for reconsideration, the said Court Decision has become final and executory. To implement the Decision, the Manila Bay Advisory Committee was created to receive and evaluate the quarterly progressive reports on the activities undertaken by the said agencies and to monitor its execution. However, due to the absence of specific completion dates within which to accomplish the assigned tasks given to the agencies, the Committee recommended that time frames be set for the said purpose. However, the said agencies viewed this as an encroachment on the power and functions of the Executive Branch headed by the President of the Philippines. Issue: Whether or not the resolutions issued to implement the SC Decision in G.r. Nos. 171947-18 are encroachments on the powers and functions of the Executive Branch headed by the President of the Philippines. Ruling: No. The issuance of subsequent resolutions by the Court is simply an exercise of judicial power under Art. VIII of the Constitution, because the execution of the Decision is but an integral part of the adjudicative function of the Court. While additional activities are required of the agencies like submission of plans of action, data or status reports, these directives are but part and parcel of the execution stage of a final decision under Rule 39 of the Rules of Court. It is clear that the final judgment includes not only what appears upon its face to have been so adjudged but also those matters actually and necessarily included therein or necessary thereto.

44 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Certainly, any activity that is needed to fully implement a final judgment is necessarily encompassed by said judgment. Moreover, the submission of periodic reports is sanctioned by Secs. 7 and 8, Rule 8 of the Rules of Procedure for Environmental cases. With the final and executory judgment in the MMDA case, the writ of continuing mandamus issued means that until petitioner-agencies have shown full compliance with the Courts orders, the Court exercises continuing jurisdiction over them until full execution of the judgment. Dominador A. Mocorro, Jr. v. Rodito Ramirez G.R. No. 178366 July 28, 2008, Velasco, Jr., J. A decision that has acquired finality becomes immutable and unalterable. This quality of immutability precludes the modification of a final judgment, even if the modification is meant to correct erroneous conclusions of fact and law Facts: Acting on the petition on the issue as who, between Dominador Mocorro and Rodolfo Azur, is entitled to operate a cockpit in Caibiran, Leyte, the Philippine Gamefowl Commission (PGC) rendered a decision granting Dominador the right to operate such cockpit to expire on December 31, 1991, to which he was issued a registration certificate. As Dominador sought to renew his certificate, Rodito Ramirez, the Mayor of Caibiran, refused to renew his certificate. Dominador found out that another permit was issued in favor of Rodolfo. As a result, Dominador filed with the RTC a suit for injunction against Rodito and Rodolfo to enjoin the operation of the cockpit, which was granted by the trial court. The RTC entitled Dominador to actual damages in the sum Php 2000 for every Sunday of each week from August 2, 1992 from the time Rodolfo started to operate his cockpit. A writ of execution was then issued in favor of Dominador. Subsequently, herein respondent Rodito filed an Omnibus Motion to Quash the Writ of Execution on the ground that it imposes an incomplete judgment because the Writ failed to state a date where their liability will terminate. To cure the defect, the sheriff determined that June 22, 2001 is the termination date of their liabilities. RTC then denied the Omnibus Motion. As the RTC denied the respondent’s motion for reconsideration, he interposed a petitioner for certiorari under Rule 65 with the CA. The CA entertained the petition setting aside the decision that respondent and Rodolfo are liable to actual damages since the decision does not state where their liability will end and thus the exact amount cannot be determined. Dominador opposed the CA decision stating that it amounts to a modification of a final judgment. Issue: Whether or not the CA decision setting aside the RTC decision awarding actual damages violates the immutability of a final judgment Ruling: Yes. A decision that has acquired finality becomes immutable and unalterable. This quality of immutability precludes the modification of a final judgment, even if the modification is meant to correct erroneous conclusions of fact and law. And this postulate holds true whether the modification is made by the court that rendered it or by the highest court in the land. The orderly administration of justice requires that, at the risk of occasional errors, the judgments/resolutions of a court must reach a point of finality set by the law. The noble purpose is to write finis to dispute once and for all. This is a fundamental principle in our justice system, without which there would be no end to litigations. Utmost respect and adherence to this principle must always be maintained by those who

45 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 exercise the power of adjudication. Any act, which violates such principle, must immediately be struck down. SPOUSES RODRIGO COLOSO and ELISA COLOSO, represented by their son FREDERICK COLOSO v. HON. SECRETARY ERNESTO V. GARILAO, et al. G.R. No. 129165 October 30, 2006, Velasco, Jr. J. A decision that acquired finality becomes immutable and unalterable and may no longer be modified in any respect even if the modification is meant to correct erroneous conclusions of fact or law and whether it will be made by the court that rendered it or by the highest court of the land. Facts: Petitioner Spouses Coloso converted their 300-hectare land into a subdivision. Thus, they notified the Ravago Group, the agricultural leasehold tenants of a 50-hectare portion of the property, of the conversion of the said land into a residential subdivision. For failure to agree on the disturbance compensation, petitioners filed a complaint for ejectment before the then CFI, acting as a Court of Agrarian Relations, which ruled in favor of petitioners, which the CA affirmed. There being no appeal, said decision became final and executory. Meanwhile, Prior to the issuance of the said decision, the DAR already issued an Order approving the conversion of the subject land into a residential subdivision, including the land occupied by Ravago Group, and certified that said tenants were not recipients of Land Transfer Certificates (LTCs). Several motions for execution of the subject decision were filed by petitioners. Unknown to petitioners and the court, the Ravago Group were issued LTCs. Hence, the CAR granted the motion for execution which was subsequently set aside based on the issuance of LTCs. A petition for certiorari was filed before the CA by petitioners which the CA granted. Petitioners filed a petition for exemption from the CARP coverage of parcels of land of the subject 300-hectare land. The then DAR Secretary Garilao issued an Order dismissing the petition on the ground that the CAR had no jurisdiction to order or authorize the conversion of the subject land into a residential subdivision. The lands covered by the said order of conversion were also declared subject to CARP coverage. Issue: Whether or not a final judgment of a trial court, which has become final and affirmed by the Court, be disregarded by the DAR Secretary. Ruling: No. A decision that acquired finality becomes immutable and unalterable and may no longer be modified in any respect even if the modification is meant to correct erroneous conclusions of fact or law and whether it will be made by the court that rendered it or by the highest court of the land. The CAR February 8, 1972 Decision became final in 1975 after the Court of Appeals affirmed the CAR Decision on May 22, 1975. More than thirty (30) years have passed and up to now said Decision has not yet been executed. It is about time that the Colosos enjoy the fruits of victory which is the end all of litigation. The public respondent DAR Secretary should respect the CAR Decision and implement the conversion of the 26.5-hectare lot to give life and meaning to the final judgment.

46 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 TIRSO MONTEROSO vs. COURT OF APPEALS, et al. G.R. No. 105608, April 30, 2008, J. Velasco, Jr. SOFIA PENDEJITO VDA. DE MONTEROSO, et al. vs. COURT OF APPEALS and TIRSO MONTEROSO G.R. No. 113199, April 30, 2008, J. Velasco, Jr. Courts should always strive to settle the entire controversy in a single proceeding leaving no root or branch to bear the seed of future litigation. FACTS: Don Fabian Monteroso, Sr. married twice and sired eight (8) children, four (4) from each union. In his first marriage with Soledad Doldol, Soledad, Reygula, Benjamin and Tirso were born. After Doldol died, his second marriage with Sofia Pendejito bore Florenda, Reynato, Alberto, and Fabian, Jr. During the early part of his second marriage, Don Fabian filed before the CFI of Agusan an intestate proceeding for the estate of his deceased first wife to obviate any dispute over the inheritance. The project for partition was approved and the intestate estate of Doldol was partitioned and distributed to her four (4) children in equal shares. In the meantime, the children of Don Fabian from his first marriage married accordingly, Soledad to Atty. Perfecto Cagampang, Sr., Reygula to Jose Bayan, Benjamin to Mauricia Nakila; and Tirso to Melecia Tana. Benjamin died, leaving behind four (4) children and his wife. A year and a half later, Don Fabian also passed away. This brings us to the objects of the squabble: the conjugal patrimonies of Don Fabian from his two (2) successive marriages. The children of Benjamin filed with the RTC a complaint for recovery of property with damages against their uncle, Tirso, who in turn, filed a complaint for partition and damages with receivership against his stepmother Pendejito and all his step-siblings, alleging that the judicial settlement of the intestate estate of his mother, is null and void. The RTC consolidated the two cases and held that the heirs of Benjamin have been deprived of their inheritance which corresponds to one-fourth share due their father from the intestate estate of their grandmother, Soledad D. Monteroso. The thus ordered partition and accounting. Petitioners took exception of the fact that the trial court granted relief and remedies not prayed for by the parties such as partition and accounting. ISSUE: Whether or not the RTC was correct in ordering partition and accounting. RULING: Yes The Philippine judicial system requires courts to apply the law and grant remedies when appropriately called for by law and justice. In the exercise of this mandate, courts have the discretion to apply equity in the absence or insufficiency of the law. Equity has been defined as justice outside law, being ethical rather than jural and belonging to the sphere of morals than of law. It is grounded on the precepts of conscience and not on any sanction of positive law, for equity finds no room for application where there is law. In the instant case, a disposition only ordering partial partition and without accounting, as petitioners presently urge, would be most impractical. Courts have been cautioned against being dogmatic in rendering decisions, it being preferable if they take a complete view of the case and in the process come up with a just and equitable judgment, eschewing rules tending to frustrate rather than promote substantial justice. Verily, courts should always strive to settle the entire controversy in a single proceeding leaving no root or branch to bear the seed of future litigation.

47 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 ANASTACIO TUBALLA HEIRS, NAMELY: JULIANA TUBALLA, AGUSTIN TUBALLA, AND HERMAN TUBALLA v. RAUL CABRERA, ET. AL. G.R. No. 179104, 29 February 2008, Velasco, Jr., J. The only exceptions to the rule that final judgments may no longer be modified in any respect are (1) the correction of clerical errors, (2) the so-called nunc pro tunc entries which cause no prejudice to any party, and (3) void judgments. Facts: Anastacio Tuballa filed a complaint against Cabrera Enterprises, Inc for the recovery of possession of a parcel of land. The RTC rendered a decision in favor of Tuballa. The CA affirmed the decision of the RTC and had become final and executory. Tuballa filed a manifestation before the court pointing out a typographical error in the dispositive portion of the RTC Decision which indicated Lot No. 6597 instead of Lot No. 5697. The RTC issued an order stating that it had no power to correct the decision of the CA. The CA also ruled that it had no power or authority to correct the said decision. Issue: Whether or not the correction of the typographical error in the dispositive portion is warranted. Ruling: Yes. As a rule, a decision that has acquired finality becomes immutable and unalterable. A final judgment may no longer be modified in any respect, even if the modification is meant to correct erroneous conclusions of fact and law; and whether it be made by the court that rendered it or by the highest court in the land. The orderly administration of justice requires that the judgments/resolutions of a court or quasi-judicial body must reach a point of finality set by the law, rules, and regulations. The only exceptions to the rule that final judgments may no longer be modified in any respect are (1) the correction of clerical errors, (2) the so-called nunc pro tunc entries which cause no prejudice to any party, and (3) void judgments. In this case, what is to be corrected is a mere clerical error, hence it falls under one of the exceptions, warranting a correction of the typographical error in the dispositive portion.

48 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Post-Judgment Remedies Motion for New Trial or Reconsideration SM LAND INC. v. BASES CONVERSION AND DEVELOPMENT AUTHORITY AND ARNEL PACIANO CASANOVA, GR NO. 203655, SEPTEMBER 7, 2015, J. VELASCO JR. The Court has taken a conservative stance when entertaining second motions for reconsideration, allowing only those grounded on extraordinarily persuasive reasons and, even then, only upon express leave first obtained. Facts: BCDA move for a second motion for reconsideration. Respondent-movants remain adamant in claiming that the assailed rulings of the Court would cause unwarranted and irremediable injury to the government, specifically to its major beneficiaries, the Department of National Defense (DND) and the Armed Forces of the Philippines (AFP). However, in this second motion for reconsideration they merely reiterate matters already decided by this court. Further, the facts provided that this second motion for reconsideration was filed after the finality of the court’s decision. On the other hand DNP and AFP move to be allowed to intervene in the case on the basis of the profit that they could have received from the contract between SMLI and BCDA. ISSUES: 1) Whether or not BCDA’s move for a second motion for reconsideration be granted? 2) Whether or not DNP and AFP has a right to intervene? Ruling: 1) No. The concurrence of the following elements are required for a second motion for reconsideration to be entertained: a. b. c. d.

The motion should satisfactorily explain why granting the same would be in the higher interest of justice; The motion must be made before the ruling sought to be reconsidered attains finality; If the ruling sought to be reconsidered was rendered by the Court through one of its Divisions, at least three (3) members of the said Division should vote to elevate the case to the Court En Banc; and The favorable vote of at least two-thirds of the Court En Banc’sactual membership must be mustered for the second motion for reconsideration to be granted.

Unfortunately for respondent-movants, the foregoing requirements do not obtain in the case at bench. To begin with, there are no extraordinarily persuasive reasons “in the higher interest of justice” on which the instant second motion for reconsideration is anchored on. Based on the records, the second motion for reconsideration is a mere rehash, if not a reiteration, of respondent-movants’ previous arguments and submissions, which have amply been addressed by the Court in its August 13, 2014 Decision, and effectively affirmed at length in its March 18, 2015 Resolution. 2) No. In the case at bar, the DND and AFP moved for intervention on the ground that they are the beneficiaries of the proceeds from the project to be undertaken by the BCDA. Obviously, this “right to the proceeds” is far from actual as it veritably rests on the success of the bidding process, such that there will be no proceeds that will accrue to their benefit to speak of if the project does not

49 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 push through. All the applicants have then, at best, is an inchoate right to the proceeds of the development of the property in litigation. Said inchoate right, contradistinguished with vested rights that have become fixed and established, are still expectant and contingent and, thus, open to doubt or controversy. Consequently, the said right does not constitute sufficient legal interest that would qualify the DND and AFP, in this case, to intervene. And in any event, regardless of the presence or absence of sufficient legal interest, the Comment in Intervention filed does not contain any new issue that has not yet been resolved by the Court in its Decision and Resolution. Hence, there is no cogent reason to grant the motion for intervention and to admit DND and AFP’s comment.

Appeals in general RICARDO S. SILVERIO, JR. v. COURT OF APPEALS (Fifth Division) and NELIA S. SILVERIO-DEE, G.R. No. 178933, September 16, 2009, VELASCO, JR., J. (civpro, appeal from interoluctory orders) Interlocutory orders cannot be appealed. Facts: On May 31, 2005, the RTC issued an Omnibus Order ordering Nelia Silverio-Dee to vacate the premises of the property located at No. 3, Intsia Road, Forbes Park, MakatiCity. Instead of filing a Notice of Appeal and Record on Appeal, private respondent filed a motion for reconsideration of the Order. This motion for reconsideration was denied by the RTC in an Order dated December 12, 2005. Private respondent then filed her Notice of Appeal and subsequently filed her Record on Appeal on January 23, 2006. In denying due course the Notice/Record on Appeal, the RTC, in its Order dated, ruled that the appeal taken by Nelia Silverio-Dee from the Order of this Court denying the Motion for Reconsideration is misplaced as no appeal may be taken from the order denying the motion for reconsideration. Furthermore, assuming that what said movant had appealed is the final Order dated May 31, 2005, still, the appeal cannot be given due course as the Record on Appeal had been filed beyond the thirty-day period to appeal. Issue:

Whether or not the Omnibus Order dated May 31, 2005 is an Interlocutory Order which is not subject to appeal under Sec. 1 of Rule 41. Ruling: Yes. The May 31, 2005 Order of the RTC is an Interlocutory Order, not subject to an appeal. The denial of due course by the RTC was based on two (2) grounds: (1) that Nelia Silverio-Dees appeal was against an order denying a motion for reconsideration which is disallowed under Sec. 1(a), Rule 41 of the Rules of Court; and (2) that Nelia Silverio-Dees Record on Appeal was filed beyond the reglementary period to file an appeal provided under Sec. 3 of Rule 41. The rationale behind the rule proscribing the remedy of appeal from an interlocutory order is to prevent undue delay, useless appeals and undue inconvenience to the appealing party by having to assail orders as they are promulgated by the court, when they can be contested in a single appeal. The appropriate remedy is thus for the party to wait for the final judgment or order and assign such interlocutory order as an error of the court on appeal.

50 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 ERNESTO BATALLA v. COMMISSION ON ELECTIONS and TEODORO BATALLER, G.R. No. 184268, September 15, 2009, VELASCO, JR., J. It is true that the verification requirement was not complied with, but such procedural lapse pales in the face of the manifest error in the dismissal of Batallas appeal by the Comelec First Division when the Comelec En Banc had already issued Resolution No. 8486, granting an appellant in this case, Batalla 15 days within which to pay the additional fee of PhP 3,200, with which he had already complied. Facts: Petitioner Batalla, and private respondent Bataller, were candidates for the position of Punong Barangay. During the count, Batalla garnered 113 votes while Bataller garnered 108 votes. Consequently, Batalla was proclaimed the Punong Barangay winner. Bataller filed an election protest and claimed that there was a misappreciation of seven ballots. MCTC rendered its Decision finding that Batalla and Bataller had garnered an equal number of votes. Aggrieved, Batalla timely filed his Notice of Appeal of the decision elevating the election protest before the Comelec. The Comelec First Division dismissed the appeal for Batallas failure to pay the appeal fee. Aggrieved further, Batalla elevated before the Comelec En Banc the above Order of the Comelec First Division by filing his Motion for Reconsideration followed by a Supplemental Motion for Reconsideration on April 30, 2008. The Comelec En Banc issued the second assailed Order affirming the Comelec First Divisions earlier Order dismissing the appeal for Batallas failure to pay the appeal fee and, moreover, denying his motion for reconsideration for his failure to verify the motion. Issue: Whether or not Batalla’s appeal ought to be given due course despite the procedural infirmities of belated payment of the appeal fee and the non-verification of his motion for reconsideration. Ruling: Yes. Respondent Comelec grievously erred and gravely abused its discretion when it dismissed and denied petitioners appeal. In the instant case, we find that Batalla already perfected his appeal by filing his Notice of Appeal and by paying the PhP 1,000 appeal fee, pursuant to A.M. No. 07-4-15-SC, within the five-day reglementary period, to the MCTC; and by paying the additional appeal fee of PhP 3,200 to the Comelec Cash Division on March 5, 2008. Consequently, the Comelec First Division committed grave abuse of discretion in dismissing Batallas appeal and, likewise, so did the Comelec En Banc in not correcting this error by denying Batallas motion for reconsideration. Fairness and prudence dictate that the Comelec En Banc should have recognized Batallas compliance with clarificatory Resolution No. 8486 when it resolved his motion for reconsideration and should not have merely denied it on the procedural ground of non-verification. It is true that the verification requirement was not complied with, but such procedural lapse pales in the face of the manifest error in the dismissal of Batallas appeal by the Comelec First Division when the Comelec En Banc had already issued Resolution No. 8486, granting an appellant in this case, Batalla 15 days within which to pay the additional fee of PhP 3,200, with which he had already complied.

51 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Modes of Appeal HARRY G. LIM v. ANIANO DESIERTO, in his capacity as Ombudsman, ANTONIO H. CERILLES, ROSELLER DELA PEÑA, and the COURT OF APPEALS G.R. No. 154992, February 13, 2008, J. Velasco, Jr. It is beyond the ambit of the Supreme Court to review the exercise of discretion of the Ombudsman in prosecuting or dismissing a complaint filed before it, provided there is no grave abuse of discretion. Facts: Harry Lim filed with the Ombudsman a complaint against Cerilles and Dela Peña for violation of Graft and Corrupt Practices Act. In a Resolution, the Graft Investigation Officer recommended the filing of charges against Cerilles and dela Peña. Upon review, Ombudsman Aniano Desierto approved the dismissal of the aforesaid resolution for lack of probable cause. Petitioner then appealed to the Office of the Preseident. Pending appeal to the OP, petitioner filed a petition for certiorari under Rule 65 before the CA which dismissed the same. Now, petitioner filed with the SC a petition under Rule 45 arguing that the Ombudsman committed serious reversible error in dismissing his complaint for lack of probable cause. Issue: Whether an appeal under Rule 45 may be given due course to review the exercise of discretion of the Ombudsman in determining whether probable cause exists. Ruling: No. An appeal under Rule 45 should be limited to questions of law only, not questions of facts. The main issue of whether probable cause exists that will warrant the filing of the appropriate complaint is a question of fact. In this case, resolving the issues presented by petitioner, however, would require a review of the factual findings of the Ombudsman. Thus, it is beyond the ambit of this Court to review the exercise of discretion of the Ombudsman in prosecuting or dismissing a complaint filed before it. However, while the Ombudsman’s discretion in determining the existence of probable cause is not absolute, nevertheless, petitioner must prove that such discretion was gravely abused to warrant the reversal of the Ombudsman’s findings by this Court. In this respect, petitioner fails. This Court's consistent policy has been to maintain non-interference in the determination of the Ombudsman of the existence of probable cause, provided there is no grave abuse of discretion.

52 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Issues to be Raised on Appeal LORETO BOTE v. SPOUSES ROBERT VELOSO and GLORIA VELOSO G.R. No. 194270, December 3, 2012, VELASCO, JR., J. A party cannot change his theory of the case or his cause of action on appeal. Facts: Gloria was awarded a residential lot at the Dagat-Dagatan Project and she constructed a 2storey house on the property awarded to her and then leased the house to Bote. For Bote’s failure to pay, spouses Veloso filed a Complaint. As reflected in the Pre-Trial Order, the parties agreed that the complaint would only be one for sum of money and no longer for recovery of possession of the subject property. RTC ruled in favor of Bote. CA modified the RTC decision and ordered a proper determination of the value of the controverted residential house constructed by Gloria and for it’s reimbursement of such amount. Issue: Whether or not the CA erred in considering and passing on the new issue that the spouses Veloso were builders in good faith. Ruling: Yes. Section 15, Rule 44 of the Rules of Court limits the questions that may be raised on appeal. It is settled jurisprudence that an issue which was neither averred in the complaint nor raised during the trial in the court below cannot be raised for the first time on appeal as it would be offensive to the basic rules of fair play, justice and due process. This principle forbids the parties from changing their theory of the case. The settled rule is that a party cannot change his theory of the case or his cause of action on appeal. It affirms that "courts of justice have no jurisdiction or power to decide a question not in issue." Thus, a judgment that goes beyond the issues and purports to adjudicate something on which the court did not hear the parties, is not only irregular but also extrajudicial and invalid. The rule rests on the fundamental tenets of fair play. Nevertheless, such rule admits of an exception as enunciated in Canlas v. Tubil(G.R. No. 184285, 2009) to wit: When the factual bases thereof would not require presentation of any further evidence by the adverse party in order to enable it to properly meet the issue raised in the new theory, as in this case, the Court may give due course to the petition and resolve the principal issues raised therein. However, the instant case does not fall under this exception. To stress, the issue of whether or not the spouses Veloso were builders in good faith is a factual question that was never alleged, let alone proven. It was only on appeal that the spouses Veloso belatedly raised the issue that they were builders in good faith. Justice and fair play dictate that the spouses Veloso’s change of their theory of the case on appeal be disallowed. COMMISSIONER OF INTERNAL REVENUE V. PUREGOLD DUTY FREE, INC. G.R. No. 202789, June 22, 2015, VELASCO JR., J. It is well settled that matters that were neither alleged in the pleadings nor raised during the proceedings below cannot be ventilated for the first time on appeal and are barred by estoppel. To allow the contrary would constitute a violation of the other party's right to due process, and is contrary to the principle of fair play.

53 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Facts: Puregold had been issued Certificate of Tax Exemption pursuant to Sec. 5 of EO 80. In Coconut Oil Refiners v. Torre, however, the Court annulled the adverted Sec. 5 of EO 80. Then Deputy Commissioner issued a Preliminary Assessment Notice regarding unpaid VAT and excise tax on wines, liquors and tobacco products imported by Puregold. The latter protested the assessment. Pending the resolution of Puregold's protest, Congress enacted RA 9399, which provides that availment of the tax amnesty relieves the qualified taxpayers of any civil, criminal and/or administrative liabilities arising from, or incident to, nonpayment of taxes, duties and other charges. Puregold availed itself of the tax amnesty. However, it received a formal letter of demand from the BIR for the payment of the deficiency VAT and excise taxes. In its response-letter, Puregold requested the cancellation of the assessment on the ground that it has already availed of the tax amnesty under RA 9399. Puregold filed a Petition for Review with the CTA. The CTA 2nd Division denied CIR's MR. The CIR filed a Petition for Review with the CTA en banc which was also denied. The CIR's motion for reconsideration was likewise denied. Thus, the CIR filed with this Court the present petition which introduced an entirely new matter, i.e., based on its Articles of Incorporation, Puregold's principal place of business is in Metro Manila for which reason it cannot avail itself of the benefits extended by RA 9399. Issue: Whether or not the allegation of the CIR regarding the principal place of business of Puregold can be considered on appeal. Ruling: No. During the proceedings in the CTA, the CIR never challenged Puregold's eligibility to avail of the tax amnesty under RA 9399 on the ground that its principal place of business, per its Articles of Incorporation, is in Metro Manila and not in Clark Field, Pampanga. Neither did the CIR present the supposed Articles of Incorporation nor formally offer the same in evidence for the purpose of proving that Puregold was not entitled to the tax amnesty under RA 9399. Hence, the Court cannot take cognizance, much less consider, this argument as a ground to divest Puregold of its right to avail of the benefits of RA 9399. In any event, assuming arguendo that petitioner's new allegation can be raised on appeal, the same deserves short shrift. RA 9399, as couched, does not prescribe that the amnesty-seeking taxpayer has its principal office inside the Clark Special Economic Zone. It merely requires that such taxpayer be registered and operating within the said zone, stating that “registered business enterprises operating x x x within the special economic zones and freeports created pursuant to Section 15 of Republic Act No. 7227, as amended, such as the Clark Special Economic Zone x x x may avail themselves of the benefits of remedial tax amnesty herein granted.”

Perfection of Appeal SPOUSES CURATA v. PHILIPPINE PORTS AUTHORITY G.R. Nos. 154211-12, 158252, 166200, 168272, 170683, 173392, June 22, 2009, VELASCO, JR., J. The rule on payment of docket fees as mandatory in the perfection of an appeal, is relaxed by the higher interest of justice and fair play.

54 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Facts: E.O. No. 385 and E.O. 431 delineated the Batangas Port Zone (BPZ) and placed it under the Philippine Ports Authority (PPA) for administrative jurisdiction. On July 10, 2000, the RTC issued the first compensation order, which pegged the just compensation at PhP 5,500 per square meter. lleging that almost all of the group members were of advanced age, the trial court, upon motion, issued the July 24, 2000 Order that granted the execution pending appeal. The RTC however denied PPA’s Notice of Appeal on the ground of non-payment of appeal fee. Furthermore, the Record on Appeal and Motion for Reconsideration were also denied. The CA allowed the appeal of PPA and nullified the questioned RTC orders. Petitioners assailed that the July 10 compensation Order has already attained finality. Issue: Whether or not the appeal may be allowed despite the finality of the compensation order. Ruling: Yes. The payment of docket fees within the prescribed period is, as a rule, mandatory for the perfection of an appeal. However, the technical rules of procedure may be relaxed in view of the attending policy considerations in the interest of justice and equity. In the case at bar, the Court rules that the public interest and the higher interests of justice and fair play dictate that PPAs appeal should be allowed. The trial judge should have permitted the appeal to prosper in view of the billions of pesos of taxpayers money. Moreover, there is a wide disparity between the fair market values of the lots ranging from PhP 2.10 to 3.50 per square meter based on the tax declarations. The sharp increase in the total amount of compensation from PPAs offered price of PhP 500 per square meter to PhP 5,500 per square meter or an increase of 1,000% also made PPA rethink if the project is still viable. Appeal from Judgments or Final Orders of the RTC PHILIPPINE NATIONAL BANK v. GAYAM PASIMIO, GR NO. 205590, SEPTEMBER 2, 2015, J. VELASCO JR. and law.

The parties in Rule 41 appeal proceedings may raise questions of fact or mixed questions of fact

Facts: Pasimio filed a case for collection of a sum of money pursuant to the bank deposits she had with PNB. PNB however, after presenting several notarized documents and promissory notes presenting the loans secured by the deposited amount refused to deliver back the deposited amount in light of the compensation when Pasimio failed to pay those loans. The RTC rendered a decision by relying on the statements of Pasimio that she was defrauded in signing pro forma forms which serves as evidence of her loans to the bank. The CA affirmed the decision of the RTC and denied PNB’s claim with respect to questions of facts, because the CA said that it is not a trier of facts. Issue: Whether or not the CA erred in refusing rules on factual issues.

55 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Ruling: Yes. Section 9 of Bates Pambansa Blg. (BP) 129, otherwise known as the Judiciary Reorganization Act of 1980, categorically states that the CA has, inter alia, the power to try cases, receive evidence and perform any and all acts necessary to resolve factual issues raised in cases falling within its original and appellate jurisdiction. It is also worthy to note that the appellate court's reliance on the factual findings of the trial court is hinged on the latter's firsthand opportunity to hear the witnesses and to observe their demeanor during the trial. However, when such findings are not anchored on their credibility and their testimonies, but on the assessment of documents that are available to appellate magistrates and subject to their scrutiny, reliance on the trial courts factual findings finds no application. The CA's regrettable cavalier treatment of PNB's appeal is inconsistent with Rule 41 of the Rules of Court and with the usual course of judicial proceedings. Thus, in insisting that it is not a trier of facts and implying that it had no choice but to adopt the RTC's factual findings, the CA shirked from its function as an appellate court to independently evaluate the merits of this case. To accept the CA's aberrant stance is to trivialize its review function, but, perhaps worse, render useless one of the reasons for its institution.

Review of final judgments or final orders of the Ombudsman FLOR GUPILAN-AGUILAR and HONORE R. HERNANDEZ v. OFFICE OF THE OMBUDSMAN, represented by HON. SIMEON V. MARCELO; and PNP-CIDG, represented by DIR. EDUARDO MATILLANO G.R. No. 197307, February 26, 2014, Velasco, Jr., J. In administrative disciplinary cases, an appeal from the OMB’s decision should be taken to the CA under Rule 43, unless the decision is not appealable owing to the penalty imposed. Facts: Flor Gupilan-Aguilar and Honore Hernandez were among the personnel of the Bureau of Customs against whom an investigation was conducted by PNP-CIDG. According to the investigation, there is a wide variance between Aguilar’s acquired assets and what she spent for her four-year overseas travels, on one hand, and her income, on the other, finding that she has violated R.A. 1379 in relation to R.A. 3019 and 6713. She was charged with grave misconduct and dishonesty. Hernandez was charged too with the same offenses. The Ombudsman created an investigating panel which then conducted administrative proceedings on the complaint. Aguilar was placed under preventive suspension for six months. She was found guilty by the investigating panel. In a supplemental decision, Hernandez was likewise found guilty. Aguilar and Hernandez moved for but were denied reconsideration. Petitioners went to the CA on petition for review under Rule 43. The CA affirmed the decision of the Ombudsman. Issue: Whether or not a Rule 43 petition to assail the findings or decisions of the Ombudsman in an administrative case is proper.

56 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Ruling: Yes. The nature of the case before the Office of the Ombudsman (OMB) determines the proper remedy available to the aggrieved party and with which court it should be filed. In administrative disciplinary cases, an appeal from the OMB’s decision should be taken to the CA under Rule 43, unless the decision is not appealable owing to the penalty imposed. In the case at bar, the Ombudsman, in the exercise of his administrative disciplinary jurisdiction had, after due investigation, adjudged petitioners guilty of grave misconduct and dishonesty and meted the corresponding penalty. Recourse to the CA via a Rule 43 petition is the proper mode of appeal. Rule 43 governs appeals to the CA from decisions or final orders of quasijudicial agencies.

Execution, Satisfaction and Effect of Judgments HERNAN C. DALIDA v. SPOUSES ELISEO NAGUIT AND ALICIA NAGUIT G.R. No. 170083, June 29, 2007, Velasco, Jr., J. The court may stay immediate execution of a judgment where supervening events bring about a material change in the situation of the parties which makes the execution inequitable, or where there is no compelling urgency for the execution because it is not justified by the prevailing circumstances. Facts: Astra Builders Enterprises Corp. acting through its minority stockholder, Hernan Dalida instituted a derivative suit for accounting/receivership with TRO against Sps. Naguit, Equitable PCI Bank, and 3 of Astra's clients based on Eliseo Naguit's unauthorized withdrawal of corporate funds while he was president of Astra. Eliseo and Equitable PCI Bank were impleaded to account for the withdrawal. It was also alleged that there was a great danger that Astra’s may be lost unless a receiver is appointed. The TRO was based on the compelling need to direct Astra's clients to stop any payment in favor of Astra through Eliseo. The parties filed a compromise agreement subject to the terms and conditions stated in it. The agreement asked for the dismissal of the derivative suit and criminal complaints. Moreso, that upon full payment, Dalida would transfer his 28 shares in Astra. The RTC ruled that Eliseo and Astra are jointly and severally liable to pay Dalida Php 7,000,000 in 4 installments. The RTC granted Dalida's Motion for Execution but Spouses Naguit filed an Urgent Motion to Recall/Quash Writ of Execution and a MR alleging that Astra had no funds hence, both motions were denied. Spouses Naguit filed a petition for certiorari before the CA which sustained the assertion of the spouses that supervening events – Astra’s loss of revenues - after the approval of the compromise agreement made it impossible for them to comply. Dalida filed a petition for review raising the issue of the impropriety of the stay of the execution, that only for the most compelling reasons may the execution based on a compromise agreement be stayed. Issue: Whether or not the stay of the execution is improper. Ruling: Yes. The court may stay immediate execution of a judgment where supervening events bring about a material change in the situation of the parties which makes the execution inequitable, or where there is no compelling urgency for the execution because it is not justified by the prevailing circumstances. However, the reason put forward by respondents is insufficient to merit a stay of

57 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 execution. Nowhere in the compromise agreement is it stated that the obligation to pay is conditioned upon Astra's receipt of the payment due from its projects with other companies. Respondent Eliseo Naguit cannot renege on his obligation under the agreement by claiming an inability to pay. It would be an anathema to the orderly administration of justice if such an easy excuse is entertained to abrogate a final decision based on a compromise agreement. Neither is there any supervening event which materially and substantially altered the situation of the parties such that execution would be unjust and inequitable. The compromise agreement has the force of law between the parties unless it is void, there is a vice of consent, or there is forgery, or if the terms are so palpably unconscionable, none of which applies in this case. Discretionary Execution SPOUSES CURATA v. PHILIPPINE PORTS AUTHORITY G.R. Nos. 154211-12, 158252, 166200, 168272, 170683, 173392, June 22, 2009, VELASCO, JR., J. Discretionary execution of judgments pending appeal under Sec. 2(a) of Rule 39 does not apply to eminent domain proceedings. Facts: E.O. No. 385 and E.O. 431 delineated the Batangas Port Zone (BPZ) and placed it under the Philippine Ports Authority (PPA) for administrative jurisdiction. On July 10, 2000, the RTC issued the first compensation order, which pegged the just compensation at PhP 5,500 per square meter. lleging that almost all of the group members were of advanced age, the trial court, upon motion, issued the July 24, 2000 Order that granted the execution pending appeal. The RTC however denied PPA’s Notice of Appeal, Record on Appeal and Motion for Reconsideration. The CA allowed the appeal of PPA and nullified the questioned RTC orders. Petitioners assailed that the July 10 compensation Order has already attained finality. Issue: Whether or not execution pending appeal is applicable to expropriation proceedings. Ruling: No. PPAs monies, facilities and assets are government properties. PPA is a government instrumentality charged with carrying out governmental functions through the management, supervision, control and regulation of major ports of the country. It is an attached agency of the Department of Transportation and Communication pursuant to PD 505. Ergo, they are exempt from execution whether by virtue of a final judgment or pending appeal. Funds of PPA partake of government funds, and such may not be garnished absent an allocation by its Board or by statutory grant. If the PPA funds cannot be garnished and its properties, being government properties, cannot be levied via a writ of execution pursuant to a final judgment, then the trial court likewise cannot grant discretionary execution pending appeal, as it would run afoul of the established jurisprudence that government properties are exempt from execution. What cannot be done directly cannot be done indirectly.

58 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Issuance and Contents of a Writ of Execution DANILO L. PAREL v. HEIRS OF SIMEON PRUDENCIO G.R. No. 192217, March 2, 2011, Velasco, J. The writ of execution may be appealed in certain cases. Facts: Simeon owned a two-story house in Baguio City while he allowed Danilo and his parents to live on the ground floor of the house since his wife was the elder sister of Danilo’s father, Florentino. Simeon needed the whole house, so he asked Danilo and his parents to vacate the premises, but they remained. This prompted Simeon to institute an action for recovery of possession and damages. On the other hand, Danilo contended that the land on which Simeon’s house was constructed was in his father Florentino’s name, thus, making them co-owners of the property. The RTC ruled in favor of Danilo which decision was overturned by the CA. Thereafter, Simeon prayed for the Issuance of Writ of Execution. However, Danilo interposed that his payment of monthly rental should onlyile be computed from April 1988 to March 1994 since he vacated the premises on April 1994. The RTC issued the writ and subsequently denied the motion for reconsideration of Danilo. Hence, this petition. Issue: Whether or not the Writ of Execution issued by the RTC may be appealed. Ruling: Yes. The following are the instances where a writ of execution may be appealed: 1) the writ of execution varies the judgment; 2) there has been a change in the situation of the parties making execution inequitable or unjust; 3) execution is sought to be enforced against property exempt from execution; 4) it appears that the controversy has never been subject to the judgment of the court; 5) the terms of the judgment are not clear enough and there remains room for interpretation thereof; or 6) it appears that the writ of execution has been improvidently issued, or that it is defective in substance, or is issued against the wrong party, or that the judgment debt has been paid or otherwise satisfied, or the writ was issued without authority. In these exceptional circumstances, considerations of justice and equity dictate that there be some mode available to the party aggrieved of elevating the question to a higher court. That mode of elevation may be either by appeal (writ of error or certiorari), or by a special civil action of certiorari, prohibition, or mandamus. The instant case falls under one of the exceptions cited above. The fact that Danilo has left the property under dispute is a change in the situation of the parties that would make execution inequitable or unjust. We find that Danilo’s situation merits a relaxation of the rules since special circumstances are involved that is to determine if his allegation were true would allow a final resolution of the case. The writ of execution sought to be implemented does not take into consideration the circumstances that merit a modification of judgment. Given that there is a pending issue regarding the execution of judgment, the RTC should have afforded the parties the opportunity to adduce evidence to determine the period within which Danilo should pay monthly rentals before issuing the writ of execution in the instant case.

59 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 ATTY. VIRGILIO P. ALCONERA v. ALFREDO T. PALLANAN A.M. No. P-12-3069, January 20, 2014, Velasco, Jr., J. Well-settled is that the sheriff’s duty in the execution of a writ is purely ministerial; he is to execute the order of the court strictly to the letter. He has no discretion whether to execute the judgment or not. Facts: Complainant was the counsel for Morito Rafols, the defendant in an unlawful detainer case. After trial, the MTCC ruled against Rafols and his co-defendants. Therefrom, Rafols, through complainant, appealed the case to the RTC. Pending appeal, the court issued an order granting the motion for execution in the unlawful detainer case. Complainant sought reconsideration but the motion was denied. Upon the implementation of the writ of execution, an argument took place between complainant and respondent. The former claims that he has a pending motion for reconsideration on the issuance of the writ of execution, but the latter said that the motion has already been denied. And since no Temporary Restraining Order (TRO) has been issued enjoining the implementation, respondent claimed that he is legally mandated to perform his ministerial duty of enforcing the writ. Complainant countered that he has not yet received a copy of the denial of the motion, rendering the execution premature. Nevertheless, respondent still pushed through with the execution of the judgment and in enforcing, allegedly uttered words degrading to the reputation of the complainant. He then filed a Complaint-Affidavit against the respondent sheriff for grave misconduct. Issue: Whether or not the respondent is correct in pushing through with the writ. Ruling: Yes. Under said Sec. 19, Rule 70, a judgment on a forcible entry and detainer action is made immediately executory to avoid further injustice to a lawful possessor. The defendant in such a case may have such judgment stayed only by (a) perfecting an appeal; (b) filing a supersedeas bond; and (c) making a periodic deposit of the rental or reasonable compensation for the use and occupancy of the property during the pendency of the appeal. The failure of the defendant to comply with any of these conditions is a ground for the outright execution of the judgment, the duty of the court in this respect being ministerial and imperative. Hence, if the defendant-appellant has perfected the appeal but failed to file a supersedeas bond, the immediate execution of the judgment would automatically follow. In the case at bar, complainant lost his client’s case and appealed to the RTC. His client has also been periodically depositing rental with the court for the use of the property pending appeal. However, as ruled by the RTC, the bond filed did not meet the legal requirements because first and foremost, the bond posted was a property bond, not cash nor surety. Furthermore, Rafols did not own the property he posted as bond and besides, it was also not issued in favour of the plaintiff in the ejectment case. Because of the non-compliance with the requirements under the above-quoted rule, the execution of the judgment was not effectively stayed. The only exceptions to non-compliance are the existence of fraud, accident, mistake or excusable negligence which prevented the defendant from posting the supersedeas bond or making the monthly deposit, or the occurrence of supervening events which brought about a material change in the situation of the parties and which would make

60 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 the execution inequitable. But whether or not these obtain in the case at bar is an issue best left to the court that issued the writ of execution. Given the above circumstances, there was no legal impediment preventing respondent sheriff from performing his responsibility of enforcing the writ of execution. Since Rafols failed to comply with the requirements under the Rules, Cua Beng who prevailed in the unlawful detainer case is entitled as a matter of right to the immediate execution.

Provisional Remedies Preliminary attachment REPUBLIC OF THE PHILIPPINES v. ESTATE OF ALFONSO LIM, SR., ALFONSO LIM, JR., TEODORA Q. PENA, FERDINAND E. MARCOS, IMELDA R. MARCOS, TAGGAT INDUSTRIES, INC., PAMPLONA REDWOOD VENEER, IMC., SOUTHERN PLYWOOD, WESTERN CAGAYAN LUMBER, ACME PLYWOOD, VETERAN WOODWORK, INC., SIERRA MADRE WOOD INDUSTRIES, INC., AND TROPICAL PHILIPPINES WOOD INDUSTRIES, INC. G.R. No. 164800, July 22, 2009, Velasco, Jr., J. For a writ of attachment to issue under Sec.1 (d), Rule 57 of the Rules of Court, the applicant must sufficiently show the factual circumstances of the alleged fraud in incurring the obligation upon which the action is brought. Facts: The Republic filed before the Sandiganbayan a complaint averring that Alfonso Lim, Sr. and Alfonso Lim, Jr., acted in unlawful collusion with the Marcoses, and took undue advantage of their relationship with the latter. The Republic then prayed for the reconveyance of all funds and property acquired by them in abuse of right and power through unjust enrichment. When Lim, Sr. passed away, his estate filed a motion to lift the sequestration over certain real properties. Such motion was opposed by the Republic alleging that the sequestered lots stand as security for the satisfaction of any judgment the Republic may obtain against the estate of Lim, Sr. The Sandiganbayan then lifted the sequestration order. The estate of Lim, Sr. then filed a demurrer to evidence alleging that the Republic’s evidence did not prove or disprove that the defendants on their own or in concert with the Marcoses, amassed ill-gotten wealth. The Republic also filed a Motion for the Issuance of a Wirt of Preliminary Attachment against respondents in the amount of its claims, to counter the effects to the lifting of the sequestration order. However, the Sandiganbayan, stating that bare allegations of the commission of fraud by respondents in incurring the obligations are not sufficient for the granting of the writ of preliminary attachment, denied the motion. The Sandiganbayan also denied respondents’ demurrer to evidence. Issue: Whether or not the Sandiganbayan correctly denied the issuance of a writ of preliminary attachment. Ruling: No. For a writ of attachment to issue under Sec.1 (d), Rule 57 of the Rules of Court, the applicant must sufficiently show the factual circumstances of the alleged fraud in contracting the debt or incurring the obligation upon which the action is brought.

61 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 The Court ruled that the Republic has sufficiently discharged the burden of demonstrating the commission of fraud committed by the respondents as a condition sine qua non for the issuance of a writ of preliminary attachment. The main supporting proving document of the Republic was unqualifiedly admitted in evidence by the Sandiganbayan. It is incongruous, therefore, for the Sandiganbayan to deny the writ of preliminary attachment when the pieces of evidence on record which it used and based its findings and conclusions in denying the demurrer to evidence were the same ones which demonstrate the propriety of the writ of preliminary attachment. The denial of the prayed writ, thus, evidently constitutes grave abuse of discretion on the part of Sandiganbayan.

Preliminary injunction ST. JAMES COLLEGE OF PARAÑAQUE; JAIME T. TORRES, represented by his legal representative, JAMES KENLEY M. TORRES; and MYRNA M. TORRES v. EQUITABLE PCI BANK G.R. No. 179441 August 9, 2010 VELASCO, JR., J The injunctive writ is conditioned on the existence of a clear and positive right of the applicant which should be protected. FACTS: Spouses Jaime (now deceased) and Myrna Torres, owned and operated St. James College, defaulted in their loan of PhP25, 000,000 secured by REM in favor of EPCIB. The bank made a counter proposal on the xrestructuring of the loan. Jaime Torres chose and agreed to pay the equal annual amortizations of PhP 6,100,000 payable every May. However, they failed to pay. Thereafter, partial payment was accepted by the bank. Spouses again issued a check as partial payment. By letter, EPCIB again reminded Spouses that its receipt of the check payment is without prejudice to the banks rights considering the overdue nature of Spouses’ loan. The Spouses ordered stop payment of the check. The bank demanded full settlement of spouses’ loan which was unheeded. And so the bank filed a Petition for Sale to extra-judicially foreclose the mortgaged property. However, RTC issued an Order granting a writ of preliminary injunction in favor of Spouses. On appeal, CA nullified and set aside the RTC orders. ISSUE: Whether the grant of the writ of preliminary injunction was proper. RULING: No. The injunctive writ is conditioned on the existence of a clear and positive right of the applicant which should be protected, the writ being the strong arm of equity, an extraordinary peremptory remedy which can be availed of only upon the existence of well-defined circumstances. In this case, contrary to what the RTC ruled, there was no urgent necessity to issue the writ to protect the rights and interest of petitioners as owners. First, they could participate in the foreclosure sale and get their property back unencumbered by the payment of the obligations that they acknowledged in the first place. Second, a foreclosure sale does not ipso facto pass title to the winning bidder over the mortgaged property. Petitioners continue to own the mortgaged property sold in an auction sale until the expiration of the redemption period. Third, petitioners have one year from the auction sale to redeem the mortgaged property. The one-year redemption period is another grace period accorded petitioners to pay the outstanding debt, which would be converted to the proceeds of the forced sale pursuant to the requisites under Sec. 6 of Republic Act No. 3135, as

62 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 amended, for the redemption of a property sold in an extrajudicial sale, also in accordance with Sec. 78 of the General Banking Act, as amended by Presidential Decree No. 1828. It is only upon the expiration of the redemption period, without the judgment debtors having made use of their right of redemption, does ownership of the land sold become consolidated in the purchaser or winning bidder. ISABEL JAEL MARQUEZ et al. v. THE PRESIDING JUDGE ISMAEL B. SANCHEZ et al. G.R. No. 141849, J. Velasco, Jr. It is basic that the issuance of a writ of preliminary injunction is addressed to the sound discretion of the trial court, conditioned on the existence of a clear and positive right of the applicant which should be protected. Facts: Marcial Marquez was an incorporator and officer of Lucena Entrepreneur and AgriIndustrial Development Corporation(LEAD). LEAD applied for an agricultural loan with DBP secured by real estate mortgages (REM) of two properties by its principals. An additional loan was obtained after problems were encountered during the initial loan’s implementation. This additional loan was secured by a REM undertaken by Marcial Marquez and his wife. For having defaulted on its contractual obligations, DBP demanded LEAD and its principals to settle their outstanding loan obligation otherwise it would institute the necessary legal action to protect its interest, including appropriate actions to foreclose the mortgaged properties. With the inaction of LEAD and its principals, DBP was compelled to file an application for foreclosure sale of the REMs constituted to secure its loan with DBP. Thereafter, the ex officio provincial sheriff issued a notice of extra-judicial sale to satisfy the mortgaged indebtedness. Marquez, however, instituted the instant action for damages, cancellation of mortgage and certiorari with prayer for issuance of a writ of preliminary injunction and/or restraining order to forestall the foreclosure. On the scheduled day of foreclosure, the presiding judge granted the TRO. Subsequently, during the scheduled hearing, Marquez’ prayer for injunctive writ was denied and the foreclosure sale proceeded. Issue: Whether or not the trial court's refusal to grant the injunction against the threatened extrajudicial foreclosure sale constitutes grave abuse of judicial discretion. Held: No. The requisites of preliminary injunction whether mandatory or prohibitory are the following: (1) the applicant must have a clear and unmistakable right, that is a right in esse; (2) there is a material and substantial invasion of such right; (3) there is an urgent need for the writ to prevent irreparable injury to the applicant; and (4) no other ordinary, speedy, and adequate remedy exists to prevent the infliction of irreparable injury. Petitioners have failed to establish the essential requisites for the issuance of a writ of preliminary injunction. Hence, the trial court did not commit any manifest abuse in denying the writ. It is basic that the issuance of a writ of preliminary injunction is addressed to the sound discretion of the trial court, conditioned on the existence of a clear and positive right of the applicant which should be protected. It is an extraordinary, peremptory remedy available only on the grounds expressly provided by law. Moreover, extreme caution must be observed in the exercise of such discretion. It should be granted only when the court is fully satisfied that the law permits it and the emergency demands it. The very foundation of the jurisdiction to issue a writ of injunction rests in the existence of a cause of action and in the probability of irreparable injury, inadequacy of pecuniary

63 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 compensation, and the prevention of multiplicity of suits. Where facts are not shown to bring the case within these conditions, the relief of injunction should be refused. COMPANIA GENERAL DE TABACOS DE FILIPINAS AND LA FLOR DE LA ISABELA, INC. v. HON. VIRGILIO A. SEVANDAL, AS DIRECTOR AND DTI ADJUDICATION OFFICERS, ATTY. RUBEN S. EXTRAMADURA, AS HEARING OFFICER OFFICE OF THE LEGAL AFFAIRS, DEPARTMENT OF TRADE AND INDUSTRY, TABAQUERIA DE FILIPINAS, INC., AND GABRIEL RIPOLL, JR. G.R. No. 161051, July 23, 2009, Velasco, Jr., J. In order that an injunctive relief may be issued, the applicant must show that: (1) the right of the complainant is clear and unmistakable; (2) the invasion of the right sought to be protected is material and substantial; and (3) there is an urgent and paramount necessity for the writ to prevent serious damage. Facts: Compania General de Tabacos de Filipinas or Tabacalera owned registered trademarks and authorized La Flor de la Isabela to manufacture tobacco products using the trademarks. Gabriel Ripoll, former employee of Tabacalera, organized Tabaqueria de Filipinas, also engaged in the manufacture of tobacco products. Tabacalera and La Flor then filed a complaint with the DTI alleging that Tabaqueria deliberately sought to adopt the Tabacalera trademarks to confuse the public into believing that the Tabaqueria cigars are the same or related with the Tabacalera products. They also sought the issuance of preliminary order against Ripoll. Tabaqueria and Ripoll opposed the issuance of injunctive relief as the petitioners failed to establish the elements required for the issuance thereof. DTI issued a TRO and then ruled that there was no similarity in the general appearance of the products of the parties and that the consumers would not be misled. DTI partially granted the petitioners’ prayer for the issuance of a writ of preliminary injunction. On appeal, the petitioners asserted that the DTI committed grave abuse of discretion in refusing to grant their prayer for injunctive relief. However, the CA denied the appeal, ruling that the dismissal of infringement of trademarks and unfair competition renders petitioners’ right to an injunctive relief doubtful. Issue: Whether or not the petitioners are entitled to a writ of preliminary injunction. Ruling: No. In order that an injunctive relief may be issued, the applicant must show that: (1) the right of the complainant is clear and unmistakable; (2) the invasion of the right sought to be protected is material and substantial; and (3) there is an urgent and paramount necessity for the writ to prevent serious damage. All of these elements must concur and the absence of even one of them would be fatal in petitioners’ application for the writ. In this case, there is no urgent and paramount necessity for the writ to prevent serious damage to petitioners. They failed to present one iota of evidence in support of their allegations. They failed to present evidence that indeed their sales dropped by an alleged 25% and that such losses resulted from the alleged infringement by the respondents. Without presenting evidence to prove their allegations, petitioners’ arguments cannot be given any merit. Thus, due to the absence of the third requisite for the issuance of a preliminary injunction, petitioners’ application for the injunctive writ must already fail.

64 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 BANGKO SENTRAL NG PILIPINAS MONETARY BOARD and CHUCHI FONACIER v. HON. NINA G. ANTONIO-VALENZUELA, in her capacity as Regional Trial Court Judge of Manila, Branch 28; RURAL BANK OF PARAAQUE, INC et. al. G.R. No. 184778; October 2, 2009; VELASCO, JR., J. The requisites for preliminary injunctive relief are: (a) the invasion of right sought to be protected is material and substantial; (b) the right of the complainant is clear and unmistakable; and (c) there is an urgent and paramount necessity for the writ to prevent serious damage. Facts: The Supervision and Examination Department (SED) of the Bangko Sentral ng Pilipinas (BSP) conducted examinations of the books of the respondent banks. Thereafter, SED sent separate letters to the Board of Directors of each bank, informing them that the SED found that the banks failed to carry out the required remedial measures. The banks noted none of them had received the Report of Examination (ROE) which finalizes the audit findings. Thus, the respondent banks filed a complaint for nullification of the BSP ROE with application for a TRO and writ of preliminary injunction before the RTC. The RTC ruled that the banks were entitled to the writs of preliminary injunction prayed for, holding that the banks are entitled to copies of the ROEs. Issue: Whether or not the issuance of the writ of preliminary injunction was proper. Ruling: No. The requisites for preliminary injunctive relief are: (a) the invasion of right sought to be protected is material and substantial; (b) the right of the complainant is clear and unmistakable; and (c) there is an urgent and paramount necessity for the writ to prevent serious damage. The issuance by the RTC of writs of preliminary injunction is an unwarranted interference with the powers of the Monetary Board. Secs. 29 and 30 of RA 7653 refer to the appointment of a conservator or a receiver for a bank, which is a power of the Monetary Board for which they need the ROEs done by the supervising or examining department. The writs of preliminary injunction issued by the trial court hinder the MB from fulfilling its function under the law. The actions of the Monetary Board under Secs. 29 and 30 of RA 7653 may not be restrained or set aside by the court except on petition for certiorari on the ground that the action taken was in excess of jurisdiction or with such grave abuse of discretion as to amount to lack or excess of jurisdiction. PHILIPPINE LEISURE AND RETIREMENT AUTHORITY (PLRA) v. THE HONORABLE COURT OF APPEALS, THE HONORABLE REGIONAL TRIAL COURT, BRANCH 57, AND PHILIPPINE RETIREMENT AUTHORITY ASSOCIATION (PRAMA) G.R. No. 156303, December 19, 2007, J. Velasco Where a preliminary prohibitory or mandatory injunction will result in a premature resolution of the case, or will grant the principal objective of the parties before merits can be passed upon, the prayer for the relief should be properly denied. Facts: PLRA was created to develop and promote the Philippines as a retirement haven. In 1989, 12 principal retirees of PLRA organized and registered with SEC the Phil. Retirement Authority Members Association, Inc. (PRAMAI). In 1994, Atty. Collado, a principal retiree of PLRA, registered with SEC another association, the PRAMA. PRAMAI was one of the incorporators of PRAMA.

65 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Afterwards, PRAMA executed several MOAs with PLRA’s short-listed banks. In the MOAs, the banks agreed to pay PRAMA a marketing fee of one-half (½) of 1% of the total outstanding balance of the principal retirees’ deposits in the listed banks. In its August 2000 issue of PRAMA Updates, some derogatory allegations and remarks were leveled against PLRA. PRAMA claimed that its external auditor found that about 40% of PRAMA’s member-retirees had not paid their annual membership duties. PLRA accused PRAMA of sowing seed of discontent and suspicion among PLRA’s principal retirees, and of breach of the MOA. The Office of the Government Corporate Counsel (OGCC), opined that PLRA could unilaterally rescind the MOA because PRAMA violated such MOA. PRAMA thus sought a preliminary injunction which was granted by the RTC. Issue: Whether or not the grant of the writ of preliminary mandatory injunction is proper. Ruling: No. Sec. 3, Rule 58 of the 1997 Revised Rules of Civil Procedure provides that the issuance of a writ of preliminary injunction may be granted provided that 1) the applicant must have a clear and unmistakable right, that is a right in esse; 2) there is a material and substantial invasion of such right; and 3) there is an urgent need for the writ to prevent irreparable injury to the applicant; and no other ordinary, speedy, and adequate remedy exists to prevent the infliction of irreparable injury. In the this case, nowhere in the MOA does it show that PLRA was legally bound to collect the membership dues for PRAMA. In short, the arrangement to let PLRA collect the membership fees for PRAMA was merely an accommodation to PRAMA that PLRA could terminate at will. The collection scheme was not a contractual obligation. The membership fees are for the operations of PRAMA, not for the benefit of PLRA. The purpose of the ancillary relief is to keep things as they peaceably are while the court passes upon the merits. Where a preliminary prohibitory or mandatory injunction will result in a premature resolution of the case, or will grant the principal objective of the parties before merits can be passed upon, the prayer for the relief should be properly denied. Allowing PRAMA to receive all monies remitted to it through a preliminary mandatory injunction would result in PRAMA obtaining what it prayed for without trial on its merits. Receivership JULIO A. VIVARES and MILA G. IGNALIN v. ENGR. JOSE J. REYES G.R. No. 155408, February 13, 2008, Velasco, Jr., J. The power to appoint a receiver is a delicate one and should be exercised with extreme caution and only under circumstances requiring summary relief or where the court is satisfied that there is imminent danger of loss, lest the injury thereby caused be far greater than the injury sought to be averted. Facts: When Severino Reyes died, his children Jose Reyes and Torcuato Reyes had an oral partition of the inherited properties left by their father and appropriated to the said properties to themselves. When Torcuato died, his will was admitted for probate. Petitioner Vivares and Ignalin was designated as the executors of the will and they go after Jose Reyes believing that Torcuato did not receive his full share of the inheritance from Severino. What the executors are contesting are the

66 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 properties that were still in the name of Severino and not those that already transferred to Jose and Torcuato. The petitioners filed a motion for receivership of the properties alleging that Jose sold to third parties the properties and transferred into his name the common properties and made it appear that some of the properties were no longer part of Severino’s estate. The RTC granted the petition for receivership and appointed Salantin as the receiver. On the other hand, Jose Reyes opposed such appointment since he did not have the opportunity to present his evidence and claimed that he was denied due process. Reyes subsequently filed a petition to cancel the notice of lis pendens covering the property of certain Elena Unchuan. The RTC denied the petition but the same was reversed by the CA upon motion of Reyes. Thereby cancelling the notice of lis pendens and discharging the receivership. Hence, this petition. Issue: Whether or not the appointment of receiver is justified Ruling: No. The power to appoint a receiver is a delicate one and should be exercised with extreme caution and only under circumstances requiring summary relief or where the court is satisfied that there is imminent danger of loss, lest the injury thereby caused be far greater than the injury sought to be averted. The court should consider the consequences to all of the parties and the power should not be exercised when it is likely to produce irreparable injustice or injury to private rights or the facts demonstrate that the appointment will injure the interests of others whose rights are entitled to as much consideration from the court as those of the complainant. In Descallar v. Court of Appeals, we ruled that the appointment of a receiver is not proper where the rights of the parties, one of whom is in possession of the property, are still to be determined by the trial court. It was also held that the cancellation of the notice of lis pendens was improper. The determination whether the property of Unchuan is a part of Lot subject of the litigation and whether that portion really belongs to Unchuan are matters to be determined by the trial court. Consequently, the notice of lis pendens stays until the final ruling on said issues is made.

67 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Special Civil Actions Review of judgments and final orders or resolution of the Comelec and COA Application of Rule 65 under Rule 64 LEO Y. QUERUBIN, MARIA CORAZON M. AKOL, AND AUGUSTO C. LAGMAN, vs. COMMISSION ON ELECTIONS EN BANC, REPRESENTED BY CHAIRPERSON J. ANDRES D. BAUTISTA, AND JOINT VENTURE OF SMARTMATIC-TIM CORPORATION, TOTAL INFORMATION MANAGEMENT CORPORATION, SMARTMATIC INTERNATIONAL HOLDING B.V. AND JARLTECH INTERNATIONAL CORPORATION, REPRESENTED BY PARTNER WITH BIGGEST EQUITY SHARE, SMARTMATIC-TIM CORPORATION, ITS GENERAL MANAGER ALASTAIR JOSEPH JAMES WELLS, SMARTMATIC CHAIRMAN LORD MALLOCH-BROWN, SMARTMATIC-ASIA PACIFIC PRESIDENT CESAR FLORES, AND ANY OR ALL PERSONS ACTING FOR AND ON BEHALF OF THE JOINT VENTURE G.R. No. 218787, December 08, 2015, Velasco, J. The Court has consistently held that the phrase "decision, order, or ruling" of constitutional commissions, the COMELEC included, that may be brought directly to the Supreme Court on certiorari is not all-encompassing, and that it only relates to those rendered in the commissions' exercise of adjudicatory or quasi-judicial powers. FACTS: The COMELEC released bidding documents for the Lease of Election Managment System and Optical Scan System. to beused in the 2016 election. Smartmatic JV responded to the call and submitted its bid for the project as well as other comanies. During the opening of the bids, Smartmatic JV informed the BAC of the COMELEC that one of its partners, SMTC, had a pending application with the SEC to amend its AOI. Smartmatic JV and another company, Smartmatic later on was declared that Smartmatic was eligible for their vid. Later on, at the conduct of post-qualification, the BAC, disqualified Smartmativ JV for failure to submit valid AOI and the demo unit did not meet the technical requirements. Smartmatic moved to reconsider this but ws denied thus they filed a Protest witht he COMELEC en banc. The COMELEC en banc ruled in favor of Smartmatic and found that it met the requirement neede for the project. The petitioner then questioned the sufficiency of what Smartmatic has sent with the Supreme Court via Rule 64 of the Rules of Court. ISSUE: Whether or not Rule 64 is the proper remedy. RULING: No. The Court has consistently held that the phrase "decision, order, or ruling" of constitutional commissions, the COMELEC included, that may be brought directly to the Supreme Court on certiorari is not all-encompassing, and that it only relates to those rendered in the commissions' exercise of adjudicatory or quasi-judicial powers. In the case of the COMELEC, this would limit the provision's coverage to the decisions, orders, or rulings issued pursuant to its authority to be the sole judge of generally all controversies and contests relating to the elections, returns, and qualifications of elective offices. Consequently, Rule 64, which complemented the procedural requirement under Article IX-A, Section 7, should likewise be read in the same sense— that of excluding from its coverage decisions, rulings, and orders rendered by the COMELEC in the exercise of its administrative functions. In such instances, a Rule 65 petition for certiorari is the proper remedy.

68 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 The instant petition revolves around the issue on whether or not Smartmatic JV is eligible to participate in the bidding process for the COMELEC's procurement of 23,000 units of optical mark readers. The case does not stem from an election controversy involving the election, qualification, or the returns of an elective office. Hence, Rule 64 is not the proper remedy.

Certiorari, Prohibition and Mandamus FRANCISCO MOTORS CORP. v. HON. COURT OF APPEALS AND ANTONIO RAQUIZA G.R. No. 117622-23 October 23, 2006, Velasco, Jr. J. The Court has consistently held that where the error sought to be corrected neither relates to the court’s jurisdiction nor involves grave abuse of discretion, review of the error through certiorari will not be allowed. This rule, however, admits exceptions. Facts: Spouses Alano entered into a Contract of Legal Retainer with Antonio Raquiza wherein it was agreed that Raquiza would be paid his attorney’s fees equivalent to 30% of the properties in litigation. However, Raquiza was dismissed without justifiable cause. Hence, he was allowed to intervene in the civil cases with respect to his claim for attorney’s fees. The RTC ruled against Raquiza but was reversed by the CA which held that Raquiza is entitled to 30% pro indiviso interest in all the properties in litigatigation, which were transferred to Francisco Motors Corp (FMC). The Decision became final and executory and a writ of execution was subsequently issued by the trial court. However, FMC moved to quash the writ of execution alleging that it is a buyer in good faith, which was later on granted. Raquiza filed a Motion to Enforce his Motion to Execute which was denied on the ground that the decision sought to be enforced had become final and executory after the lapse of five years. Hence, Raquiza filed a Petition for Certiorari before the Court, which was remanded to the CA. The CA granted the petition stating that FMC was bound to recognize the attorney’s liens, although not inscribed in the title, and held that Raquiza’s petition for certiorari was proper. Issue: Whether or not certiorari is the proper remedy. Ruling: Yes. The Court has consistently held that where the error sought to be corrected neither relates to the court’s jurisdiction nor involves grave abuse of discretion, review of the error through certiorari will not be allowed. This rule, however, admits exceptions such as (1) when it is necessary to prevent irreparable damages and injury to a party, (2) where the trial judge capriciously and whimsically exercised his judgment, (3) where there may be danger of failure of justice, (4) where an appeal would be slow, inadequate, and insufficient, (5) where the issue raised is one purely of law, (6) where public interest is involved, and (7) in case of urgency. In this case, the number of years alone that the private respondent had devoted in enforcing his claim, that is, almost half a century to date, exceptionally calls for certiorari as a more speedy and adequate remedy. The availability of other legal remedies cannot prevent the recourse to certiorari when these remedies would be slow and inadequate to effectively dispense justice in favor of the private respondent.

69 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 FERNANDO C. PARMA, JR., v. THE OFFICE OF THE DEPUTY OMBUDSMAN FOR LUZON and MAYOR LOURDES SEÑAR. G.R. No. 171500, April 30, 2008, Velasco, Jr., J. Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. FACTS: Fernando Parma was a councilor while Lourdes Señar was the incumbent municipal mayor. Parma, together with the vice mayor, followed up the release by PCSO of a PhP 50,000.00 donation solicited by the Philippine Guardians Brotherhood, Inc, to defray the cost of their medical mission. They made another official trip for the same purpose from June 21 to 26, 2004. Before each trip, they drew the usual cash advances, and upon their return, such were liquidated. The liquidation process required the submission of the statement of actual itinerary and the certificate of appearance or attendance. The mayor alleges that the two submitted spurious certificates of attendance. Señar filed with the Ombudsman the first Complaint-Affidavit, charging the two with falsification of official documents. Señar filed a second Complaint-Affidavit for alleged violation of the Anti-Graft and Corrupt Practices Act. Señar filed a third complaint-affidavit solely against Parma, charging him with falsification of official document and a fourth one for the same crime and offense charged in the first and second complaint. Parma failed to file his counter-affidavit, thus the Ombudsman issued on August 17, 2005 a Resolution finding probable cause to charge Parma for the crime of falsification of official document. He was found guilty of dishonesty. On November 30, 2005, the Ombudsman issued a Joint Order denying Parma’s MR. ISSUE: Whether or not grave abuse of discretion attended the issuance of the August 17, 2005 Resolution and the November 30, 2005 Joint Order. RULING: No. Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. It is well-settled that an act of a court or tribunal may only be considered to have been done in grave abuse of discretion when the act was performed in a capricious or whimsical exercise of judgment which is equivalent to lack of jurisdiction. In this case, the imputation of grave abuse of discretion on the part of the Ombudsman cannot be sustained in the instant case because, Parma veritably latches his case on the lame argument that had the Ombudsman duly considered its findings on the second and third complaint, it would have found no reason to give due course to the fourth one. However, the cases are rooted on different causes of action and, hence, would require a dissimilar evidentiary proof to sustain a finding of probable cause or rebut any such finding. The second complaint, which was dismissed, has no direct bearing on the instant case as the two cases have distinct causes of action. In net effect, the dismissal does not have the effect of res judicata. Similarly, the third complaint for falsification, dismissed by the Ombudsman, does not have direct bearing on the instant case because it pivots on an alleged spurious certificate of attendance for a February 2 to February 7, 2004 trip while this case involves a June 14 through June 19, 2004 trip.

70 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Expropriation SPOUSES CURATA v. PHILIPPINE PORTS AUTHORITY G.R. Nos. 154211-12, 158252, 166200, 168272, 170683, 173392, June 22, 2009, VELASCO, JR., J. The appropriate standard of just compensation as provided in RA 8974 is a substantive matter that should be applied prospectively. Facts: E.O. No. 385 and E.O. 431 delineated the Batangas Port Zone (BPZ) and placed it under the Philippine Ports Authority (PPA) for administrative jurisdiction. On August 15, 2000, an RTC Order was issued fixing the just compensation at PhP 5,500 per square meter. The RTC directed PPA to release 10% of the zonal value deposited to the lot owners. Thereafter, the defendant lot owners filed a motion for partial reconsideration claiming payment of 100% of the zonal value under RA 8974 and claiming further that AO 50 did not apply. The RTC granted the motion and ordered PPA to immediately release 100% of the zonal valuation of the properties. Issue: Whether or not RA 8974 is the law that should apply on the deposit or provisional payment in expropriation. Ruling: No. What is applicable is Rule 67, Sec. 2 of which provides for the deposit or initial payment of the total assessed value of the expropriated property. On the other hand, RA 8974 which became effective only on November 26, 2000 or after a year from the filing of the civil case, cannot be applied retroactively for being a substantive law. In the case of Republic v. Gingoyon, the Supreme Court held that the appropriate standard of just compensation inclusive of the manner of payment thereof and the initial compensation to the lot owners is a substantive, not merely a procedural matter. In the factual setting therefore, the RTC can either order a deposit equal to the total assessed value of the lots in question, as reflected in the tax declarations of the subject lots; or, in the alternative, order the level of deposit as proposed by PPA, as it correctly did through the order pegging the deposit equivalent to 10% of the offered amount for the expropriated lots pursuant to Sec. 2 of AO 50. Forcible Entry and Unlawful Detainer FLORA N. FLORES, REPRESENTED BY HER ATTORNEYS-IN-FACT, JOSE NAVARRO AND ERLINDA NAVARRO v. SPOUSES LUCAS AND ZENAIDA QUITALIG G.R. No. 178907 July 4, 2008, Velasco, Jr., J. In actions for forcible entry, only prior possession de facto and deprivation thereof by force, intimidation, threat, strategy, or stealth needs to be proved. Facts: Flora and her predecessors-in-interest had been in possession of an untitled lot since 1950. In 2004, the Sps. Quitalig entered and constructed a fence around the subject lot, believing that the said lot belongs to them. After the ouster of Flora’s agents from the property, she then filed a complaint for forcible entry against the Sps. Quitalig.

71 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 The MTC ruled for the Sps. Quitalig after finding that Flora failed to prove her claim of ownership over the subject lot. The RTC reversed after finding that Flora and her predecessors were the prior possessors of the lot; and that the parties’ claim of ownership should be threshed out in a separate action. The CA reversed and dismissed the complaint. Issue: Whether or not the complaint for forcible entry should be granted, regardless of the issue of ownership. Ruling: Yes. Owing to the summary nature of an action for forcible entry, courts should resolve the issue of possession, avoiding, as a rule, the issue of ownership. In actions for forcible entry, only prior possession de facto and deprivation thereof by force, intimidation, threat, strategy, or stealth needs to be proved. Naturally, the complainant may recover such possession even from the owner himself. In any case, the issue of ownership can be properly resolved in a separate and more appropriate proceeding. Here, Flora through her agents and her predecessors-in-interest have prior possession over the lot, and it was established that the Sps. Quitalig unduly deprived Flora of her possession. Hence, the complaint should be granted. LOURDES DELA CRUZ, Petitioner, vs HON. COURT OF APPEALS and MELBA TAN TE, Respondents. G.R. No. 139442, December 6, 2006, Velasco An ejectment complaint based on possession by tolerance of the owner, is a specie of unlawful detainer cases Facts: The Reyes family had been leasing their land to Lourdes Dela Cruz for over 40 years. When a fire gutted the dwelling of Lourdes, the Reyes family made several verbal demands for her to vacate the lot, but she refused. The subject lot was eventually bought by Melba Tan Te who filed an ejectment complaint against Lourdes. In turn, Lourdes argued that MeTC had no jurisdiction over the case because it falls within the jurisdiction of the RTC as more than one year had elapsed from petitioner's forcible entry. Issue: Whether or not the MeTC has jurisdiction. Ruling: Yes. Based on the complaint and the answer, it is apparent that the Tan Te's ejectment complaint is after all a complaint for unlawful detainer. It was admitted that petitioner Dela Cruz was a lessee of the Reyeses for around four (4) decades. Thus, initially petitioner as lessee is the legal possessor of the subject lot by virtue of a contract of lease. When fire destroyed her house, the Reyeses considered the lease terminated; but petitioner Dela Cruz persisted in returning to the lot and occupied it by strategy and stealth without the consent of the owners. The Reyeses however tolerated the continued occupancy of the lot by petitioner. Thus, when the lot was sold to

72 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 respondent Tan Te, the rights of the Reyeses, with respect to the lot, were transferred to their subrogee, respondent Tan Te, who for a time also tolerated the stay of petitioner until she decided to eject the latter by sending several demands, the last being the January 14, 1997 letter of demand. Since the action was filed with the MeTC on September 8, 1997, the action was instituted well within the one (1) year period reckoned from January 14, 1997. Hence, the nature of the complaint is one of unlawful detainer and the Manila MeTC had jurisdiction over the complaint. Thus, an ejectment complaint based on possession by tolerance of the owner, like the Tan Te's complaint, is a specie of unlawful detainer cases. SPOUSES VIRGINIA G. GONZAGA and ALFREDO GONZAGA v. COURT OF APPEALS, BIENVENIDO AGAN, and ROWENA AGAN G.R. No. 130841, February 26, 2008, J. Velasco, Jr. For a forcible entry suit to prosper, the complaint must contain two mandatory allegations: (1) prior physical possession, possession de facto, not possession de jure, of the property by the plaintiff; and (2) deprivation of said possession by another by means of force, intimidation, threat, strategy or stealth. Facts: Sps. Gonzaga are the registered owners of a residential lot where they decided to construct a house. When they went to inspect the lot, they discovered that a shanty belonging to Sps. Agan had been built thereon. They then filed a Complaint against respondents for Forcible Entry. On appeal, the RTC dismissed the complaint on the ground that the spouses failed to prove prior actual physical possession, thus they should have not commenced an action for forcible entry but an accion publiciana suit. Issue: Whether the proper remedy is forcible entry in case the rightful owner of property failed to prove prior actual possession. Ruling: No. For a forcible entry suit to prosper, the complaint must contain two mandatory allegations: (1) prior physical possession, possession de facto, not possession de jure, of the property by the plaintiff; and (2) deprivation of said possession by another by means of force, intimidation, threat, strategy or stealth. The purpose of the law is to protect the person who in fact has actual possession. The person claiming rightful possession cannot be permitted to exclude the actual possessor and thereby disturb social order and violate individual security. The burden of instituting an action to try the property right is upon he who claims rightful possession. Clearly then, complainants in forcible entry cases must allege and eventually prove prior physical possession. Else, their cases fail, as here. The proper remedy in the instant case is to file an accion publiciana case which differs from a forcible entry action in that it does not require prior physical possession in order to prosper.

73 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Contempt ERLINDA I. BILDNER and MAXIMO K. ILUSORIO v. ERLINDA K. ILUSORIO, RAMON K. ILUSORIO, MARIETTA K. ILUSORIO, SHEREEN K. ILUSORIO, CECILIA A. BISUA, and ATTY. MANUEL R. SINGSON G.R. No. 157384, June 5, 2009, VELASCO, JR., J. Litigants do not have the unbridled freedom in expressing their frustration or grievance in any manner they want and their respective acts may constitute indirect contempt when found to be a deliberate act to bring the court or judge into disrepute. Facts: Erlina Ilusorio filed various manifestations and motions in relation to her appeals from the decision of the CA denying the petition for habeas corpus to have custody of her husband, Potenciano Ilusorio. First, Erlinda Ilusorio moved for its reconsideration. She followed this with a Motion to Set Case for Preliminary Conference. An Urgent Manifestation and Motion for Clarification was filed thereafter. The Court once again denied the MR and resolved to expunge from the records her repetitive motions, with the caveat that no further pleadings shall be entertained. However, represented by Dela Cruz Albano & Associates, she sought leave to file an urgent MR. Moreover, she addressed two letters to then Chief Justice Hilario G. Davide, Jr. Another letter was given where she called the decision in the case Ramon K. Ilusorio v. Baguio Country Club, appalling, unilaterally brazen, and unprecedented. To the Petitioners, filing of redundant motions and pleadings, along with Erlinda’s act of writing the aforementioned letters, constitutes contemptuous disrespect and disobedience or defiance of lawful orders of the Court. The publication of On the Edge of Heaven, a book carrying Erlinda Ilusorio’s name as author and which contained her commentaries on the aforesaid habeas corpus case was also alleged to be contemptuous. Issue: Whether or not Erlinda Ilusorio’s various manifestations, motions and letters including her authorship of On the Edge of Heaven may be considered contemptuous. Ruling: Yes. With regard to Erlinda’s authorship of the On the Edge of Heaven, she is found guilty of indirect contempt. Indirect contempt is a deliberate act to bring the court or judge into disrepute. Her statements pose a different threat to the Courts repute. Statements such as “Was justice sold?” and “How can the highest court of our land be a party to the break up of my family and, disregarding the Family Code”, when taken together went beyond the permissible bounds of fair criticism. While most of her statements were in the form of questions instead of categorical assertions, the effect is still the same: they constitute a stinging affront to the honor and dignity of the Court and tend to undermine the confidence of the public in the integrity of the highest tribunal of the land. Litigants, no matter how aggrieved or dissatisfied they may be of court’s decision, do not have the unbridled freedom in expressing their frustration or grievance in any manner they want. However, the various motions and manifestations filed by Erlinda Ilusorio which neither contained offensively disrespectful language nor tended to besmirch the dignity of the Court are not contemptuous. The letters to the Chief justice were also found not to be contumacious in character, but only a sleigh but sub-rosa attempt to influence the letter-addressee.

74 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Special Proceedings Settlement of Estate of Deceased Persons, Venue and Process AVELINA ABARIENTOS REBUSQUILLO [substituted by her heirs, except Emelinda R. Gualvez] and SALVADOR A. OROSCO v. SPS. DOMINGO and EMELINDA REBUSQUILLO GUALVEZ and the CITY ASSESSOR OF LEGAZPI CITY G.R. No. 204029, June 4, 2014, Velasco, J. Recourse to administration proceedings to determine who the heirs are is sanctioned only if there is a good and compelling reason for such recourse. Facts: Petitioners filed a complaint for annulment and revocation of an Affidavit of SelfAdjudication dated December 4, 2001 and a Deed of Absolute Sale dated February 6, 2002 before the RTC. Petitioner Avelina was supposedly made to sign two documents by her daughter Emelinda and her son-in-law on the pretext that the documents were needed to facilitate the titling of the lot. It was only in 2003, so petitioners claim, that Avelina realized that what she signed was an Affidavit of SelfAdjudication and a Deed of Absolute Sale in favor of respondents. After trial, the RTC rendered its Decision dated January 20, 2009 annulling the Affidavit of Self-Adjudication and the Deed of Absolute Sale executed by Avelina on the ground that (1) with regard to the Affidavit of Self-Adjudication, she was not the sole heir of her parents and was not therefore solely entitled to their estate; and (2) in the case of the Deed of Absolute Sale, Avelina did not really intend to sell her share in the property as it was only executed to facilitate the titling of such property. Aggrieved, respondents now contend that issues on heirship must be made in administration or intestate proceedings, not in an ordinary civil action. Issue: Whether or not RTC erred in annulling the Affidavit of Self-Adjudication simply on petitioners’ allegation of the existence of the heirs of Eulalio, considering that issues on heirship must be made in administration or intestate proceedings, not in an ordinary civil action. Ruling: No. It has indeed been ruled that the declaration of heirship must be made in a special proceeding, not in an independent civil action. However, this Court had likewise held that recourse to administration proceedings to determine who heirs are is sanctioned only if there is a good and compelling reason for such recourse. Hence, the Court had allowed exceptions to the rule requiring administration proceedings as when the parties in the civil case already presented their evidence regarding the issue of heirship, and the RTC had consequently rendered judgment upon the issues it defined during the pre-trial. There appears to be only one parcel of land being claimed by the contending parties as the inheritance from Eulalio. It would be more practical to dispense with a separate special proceeding for the determination of the status of petitioner Avelina as sole heir of Eulalio. In light of the admission of respondents spouses Gualvez that they knew for a fact that petitioner Avelina was not the sole heir of Eulalio and that petitioner Salvador was one of the other living heirs with rights over the subject land, it is with more reason that a resort to special proceeding will be but an unnecessary superfluity. Accordingly, the court a quo had properly rendered judgment on the validity of the Affidavit of Self-Adjudication executed by Avelina.

75 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016

Letters Testamentary and of Administration DIOSDADO S. MANUNGAS, Petitioner, vs. MARGARITA AVILA LORETO and FLORENCIA AVILA PARREÑO, Respondents. G.R. No. 193161, August 22, 2011, Velasco, Jr., J. The trial court has the discretion to appoint anyone as a special administrator, however, such discretion must be exercised with reason, guided by the directives of equity, justice and legal principles. Facts: Spouses Engracia and Florentino Manungas had no children so they adopted Samuel Avila. Florentino died intestate. Samuel predeceased his adoptive mother, and he was survived by his wife Sarah who renounced her rights over the separate property of her husband in favor of Engracia. The property was distributed in the intestate estate proceedings of Florentino to Engracia and Ramon, acknowledged by Engracia as the natural son of Florentino. The RTC then appointed Parreño, the niece of Engracia, as the Judicial Guardian of the properties and person of her incompetent aunt. Engracia, through Parreño, instituted a case for illegal detainer and damages against Spouses Diosdado Salinas Manungas, who claims to be the illegitimate son of Florentino. A summary judgment in favor of Engracia was rendered. Thereafter, Diosdado instituted a petition for the issuance of letters of administration over the Estate of Engracia Manungas in his favor, alleging that being an illegitimate son of Florentino, he is an heir of Engracia. Parreño opposed because Diosdado was not an heir or even a creditor of Engracia and that he was in fact a debtor of the estate. The RTC appointed Parreño as the administrator, then it subsequently reversed itself and appointed Diosdado as the special administrator. The CA revoked his appointment and reinstated Parreño. Issue: Whether or not the decision of the CA in revoking the appointment of Diosdado and the subsequent reinstatement of Parreño as the special administrator is correct. Ruling: Yes. The appointment of a special administrator lies within the discretion of the court. The statutory provisions as to the prior or preferred right of certain persons to the appointment of administrator under Section 1, Rule 81, and the statutory provisions as to causes for removal of an executor or administrator under Section 2, Rule 83, do not apply to the selection or removal of special administrator. As the law does not say who shall be appointed as special administrator and the qualifications the appointee must have, the judge or court has discretion in the selection of the person to be appointed. While the trial court has the discretion to appoint anyone as a special administrator of the estate, such discretion must be exercised with reason, guided by the directives of equity, justice and legal principles. It may, therefore, not be remiss to reiterate that the role of a special administrator is to preserve the estate until a regular administrator is appointed. Given this duty on the part of the special administrator, it would, therefore, be prudent and reasonable to appoint someone interested in preserving the estate for its eventual distribution to the heirs. The trial court erred in revoking the appointment of Florencia Avila Parreño. To reiterate, the subject of the intestate proceedings is the estate of Engracia Manungas. The evidence on record shows that Diosdado is not related to the late Engracia and so he is not interested in preserving the latter’s estate.

76 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Writ of Habeas Corpus Rules on Custody of Minors and Writ of Habeas Corpus in relation to Custody of Minors (A.M. No. 03-04-04-SC) MA. HAZELINA A. TUJANMILITANTE IN BEHALF OF THE MINOR CRISELDA M. CADA v. RAQUEL M. CADA-DEAPERA G.R. No. 210636, July 28, 2014, Velasco, J. The filing of a petition for the issuance of a writ of habeas corpus before a family court in any of the cities enumerated is proper as long as the writ is sought to be enforced within the National Capital Judicial Region. Since Caloocan City and Quezon City both belong to the same judicial region, the writ of habeas corpus issued by the RTC-Caloocan can still be implemented in Quezon City. Facts: Respondent Cada-Deapera filed before the RTC-Caloocan a verified petition for writ of habeas corpus seeking petitioner Militante to produce before the court respondent's biological daughter, minor Criselda and to return to her the custody over the child. RTC granted the same. Since the writ cannot be served despite diligent efforts, RTC-Caloocan directed the Sheriff to serve the alias writ upon petitioner at the Office of the Assistant City Prosecutor of Quezon City. Issue: Whether or not RTC-Caloocan acquired jurisdiction over petitioner when the latter was served with a copy of the writ in Quezon City. Ruling: Yes. The National Capital Judicial Region consists of the cities of Manila, Quezon, Pasay, Caloocan and Mandaluyong, and the municipalities of Navotas, Malabon, San Juan, Makati, Pasig, Pateros, Taguig, Marikina, Parañaque, Las Piñas, Muntinlupa, and Valenzuela. In view thereof, it is indubitable that the filing of a petition for the issuance of a writ of habeas corpus before a family court in any of the cities enumerated is proper as long as the writ is sought to be enforced within the National Capital Judicial Region, as here. In the case at bar, respondent filed the petition before the family court of Caloocan City. Since Caloocan City and Quezon City both belong to the same judicial region, the writ issued by the RTC-Caloocan can still be implemented in Quezon City. Whether petitioner resides in the former or the latter is immaterial in view of the above rule. AGNES GAMBOA-HIRSCH v. HON. COURT OF APPEALS and FRANKLIN HARVEY HIRSCH G.R. No. 174485 July 11, 2007 VELASCO, JR. J. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. FACTS: Spouses Agnes and Franklyn Hirsch started to have marital problems. One day, Agnes came to their conjugal home in Boracay, and asked for money and for Franklin’s permission for her to

77 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 bring their daughter to Makati City for a brief vacation. Franklin readily agreed, but soon thereafter discovered that neither Agnes nor their minor daughter Simone would be coming back to Boracay. Franklin filed a petition for habeas corpus before the CA. The said court granted Franklin joint custody with Agnes of their minor child. Agnes’ MR was denied. She went to the SC to set aside the decisions of the CA, and to issue a TRO/injunction on the execution and implementation of the assailed rulings of the CA which was denied. Upon Agnes’ MR, the SC issued a TRO and awarded the sole custody of the minor, Simone, to Agnes. ISSUE: Whether CA committed grave abuse of discretion when it granted joint custody of the minor child to both parents. RULING: Yes. The Convention on the Rights of the Child provides that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. The Child and Youth Welfare Code, in the same way, unequivocally provides that in all questions regarding the care and custody, among others, of the child, his/her welfare shall be the paramount consideration. The so-called tender-age presumption under Article 213 of the Family Code may be overcome only by compelling evidence of the mother’s unfitness. The mother is declared unsuitable to have custody of her children in one or more of the following instances: neglect, abandonment, unemployment, immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity, or affliction with a communicable disease. Here, the mother was not shown to be unsuitable or grossly incapable of caring for her minor child. All told, no compelling reason has been adduced to wrench the child from the mother’s custody. Thus, the sole custody over Simone Noelle Hirsch was awarded to the mother, Agnes Gamboa-Hirsch.

Criminal Procedure Prosecution of Offenses People of the Philippines v. Demetrio Salazar G.R. No. 181900, October 20, 2010, Velasco, JR, J. By itself, an affidavit of desistance or pardon is not a ground for the dismissal of an action, once it has been instituted in court. Facts: AAA who was only 12 years old at the time the crime was committed was raped by the Salazar twice. AAA was the daughter of BBB whom Salazar was cohabiting with. Salazar was thereafter charged with two counts of statutory rape. Thereafter, AAA purportedly executed an Affidavit of Desistance wherein she stated that she was not raped by accused-appellant Salazar and that she no longer intends to pursue the cases filed against accused-appellant Salazar. During the hearing, she explained that her own mother forced her to execute the affidavit upon threat of harm. RTC convicted the accused with two counts of statutory rape but CA modified it by 2 simple rapes

78 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 because AAA has failed to present evidence that she was a minor when the crime was committed. Accused-appellant Salazar claims that the instant case should have been dismissed by the trial court, considering that AAA had executed an affidavit of desistance exonerating accused-appellant from the crimes charged. Issue: Whether or not the Affidavit of Desistance is a sufficient evidence to acquit Salazar Ruling: No. As a rule, a recantation or an affidavit of desistance is viewed with suspicion and reservation. Jurisprudence has invariably regarded such affidavit as exceedingly unreliable, because it can easily be secured from a poor and ignorant witness, usually through intimidation or for monetary consideration. Moreover, there is always the probability that it would later on be repudiated, and criminal prosecution would thus be interminable. An affidavit of desistance or pardon is not a ground for the dismissal of an action, once it has been instituted in court. In the present case, private complainant lost the right or absolute privilege to decide whether the rape charge should proceed, because the case had already reached and must therefore continue to be heard by the court a quo. Indeed, the Affidavit of Desistance of private complainant is highly suspect. Apparently, she executed it on the basis of a consideration of P5,000, which was later increased to P100,000. After her testimony had been rendered, however, Salazar refused to pay the amount agreed upon, thereby prompting her to recant the Affidavit. She had stated therein that the accused is indeed innocent of the crimes charge[d] since in truth, he never molested me sexually as charged. Such statement was a mere legal conclusion, bereft of any details or other indicia of credibility, much less truth. More likely, it emanated not from this young girls mouth, but from a trained legal mind. Moreover, while she affirmed her Affidavit on the stand, she also declared, on clarificatory question from the judge, that she was 14 years old when she was molested and raped by Salazar. These facts raise doubts as to the reliability of her statements in her Affidavit.

Venue of Criminal Actions PEOPLE OF THE PHILIPPINES v. PEPITO NEVERIO G.R. No. 182792, August 25, 2009, VELASCO, JR., J. (crimpro, territorial jurisdiction) For the court to acquire jurisdiction over a criminal case, the offense or any of its essential elements should have taken place within the territorial jurisdiction of the court. Facts: Two Informations were filed against Pepito for the commission of rape against AAA, a mentally deficient lass. During trial, Pepito did not present any evidence but instead filed a Demurrer to Evidence with Leave of Court. In Pepito’s Motion to Dismiss with Demurrer to Evidence, he faults AAA for her failure to state the place where the alleged crime happened. He maintains that the identification of the place where the crime was committed was necessary for vesting the court with jurisdiction over the case.

79 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Issue: Whether or not the identification of the place where the crime was committed was necessary for vesting the court with jurisdiction over the case. Ruling: No. For the court to acquire jurisdiction over a criminal case, the offense or any of its essential elements should have taken place within the territorial jurisdiction of the court. This territorial jurisdiction of the court is determined by the facts alleged in the complaint or information. In this case, the October 17, 2001 Informations clearly indicated that the acts of rape were committed in Barangay Sagurong, Pili, Camarines Sur. During trial, prosecution evidence showed that the molestations happened in AAAs house. And as testified by AAAs mother, their house was situated in Sagurong, Pili, Camarines Sur. Thus, AAAs inability to state her address in her testimony was trivial. Understandably, this failure was due only to her mental deficiency.

Preliminary Investigation GERRY A. SALAPUDDIN v. THE COURT OF APPEALS, GOV. JUM AKBAR, and NOR-RHAMA J. INDANAN G.R. No. 184681, February 25, 2013, VELASCO, JR., J. The presumption of innocence, and all rights associated with it, remains even at the stage of preliminary investigation. It is, thus, necessary that in finding probable cause to indict a person for the commission of a felony, only those matters which are constitutionally acceptable, competent, consistent and material are considered. Facts: One day, shortly after the adjournment of the day's session in Congress, a bomb exploded near the entrance of the South Wing lobby of the House of Representatives in Batasan Complex which was caused by an improvised bomb planted on a motorcycle parked near the entrance stairs of the South Wing lobby. Thereafter, the police officers raided an alleged ASG safehouse at Parkwood Hills, Payatas, Quezon City leading to the arrest of several persons, one of which was Ikram Indama, who was the driver of petitioner Gerry Salapuddin. In one of the affidavits executed by Ikram, he said that he heard Salapuddin ordering a person to kill Rep. Akbar of Basilan. The prosecution later on included Salapudding in the complaint for murder and multiple frustrated murder based on the affidavits of Ikram. Later on, the Secretary of Justice issued a resolution on April 23, 2008 excluding Salapuddin from the charges for the complex crime of murder and frustrated murder modifying the supplemental resolution of the investigating panel. Respondents Jum Akbar and Nor-Rhama Indanan filed on May 13, 2008 a petition for certiorari before the CA questioning the Secretary of Justice's April 23, 2008 resolution. In its ruling dated August. 6, 2008, the CA set aside the resolution of the Secretary of Justice stating that the totality of the evidence "sufficiently indicates the probability that Salapuddin lent moral and material support or assistance to the perpetrators in the commission of the crime.” Issue: Whether or not the inclusion of Salapuddin in the case was proper.

80 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Ruling: No. Indeed, probable cause requires less proof than necessary for conviction. Nonetheless, it demands more than bare suspicion and must rest on competent relevant evidence. A review of the records, however, show that the only direct material evidence against Salapuddin, as he had pointed out at every conceivable turn, is the confession made by Ikram. While the confession is arguably relevant, this is not the evidence competent to establish the probability that Salapuddin participated in the commission of the crime. On the contrary, as pointed out by the Secretary of Justice, this cannot be considered against Salapuddin on account of the principle of res inter alios acta alteri nocere non debet. Mere association with the principals by direct participation, without more, does not suffice. Relationship, association and companionship do not prove conspiracy. Salapuddin’s complicity to the crime, if this be the case, cannot be anchored on his relationship, if any, with the arrested persons or his ownership of the place where they allegedly stayed while in Manila. It must be shown that the person concerned has performed an overt act in pursuance or furtherance of the complicity. In fact, mere knowledge, acquiescence or approval of the act, without the cooperation or approval to cooperate, is not sufficient to prove conspiracy. There must be positive and conclusive factual evidence indicating the existence of conspiracy, and not simple inferences, conjectures and speculations speciously sustained because "it cannot be mere coincidence.

Arrest Arrest Without Warrant, When Lawful People of the Philippines v. Sulpicio Sonny Boy Tan y Phua G.R. No. 191069, November 15, 2010, Velasco, JR, J. Sec. 5(a) of Rule 113 of the Rules of Court states the instances when the person to be arrested is actually committing an offense, the peace officer may arrest him even without a warrant. However, a warrantless arrest must still be preceded by the existence of probable cause. Facts: SPO2 Geronimo, SPO1 Quilala, PO3 Avendano, and PO1 Cruz of the Makati City Philippine National Police (PNP) conducted a manhunt operation against a suspect in a robbery case involving Korean nationals along P. Burgos, Barangay Poblacion, Makati City. While on board their civilian vehicle, they chanced upon a male individual selling certain items to two foreigners. They heard him say, Hey Joe, want to buy Valium 10, Cialis, Viagra? Curious, they inquired and the male individual told them that he was selling Viagra and Cialis, while, at the same time, showing them the contents of his bag which yielded 120 tablets of Valium 10. The male individual, who later turned out to be Sonny Boy, was immediately searched and placed under arrest, after which they informed him of the nature of his apprehension and of his constitutional rights. Sonny Boy was then brought to the office of the Station Anti-Illegal Drugs Special Operations Task Force (SAID-SOTF), where the items recovered from him were marked and inventoried by PO1 Cruz. The items were turned over to the duty investigator. In contrast, Sonny Boy interposed the defense of denial. He maintained that he was merely watching cars as a parking boy along P. Burgos when two men suddenly held and invited him for questioning. They asked him if he knew any drug pushers and, if he did, to identify them. When he was unable to do so, they charged him for violation of Sec. 11, Art. II of RA 9165, illegal possession of dangerous drugs. Issue:

81 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Whether or not the warrantless search is valid. Ruling: Yes. One of the instances where warrantless arrest may be effected by a police officer is “When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense” (Sec. 5, Rule 113 of the Rules of Court). Undoubtedly, the case at bar falls under Sec. 5(a) of Rule 113, that is, when the person to be arrested is actually committing an offense, the peace officer may arrest him even without a warrant. However, a warrantless arrest must still be preceded by the existence of probable cause. Probable cause is defined as a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to induce a cautious man to believe that the person accused is guilty of the offense charged. In this case, the arresting officers had sufficient probable cause to make the arrest in view of the fact that they themselves heard accused-appellant say, “Hey Joe, want to buy Valium 10, Cialis, Viagra?” which, in turn, prompted them to ask accused-appellant what he was selling. When accusedappellant showed them the items, they identified 120 tablets of Valium 10, a regulated drug. The police officers then became obligated to arrest accused-appellant, as he was actually committing a crime in their presencepossession of a dangerous drug, a violation of Sec. 11, Art. II of RA 9165. Therefore, it is without question that the warrantless search and arrest of accused-appellant are legal and valid. PEOPLE OF THE PHILIPPINES v. FRANCISCO MANLANGIT y TRESBALLES G.R. No. 189806, January 12, 2010, Velasco, Jr., J. It is a well-established rule that an arrest made after an entrapment operation does not require a warrant inasmuch as it is considered a valid "warrantless arrest," in line with the provisions of Rule 113, Section 5(a) of the Revised Rules of Court. Facts: The Makati Anti-Drug Abuse Council (MADAC) Cluster 4 office received an information that a certain "Negro", which turned out to be respondent Francisco Manlangit y Tresballes (Manlangit), was selling prohibited drugs along Col. Santos Street at Brgy. South Cembo, Makati City. Accordingly, a buy-bust team was formed. MADAC operative Wilfredo Serrano (Serrano) was designated as the poseur-buyer. Upon reaching Brgy. Cembo the informant approached Manlangit and convinced the latter that Serrano wanted to purchase shabu. Manlangit then went inside his house and later reappeared with a plastic sachet containing a white crystalline substance, which turned out to be Shabu. Manlangit handed over the plastic sachet to Serrano who, in turn, gave Manlangit the marked money. After the consummation of the sale, the buy-bust team then proceeded to arrest Manlangit. Manlangit was found guilty of the crimes of illegal sale and illegal use of dangerous drugs. Manlangit argues that the prosecution failed to prove his guilt beyond reasonable doubt. He emphasized that the buy-bust operation was conducted without first conducting a surveillance or test buy to determine the veracity of the report made by the informant. He also assailed the fact that despite knowledge of his identity and location, the buy-bust team failed to secure even a search warrant.

82 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Issue: doubt.

Whether or not the prosecution was able to prove the guilt of Manlangit beyond reasonable

Ruling: Yes. Contrary to accused-appellant’s challenge to the validity of the buy-bust operation, the Court categorically stated in Quinicot v. People that a prior surveillance or test buy is not required for a valid buy-bust operation, as long as the operatives are accompanied by their informant, thus: “Settled is the rule that the absence of a prior surveillance or test buy does not affect the legality of the buy-bust operation. There is no textbook method of conducting buy-bust operations. The Court has left to the discretion of police authorities the selection of effective means to apprehend drug dealers. A prior surveillance, much less a lengthy one, is not necessary, especially where the police operatives are accompanied by their informant during the entrapment. Flexibility is a trait of good police work. We have held that when time is of the essence, the police may dispense with the need for prior surveillance. In the instant case, having been accompanied by the informant to the person who was peddling the dangerous drugs, the policemen need not have conducted any prior surveillance before they undertook the buy-bust operation.” The warrantless search was also valid. Under Section 5 (a) of Rule 113, a person may be arrested without a warrant if he "has committed, is actually committing, or is attempting to commit an offense." Appellant Doria was caught in the act of committing an offense. When an accused is apprehended in flagrante delicto as a result of a buy-bust operation, the police are not only authorized but duty-bound to arrest him even without a warrant.” PEOPLE OF THE PHILIPPINES v. SPO3 SANGKI ARA Y MIRASOL et al. G.R. No. 185011 December 23, 2009, Velasco, Jr. J. One of the situations covered by a lawful warrantless arrest under Section 5(a), Rule 113 of the Rules of Court is when a person has committed, is actually committing, or is attempting to commit an offense in the presence of a peace officer or private person. Facts: After receiving an information that three suspected drug pushers contacted the informant for a deal involving shabu, a buy-bust team was immediately formed. The team went to the school and waited for the car of the alleged pushers. The sale of shabu was consummated inside the vehicle. Upon the signal of the poseur-buyer, SPO3 Sangki Ara, Mike Talib and Jordan Musa were arrested. The RTC and the CA convicted SPO3 Ara, Talib and Musa of violation of Comprehensive Dangerous Drugs Act of 2002 (RA 9165). Issue: valid.

Whether or not the buy-bust conducted leading to the warrantless arrest and seizure was

Ruling: Yes. Owing to the special circumstances surrounding the drug trade, a buy-bust operation has long been held as a legitimate method of catching offenders. It is a form of entrapment employed as an effective way of apprehending a criminal in the act of commission of an offense. A buy-bust operation can be carried out after a long period of planning. The period of planning for such operation cannot be dictated to the police authorities who are to undertake such operation. It is unavailing then to argue that the operatives had to first secure a warrant of arrest given that the objective of the operation was to apprehend the accused-appellants in flagrante delicto. In fact, one of

83 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 the situations covered by a lawful warrantless arrest under Section 5(a), Rule 113 of the Rules of Court is when a person has committed, is actually committing, or is attempting to commit an offense in the presence of a peace officer or private person. PEOPLE OF THE PHILIPPINES v. ELIZABETH MARCELINO y REYES G.R. No. 189278 July 26, 2010 VELASCO JR. J. From the very nature of a buy-bust operation, the absence of a warrant does not make the arrest illegal. FACTS: SPO1 Dela Cruz was part of a team that conducted a test-buy on to verify a report of Elizabeth engaging in illegal drug activities. When this was confirmed, a buy-bust operation ensued. RTC held her guilty of the offenses charged, illegal sale and illegal possession of prohibited drugs. Elizabeth contended that after the two test-buys, the police officers certainly had sufficient time to secure both a search warrant and a warrant of arrest but failed to do so. She argueed that a buy-bust operation should never be used as a cover for an illegal warrantless search and arrest. ISSUE: Whether CA erred in affirming Elizabeth's conviction. RULING: No. A buy-bust operation is a circumstance where a warrantless arrest is justified under Rule 113, Sec. 5(a) of the Rules of Court. It is a valid form of entrapment, as the idea to commit a crime comes not from the police officers but from the accused himself. The accused is caught in the act and must be apprehended on the spot. From the very nature of a buy-bust operation, the absence of a warrant does not make the arrest illegal. Also, it was held that the illegal drug seized was not the fruit of the poisonous tree. The seizure made by the buy-bust team falls under a search incidental to a lawful arrest under Rule 126, Sec. 13 of the Rules of Court. Since the buy-bust operation was established as legitimate, it follows that the search was also valid, and a warrant was likewise not needed to conduct it.

Bail Nature GAUDENCIO B. PANTILO III v. JUDGE VICTOR A. CANOY A.M. No. RTJ-11-2262, February 9, 2011, Velasco, Jr., J. A judge cannot verbally grant bail (“Constructive bail”) to the accused who is not yet charged and did not file an application or petition for its grant. Facts: Gaudencio Pantillo is the brother of the homicide victim in a pending criminal case under the sala of Judge Victor Canoy. When Pantillo attended the criminal case’s inquest proceedings, he was informed that the accused, Ronald Perocho was released from detention. Pantillo proceeded to the

84 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 City Police station and was informed that Perocho posted bail and was released based on a verbal order of Judge Canoy. The latter ordered the Clerk of Court to accept as deposit the amount of bail and to earmark its official receipt. Consequently, Pantillo went to the Office of the Clerk of Court to request for the copy of the information which served as basis for the approval of bail but was informed that no information has yet been filed in court. Hence, Pantillo filed a letter-complaint with the Office of the Court Administrator against Judge Canoy for gross ignorance of the law, grave abuse of authority and appearance of impropriety. In his defense, Judge Canoy invoked the constitutional right of the accused to bail and Section 17(c), Rule 114 of the Revised Rules of Criminal Procedure, which does not require that a person be charged in court before he or she may apply for bail. To his mind, there was already a constructive bail given that only the papers were needed to formalize it. It would be unreasonable and unjustifiable to further delay the release of the accused. The Court Administrator Jose Midas P. Marquez issued his evaluation and recommendation on the case. In his evaluation, the Court Administrator found that respondent judge failed to comply with the documents required by the rules to discharge an accused on bail. Hence, this petition was filed. Issue: Whether or not Judge Canoy may verbally grant bail (“Constructive bail”) to the accused who is not yet charged and did not file an application or petition for its grant. Ruling: No. Sec. 17, Rule 114 of the Revised Rules on Criminal Procedure allows that any person in custody who is not yet charged in court may apply for bail with any court in the province, city or municipality where he is held. In the case at bar, Melgazo did not file any application or petition for the grant of bail with the RTC. Despite the absence of any written application, respondent judge verbally granted bail to Melgazo. This is a clear deviation from the procedure laid down in Sec. 17 of Rule 114. Also, Melgazo or any person acting in his behalf did not deposit the amount of bail recommended by Prosecutor Gonzaga with the nearest collector of internal revenue or provincial, city or municipal treasurer. In clear departure from Sec. 14 of Rule 114, Judge Canoy instead verbally ordered Clerk IV Suriaga of the Surigao City RTC, Office of the Clerk of Court, to accept the cash deposit as bail, to earmark an official receipt for the cash deposit, and to date it the following day. Worse, respondent judge did not require Melgazo to sign a written undertaking containing the conditions of the bail under Sec. 2, Rule 114 to be complied with by Melgazo. Immediately upon receipt by Suriaga of the cash deposit of PhP 30,000 from Melgazo, Judge Canoy ordered the police escorts to release Melgazo without any written order of release. In sum, there was no written application for bail, no certificate of deposit from the BIR collector or provincial, city or municipal treasurer, no written undertaking signed by Melgazo, and no written release order. As regards the insistence of Judge Canoy that such may be considered as constructive bail, there is no such species of bail under the Rules. Despite the noblest of reasons, the Rules of Court may not be ignored at will and at random to the prejudice of the rights of another.

85 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Motion to Quash Double Jeopardy SUMMERVILLE GENERAL MERCHANDISING & CO., INC., v. HON. ANTONIO M. EUGENIO, JR., in his capacity as PRESIDING JUDGE of RTC-MANILA, BR. 24, and ELIDAD KHO, VIOLETA KHO, and ROGER KHO, G.R. No. 163741 August 7, 2007 VELASCO, JR., J. The courts should not blindly follow the resolutions issued by the DOJ. On the contrary, it should determine on its own whether there is probable cause to hold the accused for trial. FACTS: An Information for unfair competition was filed against Elidad, Violeta, and Roger, all surnamed Kho. The Khos filed a petition for review with the Department of Justice (DOJ) which initially upheld the Information but subsequently dismissed the same. The prosecution filed with the RTC a Motion to Withdraw Information which was granted. Meanwhile, the DOJ granted Summerville’s Motion for Reconsideration and ordered the Prosecutor to file the Information. The RTC ruled that the revival of the case is now barred by double jeopardy. Summerville filed a Petition for Certiorari and Mandamus with the CA. The latter held that double jeopardy had set in and that Judge Eugenio cannot be faulted for dismissing the case. ISSUE: Whether or not there is double jeopardy. RULING: No. At the outset, the Court held that courts should not blindly follow the resolutions issued by the DOJ. On the contrary, it should determine on its own whether there is probable cause to hold the accused for trial. In this case, it can be readily seen from the October 24, 2001 Order of Judge Eugenio, granting the withdrawal of the Information, that the trial court glaringly failed to conduct its own determination of a prima facie case, and simply adopted the September 28, 2001 Resolution issued by the Secretary of Justice. However, double jeopardy has not set in in this case. Since the Court held that the October 24, 2001 Order granting the withdrawal of the Information was committed with grave abuse of discretion, then the accused was not acquitted nor was there a valid and legal dismissal or termination of the case. Ergo, the fourth requisite on the conviction and acquittal of the accused in the dismissal of the case, without the approval of the accused, was not met. Thus, double jeopardy has not set in.

86 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Trial JIMMY T. GO v ALBERTO T. LOOYUKO G.R. No. 147923, October 26, 2007, Velasco Jr. J. The matter of deciding who to present as a witness for the prosecution is not for the defendant or the trial court to decide, as it is the prerogative of the prosecutor. Facts: Jimmy Go (Go), herein petitioner, filed a criminal case for estafa against Alberto Looyuko (Looyuko), herein respondent, alleging that the latter misappropriated the stock certificates belonging to Go by converting the said shares of stocks for his own (Looyuko’s) personal benefit by causing the transfer of the aforementioned stock certificates to Looyuko’s name after receiving the aforementioned stock certificates in trust from Go. Thereafter, during the pendency of the criminal case, the prosecution on behalf of Go, wanted to present certain witnesses to strengthen the case of the prosecution. However, the trial court felt no need for the testimonies of the aforementioned witnesses. This prompted Go to file a petition for Certiorari under Rule 65 alleging that the trial court committed grave abuse of discretion amount to lack or excess in jurisdiction by not allowing the prosecution’s witnesses to testify for their case. Issue: Whether or not trial court gravely abused its discretion in disallowing the prosecution’s witnesses to testify. Ruling: Yes. The matter of deciding who to present as a witness for the prosecution is not for the defendant or the trial court to decide, as it is the prerogative of the prosecutor. It cannot be overemphasized that the trial court must accord full opportunity for the prosecution, more so in criminal cases, to adduce evidence to prove its case and to properly ventilate the issues absent patent showing of dilatory or delaying tactics. The reason is obvious: it is tasked to produce and adduce evidence beyond a reasonable doubt. Sans such evidence, a dismissal of the criminal case on a demurrer to the evidence is proper. In the case at bar, there was no showing that the presentation of the three (3) witnesses previously approved by the trial court would be dilatory and manifestly for delay. First, the testimony of the witnesses would bolster and tend to prove whatever fact the prosecution is trying to establish. Second, the superfluity of a testimony vis-à-vis what has already been proven can be determined with certainty only after it has been adduced.

87 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 New trial or Reconsideration FRANCISCO L. BAYLOSIS, SR. vs. PEOPLE OF THE PHILIPPINES G.R. No. 152119, August 14, 2007, VELASCO, JR., J. In granting a motion for new trial on the ground of newly discovered evidence, the evidence presented must be in actual existence and unknown to the party even if a judgment had been rendered before. FACTS: Francisco Baylosis was charged of the crime estafa for having feloniously misappropriated for his own use and benefit the amount of 118, 181.71php in his capacity as custodian/ warehouse supervisor of Pepsi-Cola Products Philippines, Incorporated (PCPPI). The RTC found him guilty of the crime charged. Baylosis filed a Motion for Reconsideration of said Decision, but the trial court denied it. He then filed his Notice of Appeal. Thereafter, a Motion for New Trial with the CA. In his motion, he begged the CA to consider the affidavit of a certain Zenaida C. Aya-ay, the Credit and Collection Manager of PCPPI. Said affidavit stated that the accused had a remaining balance of only PhP 21,981.71 which he owed PCPPI. He prayed before the CA to remand the case to the RTC for new trial, and that he be allowed to change his previous plea of not guilty to guilty. However, the CA denied Baylosis’ Motion for New trial. His Motion for Reconsideration was likewise denied by the CA. Hence, this petition. ISSUE: Whether the CA erred in denying his Motion for New Trial filed under Section 14, Rule 124 of the 2000 Rules of Criminal Procedure. RULING: No. In granting a motion for new trial on the ground of newly discovered evidence, the evidence presented must be in actual existence and unknown to the party even if a judgment had been rendered before. This should be the case because otherwise, how could it be discovered evidence when it did not in fact exist previously during trial? In this case, petitioner presented as a ground for its motion the testimony of Aya-ay, the Credit and Collection Manager of PCPPI, who stated in an affidavit that his liability to PCPPI had been cut down to a mere PhP 21,981.71. However, it is obvious that the same affidavit cannot be executed, much less produced, during the trial since the payments were made after judgment or after the fact. Hence, the same could hardly be classified as newly discovered evidence.

MUNIB S. ESTINO and ERNESTO G. PESCADERA v. PEOPLE OF THE PHILIPPINES G.R. Nos. 163957-58, April 7, 2009, Velasco, Jr., J. ERNESTO G. PESCADERA v. PEOPLE OF THE PHILIPPINES G.R. Nos. 164009-11, April 7, 2009, Velasco, Jr., J. Rule 121 of the Rules of Court allows the conduct of a new trial before a judgment of conviction becomes final when new and material evidence has been discovered which the accused could not with reasonable diligence have discovered and produced at the trial and which if introduced and admitted would probably change the judgment.

88 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Facts: In 1999, an audit of the disbursement vouchers and payrolls for the period starting July 27, 1998 up to May 23, 1999 was conducted in the Provincial Government of Sulu. The COA Special Audit Report stated that there were anomalies in the payment of salary differentials, allowances, and benefits, among others. Pursuant to such findings, three informations were filed by the Ombudsman against Munib Estino, then Acting Governor, and Ernesto Pescadera, the Provincial Treasurer during Estino’s stint. The said charges involve malversation of public funds under Art. 217 of the Revised Penal Code and two violations of Sec. 3 (e) of R.A. 3019. The Sandiganbayan, in the consolidated criminal cases, convicted both Estino and Pescadera for violation of Section 3(e) of R.A. 3019 for failure to pay the Representation and Transportation Allowance (RATA) of the provincial government employees of Sulu but acquitted them as to the other charge for the same violation. As to the charge of malversation of public funds, the Sandiganbayan exonerated Estino but convicted Pescadera for failure to remit the GSIS contributions of the provincial government employees. Issue: Whether or not a remand of the case to the Sandiganbayan for new trial is proper. Ruling: Yes. Rule 121 of the Rules of Court allows the conduct of a new trial before a judgment of conviction becomes final when new and material evidence has been discovered which the accused could not with reasonable diligence have discovered and produced at the trial and which if introduced and admitted would probably change the judgment. Petitioners’ defense is anchored on their payment of RATA, and for this purpose, they submitted documents which allegedly show that they paid the RATA under the 1998 reenacted budget. Although the documents offered by petitioners are strictly not newly discovered, it appears to that petitioners were mistaken in their belief that its production during trial was unnecessary. In their Supplemental Motion and/or Motion for New Trial, they stressed that they no longer presented the evidence of payment of RATA because Balabaran testified that the subject of the charge was the nonpayment of benefits under the 1999 budget, without mention of the RATA nor the 1998 reenacted budget. It seems that they were misled during trial. They were precluded from presenting pieces of evidence that may prove actual payment of the RATA under the 1998 reenacted budget because the prosecution’s evidence was confined to alleged nonpayment of RATA under the 1999 budget. Hence, a new trial is proper.

Evidence General Principles Admissibility of Evidence PEOPLE OF THE PHILIPPINES vs. CARLITO PABOL G.R. No. 187084 October 12, 2009 J. Velasco For circumstantial evidence to be sufficient to support a conviction, all the circumstances must be consistent with each other, consistent with the hypothesis that accused is guilty and at the same time inconsistent with the hypothesis that he is innocent, and with every other rational hypothesis except that of guilt.

89 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Facts: AAA was on her way to school, passing buy the lower portion of the house of Pabol. AAA met Pabol on the way. Pabol suddenly struck her on the right side of her face causing her to fall. Pabol hugged her from behind, sat her on his lap and struck her breast with a piece of stone. Pabol covered her mouth when she shouted for help and at that point she fell unconscious. She woke up two hours later finding that she sustained wounds on her face, both of her ears were sliced, her blouse was open and traces of blood in her panty and she experienced pain between her legs when urinating. BBB, AAA’s elder sister saw AAA return home and asked what happened to her and AAA said that Pabol inflicted wounds upon her face. She was brought to the hospital for treatment and it was found that AAA received multiple lacerated wounds on the forehead. BBB also saw bloodstains on AAA’s panty and they found out that she was no longer a virgin and later found as well that she had intercourse through force most likely when she was unconscious. AAA testified that she did not answer all questions truthfully on the PI out of embarrassment and she admitted that she did not notice of Pabol undressed himself, removed her panty or inserting his penis into her vagina. When caught, Pabol gave a partial denial and denied allegations of rape but admitted that he hit AAA. Issue: Whether or not the circumstantial evidence was enough to prove the guilt of Pabol. Ruling: Yes. For circumstantial evidence to be sufficient to support a conviction, all the circumstances must be consistent with each other, consistent with the hypothesis that accused is guilty and at the same time inconsistent with the hypothesis that he is innocent, and with every other rational hypothesis except that of guilt. If the prosecution adduced the requisite circumstantial evidence to prove the guilt of accused beyond reasonable doubt, the burden of evidence shifts to the accused to controvert the evidence of the prosecution. In this case, the prosecution has successfully established the following circumstances and facts that, when taken together, very well constitute evidence of guilt beyond reasonable doubt, to wit: (1) appellant having met AAA on the latter’s way to school and hitting her on the face; (2) the positive identification of appellant as the person she met while she was on her way to school; (3) appellant then hugging AAA from behind, sitting her on his lap and striking her breast with a piece of stone; (4) AAA shouting for help and appellant covering her mouth; (5) appellant hitting AAA until she lost consciousness and then dragging her body to the side of the road; (6) AAA waking up two hours later to discover that her ears had been sliced, her blouse opened, and her underwear stained with her own blood; (7) AAA feeling pain in her private part after the incident; and (8) AAA sustaining hymenal laceration. Given the foregoing circumstances, there is no other conclusion that we can make with moral certainty other than that appellant raped the victim.

90 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 PEOPLE OF THE PHILIPPINES v . FEDERICO LUCERO G.R. No. 188705, March 2, 2011, Velasco, J. Circumstantial evidence shall be sufficient for conviction when the following requisites are complied with: (1) there is more than one circumstance; (2) the facts from which the inferences are derived are proved; and (3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. Facts: The accused was charged of the crime of rape with homicide of certain AAA. The prosecution witnesses identified the accused as the one who entered and went out of the room of AAA as they are familiar with the accused because they were neighbors. They also corroborated each other’s testimony that the victim had a stab wound in her breast but was declared dead on arrival when brought to the hospital. Moreover, the medico legal testified that he found several stab wounds and contusions and hymenal lacerations on the body of the victim. On the other hand, the accused testified that he was only made to admit the killing of AAA by the police officer who arrested him and that he was denied of the constitutional rights accorded to an accused. He also claimed that he was maltreated and tortured b the police and detainees. The RTC found no evidence of maltreatment and torture and found the accused guilty of the crime charged which decision was affirmed by the CA. Issue: Whether or not the evidence relied upon by the lower courts are enough to prove the guilt of the accused beyond reasonable doubt. Ruling: Yes. The confessions made by the accused without the presence of his counsel and the evidence that was adduced without proper search warrant are violations of the constitutional rights of the accused, hence inadmissible. However, there are still evidence sufficient to sustain the accused’s conviction. Direct evidence of the crime is not the only matrix wherefrom a trial court may draw its conclusion and finding of guilt. The rules of evidence allow a trial court to rely on circumstantial evidence to support its conclusion of guilt. Under Sec. 4, Rule 133 of the Rules of Court, circumstantial evidence shall be sufficient for conviction when the following requisites are complied with: (1) there is more than one circumstance; (2) the facts from which the inferences are derived are proved; and (3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. In the case at bar, setting aside the inadmissible evidence, even though there was no one who actually saw the commission of the crime of rape and the killing of the accused, the testimonies of the prosecution witnesses were sufficient to conclude that the accused committed the crime and such testimonies were consistent with each other. Therefore, such circumstantial evidence is sufficient to justify the conviction of the accused.

91 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Positive and negative evidence PEOPLE OF THE PHILIPPINES v JOSE PEPITO D. COMBATE a.k.a. PEPING G.R. No. 189301, December 15, 2010, Velasco Jr. J Categorical and consistent positive identification, absent any showing of ill motive on the part of the eyewitness testifying on the matter, prevails over the defense of denial. Facts: This case involves the crime of murder and homicide allegedly committed by Jose Pepito Combate (Combate) herein accused-appellant, resulting to the death of one Edmund Prayco (Prayco), and Leopoldo Guiro (Guiro). Sometime in March of 1995, one Jose Tomaro (Tomaro) parked his passenger jeepney at the garage of Guiro’s mother somewhere in Negro Occidental. Tomaro then proceeded to the house of Guiro where Tomaro usually sleeps after driving the jeepney owned by Guiro’s parents. Thereafter Tomaro met Prayco and Guiro, who were on their way out. Guiro invited Tomaro to drink with them but Tomaro declined saying that he was already tired. Tomaro continued on his way when he heard a gunshot coming from outside. He rushed back outside where he saw Combate pointing a gun at the already fallen Guiro. When Prayco tried to intervene, Combate also shot him. After shooting Prayco, Tomaro then rushed to Guiro and pleaded Combate to spare his life. Instead of heeding his plea, Combate pointed his gun at Tomaro and pulled the trigger but the gun did not fire. At that instant, Tomaro jumped on Combate and was able to grab the gun from Combate. This prompted Combate to flee from the scene. Prayco and Guiro later on died. For his defense, Combate denied that he shot Prayco and Guiro. Combate averred that he was not involved in the death of Prayco and Guiro and that he fled to another province only because he was stricken with fear because of what transpired. The lower court and CA found Combate guilty beyond reasonable doubt for the death of Prayco and Guiro. Now, Combate comes before the Supreme Court assailing his conviction of the crimes of murder and homicide. He alleges that he did not commit the crime. Hence this petition. Issue: Whether or not Combate is guilty beyond reasonable doubt for the death of Prayco and Guiro Ruling: Yes. Categorical and consistent positive identification, absent any showing of ill motive on the part of the eyewitness testifying on the matter, prevails over the defense of denial. Accusedappellant was positively and categorically identified by the witnesses. They have no reason to perjure and accused-appellant was unable to prove that the prosecution witnesses were moved by any consideration other than to see that justice is done. Thus, the presumption that their testimonies were not moved by any ill will and bias stands, and, therefore, their testimonies are entitled to full faith and credit. Lest it be overlooked, accused-appellant fled to Victorias City, Negros Occidental right after the incident, an act that is evidence of his guilt. It is well-established that the flight of an accused is competent evidence to indicate his guilt; and flight, when unexplained, is a circumstance from which an inference of guilt may be drawn. Indeed, the wicked flee when no man pursueth, but the innocent are as bold as lion.

92 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 PEOPLE OF THE PHILIPPINES v RICKY ALFREDO y NORMAN G.R. No. 188560, December 15, 2010, Velasco Jr. J. For alibi to prosper, it is not enough for the accused to prove that he was in another place when the crime was committed. He must likewise prove that it was physically impossible for him to be present at the crime scene or its immediate vicinity at the time of its commission. Facts: This is a criminal case filed by one AAA, herein private complainant, against Ricky Alfredo y Norman (Norman), herein accused-appellant, for rape committed by Norman against AAA. Sometime in 2001, while AAA, with her son BBB, was sleeping in a rented shack somewhere in Benguet, she was awoken in the middle of the night by a beam of light coming from the gaps in the walls of the shack directly illuminating her face. She then inquired who the person was, but nobody answered. Thereafter she lit the gas lamp placed on top of the table and opened the door while her son BBB stood beside it. As AAA opened the door, she saw Norman holding a flashlight. AAA thereafter invited Norman to enter the shack but Norman immediately held AAA’s hair and ordered her to walk uphill. Helpless and terrified, AAA obeyed Norman was forced to walk uphill while Norman walked behind her. Upon reaching a grassy portion, Norman ordered AAA to stop walking and boxed her, forcing AAA to lie down and open her legs. Thereafter, Norman violated AAA not less than three times. Not contented, Norman inserted a tree branch about 10 inches long inside AAA’s vagina. Norman also inserted the flashlight he had inside AAA’s vagina thereafter. After satisfying his lustful desire, Norman left AAA on the mountain. Because of what transpired, AAA filed a complaint for rape against Norman. The RTC and CA found Norman guilty beyond reasonable doubt of committing the crime of rape. Now, Norman seeks reversal of the aforementioned decisions. Norman invokes the defense of alibi by averring that he was nowhere near AAA nor the shack of where AAA and BBB were staying the night when the alleged rape occurred. Hence, this petition. Issue: Whether or not the defense of alibi invoked by Norman warrants his acquittal from his conviction of the crime of rape Ruling: No. The accused-appellant failed to present convincing evidence that he did not leave his house, which is only about 150 meters away from the shack of AAA, in the evening of April 28, 2001. Significantly, it was also not physically impossible for accused-appellant to be present on the mountain where he allegedly raped AAA at the time it was said to have been committed. Also, it is a settled rule that alibi, as a defense, is inherently weak and crumbles in light of positive identification by truthful witnesses. It is evidence negative in nature and self-serving and cannot attain more credibility than the testimonies of prosecution witnesses who testify on clear and positive evidence. Thus, there being no strong and credible evidence adduced to overcome the testimony of AAA, no weight can be given to the alibi of accused-appellant. Even if the alibi of accused-appellant appears to have been corroborated by his mother, Remina, and his sister, Margaret, said defense is unworthy of belief not only because accused-appellant was positively identified by AAA, but also because it has been held that alibi becomes more unworthy of merit where it is established mainly by the accused himself and his or her relatives, friends, and comradesin-arms, and not by credible persons.

93 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 PEOPLE OF THE PHILIPPINES v. HEMIANO DE JESUS and RODELO MORALES G.R. No. 186528, January 26, 2011, Velasco, Jr., J. For the defense of alibi to prosper, appellant must establish that (a) he was in another place at the time of the commission of the offense; and (b) he was so far away that he could not have been physically present at the place of the crime, or its immediate vicinity, at the time of its commission. Facts: Respondents Hemiano De Jesus (De Jesus) and Rodelo Morales (Morales) were charged with the murder of the victim Armando Arasula y de Torres (Armando). During trial, the witness for the prosecution, Santiago Arasula (Santiago), the brother of Armando, testified that on the day Armando died, he, Armando and the two accused had been drinking at the birthday party of a certain Alejandro Hornillo, but he left earlier than the others. Later that night when Santiago was already home, he heard his brother Armando shouting “Mother, Mother, I was stabbed by Hemiano and Rodelo!". Consequently, Santiago ran towards Armando and saw him lying on the ground, with the accused still stabbing him with a gulukan (small bolo). When Santiago reached his brother, Armando was however already dead. Issue: Whether or not the guilt of the accused-appellants were proven beyond reasonable doubt. Ruling: Yes. Santiago testified in a candid and straightforward manner, and the cross-examination conducted by the defense failed to shake him. Santiago positively identified the men who killed his brother, as he had known them for at least five years. Santiago’s testimony was consistent and clear. Accused-appellants showed no reason or bias for Santiago to pinpoint them as the perpetrators of the crime, no motive for the lone eyewitness to falsely accuse them. Thus, the Court adheres to the established rule that in the absence of evidence showing any reason or motive for the prosecution witness to perjure himself or herself, the Court can conclude that no improper motive exists, and his or her testimony is worthy of full faith and credit. Accused-appellant Morales raised the defense of alibi. In the light of Santiago’s positive identification and the credibility accorded his testimony by the trial court, the defense of alibi must fail. As held in People v. Dela Cruz: “Appellant’s denial and alibi are not worthy of belief. It is an oftquoted doctrine that positive identification prevails over denial and alibi. Alibi cannot prevail over the positive identification of the accused as the perpetrator of the crime.” Morales testified that at the time of the killing, he was in his house, not far from the house of the victim, around 20 arm’s-lengths, as per his reckoning. There is, thus, the possibility of him being physically present at the place of the crime; indeed, as per his testimony, he was in the immediate vicinity. He presented no corroborating evidence to show that he was elsewhere at the time of the killing, nor did he present any witnesses to his whereabouts. There is only his word that he was not there, against Santiago’s credible testimony. His defense, thus, cannot prosper. As for accused-appellant de Jesus, he raises the justifying circumstance of self-defense. It is axiomatic that where an accused pleads self-defense, he thereby admits authorship of the crime. Accordingly, the burden of evidence is shifted to the accused who must then prove with clear and convincing proof the following elements of self-defense: (1) unlawful aggression on the part of the victim; (2) reasonable necessity of the means employed to prevent or repel the attack; and (3) lack of sufficient provocation on the part of the person defending himself. Although all three elements must concur, self-defense must rest firstly on proof of unlawful aggression on the part of the victim. If no unlawful aggression attributed to the victim is established, there can be no self-defense, whether

94 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 complete or incomplete. Unlawful aggression is a condition sine qua non for the justifying circumstance of self-defense to apply. Even if events had transpired as de Jesus related, he still failed to show that there was unlawful aggression on the part of the victim, or the other elements of the justifying circumstance of self-defense. In fact, he stated it was after he got possession of the bolo that he stabbed Armando. Thus, the aggression on the part of Armando, if it existed, would have already ceased. As there was no longer any unlawful aggression on the part of the victim, the justifying circumstance of self-defense is absent. Another telling sign of De Jesus’ guilt is his flight from the scene. Self-defense is not credible in the face of the flight of the accused from the crime scene and his or her failure to inform the authorities about the incident. RENE SORIANO v. PEOPLE OF THE PHILIPPINES G.R. No. 148143 June 30, 2008 Velasco, Jr., J. Alibi cannot prevail over the positive identification of prosecution eyewitness. Facts: Petitioner was charged with homicide and frustrated homicide of Ernesto Amarillo and Soledad Ferrer. During trial, the prosecution presented Benjamin Cabansag, a tricycle driver, who allegedly witnessed that petitioner Soriano that on December 29, 1994, between 9:00 p.m. and 9:30 p.m., upon alighting from a tricycle, kicked the gate as he entered his own house and came out with an armalite rifle in hand fired shots upwards for about 15 minutes, and then started harassing passing tricycles. As a consequence, hit Enesto and Soledad who was riding a motorbike. Also hit and killed was petitioner’s brother, Loreto Soriano. Petitioner denied the accusations and presented an alibi. He stated that as 1st Lieutenant of the Philippine Armys 48th Infantry Battalion, 5th Infantry Division, he was at his base station in Kalinga. His fellow army officers corroborated his alibi. Carmen Soriano, a kagawad of Brgy. Pagal and the wife of petitioners uncle, also took the witness stand for the defense, testifying that the prosecution witness, Benjamin, could not have possibly been at the situs of the crime inasmuch as she saw him at the wake. In a bid to further discredit Benjamin, the defense parlayed the existence of bad blood between the Soriano and Cabansag families. The RTC, finding the prosecutions witnesses against petitioner, as accused below, more credible and their accounts more tenable, rendered judgment convicting petitioner of the complex crime of homicide with frustrated homicide. Issue: Whether or not the RTC is correct in convicting the accused. Ruling: No. As a rule, alibi is considered with suspicion and is always received with caution, not only because it is inherently weak and unreliable but also because it can easily be fabricated. For alibi to prosper, the accused must satisfactorily prove (1) that he was somewhere else when the crime was committed and (2) that he was so far away that he could not have been physically present at the place of the crime or its immediate vicinity at the time of its commission. In this case, petitioner alleged being in Camp Boloan, Kalinga, Apayao on the fateful night in question. Assuming the veracity of this allegation, it would still be not impossible for petitioner to leave the base camp and travel to and arrive in San Carlos City at about 9:30 p.m. of December 29, 1994.

95 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 As to the documents presented by the accused supporting his theory that he was in Kalinga Apayao, the Court cannot accord its reliance on the same because alibi cannot prevail over the positive identification of prosecution eyewitness. The facility which the accused can secure documents to bolster his claim that he was not present at the scene of the crime cannot be denied considering that the sources of such documents are his fellow soldiers many of whom are his subordinates. Even assuming that the said documents are real, in the face of the clear and positive testimony of the prosecution witness regarding the participation of the accused in the crime, the accused’s alibi dwindles into nothing.

Burden of Proof and Burden of Evidence PEOPLE OF THE PHILIPPINES v. NOEL CUASAY G.R. No. 180512, October 17, 2008, VELASCO, JR., J. When self-defense is invoked, the burden of evidence shifts to the accused to show that the killing was legally justified. Facts: Cuasay with treachery, without any justifiable cause and with the deliberate intent to take the life of Ansuli with a sharp-pointed instrument thereby inflicting upon the latter mortal wound on the chest, causing his untimely demise. Cuasay plead "not guilty" to the charge. Cuasay claimed killing Ansuli in self-defense. He alleged that the victim suspected him of stealing and because of that, the victim boxed him 3 times and scolded him. RTC found him guilty beyond reasonable doubt. CA affirmed. Issue: Whether or not CA erred in not considering the justifying circumstance of self-defense and the mitigating circumstance of passion or obfuscation in favor of Cuasay. Ruling: No. It is important to note that Cuasay admitted stabbing the victim but claimed that he did it in self-defense. When self-defense is invoked, the burden of evidence shifts to the accused to show that the killing was legally justified. Thus, the accused must prove these requisites for self-defense: (1) unlawful aggression on the part of the victim; (2) lack of sufficient provocation on the part of the accused; and (3) employment of reasonable means to prevent and repel aggression. The RTC found that Cuasay failed to prove the requisites of self-defense. He alone testified regarding the alleged fist blows thrown at him by the victim. There was no other testimony to that effect. For his defense to stand, his testimony must be credible. It is unlikely that the spectators will continue their business despite seeing the victim hit accused-appellant. It is unnatural for the players of mahjong and the barangay tanods present to not attempt to pacify them. Cuasay could have presented at least one of the witnesses who can support his claim of unlawful aggression by the victim, but he failed to do so. His testimony is not realistic and, therefore, doubtful. Cuasay’s alternative claim of passion or obfuscation likewise deserves no credit. To be entitled to this mitigating circumstance, the following elements must be present: (1) there should be

96 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 an act both unlawful and sufficient to produce such condition of mind; and (2) the act that produced the obfuscation was not far removed from the commission of the crime by a considerable length of time, during which the perpetrator might recover his normal equanimity. There was no evidence of unlawful aggression or any act on the part of the victim that could have caused accused-appellant to act with passion or obfuscation. He failed to present any witness or proof that would support his claim. Thus, RTC and CA were correct in overruling the claim for said mitigating circumstance.

Presumptions Disputable presumptions PEOPLE OF THE PHILIPPINES v. RODANTE DE LEON y DELA ROSA G.R. No. 186471 January 25, 2010, Velasco, Jr., J. Absent any proof of motive to falsely accuse appellant of such a grave offense, the presumption of regularity in the performance of official duty and the findings of the trial court with respect to the credibility of witnesses shall prevail over appellant’s bare allegation. Facts: A buy-bust team was formed after the police received an information regarding the illegal activities of Rodante De Leon. The team proceeded to the meeting place where the exchange of money and one plastic sachet containing shabu between the poseur-buyer and De Leon took place. De Leon was arrested and was charged with violation of Sections 5 and 11, Article II of the Comprehensive Dangerous Drugs Act of 2002 (RA 9165). Both the RTC and the CA convicted De Leon. De Leon questioned the validity of the buy-bust operation and argued that the prosecution failed to prove the chain of custody of the evidence. He contended that the court merely relied on the disputable presumption of regularity in the performance of the police function. Issue: Whether or not the buy-bust operation, allegedly tainted with irregularities, is valid. Ruling: Yes. A buy-bust operation is a form of entrapment whereby ways and means are resorted to for the purpose of trapping and capturing the lawbreakers in the execution of their criminal plan. In this jurisdiction, the operation is legal and has been proved to be an effective method of apprehending drug peddlers, provided due regard to constitutional and legal safeguards is undertaken. In the case at bar, the evidence clearly shows that the buy-bust operation conducted by the police officers, who made use of entrapment to capture appellant in the act of selling a dangerous drug, was valid and legal. Moreover, the defense has failed to show any evidence of ill motive on the part of the police officers. Absent any proof of motive to falsely accuse appellant of such a grave offense, the presumption of regularity in the performance of official duty and the findings of the trial court with respect to the credibility of witnesses shall prevail over appellant’s bare allegation. PEOPLE OF THE PHILIPPINES v. SERGIO LAGARDE G.R. No. 182549, January 20, 2009, Velasco, Jr., J. For alibi to prosper, the accused persons must establish, by clear and convincing evidence, (1) their presence at another place at the time of the perpetration of the offense and (2) the physical impossibility of their presence at the scene of the crime.

97 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Facts: AAA and her mother were at the house of Lolita Lagarde-Sarsosa to attend the death anniversary celebration of Lolita’s mother. Accused-appellant was also present in that occasion, being the nephew of Lolita. He is also a neighbor of AAA and the father of her classmate. On the same day, AAA was ordered by her mother to pick a jackfruit. When she was near the tree, she was grabbed by the accused who dragged her to the copra dryer, undressed her, poked a seven-inch knife, and inserted his penis into her vagina and made a pumping motion. After the sexual assault, accused just left her. Not long after, AAA dressed herself up, and returned to the house and told her ordeal to her mother. AAA and her mother subsequently reported the incident to the officials. Issue: Whether or not accused is guilty of rape. Ruling: Yes. Accused-appellant, on the other hand, could only offer denial and alibi as defenses. His alibi that he spent the afternoon drinking with other visitors does not deserve merit since he was present in the same house where the victim was. The copra dryer was only 150 meters away from the house. Accused-appellant’s alibi miserably fails the foregoing test. His only defense witness, his relative, Lolita, cannot consistently and convincingly assert that accused-appellant stayed in one place the whole afternoon. Lolita herself was busy entertaining other visitors while accusedappellant was outside the house.

Quantum of Evidence (weight and sufficiency of evidence) Proof Beyond Reasonable Doubt People of the Philippines v. Mario Villanueva Baga G.R. No. 189844, November 15, 2010, Velasco, Jr. J. When moral certainty as to culpability hangs in the balance, acquittal on reasonable doubt inevitably becomes a matter of right. Facts: PO2 Manlipig received an information about drug peddling activities of a certain Mario Baga. Thereby they went there all in civilian clothes. At the target area, PO2 Manlapig and the informant saw the target of the operation who turned out to be accused-appellant Baga. The informant then introduced PO2 Manlapig to accused-appellant Baga. Thereupon, PO2 Manlapig gave the marked money to accused-appellant Baga, who, in turn, gave PO2 Manlapig a plastic sachet. PO2 Manlapig examined the plastic sachet, and when he determined that it contained shabu, he executed the prearranged signal by drawing his gun. The back-up officers then rushed to the scene, joining PO2 Manlapig, and together they arrested accused-appellant Baga and took him to the police station. In his defense, he strongly denied having sold any illegal drug to the poseur-buyer. He insisted that at the time of his arrest, at around 5 oclock in the afternoon, he was at Kaingin Road on his way to return some rented VCDs when two men in civilian clothes suddenly accosted him. He asked them why he was being arrested, but the two told him to do his explanation at the police station. He was then brought to La Loma Police Station, where he was informed by one of the apprehending officers,

98 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 whom he came to know later as PO2 Manlapig, that charges would be filed against him for sale of illegal drugs. PO2 Manlapig and informant testified against the Baga. RTC found him guilty of violation the Comprehensive Dangerous Drugs Act of 2002 which was affirmed by the CA. Accused-appellant Baga argues that the lower court erred in relying on the testimony of prosecution witnesses while totally disregarding the version of the defense. He stresses that the police officers who testified in the case are seasoned witnesses who can deliver practiced testimonies and parry cross-examination, and, thus, posits that it was the duty of the lower court to minutely examine said testimonies. He likewise faults the lower court for giving credence to the testimony of poseur-buyer PO2 Manlapig which is uncorroborated, and points out the alleged contradictory testimonies of informant and PO2 Manlapig on the role of the former in the buy-bust operation. Issue: Whether or not testimonies of PO2 Manlapig and the informant though inconsistent are sufficient to convict the accused-appellant Baga is guilty of the crime charged Ruling: No. As a rule, the trial courts evaluation of the credibility of the witnesses and their testimonies is entitled to great weight and will not be disturbed on appeal. This rule does not apply where it is shown that any fact of weight and substance has been overlooked, misapprehended, or misapplied by the trial court. In the instant case, there are circumstances, which, when properly appreciated, would warrant accused-appellants acquittal. In this case, there are inconsistent statements of PO2 Manlapig as to whether the buy bust operation took place, whether the drug that was that was seized was the very same drug presented in court thereby which clouds doubt to the conviction of Baga. There was also confusion as to who has custody of the original buy-bust money; and finally, there were inconsistencies on whether a preoperation report was actually prepared or not. Summing up all these circumstances, it behooves Supreme Court is not to blindingly accept the testimony of a lone witness, as we ruled: When moral certainty as to culpability hangs in the balance, acquittal on reasonable doubt inevitably becomes a matter of right.

Judicial Notice and Judicial Admissions CAYETANO CAPANGPANGAN v. PEOPLE OF THE PHILIPPINES G.R. No. 150251, November 23, 2007, Velasco. Jr., J. An admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. Facts: Capangpangan was charged and convicted with illegal possession of firearms, ammunitions and explosives under Presidential Decree No. (PD) 1866. He argued that there is no sufficient proof that he is not licensed to possess firearms, and that the Certification submitted by the prosecution came from the PNP in Iligan City and not from the Firearms and Explosives Unit at the PNP in Camp Crame, the repository of the records for all firearms licenses. Moreover, Capangpangan contended that said certification is only limited to the Iligan City area and that it was not properly identified during the trial.

99 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Issue: Whether or not the prosecution was able to prove that Capangpangan had no license to carry the ammunitions and firearms. Ruling: Yes. The essence of the crime penalized under PD 1866, as amended, is primarily the accused’s lack of license or permit to carry or possess the firearm, as possession itself is not prohibited by law. In the instant case, the prosecution was able to prove that petitioner had no license or permit to possess the seized contraband. The Certification dated January 23, 1998 issued by SPO1 Regis, Assistant Team Leader of the 90th Civil Security Team, PNP Headquarters, Iligan City, pertinently enunciates: “This is to certify that as per verification of records filed from this office as of [sic] Iligan City area, their [sic] is no name of Cayetano "Tano" Capangpangan appears [sic] in computerized firearm license as of this date.” The contents, authenticity, and import of the above certification were admitted during the hearing by petitioner, thereby dispensing with the testimony of the issuing officer, SPO1 Regis. Under Section 4 of Rule 129 of the Revised Rules on Evidence, "[A]n admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made." Clearly, petitioner cannot take a contrary or different position considering that he has made an express admission of the Certification, which does not require proof and cannot be contradicted because there is no previous evidence that the admission was made through palpable mistake. After admitting it, he cannot now assail that said certification has not been properly identified. Besides, he has had several occasions to present proof that he was licensed to possess firearms. Yet, even in this late stage he has not. Object (real) Evidence Chain of custody, in relation to Section 21 of the Comprehensive Dangerous Drugs Act of 2002 PEOPLE OF THE PHILIPPINES v. FRANCISCO MANLANGIT y TRESBALLES G.R. No. 189806, January 12, 2010, Velasco, Jr., J. Non-compliance with Section 21 of RA 9165 is not fatal. What is of utmost importance is the preservation of the integrity and evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused. Facts: The Makati Anti-Drug Abuse Council (MADAC) received an information that a certain Francisco Manlangit was selling prohibited drugs, so it formed a buy-bust team, with MADAC operative Wilfredo Serrano being designated as poseur-buyer. After the consummation of the sale, the buy-bust team then proceeded to arrest Manlangit. Manlangit was convicted of the crimes of illegal sale and illegal use of dangerous drugs. Manlangit argues that the buy-bust team failed to comply with the procedure for the custody and control of seized prohibited drugs under Sec. 21 of RA 9165. Consequently, he contends that he should be acquitted. Issue: Whether or not the failure of the arresting officers to comply with Sec. 21(1) of RA 9165 is fatal to the conviction of Manlangit.

100 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Ruling: No. The failure of the prosecution to show that the police officers conducted the required physical inventory and photograph of the evidence confiscated pursuant to said guidelines, is not fatal and does not automatically render accused-appellant’s arrest illegal or the items seized/confiscated from him inadmissible. Indeed, the implementing rules offer some flexibility when a proviso added that “non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items.” The same provision clearly states as well, that it must still be shown that there exists justifiable grounds and proof that the integrity and evidentiary value of the evidence have been preserved. Here, accused-appellant does not question the unbroken chain of evidence. His only contention is that the buy-bust team did not inventory and photograph the specimen on site and in the presence of accused-appellant or his counsel, a representative from the media and the Department of Justice, and any elected public official. However, as ruled by the Court in Rosialda, as long as the chain of custody remains unbroken, even though the procedural requirements provided for in Sec. 21 of RA 9165 was not faithfully observed, the guilt of the accused will not be affected. And as aptly ruled by the CA, the chain of custody in the instant case was not broken as established by the facts proved during trial. CESAR D. CASTRO, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. G.R. No. 193379, August 15, 2011, Velasco, Jr., J. The chain of custody is essential to obviate the possibility of substitution and to ensure that doubts regarding the identity of the evidence are removed. Facts: Cesar Castro was charged with illegal possession of shabu in violation of Section 11 of RA. 9165. According to the prosecution, SPO2 Nestor Felipe informed the police that he received a phone call from a concerned citizen that a male person wearing a green shirt and brown maong bought shabu near the Iglesia ni Cristo. A team of police officers were dispatched to verify the report, and when they arrived, they saw a male person with the green description. They know him because he was one of the drug personalities. He was walking with his right hand placed on his pocket and the police officers were about 10 meters away from him. The police approached him, however, the accused panic upon recognizing them as policemen and brought something out of his pocket and threw it at his back. The things thrown by the accused were plastic sachets of shabu, lighter and a coin. He was arrested. On the other hand, the accused Castro said that he did not have the possession and custody of the prohibited drugs when he was arrested and that the crucial link in the chain of custody had not been established. The RTC and CA found him guilty beyond reasonable doubt. Issue: Whether or not the crucial link in the chain of custody had been established. Ruling: Yes. As a mode of authenticating evidence, the chain of custody rule requires that the presentation and admission of the seized prohibited drug as an exhibit be preceded by evidence to support a finding that the matter in question is what the proponent clams it to be. This is essential to

101 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 obviate the possibility of substitution as well as to ensure that doubts regarding the identity of the evidence are removed through the monitoring and tracking of the movements and custody of the seized prohibited item, from the accused, to the police, to the forensic laboratory for examination, and to its presentation in evidence in court. Ideally, the custodial chain would include testimony about every link in the chain, however, a testimony about a perfect chain is almost always impossible to obtain. The record shows that the chain of custody rule has been sufficiently observed. The prosecution had proved with moral certainty, thru the testimony of one of the apprehending officers, the evidence custodian, and the forensic officer, that what was seized from accused-appellant was the very same item presented in court after it was subjected to qualitative examination and was tested positive for methamphetamine hydrochloride. In fine, the prosecution was able to establish that the identity, integrity, and evidentiary value of the seized prohibited drugs have not been compromised from the time of its seizure at the time and place aforestated to its presentation in evidence as part of the corpus delicti. The accused denied having possession, however, The very act of throwing away the sachet, the contents of which were later determined to be shabu, presupposes that accusedappellant had prior possession of it. Ergo, all the elements of the crime have been met. The conviction of the accused is affirmed. PEOPLE OF THE PHILIPPINES v. RODANTE DE LEON y DELA ROSA G.R. No. 186471 January 25, 2010, Velasco, Jr., J. In Chain of Custody, what is essential is the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused. Facts: A buy-bust team was formed after the police received an information regarding the involvement of Rodante De Leon in illegal drugs trade. The team proceeded to the meeting place where the exchange of money and one plastic sachet containing shabu between the poseur-buyer and De Leon took place. De Leon was arrested and was charged with violation of Sections 5 and 11, Article II of the Comprehensive Dangerous Drugs Act of 2002 (RA 9165). Both the RTC and the CA convicted De Leon. De Leon questioned the validity of the buy-bust operation and argued that the prosecution failed to prove the chain of custody of the evidence. He contended that the court merely relied on the disputable presumption of regularity in the performance of the police function. Issue: Whether or not the chain of custody of the alleged confiscated items from the accusedappellant was duly established. Ruling: Yes. Sec. 21(a) of the Implementing Rules and Regulations of RA 9165 need not be followed as an exact science. Non-compliance with Sec. 21 does not render an accused’s arrest illegal or the items seized/confiscated from him inadmissible. What is essential is the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused.

PEOPLE OF THE PHILIPPINES v. SPO3 SANGKI ARA Y MIRASOL et al. G.R. No. 185011 December 23, 2009, Velasco, Jr. J. Non-compliance with the procedural requirements under RA 9165 and its IRR relative to the custody, photographing, and drug-testing of the apprehended persons, is not a serious flaw that can render void the seizures and custody of drugs in a buy-bust operation. Facts:

102 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 After receiving an information that three suspected drug pushers contacted the informant for a deal involving shabu, a buy-bust team was immediately formed. The team went to the school and waited for the car of the alleged pushers. The sale of shabu was consummated inside the vehicle. Upon the signal of the poseur-buyer, SPO3 Sangki Ara, Mike Talib and Jordan Musa were arrested. The RTC and the CA convicted SPO3 Ara, Talib and Musa of violation of Comprehensive Dangerous Drugs Act of 2002 (RA 9165). Issue: Whether or not the chain of custody over the shabu was unbroken. Ruling: No. RA 9165 and its subsequent Implementing Rules and Regulations (IRR) do not require strict compliance as to the chain of custody rule. The arrest of an accused will not be invalidated and the items seized from him rendered inadmissible on the sole ground of non-compliance with Sec. 21, Article II of RA 9165. What is essential is the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused. Briefly stated, non-compliance with the procedural requirements under RA 9165 and its IRR relative to the custody, photographing, and drug-testing of the apprehended persons, is not a serious flaw that can render void the seizures and custody of drugs in a buy-bust operation. PEOPLE OF THE PHILIPPINES v. JACQUILINE PAMBID y CORTEZ G.R. No. 192237, January 26, 2011, Velasco, Jr., J. Non-compliance with Section 21 of RA 9165 is not fatal. In fact, it has been ruled time and again that non-compliance with Sec. 21 does not make the items seized inadmissible. What is imperative is "the preservation of the integrity and the evidential value of the seized items as the same would be utilized in the determination of the guilt or innocence of the accused." Facts: An information reached the Station Anti-illegal Drugs (SAID), Quezon City as to the illegal drug activities of alias "Jack" and "Junior Laurel" in Barangay San Agustin, Novaliches, Quezon City. Accordingly, a buy-bust team was formed. Subsequently, the buy-bust team proceeded to the house of alias “Jack” who was later identified as respondent Jacquiline Pambid (Pambid). When PO2 Collado, the poseur-buyer, saw Pambid, he approached the latter and told her that he was in need of “panggamit”. In response, Pambid gave PO2 Collado a plastic sachet containing white crystalline substance. After PO2 Collado gave Pambid the payment of P200, he executed the pre-arranged signal and arrested Pambid. Another plastic sachet was recovered from Pambid. At the station PO2 Collado turned over the money and the plastic sachets to the investigator, PO1 Estrelles. A request for laboratory examination was then prepared and the plastic sachets were sent to the Philippine National Police (PNP) Crime Laboratory. Subsequently, P/Insp. Banac, Jr. issued Chemistry Report No. D-1007-03 finding the white crystalline substance to be Methylamphetamine Hydrochloride, also known as Shabu. Consequently, Pambid was found guilty of the crimes of illegal sale and illegal possession of dangerous drugs. Pambid argues that the RTC erred in admitting the seized dangerous drugs as evidence, considering that no proper inventory was taken of the seized drugs and that there was a break in the chain of custody of the evidence.

103 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Issue: Whether or not the lower court erred in convicting the accused-appellant despite noncompliance with the requirements for the proper custody of seized dangerous drugs under R.A. No. 9165. Ruling: No. Non-compliance with Section 21 of RA 9165 is not fatal. In fact, it has been ruled time and again that non-compliance with Sec. 21 of the IRR does not make the items seized inadmissible. What is imperative is "the preservation of the integrity and the evidential value of the seized items as the same would be utilized in the determination of the guilt or innocence of the accused." In the instant case, the chain of custody can be easily established through the following link: (1) PO2 Collado marked the seized sachets subject of the buy-bust with "MBC," his own initials; (2) a request for laboratory examination of the seized items marked "MBC" was signed by C/Supt. Wong; (3) the request and the marked items seized were received by the PNP Crime Laboratory; (4) Chemistry Report No. D-1007-03 confirmed that the marked items seized from accused-appellant were methylamphetamine hydrochloride; and (5) the marked items were offered in evidence as Exhibits "B-1" and "B-2." Hence, it is clear that the integrity and the evidentiary value of the seized drugs were preserved. PEOPLE OF THE PHILIPPINES v. ARNOLD CASTRO y YANGA G.R. No. 194836, 15 June 2011, First Division, Velasco Jr., J. Admittedly, testimony about a perfect chain is not always the standard as it is almost always impossible to obtain an unbroken chain. Nonetheless, what is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items. Facts: Castro was caught possessing and selling prohibited drugs after a buy-bust operation conducted by the police. During the buy-bust, the police were able to recover 3 plastic sachets which the police marked with their initials. These sachets were turned over to the investigator who prepared and submitted a letter-request for analysis. The forensic chemist made an analysis on the seized items, which he confirmed were positive for Methylamphetamine Hydrochloride. Issue: Whether or not the RTC gravely erred in convicting the accused-appelant. Ruling: No. Admittedly, testimony about a perfect chain is not always the standard as it is almost always impossible to obtain an unbroken chain. Nonetheless, what is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items. The integrity of the evidence is presumed to be preserved, unless there is a showing of bad faith, ill will, or proof that the evidence has been tampered with. Since Castro failed to discharge such burden, it cannot be disputed that the drugs seized from him were the same ones examined in the crime laboratory. The prosecution, therefore, established the crucial link in the chain of custody of the seized drugs.

104 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Here, appellant was brought to the police station immediately after the illegal drugs and marked money were seized from him. The confiscated substances were marked accordingly, turned over to the investigator, and submitted to the PNP crime laboratory for analysis. Forensic chemist tested the substances and after finding them positive for shabu, issued his chemistry report within 24 hours after confiscation of the items. Thus, the trial court correctly upheld the admissibility of the seized items upon its finding that handling of the sachets was free of any physical distortion.

Documentary evidence Best Evidence Rule MCMP CONSTRUCTION CORPORATION v. MONARK EQUIPMENT CORPORATION G.R. No. 201001, November 10, 2014, Velasco, Jr., J. The requirements before a party may present secondary evidence to prove the contents of the original document whenever the original copy has been lost are: 1) the existence or due execution of the original; (2) the loss and destruction of the original or the reason for its non-production in court; and (3) on the part of the offeror, the absence of bad faith to which the unavailability of the original can be attributed. Facts: MCMP leased equipment from Monark, covered by a contract. Monark delivered the equipment to MCMP, which shall be paid within 30 days. Despite the lapse of such period, MCMP failed to pay the rental fees. Upon demands made upon MCMP, partial payments were made, but further demands went unheeded. Monark then filed a complaint against MCMP. MCMP alleged in defense that it had an agreement with Monark that it would not be charged for the whole time that the leased equipment was in its possession but rather only for the actual time that the equipment was used although still on the project site. MCMP, however, admitted that this agreement was not contained in the contract. Monark then presented Peregrino as one of its witnesses, who testified that there were 2 original copies of the contract, one retained by Monark, and the other copy for MCMP. He testified that Monark’s copy had been lost and that diligent efforts to recover the copy proved futile. Instead, Peregrino presented a photocopy of the contract. MCMP objected to the presentation of secondary evidence to prove the contents of the contract arguing that there were no diligent efforts to search for the original copy. MCMP did not present its copy of the contract despite the directive of the RTC to produce the same. RTC ruled in favor of Monark, and affirmed by the CA. Issue: Whether or not Monark is allowed to present secondary evidence to prove the existence of the contract. Ruling: Yes. In Country Bankers Insurance Corporation v. Lagman, the Court held that before a party is allowed to adduce secondary evidence to prove the contents of the original, the offeror must prove the following: (1) the existence or due execution of the original; (2) the loss and destruction of the original or the reason for its non-production in court; and (3) on the part of the offeror, the absence of bad faith to which the unavailability of the original can be attributed. The correct order of proof is as follows: existence, execution, loss, and contents.

105 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 In this case, the above requisites are present. Both the CA and the RTC gave credence to the testimony of Peregrino that the original contract in the possession of Monark has been lost and that diligent efforts were exerted to find the same but to no avail. Such testimony has remained uncontroverted. Furthermore, MCMP’s failure to present the copy of the contract and even explain its failure, not only justifies the presentation by Monark of secondary evidence in accordance with Section 6 of Rule 130 of the Rules of Court, but it also gives rise to the disputable presumption adverse to MCMP under Section 3 (e) of Rule 131 of the Rules of Court that "evidence willfully suppressed would be adverse if produced.” EDSA SHANGRI-LA HOTEL AND RESOT v. BF CORPORATION G.R. No. 145842, 145873 June 27, 2008 Velasco, Jr., J. A party may present secondary evidence of the contents of a writing not only when the original is lost or destroyed, but also when it is in the custody or under the control of the adverse party. In either instance, however, certain explanations must be given before a party can resort to secondary evidence. Facts: EDSA Shangri-la Hotel and Resort, Inc. (ESHRI) and BF Corporation (BF) entered into an agreement whereby the latter would construct the EDSA Shangri-la hotel. Under their arrangement, BF shall submit a monthly progress billing to ESHRI which would then re-measure the work accomplished and prepare a Progress Payment Certificate for that month’s progress billing. BF submitted a total of 19 progress billings following the procedure agreed upon. However, BF did not re-measure the work done, did not prepare the Progress Payment Certificates, let alone remit payment for the inclusive periods covered. In this regard, BF claimed having been misled into working continuously on the project by ESHRI which gave the assurance about the Progress Payment Certificates already being processed. Thus, BF filed before the RTC a suit for a sum of money and damages. The RTC and CA ruled in favor of BF. In its petition before the Supreme Court, ESHRI faulted the RTC and CA on the matter of the admission in evidence of the photocopies of Progress Billing Nos. 14 to 19 and the complementing PMIs and the WVOs. EHSRI argued that BF, before being allowed to adduce in evidence the photocopies adverted to, ought to have laid the basis for the presentation of the photocopies as secondary evidence, conformably to the best evidence rule. Issue: Whether or not the RTC was correct in allowing the presentation of the photocopied documents in question. Ruling: Yes. A party may present secondary evidence of the contents of a writing not only when the original is lost or destroyed, but also when it is in the custody or under the control of the adverse party. In either instance, however, certain explanations must be given before a party can resort to secondary evidence. Four factual premises are readily deducible from the above exchanges, to wit: (1) the existence of the original documents which ESHRI had possession of; (2) a request was made on ESHRI to produce the documents; (3) ESHRI was afforded sufficient time to produce them; and (4) ESHRI was not inclined to produce them. Clearly, the circumstances obtaining in this case fall under the exception under Sec. 3(b) of Rule 130. In other words, the conditions sine qua non for the presentation and reception of the photocopies of the original document as secondary evidence have been met.

106 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 M.E. HOLDING CORPORATION v. COURT OF APPEALS G.R. No. 160193, 23 March 2008, Second Division, (Velasco, Jr., J.) The rule is that the best evidence under the circumstance must be adduced to prove the allegations in a complaint, petition, or protest. Only when the best evidence cannot be submitted may secondary evidence be considered. Facts: M.E. Holding Corporation is claiming the 20% sales discount it granted to qualified senior citizens. M.E. treated the discount as deductions from its gross income purportedly in accordance with RR No. 2-84. However it filed the return under protest arguing that the discount should be treated as tax credit and not as mere deductions. Due to the inaction of the BIR, M.E. filed an appeal before the CTA reiterating its position. CTA granted M.E.’s petition, but the claimed refund was reduced due to M.E.’s failure to properly support the claimed discount with the corresponding cash slips. The CA dismissed the petition to it and upheld the decision of the CTA. Issue: Whether or not the CA erred and has deviated from applicable laws and jurisprudence in not appreciating other competent evidence proving the amount of discounts granted to senior citizens and merely relying solely on the cash slips Ruling: No. Sec. 34 of Rule 132 prescribing that no evidence shall be considered unless formally offered with a statement of the purpose why it is being offered. In addition, the rule is that the best evidence under the circumstance must be adduced to prove the allegations in a complaint, petition, or protest. Only when the best evidence cannot be submitted may secondary evidence be considered. In this case, the CA was correct in disallowing and not considering the belatedly-submitted cash receipts to be part of the 20% sales discount for M.E.’s taxable year 1995, because the disallowed cash slips, the best evidence at that time, were not part of M.E.’s offer of evidence. While it may be true that the authenticated special record books yield the same data found in the cash slips, they cannot plausibly be considered by the courts a quo and made to corroborate pieces of evidence that have, in the first place, been disallowed. Recall also that M.E. offered the disallowed cash slips as evidence only after the CTA had rendered its assailed decision. Thus, we cannot accept the excuse of inadvertence of the independent auditor as excusable negligence. As aptly put by the CA, the belatedly-submitted cash slips do not constitute newly- found evidence that may be submitted as basis for a new trial or reconsideration of the decision. The CA surely cannot be guilty of gravely abusing its discretion when it refused to consider, in lieu of the unsubmitted additional cash slips, the special record books which are only secondary evidence. The cash slips were the best evidence. The CA also noted that the offered cash slips were presented only after the CTA had rendered its decision.

107 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Testimonial Evidence Competency versus Credibility of a Witness PEOPLE OF THE PHILIPPINES v. MITSUEL L. ELARCOSA and JERRY B. ORIAS G.R. No. 186539, 29 June 2010, J. Velasco, Jr. Questions concerning the credibility of a witness are best addressed to the sound discretion of the trial court, since it is the latter which is in the best position to observe the demeanor and bodily movements of a witness. This becomes all the more compelling when the appellate court affirms the findings of the trial court. Facts: One evening, Elarcosa and accused-appellant Orias, both members of the CAFGU, entered the house of Segundina Cruz and requested that supper be prepared for them as they were roving. While Segundina and Rosemarie were preparing in the kitchen, Elarcosa and Orias fired their guns at Jose and Jorge Cruz. Segundina ran towards his son while Rosemarie hid in the shrubs. Rosemarie heard her mother crying loudly and after a series of gunshots, silence ensued. The following morning, Rosemarie returned to their house where she found the dead bodies of her parents and her brother. The amount of P40,000 and a certificate of registration of large cattle were also gone. Elarcosa and Orias were thereafter charged with robbery with multiple homicide. In his defense, accusedappellant Orias denied the allegations and contend that on the night the incident took place, he was at the dance hall sponsored by his unit and that he stayed there from 6:00pm until the wee hours of the morning. Issue: 1) Whether or not the court erred in convicting accused-appellant due to the incredibility of the testimony of the star witness, Rosemarie. 2) Whether or not the court erred in not taking into consideration accused-appellant alibi, that it was physically impossible for him to be present at the place of the crime at the time the same was committed. Held: 1) No. The assessment of the credibility of a witness is best left to the sound discretion of the trial court. As found by both the RTC and the CA, the detailed testimony of Rosemarie is clear, consistent and convincing. Questions concerning the credibility of a witness are best addressed to the sound discretion of the trial court, since it is the latter which is in the best position to observe the demeanor and bodily movements of a witness. This becomes all the more compelling when the appellate court affirms the findings of the trial court. Thus, we generally defer to the trial courts assessment, unless there is a clear showing that such findings are tainted with arbitrariness, capriciousness or palpable error. Unfortunately, however, accused-appellant Orias failed to show any of these as to warrant a review of the findings of fact of the lower court. Further, settled is the rule that testimonial evidence to be believed must not only proceed from the mouth of a credible witness but must foremost be credible in itself. Hence, the test to determine the value or credibility of the testimony of a witness is whether the same is in conformity with common knowledge and is consistent with the experience of mankind. In the instant case, Rosemarie was able to convincingly testify that she was present when accused-appellant Orias and Elarcosa shot to death her brother and her father in the living room, since during that time, she and her mother were preparing supper

108 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 for accused-appellant Orias and Elarcosa in the kitchen, which was only an arms length away from the living room. 2.) No. Alibi is an inherently weak defense. It bears stressing that for alibi to prosper, it is not enough for the accused to prove that he was in another place when the crime was committed. He must likewise prove that it was physically impossible for him to be present at the crime scene or its immediate vicinity at the time of its commission. A meticulous review of the records would reveal that accused-appellant Orias failed to present convincing evidence that he did not leave the dance hall in Barangay Amotay, Binalbagan, Negros Occidental, which incidentally is the same barangay where the crime was committed, on the fateful evening. Also, considering that the dance hall is in the same barangay where the crime was committed, it was not physically impossible for accusedappellant Orias to be present at the locus criminis at the time the same was committed. PEOPLE OF THE PHILIPPINES v. DEAN MARTIN y SARVIDA @ DENDEN and ROMEO TANOAN y MACAILIG G.R. No. 177571, September 29, 2008, VELASCO, JR., J. As a general rule, the findings of the trial court on the credibility of witnesses are entitled to the highest respect and will not be disturbed on appeal in the absence of any clear showing that the trial court overlooked, misunderstood, or misapplied some facts or circumstances of weight and substance which would have affected the result of the case. Facts: Rogelio with his wife, Dolores, and their 2 children, was driving his passenger jeepney. Rogelio stopped his jeepney at the red traffic light, suddenly, Tanoan approached Rogelio from behind and stabbed him several times. Martin and Tanoan ran towards Perlita Street. Rogelio was able to drive the jeepney a little further before he collapsed. Rogelio was pronounced dead on arrival upon reaching the hospital. Tanoan and Martin underwent inquest proceedings, and were later charged with the crime of murder. RTC found them guilty beyond reasonable doubt. CA affirmed. Issue: Whether or not the prosecution witnesses are credible in positively identifying the culprits. Ruling: Yes. As a general rule, the findings of the trial court on the credibility of witnesses are entitled to the highest respect and will not be disturbed on appeal in the absence of any clear showing that the trial court overlooked, misunderstood, or misapplied some facts or circumstances of weight and substance which would have affected the result of the case. In this case, there was no sufficient reason to justify the overturning of the findings of the RTC and CA. The accused’s reliance on the alleged unfair conduct of the police line-up has no merit. The records do not bear out any irregularity in the way the police conducted the line-up. Besides, a police line-up is not required for the proper and fair identification of offenders. What is crucial is for the witness to positively declare during trial that the persons charged were the malefactors.

109 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 ESPERANZA G. FRONDARINA, joined by her husband, PEDRO A. FRONDARINA, Petitioners, vs NAPOLEON MALAZARTE Promulgated: and LAURA P. MALAZARTE, Respondents. G.R. No. 148423, December 6, 2006, Velasco There is no standard by which the weight of conflicting evidence can be ascertained. We have no test of the truth of human testimony except its conformity to our knowledge, observation, and experience. Facts: Spouses Frondarina (petitioners) filed a complaint for forcible entry against Spouses Malazarte (respondents), alleging that they were the owners of a 450-square-meter lot in Olongapo. On the other hand, respondents alleged that they bought the lot from Romeo Valencia. The MTCC ruled in favor of the Frondarinas but was reversed by the RTC, and the latter’s ruling was affirmed by the CA. Issue:

Whether or not petitioners have a better claim over than the land than respondents.

Ruling: Yes. The undisputed pieces of documentary proof like the tax declarations, tax receipts, and miscellaneous sales applications, which antedate those of respondents, unquestionably demonstrate the truth and factual basis of petitioners claim of possession. Mr. Valencia's testimony for the respondents, on his alleged occupation of the said lot must give way to the clearly established facts that petitioners and their predecessors-in-interest had been in possession of the lot much earlier than respondents and Mr. Valencia. Under the admitted facts rule, evidence of whatever description must yield to the extent that it conflicts with admitted or clearly established facts. The Court gives superior credit to petitioners' witnesses whose testimonies on material points are in accord with facts already established, rather than to respondents and witness Romeo Valencia whose testimonies were shown to be false or bereft of weight and credence.

Examination of a Witness PEOPLE OF THE PHILIPPINES v. NESTOR BAJADA y BAUTISTA, VICTOR CALISAY y LOYAGA, and JOHN DOE G.R. No. 180507, November 20, 2008, VELASCO, JR., J. Before the credibility of a witness and the truthfulness of his testimony can be impeached by evidence consisting of his prior statements which are inconsistent with his present testimony, the crossexaminer must lay the predicate or the foundation for impeachment and thereby prevent an injustice to the witness being cross-examined. Facts: Nestor Bajada, Victor Calisay and John Doe were charged with robbery with. The RTC convicted them and sentenced them to Death Penalty, taking into consideration the two aggravating circumstances of dwelling and additional serious physical injury. The CA reversed the decision since the information failed to specifically allege the aggravating circumstance of dwelling, hence, it cannot be appreciated even if proved during trial. The main contention of Bajada was the court erred in

110 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 convicting him and his co-accused based on the testimony in open court of the prosecution witness, Asaytono and that such testimony is allegedly inconsistent with the December 28, 1999 sworn statement given to the police and statement given before MCTC Judge Bercales during the preliminary investigation. Issue: Whether or not the inconsistencies in the sworn statements and testimony of the prosecution witness Asaytono affects her credibility. Ruling: No. The details which she supplied to the police and to the investigating judge are trivial compared to the testimony she gave in open court. What is important is that in all three statements, i.e., sworn statement before the police, sworn statement before Judge Bercales, and testimony in open court, Asaytono consistently and clearly identified Bajada and Calisay as the perpetrators. In this case, the essential facts do not differ: three men entered and robbed the house of Villamayor and stabbed him and Asaytono, and Asaytono witnessed the stabbing and recognized two of the accused because she was familiar with the latter’s physical attributes. Before the credibility of a witness and the truthfulness of his testimony can be impeached by evidence consisting of his prior statements which are inconsistent with his present testimony, the cross-examiner must lay the predicate or the foundation for impeachment and thereby prevent an injustice to the witness being cross-examined. The witness must be given a chance to recollect and to explain the apparent inconsistency between his two statements and state the circumstances under which they were made.

Admissions and Confessions PEOPLE OF THE PHILIPPINES v. MARY LOU OMICITIN y SINGCO G.R. No. 188130, July 26, 2010, VELASCO, JR., J. Self-serving statements are those made by a party out of court advocating his own interest; they do not include a party’s testimony as a witness in court. FACTS: Mary Lou Omicitin separately promised to four persons (complainants herein) that they will be sent abroad for employment in exchange of sum of money. The complainants paid the required amount but Omicitin failed to fulfill her promise. Omicitin was arrested in an entrapment operation. Separate informations were filed charging Omictin with illegal recruitment in large scale and estafa. RTC found her guilty as charged. CA affirmed the judgment in toto. Omicitin claims that the prosecution witness, Mr. Anthony Ambrosio, testified that he gave Omicitin the amount of sixteen thousand (16,000.00) pesos, representing initial payment in consideration of the work abroad. It is borne on record however, that Anthony’s testimony was unsubstantiated by any proof that he made such payment, i.e., receipts. ISSUE: Whether or not the testimony of Ambrosio is self-serving, hence inadmissible.

111 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 RULING: No. Self-serving statements are inadmissible because the adverse party is not given the opportunity for cross-examination, and their admission would encourage fabrication of testimony. This cannot be said of a party’s testimony in court made under oath, with full opportunity on the part of the opposing party for cross-examination.

Offer and Objection Offer of Evidence HEIRS OF PEDRO PASAG et al. v. SPOUSES LORENZO and FLORENTINA PAROCHA, PRISCILLA ABELERA, and MARIA VILORIA PASAG G.R. No. 155483, 27 April 2007, J. Velasco, Jr. Failure to make a formal offer within a considerable period of time shall be deemed a waiver to submit it. Facts: Petitioners filed a complaint for declaration of nullity of document and titles, recovery of possession and ownership, reconveyance, partition and damages against respondents. Petitioners allege a share of over three (3) properties owned by respondents, which formed part of the estate of petitioners’ deceased grandparents. The trial of the case commenced on March 19, 1996. On March 9, 1999, petitioners rested their case and were granted ten (10) days within which to submit their formal offer of documentary exhibits. However, petitioners failed to submit the said pleading within the required period. Petitioners asked the court to give them more time to submit their offer of evidence which the court granted but the petitioners again failed to submit the same. On July 27, 1999, petitioners moved for the admission of their offer of evidence, the court however denied the same for their consistent failure to submit it. Respondent, thereafter, filed a motion to dismiss on demurrer to evidence which the court granted. The CA, in affirming the ruling of the trial court, held that petitioners failed to prove their claim by a preponderance of evidence. Issue: Whether or not the CA committed reversible error in affirming the trial court’s decision despite the gross negligence of their counsel thus depriving their rights to due process. Held: No. The Rules of Court provides that the court shall consider no evidence which has not been formally offered. A formal offer is necessary because judges are mandated to rest their findings of facts and their judgment only and strictly upon the evidence offered by the parties at the trial. Its function is to enable the trial judge to know the purpose or purposes for which the proponent is presenting the evidence. On the other hand, this allows opposing parties to examine the evidence and object to its admissibility. Moreover, it facilitates review as the appellate court will not be required to review documents not previously scrutinized by the trial court. Strict adherence to the said rule is not a trivial matter. The formal offer of one’s evidence is deemed waived after failing to submit it within a considerable period of time.

112 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 In this case, the trial court had reasonable ground to consider that petitioners had waived their right to make a formal offer of documentary or object evidence. Despite several extensions of time to make their formal offer, petitioners failed to comply with their commitment and allowed almost five months to lapse before finally submitting it. Petitioners failure to comply with the rule on admissibility of evidence is anathema to the efficient, effective, and expeditious dispensation of justice.

Special proceedings Writ of Kalikasan WEST TOWER CONDOMINIUM CORPORATION, ET. AL. V. FIRST PHILIPPINE INDUSTRIAL CORPORATION G.R. No. 194239, June 16, 2015, VELASCO, JR., J. Sec. 1, Rule 7 of the Rules of Procedure for Environmental Cases does not require that a petitioner be directly affected by an environmental disaster. Facts: FPIC operates two pipelines in which its systems transport nearly 60% of the petroleum requirements of Metro Manila and parts of the provinces of Bulacan, Laguna, and Rizal. In May 2010, however, a leakage from one of the pipelines was suspected after the residents of West Tower Condominium started to smell gas within the condominium. A search made within the condominium premises led to the discovery of a fuel leak from the wall of its Basement 2. What started as a twodrum leak at the initial stages became a 15-20 drum a day affair. Eventually, the sump pit of the condominium was ordered shut down by the City of Makati to prevent the discharge of contaminated water into the drainage system of Barangay Bangkal. Eventually, the fumes compelled the residents of West Tower to abandon their respective units and the condo's power was shut down. West Tower Corp. interposed the present Petition for the Issuance of a Writ of Kalikasan on behalf of the residents of West Tower and in representation of the surrounding communities in Barangay Bangkal, Makati City. The Court granted the petition. FPIC directors submitted a Joint Return praying for the dismissal of the petition and the denial of the privilege of the Writ of Kalikasan. In the meantime, petitioners also filed civil and criminal complaints against respondents arising from the same incident or leakage from the White Oil Pipeline (WOPL). Issue: 1) Whether petitioner West Tower Corp. has the legal capacity to represent the other petitioners and whether the other petitioners, apart from the residents of West Tower and Barangay Bangkal, are real parties-in-interest; 2) Whether or not the TEPO shall be immediately lifted in light of the DOE's issuance of a certification attesting to the safety of the WOPL for continued commercial operations 3) Whether a special trust fund should be opened by respondents to answer for future similar contingencies

113 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 Ruling: 1) Yes. In the instant case, the condominium corporation is the management body of West Tower and deals with everything that may affect some or all of the condominium unit owners or users. As to the residents of Barangay Bangkal, they are similarly situated with the unit owners and residents of West Tower and are real parties-in-interest to the instant case. The other organizations in the case at bar are also considered real parties-in-interest. This is so considering that the filing of a petition for the issuance of a writ of kalikasan under Sec. 1, Rule 7 of the Rules of Procedure for Environmental Cases does not require that a petitioner be directly affected by an environmental disaster. The rule clearly allows juridical persons to file the petition on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation. 2) No. The certification from DOE was to be issued with due consideration of the adoption by FPIC of the appropriate leak detection systems to monitor sufficiently the entire WOPL and the need to replace portions of the pipes with existing patches and sleeves. This will not however render the lifting of the TEPO for the following reasons, namely (a) the precautionary principle is not applicable to the instant case; (b) The DOE certification is not an absolute attestation as to the WOPL's structural integrity and in fact imposes several conditions for FPIC's compliance; (c) The DOE itself, in consultation with FPIC and the other concerned agencies, proposed the activities to be conducted preparatory to the reopening of the pipeline; and (d) There are no conclusive findings yet on the WOPL's structural integrity. Moreover, precautionary principle only applies when the link between the cause, that is the human activity sought to be inhibited, and the effect, that is the damage to the environment, cannot be established with full scientific certainty. Here, however, such absence of a link is not an issue. Detecting the existence of a leak or the presence of defects in the WOPL is different from determining whether the spillage of hazardous materials into the surroundings will cause environmental damage or will harm human health or that of other organisms. 3) No. Under Sec. 1, Rule 5 of the Rules of Procedure for Environmental Cases, a trust fund is limited solely for the purpose of rehabilitating or restoring the environment. A reading of the petition and the motion for partial reconsideration readily reveals that the prayer is for the creation of a trust fund for similar future contingencies. This is clearly outside the limited purpose of a special trust fund under the Rules of Procedure for Environmental Cases, which is to rehabilitate or restore the environment that has presumably already suffered.

Misc. Topics FEDERICO "TOTO" NATIVIDAD v. MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD (MTRCB), represented by its Chairperson MA. CONSOLIZA T. LAGUARDIA; Spouses THELMA J. CHIONG and DIONISIO F. CHIONG; and MARICHU S. JIMENEA G.R. No. 161422, December 13, 2007, Velasco, Jr., J. Although the MTRCB has the power to preventively seize the master copy of a motion picture pending hearing and final disposition of a case, said preventive seizure of the master copy cannot however exceed more than 20 days. Facts: The subject of the present case is the movie Butakal (Sugapa Sa Laman). The movie was allegedly based on the true story of two sisters, Jacqueline and Marijoy Chiong of Cebu. The sisters were kidnapped, raped and killed. The persons responsible for the death of the two sisters were

114 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 convicted by the RTC of Cebu. During the pendency of the said case, Natividad, a movie producer and director, filed with the MTRCB an application for a permit to exhibit Butakal. The MTRCB issued a permit authorizing the exhibition of the movie in movie houses. Subsequently however, private respondents, the spouses Dionisio and Thelma Chiong, and Thelma’s sister, Marichu Jimenea (Chiongs), sent a letter to the MTRCB requesting that they disallow the showing of the movie Butakal. According to the Chiongs the showing of the film will cause sub judice since the case upon which the movie was based is still pending before the Court. The MTRCB rejected the request and informed the Chiongs that it stood by its previous decision allowing the exhibition of the movie. Subsequently, Natividad received a letter from the MTRCB informing him that the Office of the President (OP) had directed the MTRCB to designate a Committee to undertake a second review and to determine if there was a basis for the allegations that the film contains scenes that were libelous or defamatory to the good name and reputation of the Chiong sisters and their surviving relatives. The letter likewise ordered the MTRCB to impose the proper penalties should it find that the allegations against Natividad were true. Consequently, the Board recalled the Permit to Exhibit and directed Natividad to submit a second review. The MTRCB likewise ordered that all copies of the movie be surrendered to it pending the resolution of the case. The MTRCB refused to return to Natividad the master copy of the movie despite the request of the latter on the ground that the video tape of Butakal had to remain with the MTRCB until and after the administrative case filed by the Chiongs is terminated because the video tape was material evidence in the administrative case. Aggrieved, Natividad filed with the CA a special civil action for certiorari and mandamus against the MTRCB. The petition was however denied by the CA. Hence, this petition. Issue: Whether or not the MTRCB committed grave abuse of discretion when it confiscated the master copy of the film. Ruling: No. Section 3 of PD 1986 states that: The BOARD shall have the following functions, powers and duties: “(c) To approve or disapprove, delete objectionable portions from and/or prohibit the importation, exportation, production, copying, distribution, sale, lease, exhibition and/or television broadcast of the motion pictures, television programs and publicity materials subject of the preceding paragraph, which in the judgment of the BOARD applying contemporary Filipino cultural values as standard, are objectionable for being immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the Philippines or its people, or with a dangerous tendency to encourage the commission of violence [or] of a wrong crime, such as but not limited to: xxxx (vi) Those which are libelous or defamatory to the good name and reputation of any person, whether living or dead; and (vii) Those which may constitute contempt of court or of any quasijudicial tribunal, or pertain to matters which are sub-judice in nature. Furthermore, the MTRCB Rules of Procedure in the Conduct of Hearings for the Violations of PD 1986 provides: “Section 7. In the interest of the public and on finding of probable cause, the Chairman may order, pending hearing and final disposition of the case, the preventive seizure of offending motion pictures and related publicity materials, and/or suspension of the permit or permits involved, and/or closure of the erring moviehouse, television network, cable TV station, or establishment. The Chairman may also order the temporary dismantling or tearing down of public signs and billboards that are in violation of Presidential Decree No. 1986 and its Implementing Rules and Regulations. Temporary orders thus issued shall not exceed more than twenty (20) days from the date of issuance.”

115 | P a g e

Remedial Law (Cases Penned by J. Velasco) Dean’s Circle 2016 The above provisions make it clear that the MTRCB cannot preventively seize the master copy more than 20 days. Thus, the MTRCB erred when it seized and retained the master copy of Butakal for more than 20 days.

116 | P a g e