SECOND DIVISION

[G.R. No. 149417.  June 4, 2004]

GLORIA SANTOS DUEÑAS, petitioner, vs. SANTOS SUBDIVISION HOMEOWNERS ASSOCIATION, respondent.

D E C I S I O N

QUISUMBING, J.:

For review on certiorari is the Decision [1] dated December 29, 2000, of the Court of Appeals in CA-G.R. SP No. 51601, setting aside the Decision [2] of the Housing and Land Use Regulatory Board (HLURB) in HLURB Case No. REM-A-980227-0032 which earlier affirmed the Decision[3] of the HLURB-NCR Regional Field Office in HLURB Case No. REM-070297-9821.  Said Regional Field Office dismissed the petition of herein respondent Santos Subdivision Homeowners Association (SSHA) seeking to require herein petitioner, Gloria Santos Dueñas, to provide for an open space in the subdivision for recreational and community activities.  In its assailed decision, the CA remanded the case to the HLURB for determination of a definitive land area for open space.[4] Petitioner assails also the Court of Appeals’ Resolution [5] dated July 31, 2001, denying her motion for reconsideration.

The facts of this case are as follows:

Petitioner Gloria Santos Dueñas is the daughter of the late Cecilio J. Santos who, during his lifetime, owned a parcel of land with a total area of 2.2 hectares located at General T. De Leon, Valenzuela City, Metro Manila.  In 1966, Cecilio had the realty subdivided into smaller lots, the whole forming the Cecilio J. Santos Subdivision (for brevity, Santos Subdivision).  The then Land Registration Commission (LRC) approved the project and the National Housing Authority (NHA) issued the required Certificate of Registration and License to Sell.  At the time of Cecilio’s death in 1988, there were already several residents and homeowners in Santos Subdivision.

Sometime in 1997, the members of the SSHA submitted to the petitioner a resolution asking her to provide within the subdivision an open space for recreational and other community activities, in accordance with the provisions of P.D. No. 957, [6] as amended by P.D. No. 1216.[7] Petitioner, however, rejected the request, thus, prompting the members of SSHA to seek redress from the NHA.

On April 25, 1997, the NHA General Manager forwarded the SSHA resolution to Romulo Q. Fabul, Commissioner and Chief Executive Officer of the HLURB in Quezon City.[8]

In a letter dated May 29, 1997, the Regional Director of the Expanded NCR Field Office, HLURB, opined that the open space requirement of P.D. No. 957, as amended by P.D. No. 1216, was not applicable to Santos Subdivision.[9]

SSHA then filed a petition/motion for reconsideration, [10] docketed as HLURB Case No. REM-070297-9821, which averred among others that: (1) P.D. No. 957 should apply retroactively to Santos Subdivision, notwithstanding that the subdivision plans were approved in 1966 and (2) Gloria Santos Dueñas should be bound by the verbal promise made by her late father during his lifetime that an open space would be provided for in Phase III of Santos Subdivision, the lots of which were at that time already for sale.

Petitioner denied any knowledge of the allegations of SSHA.  She stressed that she was not a party to the alleged transactions, and had neither participation nor involvement in the development of Santos Subdivision and the sale of the subdivision’s lots.  As affirmative defenses, she raised the following:  (a) It was her late father, Cecilio J. Santos, who owned and developed the subdivision, and she was neither its owner nor developer; (b) that this suit was filed by an unauthorized entity against a non-existent person, as SSHA and Santos Subdivision are not juridical entities, authorized by law to institute or defend against actions; (c) that P.D. No. 957 cannot be given retroactive effect to make it applicable to Santos Subdivision as the law does not expressly provide for its retroactive applicability; and (d) that the present petition is barred by laches.

On January 14, 1998, HLURB-NCR disposed of HLURB Case No. REM-070297-9821 in this wise:

In view of the foregoing, the complaint is hereby dismissed.

It is So Ordered.[11]

In dismissing the case, the HLURB-NCR office ruled that while SSHA failed to present evidence showing that it is an association duly organized under Philippine law with capacity to sue, nonetheless, the suit could still prosper if viewed as a suit filed by all its members who signed and verified the petition.  However, the petition failed to show any cause of action against herein petitioner as (1) there is no evidence showing Santos-Dueñas as the owner/developer or successor-in-interest of Cecilio Santos, who was the owner/developer and sole proprietor of Santos Subdivision; (2) the LRC-approved subdivision plan was bereft of any proviso indicating or identifying an open space, as required by P.D. No. 957, as amended, hence there was no legal basis to compel either Cecilio or his daughter Santos-Dueñas, as his purported successor, to provide said space; and (3) the alleged verbal promise of the late Cecilio Santos was inadmissible as evidence under the dead man’s statute.[12]

SSHA then appealed the NCR office’s ruling to the HLURB Board of Commissioners.  The latter body, however, affirmed the action taken by the HLURB-NCR office, concluding thus:

WHEREFORE, premises considered, the Petition for Review is hereby DISMISSED and the decision of the Office below is hereby AFFIRMED IN TOTO.

SO ORDERED.[13]

The HLURB Board decreed that there was no basis to compel the petitioner to provide an open space within Santos Subdivision, inasmuch as the subdivision plans approved on July 8, 1966, did not provide for said space and there was no law requiring the same at that time.  It further ruled that P.D. No. 957 could not be given retroactive effect in the absence of an express provision in the law.  Finally, it found the action time-barred since it was filed nine (9) years after the death of Cecilio.  The Board noted that SSHA sought to enforce an alleged oral promise of Cecilio, which should have been done within the six-year prescriptive period provided for under Article 1145 [14] of the Civil Code.

Dissatisfied, respondent sought relief from the Court of Appeals via a petition for review under Rule 43 of the 1997 Rules of Civil Procedure.  The petition, docketed as CA-G.R. SP No. 51601, was decided by the appellate court in this manner:

WHEREFORE, the petition is GRANTED--and the decision, dated January 20, 1999, of the Housing and Land Use Regulatory Board (HLURB) in HLURB Case No. REM-A-980227-0032 is hereby REVERSED and SET ASIDE.  Accordingly, this case is ordered REMANDED to the HLURB for the determination of the definitive land area that shall be used for open space in accordance with law and the rules and standards prescribed by the HLURB.  No pronouncement as to costs.

SO ORDERED.[15]

In finding for SSHA, the appellate court relied upon Eugenio v. Exec. Sec. Drilon,[16] which held that while P.D. No. 957 did not expressly provide for its retroactive application, nonetheless, it can be plainly inferred from its intent that it was to be given retroactive effect so as to extend its coverage even to those contracts executed prior to its effectivity in 1976. The Court of Appeals also held that the action was neither barred by prescription nor laches as the obligation of a subdivision developer to provide an open space is not predicated upon an oral contract, but mandated by law, hence, an action may be brought within ten (10) years from the time the right of action accrues under Article 1144[17] of the Civil Code.  Moreover, the equitable principle of laches will not apply when the claim was filed within the reglementary period.

Petitioner duly moved for reconsideration, which the Court of Appeals denied on July 31, 2001.

Hence, this petition grounded on the following assignment of errors:

I.      THE COURT OF APPEALS COMMITTED SERIOUS ERROR OF LAW BY TAKING COGNIZANCE OF RESPONDENTS’ PETITION (WHICH ASSAILS THE DECISION OF THE BOARD OF COMMISSIONERS OF THE HLURB) WHEN

JURISDICTION THEREON IS WITH THE OFFICE OF THE PRESIDENT, AS CLEARLY MANDATED BY SEC. 2, RULE XVIII OF THE 1996 RULES OF PROCEDURE OF THE HOUSING AND LAND USE REGULATORY BOARD.

II.     IT WAS GRAVE ERROR FOR THE COURT OF APPEALS TO HAVE ASSUMED JURISDICTION OVER THE PETITION BELOW WHEN RESPONDENTS CLEARLY FAILED TO EXHAUST THE ADMINISTRATIVE REMEDIES AVAILABLE TO THEM UNDER THE LAW.

III.     THE COURT OF APPEALS GRAVELY ERRED IN NOT FINDING THAT RESPONDENT SANTOS SUBDIVISION HOMEOWNERS ASSOCIATION, A NON-REGISTERED ORGANIZATION, LACKED THE LEGAL PERSONALITY TO SUE.

IV.    THE COURT OF APPEALS SERIOUSLY ERRED IN NOT HOLDING THAT RESPONDENT SANTOS SUBDIVISION HOMEOWNERS ASSOCIATION HAS NO CAUSE OF ACTION AGAINST PETITIONER; NEITHER WAS SANTOS SUBDIVISION, A NON-ENTITY, POSSESSED WITH CAPACITY TO BE SUED NOR IS PETITIONER GLORIA SANTOS-DUEÑAS A PROPER PARTY TO THE CASE, THE LATTER NOT BEING THE OWNER OR DEVELOPER OF SANTOS SUBDIVISION.

V.     THE COURT OF APPEALS SERIOUSLY ERRED IN SUBSTITUTING ITS FINDINGS WITH THAT OF THE ADJUDICATION BOARD AND BOARD OF COMMISSIONERS OF THE HLURB WHEN THEIR DECISION IS BASED ON SUBSTANTIAL EVIDENCE AND NO GRAVE ABUSE OF DISCRETION CAN BE ATTRIBUTED TO THEM.

VI.    THE COURT OF APPEALS DEVIATED FROM THE EXISTING LAW AND JURISPRUDENCE WHEN IT RULED THAT P.D. 957 HAS RETROACTIVE APPLICATION -- WHEN THE LAW ITSELF DOES NOT PROVIDE FOR ITS RETROACTIVITY AND THE EXISTING JURISPRUDENCE THEREON CLEARLY PRONOUNCED THAT IT HAS NO RETROACTIVE APPLICATION.  TO PROVIDE RETROACTIVITY TO P.D. 957 WOULD CAUSE IMPAIRMENT OF VESTED RIGHTS.

VII.   WHILE AS A GENERAL RULE, THE FACTUAL FINDINGS OF THE COURT OF APPEALS IS BINDING ON THE SUPREME COURT, THE SAME IS NOT TRUE WHEN THE FORMER’S CONCLUSION IS BASED ON SPECULATION, SURMISES AND CONJECTURES, THE INFERENCE MADE IS MANIFESTLY MISTAKEN OR ABSURD, THERE IS GRAVE ABUSE OF DISCRETION, JUDGMENT IS BASED ON MISAPPREHENSION OF FACTS CONTRARY TO THOSE OF THE ADMINISTRATIVE AGENCY CONCERNED, AND IT WENT BEYOND THE ISSUES OF THE CASE AND THE SAME IS CONTRARY TO THE ADMISSIONS OF BOTH PARTIES.[18]

To our mind, the foregoing may be reduced into the following issues: (1) the applicability of the doctrine of non-exhaustion of administrative remedies; (2) the legal capacity of respondent to sue the petitioner herein; and (3) the retroactivity of P.D. No. 957, as amended by P.D. No. 1216.

On the first issue, the petitioner contends that the filing of CA-G.R. SP No. 51601 was premature as SSHA failed to exhaust all administrative remedies.  Petitioner submits that since Section 1,[19] Rule 43 of the 1997 Rule of Civil Procedure does not

mention the HLURB, the respondent should have appealed the decision of the HLURB Board in HLURB Case No. REM-A-980227-0032 to the Office of the President prior to seeking judicial relief.  In other words, it is the decision of the Office of the President,[20] and not that of the HLURB Board, which the Court of Appeals may review.

We find petitioner’s contentions bereft of merit.  The principle of non-exhaustion of administrative remedies is, under the factual circumstances of this case, inapplicable.  While this Court has held that before a party is allowed to seek intervention of the courts, it is a pre condition that he avail himself of all administrative processes afforded him,[21] nonetheless, said rule is not without exceptions. [22] The doctrine is a relative one and is flexible depending on the peculiarity and uniqueness of the factual and circumstantial settings of each case.[23]

In the instant case, the questions posed are purely legal, namely: (1) whether the respondent had any right to demand an open space and the petitioner had any legal obligation to provide said open space within Santos Subdivision under P.D. No. 957, as amended by P.D. No. 1216, and (2) whether the action had already prescribed under Article 1145 of the Civil Code.  Moreover, the Court of Appeals found that SSHA had sought relief from the Office of the President, but the latter forwarded the case to the HLURB.  In view of the foregoing, we find that in this particular case, there was no need for SSHA to exhaust all administrative remedies before seeking judicial relief.

On the second issue, the petitioner claims that respondent SSHA failed to present any evidence showing that it is a legally organized juridical entity, authorized by law to sue or be sued in its own name.  Thus, pursuant to Section 1, Rule 3 [24] of the 1997 Rules of Civil Procedure, it has no legal capacity to file this suit before the HLURB and the Court of Appeals.

SSHA counters that it has the capacity to sue as an association, since it is a member of the Federation of Valenzuela Homeowners Association, Inc., which is registered with the Securities and Exchange Commission.  In the alternative, the individual members of SSHA who signed both the resolution and the complaint in this case may, as natural persons, pursue the action.

There is merit in petitioner’s contention.  Under Section 1, Rule 3 of the Revised Rules of Court, only natural or juridical persons, or entities authorized by law may be parties in a civil action.  Article 44[25] of the Civil Code enumerates the various classes of juridical persons.  Under said Article, an association is considered a juridical person if the law grants it a personality separate and distinct from that of its members. [26]  The records of the present case are bare of any showing by SSHA that it is an association duly organized under Philippine law.  It was thus an error for the HLURB-NCR Office to give due course to the complaint in HLURB Case No. REM-070297-9821, given the SSHA’s lack of capacity to sue in its own name.  Nor was it proper for said agency to treat the complaint as a suit by all the parties who signed and verified the complaint.  The members cannot represent their association in any suit without valid and legal authority.  Neither can their signatures confer on the association any legal capacity to sue.  Nor will the fact that SSHA belongs to the Federation of Valenzuela Homeowners Association, Inc., suffice to endow SSHA with the personality and capacity to sue.  Mere allegations of membership in a federation are insufficient and

inconsequential.  The federation itself has a separate juridical personality and was not impleaded as a party in HLURB Case No. REM-070297-9821 nor in this case.  Neither was it shown that the federation was authorized to represent SSHA.  Facts showing the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of persons that is made a party, must be averred. [27]  Hence, for failing to show that it is a juridical entity, endowed by law with capacity to bring suits in its own name, SSHA is devoid of any legal capacity, whatsoever, to institute any action.

Anent the third issue, the petitioner ascribes error to the appellate court for holding that P.D. No. 957 has retroactive application.  She points out that there is no retroactivity provision in the said decree.  Hence, it cannot be applied retroactively pursuant to Article 4[28] of the Civil Code of the Philippines.  The same holds true for P.D. No. 1216, which amended Section 31 of P.D. No. 957 and imposed the open space requirement in subdivisions.  Petitioner stresses that P.D. No. 1216 only took effect on October 14, 1977 or more than ten (10) years after the approval of the subdivision plans of Cecilio Santos.

Although it may seem that this particular issue, given our ruling on the first issue regarding the lack of capacity of SSHA to bring any action in its name, is now moot and academic, we are constrained to still address it.

This petition was brought to us not by respondent SSHA but by Gloria Santos Dueñas who assails the appellate court’s finding that our ruling in Eugenio v. Exec. Sec. Drilon [29]  allows P.D. No. 957, as amended, to apply retroactively.

We find merit in petitioner’s contention.

Eugenio v. Exec. Sec. Drilon is inapplicable.  It is not on all fours with the instant case.  The issue in Eugenio was the applicability of P.D. No. 957 to purchase agreements on lots entered into prior to its enactment where there was non-payment of amortizations, and failure to develop the subdivision.  We held therein that although P.D. No. 957 does not provide for any retroactive application, nonetheless, the intent of the law of protecting the helpless citizens from the manipulations and machinations of unscrupulous subdivision and condominium sellers justify its retroactive application to contracts entered into prior to its enactment.  Hence, we ruled that the non-payment of amortizations was justified under Section 23 of the said decree in view of the failure of the subdivision owner to develop the subdivision project.

Unlike Eugenio, non-development of the subdivision is not present in this case, nor any allegation of non-payment of amortizations.  Further, we have held in a subsequent case[30] that P.D. No. 957, as amended, cannot be applied retroactively in view of the absence of any express provision on its retroactive application.  Thus:

…Article 4 of the Civil Code provides that laws shall have no retroactive effect, unless the contrary is provided.  Thus, it is necessary that an express provision for its retroactive application must be made in the law.  There being no such provision in both P.D. Nos. 957 and 1344, these decrees cannot be applied to a situation that occurred years before their promulgation….

At any rate, our principal concern in this case is Section 31 of P.D. No. 957, an amendment introduced by P.D. No. 1216.  Properly, the question should focus on the retroactivity of P.D. No. 1216 and not P.D. No. 957 per se.

We have examined the text of P.D. No. 1216 and nowhere do we find any clause or provision expressly providing for its retroactive application.  Basic is the rule that no statute, decree, ordinance, rule or regulation shall be given retrospective effect unless explicitly stated.[31]  Hence, there is no legal basis to hold that P.D. No. 1216 should apply retroactively.

WHEREFORE, the petition is GRANTED.  The assailed Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 51601 are REVERSED and SET ASIDE.  The Decision of the HLURB dated January 20, 1999 sustaining that of its Regional Office is AFFIRMED and REINSTATED.  No pronouncement as to costs.

SO ORDERED.

Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.

[1] Rollo, pp. 22-33. Penned by Associate Justice Ramon Mabutas, Jr., with Associate Justices Roberto A. Barrios and Eriberto U. Rosario, Jr., concurring.

[2] Id. at 49-52.

[3] Id. at 36-40.

[4] See PRESIDENTIAL DECREE NO. 1216, Section 1.  For purposes of this Decree, the term “open space” shall mean an area reserved exclusively for parks, playgrounds, recreational uses, schools, roads, places of worship, hospitals, health centers, barangay centers and other similar facilities and amenities.

[5] Rollo, p. 35.

[6] The “Subdivision and Condominium Buyers’ Protective Decree of 1976.” The proviso in question reads:                        SEC. 31.  Donation of roads and open spaces to local government.–The registered owner

or developer of the subdivision or condominium project, upon completion of the development of said project may, at his option, convey by way of donation the roads and open spaces found within the project to the city or municipality wherein the project is located.  Upon acceptance of the donation by the city or municipality concerned, no portion of the area donated shall thereafter be converted to any other purpose or purposes unless after hearing, the proposed conversion is approved by the Authority.

                        P.D. No. 1216, SEC. 2.  Section 31 of Presidential Decree No. 957 is hereby amended to read as follows:

SECTION 31. Roads, Alleys, Sidewalks and Open Spaces. – The owner as developer of a subdivision shall provide adequate roads, alleys and sidewalks.  For subdivision projects one (1) hectare or more, the owner or developer shall reserve thirty percent (30%) of the gross area for open space.  Such open space shall have the following standards allocated exclusively for parks, playgrounds and recreational use:

a.         9% of gross area for high density or social housing (66 to 100 family lot per gross hectare).

b.         7% of gross area for medium-density or economic housing (21 to 65 family lot per gross hectare).

c.         3.5% of gross area low-density or open market housing (20 family lots and below per gross hectare).

These areas reserved for parks, playgrounds and recreational use shall be non-alienable public lands, and non-buildable.  The plans of the subdivision project shall include tree planting on such parts of the subdivision as may be designated by the Authority.

Upon their completion as certified to by the Authority, the roads, alleys, sidewalks and playgrounds shall be donated by the owner or developer to the city or municipality and it shall be mandatory for the local governments to accept provided, however, that the parks and playgrounds may be donated to the Homeowners Association of the project with the consent of the city or municipality concerned.  No portion of the parks and playgrounds donated thereafter shall be converted to any other purpose or purposes.

[7] The Decree is entitled “Defining ‘Open Space’ in Residential Subdivisions and Amending Section 31 of Presidential Decree No. 957 Requiring Subdivision Owners to Provide Roads, Alleys, Sidewalks and Reserve Open Space for Parks or Recreational Use.”

[8] Rollo, pp. 86, 99.

[9] Id. at 101.

[10] Id. at 36.

[11] Id. at 40.

[12] RULES OF COURT, Rule 130, Sec. 23. Disqualification by reason of death or insanity of adverse party. – Parties or assignors of parties to a case, or persons in whose behalf a case is prosecuted, against an executor or administrator or other representative of a deceased person, or against a person of unsound mind, upon a claim or demand against the estate of such deceased person or against such person of unsound mind, cannot testify as to any matter of fact occurring before the death of such deceased person or before such person became of unsound mind.

[13] Rollo, p. 52.

[14] Art. 1145. The following actions must be commenced within six years:(1)  Upon an oral contract;(2)  Upon a quasi-contract.

[15] Rollo, p. 33.

[16] G.R. No. 109404, 22 January 1996, 322 Phil. 112, 116.

[17] Art. 1144. The following actions must be brought within ten years from the time the right of action accrues:(1)  Upon a written contract;(2)  Upon an obligation created by law;(3)  Upon a judgment.

[18] Rollo, pp. 8-9.

[19] SECTION 1. Scope. – This Rule shall apply to appeals from judgments or final orders of the Court of Tax Appeals and from awards, judgments, final orders or resolutions of or authorized by any quasi-judicial agency in the exercise of its quasi-judicial functions.  Among these agencies are the Civil Service Commission, Central Board of Assessment Appeals, Securities and Exchange Commission, Office of the President, Land Registration Authority, Social Security Commission, Civil Aeronautics Board, Bureau of Patents, Trademarks and Technology Transfer, National Electrification Administration, Energy Regulatory Board, National Telecommunications Commission, Department of Agrarian Reform under Republic Act No. 6657, Government Service Insurance System, Employees Compensation Commission, Agricultural Inventions Board, Insurance Commission, Philippine Atomic Energy Commission, Board of Investments, Construction Industry Arbitration Commission, and voluntary arbitrators authorized by law.

[20] Rollo, p. 10.

[21] Province of Zamboanga del Norte   v.   Court of Appeals, G.R. No. 109853 , 11 October 2000, 342 SCRA 549, 557.

[22] The doctrine will not apply when: [1] there is a violation of due process (Quisumbing v. Gumban, G.R. No. 85156, 5 February 1991, 193 SCRA 520); [2] the issue involved is a purely legal question (Eastern Shipping Lines, Inc. v. POEA, No. L-76633, 18 October 1988, 166 SCRA 533); [3] the administrative action is patently illegal amounting to want or excess of jurisdiction (Industrial Power Sales, Inc. v. Duma Sinsuat, No. L-29171, 15 April 1988, 160 SCRA 19); [4] there is estoppel on the part of the administrative agency concerned (Vda. de Tan v. Veterans Backpay Commission, No. L-12944, 30 March 1959, 105 Phil. 377); [5] there will be irreparable injury (Lara, Jr., et al. v. Cloribel, et al., No. L-21653, 31 May 1965, 121 Phil. 1062); [6] the respondent is a department secretary whose acts as an alter ego of the President bears the implied and assumed approval of the latter (Demaisip v. The Court of Appeals, et al., No. L-13000, 25 September 1959, 106 Phil. 237; Bartulata v. Peralta, Jr., No. L-23155, 9 September 1974, 59 SCRA 7); [7] to require exhaustion of administrative remedies would be unreasonable (Cipriano v. Marcelino and Hon. Dela Cruz, etc., No. L-27793, 28 February 1972, 150 Phil. 336); [8] it would amount to a nullification of a claim (Alzate, etc. v. Aldana, etc., et al., No. L-14407, 29 February 1960, 107 Phil. 298); [9] the subject matter is a private land in land case proceedings (Soto v. Jareno, No. L-38962, 15 September 1986, 228 Phil. 117); [10] the rule does not provide a plain, speedy, and adequate remedy, and [11] the circumstances of the case indicate the urgency of judicial intervention (Quisumbing v. Gumban, supra).

[23] Supra, note 21 at 558.

[24] SECTION 1. Who may be parties; plaintiff and defendant. – Only natural or juridical persons, or entities authorized by law may be parties in a civil action.  The term “plaintiff” may refer to the claiming party, the counter-claimant, the cross-claimant, or the third (fourth, etc.)–party plaintiff.  The term “defendant” may refer to the original defending party, the defendant in a counterclaim, the cross-defendant, or the third (fourth, etc.)–party defendant.

[25] Art. 44. The following are juridical persons:

(1)  The State and its political subdivisions;(2)  Other corporations, institutions and entities for public interest or purpose, created by law; their

personality begins as soon as they have been constituted according to law;(3)  Corporations, partnerships and associations for private interest or purpose to which the law grants a

juridical personality, separate and distinct from that of each shareholder, partner or member.

[26] Board of Optometry   v.   Hon. Colet, G.R. No. 122241 , 30 July 1996, 328 Phil. 1187, 1202.

[27] RULES OF COURT, Rule 8, Sec. 4. Capacity. – Facts showing the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of persons that is made a party, must be averred.  A party desiring to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued in a representative capacity, shall do so by specific denial, which shall include such supporting particulars as are peculiarly within the pleader’s knowledge.

[28] Art. 4.  Laws shall have no retroactive effect, unless the contrary is provided.

[29] G.R. No. 109404, 22 January 1996, 322 Phil. 112, 118.

[30] People’s Industrial and Commercial Corp.   v.   Court of Appeals, G.R. No. 112733 , 24 October 1997, 346 Phil. 189, 201-202.

[31] Republic of the Phils.   v.   Sandiganbayan, G.R. No. 119292 , 31 July 1998, 355 Phil. 181, 198.

[G.R. No. 128131.  October 8, 1998]

WHITE PLAINS HOMEOWNERS ASSOCIATION, INC., SYLVIA J. JAMORA, GLICERIO J. INTENGAN, MANUEL M. JASMINES, MANUEL M. CHING, RODOLFO M. PUNSALANG, ADEODATO DUQUE, JR., DAVID J. CRUZ, MA. ELENA C. SAMSON, VERONICA CATALAN, CARLOS TAN BON LIONG, ANTONIO RAMOS, CHOLLY ANTONIO, FELICITAS OCAMPO, ROGELIO A. VINLUAN and LUIS TERENCE, petitioners, vs. THE COURT OF APPEALS and THE QUEZON CITY DEVELOPMENT & FINANCING CORPORATION, respondents.

D E C I S I O N

MARTINEZ, J.:

This is the third time this case has reached this Court.

This petition for review takes its roots from two (2) cases previously decided by this Court.  The first was White Plains Association, Inc. vs. Court of Appeals and Quezon City Development &, Financing Corporation docketed as G.R. No. 55868.  The second case was White Plains Association, Inc. vs. Hon. Godofredo Legaspi, Presiding Judge of the Regional Trial Court of Quezon City, Branch 39, and Quezon City Development & Financing Corporation, et. al.

These cases form part of the backdrop for the present dispute and which is synthesized, as follows:

Respondent Quezon City Development & Financing Corporation (QCDFC) was the owner and developer of White Plains subdivision in Quezon City prior to the sale of the lots therein to the residents of the subdivision who comprised the petitioner White Plains Association, Inc. (Association)

The disputed area of the land covered by TCT Nos. 156185, 156186 and 156187 was set aside and dedicated to the proposed Highway 38 of Quezon City.  As subdivision owner and developer, respondent QCDFC represented to the lot buyers that there would be a thoroughfare known as Katipunan Avenue and that the width of the land allotted to said road was 38 meters.  Of the 38 meters, respondent QCDFC developed only 20 meters.  The undeveloped strip of land, 18 meters in width, of the proposed Katipunan Avenue has been and still is the subject of court litigation.

As early as April 14, 1970, QCDFC filed a petition with the then Court of First Instance of Rizal for the conversion into residential lots of this undeveloped strip of land.  The controversy reached this Court.  On November 14, 1985, this Court en banc[1] dismissed the petition.  In the said decision this Court ruled that "Road Lot 1 is withdrawn from the commerce of man and should be developed for the use of the general public."

Then, sometime in 1989, the widening of Katipunan Avenue by 4-5 meters was began by the Department of Public Works & Highways through a private

contractor.  QCDFC filed a complaint for injunction and damages to enjoin the widening of Katipunan Avenue as registered owner thereof, in the Regional Trial Court of Quezon City.  The writ prayed for was granted. The Association, as intervenor, elevated the case to this Court on certiorari which was docketed as G.R. No. 95522 entitled, "White Plains, Inc. vs. Legaspi."  In that case, this Court again reiterated the doctrine that Road Lot 1 had been withdrawn from the commerce of man, thus constituting it as part of mandatory open space reserved for public use.  The dispositive portion of the decision in the aforecited case was as follows:

"WHEREFORE, the petition is granted.  The questioned orders of respondent judge dated July 10, 1990 and September 26, 1990 are hereby reversed and set aside.  Respondent Quezon City Development & Financing Corporation is hereby directed to execute a Deed of Donation of the remaining undeveloped Road Lot 1 consisting of about 18 meters wide in favor of the Quezon City government, otherwise, the Register of Deeds of Quezon City is hereby directed to cancel the registration of said Road Lot 1 of defendant Quezon City Development & Financing Corporation under TCT No. 112637 and to issue a new title covering said property in the name of the Quezon City government.

Costs against respondent Quezon City Development & Financing Corporation.[2]

Respondent QCDFC filed a series of motions for reconsideration.  On the second motion for reconsideration, this Court issued a resolution dated July 27, 1994, deleting the second sentence of the aforequoted dispositive portion, thus:

“WHEREFORE, the second motion for reconsideration is hereby partly granted by modifying the dispositive portion of this Court's decision of 7 February 1991 and now read as follows:

'WHEREFORE, the petition is hereby granted.  The questioned orders of the respondent judge dated July 10, 1990 and September 26, 1990 are hereby reversed and set aside. x x x x x.'

Costs against defendant Quezon City Development & Financing Corporation."[3]

This is now the third case involving the Association and QCDFC.

Petitioner Association filed before the Regional Trial Court of Quezon City, a case for injunction, entitled “Quezon City Development & Financing Corporation vs. White Plains Homeowners Association, Inc., et. al.”

As in the two (2) previous cases, it is the remaining undeveloped 18 meters width of the proposed Katipunan Avenue (Road Lot 1) which is the subject of the controversy.  The undeveloped portion has been occupied by garden operators who have been paying the Association monthly "special occupancy dues" for the use of the respective areas they occupy as commercial gardens and landscaping business.  From 1985 to June, 1995, the Association collected and received the monthly rentals.  QCDFC made demands on the Association to account for and deliver the amount collected from the garden operators which was, however, ignored by the Association.

Thus, on August 4, 1985, QCDFC filed an action to enjoin the Association from collecting the rentals from the garden operators occupying the undeveloped 18 meters width of the proposed Katipunan Avenue (Highway 38).  The case was raffled to Branch 222 of the Regional Trial Court of Quezon City presided by Judge Eudarlio B. Valencia, who issued a temporary restraining order commanding the Association to desist and refrain from collecting rentals from the occupants/possessors of the undeveloped 18 meters width of the proposed Katipunan Avenue.  Thereafter, respondent judge issued an order granting the application for preliminary injunction.

Aggrieved, the Association filed with the respondent court a petition for certiorari to set aside the order.  The respondent court, in its decision dated December 14, 1985,[4] upheld the theory of the Association that the strip of undeveloped land, 18 meters wide, of the proposed 38-meter wide Katipunan Avenue, no longer belongs to QCDFC.  However, it ruled that the strip of land belongs to Quezon City which has the right to lease/rent and collect therefrom the "special occupancy dues."  Thus, it set aside the order of the Regional Trial Court granting the writ of preliminary injunction.

The Association and QCDFC separately filed motions for reconsideration.  QCDFC prayed that the respondent court's decision be set aside.  On the other hand, the Association filed a partial motion for reconsideration seeking the modification of the respondent court's decision by deleting the obiter dictum regarding the authority of Quezon City to collect occupancy dues from tenants of the disputed property.

The respondent court in its now assailed resolution dated January 31, 1997[5] granted the motion for reconsideration of QCDFC and denied that of the Association.  In the process, it also ruled that "on the basis of the records and applicable law" the “full right of possession and ownership of the disputed property should now be restored to QCDFC."

Hence this petition for review by the Association based on the following grounds:

"I

THE RESPONDENT COURT ERRONEOUSLY REFUSED TO FOLLOW THE RULING OF THIS HONORABLE COURT IN TWO PREVIOUS CASES INVOLVING THE SAME PARTIES TO THE EFFECT THAT 'ROAD LOT 1 HAD BEEN WITHDRAWN FROM THE COMMERCE OF MAN, THUS CONSTITUTING PART OF

MANDATORY OPEN SPACE RESERVED FOR PUBLIC USE TO BE IMPROVED INTO THE WIDENED KATIPUNAN AVENUE.'

II

THE RESPONDENT COURT COMMITTED REVERSIBLE ERROR IN JUNKING THE AFORESAID RULING OF THIS HONORABLE COURT BASED UPON FINDINGS OF FACT TOTALLY DEVOID OF SUPPORT IN THE RECORD OR EVIDENCE.

III

THE RESPONDENT COURT ERRED IN REFUSING TO APPLY THE PRINCIPLE OF RES JUDICATA DESPITE THE PRESENCE OF ALL THE REQUISITES.

IV

THE RESPONDENT COURT COMMITTED REVERSIBLE ERROR IN GOING BEYOND THE ISSUES INVOLVED IN RESPECT OF THE VALIDITY OR PRORIETY OF THE ISSUANCE OF THE WRIT OF PRELIMINARY INJUNCTION AND EVEN BEYOND THE RELIEF PRAYED FOR BY GIVING 'FULL RIGHTS OF POSSESSION AND OWNERSHIP' TO QCDFC.

V

RESPONDENT COURT OF APPEALS ERRONEOUSLY SUSTAINED THE ISSUANCE BY THE REGIONAL TRIAL COURT OF QUEZON CITY OF THE WRIT OF PRELIMINARY INJUNCTION.

(A)            THE CASE IS BARRED BY PRIOR JUDGMENT.(B)            THE PRIVATE RESPONDENT QCDFC DOES NOT HAVE

A CLEAR AND UNMISTAKABLE' RIGHT TO INJUNCTIVE RELIEF.

(C)            THE PRIVATE RESPONDENT QCDFC WILL NOT SUFFER ANY IRREPARABLE INJURY BY THE NON-ISSUANCE OF THE INJUNCTION SINCE ITS ALLEGED INJURY IS QUANTIFIABLE AND MAY BE FULLY COMPENSATED IN DAMAGES.

(D)            A COURT SHOULD NOT ISSUE A WRIT OF PRELIMINARY INJUNCTION IF THE ISSUANCE THEREOF WOULD IN EFFECT DISPOSE OF THE CASE ON THE MERITS."[6]

The petitioner Association raises the issue of res judicata.  The respondent court allegedly disregarded. the ruling of this Court in the two related cases above-cited that the 18-meter wide strip of land along Katipunan Avenue is "beyond the commerce of

man and should be developed for the use of the general public."  Petitioner further contends that the respondent court not only disregarded the aforesaid ruling of this Court but expressly "overruled" it by its holding that "on the basis of the records and applicable law, this Court believes that full right of possession and ownership of the disputed property should now be restored to Quezon City Development & Financing Corporation."[7]

On the other hand, respondent QCDFC is of the view that the ruling in White Plains Association vs. Legaspi[8] was not the final judgment in that case.  QCDFC states that the February 7, 1991 "beyond the commerce of man" dictum and the dispositive portion of the judgment were set aside and modified on July 17, 1994 upon a second motion for reconsideration.  QCDFC insists that the judgment in the two (2) aforecited decisions is still the same, i.e., title to Road Lot 1 remains in the name of QCDFC but a lien or reservation for the construction of Highway 38, now C-5, shall stay imposed upon the title.  Thus, there is no disregard of the judgment in the two (2) above-cited cases since, up to the present, the inconclusive situation in both judgments exist.

Respondent QCDFC now argues that since ultimately, the thoroughfare C-5 did not pass through Road Lot 1 as proposed, the lien or reservation for C-5 has ceased to have any force and may no longer be continued.  The lien or reservation has been overtaken by supervening events and is no longer valid.  Respondent states that the thoroughfare known as Highway 38, Katipunan Parkway, and C-5 passed through another part of Quezon City at the Libis area, completely bypassing its earlier proposed route through Road Lot 1.  The decision in this petition, according to QCDFC, should now lift the meaningless and obsolete reservation or lien which disturbs its exercise of the right of full ownership.

The facts of this case culled from the records of this petition, unrebutted averments of the parties, and the prior decisions of the Court of Appeals, [9] and the Supreme Court[10] show that Road Lot 1 covered by TCT Nos. 156185, 156186 and 156187 was set aside and dedicated to the proposed section of Highway 38 in Quezon City.  The width of the land allotted as extension of the highway was 38 meters.  Of this, QCDFC actually developed a 20-meter wide strip.  It extends through the length of White Plains Subdivision from the street leading to Highway 54 or EDSA at the South end to the street fronting St. Ignatius Village at the North end.[11]

When QCDFC developed the White Plains Subdivision, it reserved the 38-meter wide strip as required by the government.  In the meantime that the thoroughfare was not yet constructed through Road Lot No. 1, QCDFC did not leave the entire 38-meter strip idle and undeveloped waiting for the government to construct the proposed highway.  Respondent built the 20-meter wide portion adjacent to White Plains Subdivision into a street for the ingress and egress of the homeowners into and out of the subdivision.

There is no dispute over the developed 20-meter width of Road Lot No. 1.  However, it appears from the records of the case that when all the streets inside White Plains Subdivision were donated to Quezon City by the developer, the entire Road Lot 1 was excluded from the donation.  Quezon City has acknowledged the exclusion of Road Lot 1 and as accepted all the other streets of the subdivision.  It

appears from the pleadings and apparent from Annex "1 -B" of the rejoinder that Road Lot 1 is less than a kilometer long.

The Deed of Donation and the documents on its acceptance [12] are appended to the respondent's rejoinder.[13] The deed signed by Mayor Norberto Amoranto for the donee shows that the donation was accepted pursuant to City Council Resolution No. 7591, S-68, dated June 3, 1968.  The letter from Acting City Engineer Baltazar Aquino dated February 10, 1964 verifies that "the roads which you have constructed in the White Plains Subdivision situated at Murphy, this City, had been completed in accordance with the plans and specifications therefor as approved by the City Council x x x."  The letter dated February 4, 1976 from City Engineer Pantaleon P. Tabora shows that the city's acceptance of the donation is with the exception of Road Lot 1.

There is likewise no dispute over the fact that the remaining 18-meter wide portion adjacent to Camp Aguinaldo, while awaiting the passage of C-5 through it, was not developed.  In fact, we take public notice of the fact that up to the present it has not been developed because as stated elsewhere in this case, C-5 was constructed elsewhere.

The dormant issue of ownership has been revived in view of QCDFC's grievance that rentals from the gardeners now occupying the undeveloped land had been illegally collected by the petitioner.  It is the lien or reservation over the 18-meter wide strip which the respondent prays that we lift.

Petitioner Association further posits the view that the pronouncement about Road Lot. 1 being beyond the commerce of man and should be developed for the use of the general public should bar all further inquiries into its ownership, development and use.  Respondent QCDFC, however, counters that the "beyond the commerce of man" ruling is subject to a suspensive condition and that the purpose for which the strip of land was reserved is the construction of C-5 through Road Lot No. 1.

But according to the petitioner, even if the government has abandoned the use of Road Lot 1 as part of C-5, this does not prevent the application of res judicata.[14] The lot could still be developed for the benefit of the public because it has been reserved as an open space.

The legitimate use of Road Lot 1 has been the bone of contention in this case and in the preceding cases and should be resolved once and for all.  The question is:  Was the setting aside of a 38-meter wide strip of land, less than a kilometer long, exclusively for the thoroughfare now known as C-5?  And if not, may the reserved area be used for any other public purpose?  These are the questions which we will resolve.

We leafed through the brochure used in the selling of lots to prospective buyers in the proposed White Plains Subdivision and the centerfold thereof consists of a lot of streets and open spaces in the subdivision.[15] According to the respondent, the total open spaces of the subdivision, exclusive of Road Lot 1, is 32,844 square meters which is more than the required 31,216 square meters or 6% of the total 520,274 square meters area of the subdivision.

A perusal of the subdivision plan shows that the reserved Katipunan Parkway by its width, dimensions and location would not have been intended for any other purpose except as a highway or thoroughfare.  The map clearly indicates that it was not reserved for a park, a school campus, nor even a subdivision street.

We agree with the respondent court that Road Lot 1 was exclusively intended for C-5.  Respondent QCDFC has been quick to ask:  "Why should a 38-meter wide road be reserved for any other purpose except a planned expressway or parkway?"  Or as otherwise stated, is there any existing development project in the country with a 38-meter wide subdivision street inside it?

QCDFC asserts that contrary to the allegations of the petitioner, it never made any representations to prospective homeowners that it will on its own initiative build a 38-meter wide Katipunan Avenue in White Plains subdivision.  It states that Annex "1-B" of the rejoinder is the only representation which was submitted as evidence during the trial.  Thus:

"x x x. The representations of QCDFC are found in a nine (9)-page brochure for prospective buyers.

x x x                                                                   x x x                        x x x

(c)  The centerfold map or plan divides the 38-meter wide strip into two (2) unequal parts.  Road Lot 1 reserved for Katipunan Parkway, now C-5, is bisected off the center.  The dotted line is not at the middle by one part is larger, the 20-meter wide portion, with the other part next to the Camp Murphy (now Camp Aguinaldo) is smaller at 18 meters wide. The map or plan in the brochure shows that both ends, north and south, of the 18-meter wide reserve have perpendicular lines cutting it off from White Plains.  The 20-meter wide portion is clear throughout and continues all the way to two connecting streets at the two ends."[16]

The manifestation of QCDFC about the results after a painstakingly diligent analysis of the map in the brochure may be correct.  However, it is doubtful if the average buyer of a lot in the proposed subdivision would undertake such a detailed analysis of a map in a sales brochure.  It is a known fact that buyers simply act on what is apparently represented in the brochure.  In retrospect, what appears is that the government, by asking for the reservation of Road Lot 1 as a national thoroughfare, was itself responsible for the representation.  Some homeowners may have believed that QCDFC was promising to construct a 38-meter wide highway for them.  However, highways are not constructed by subdivision developers, and not even by city governments.  It is not the fault of QCDFC if the government did not follow through with its original plan.  We must thus agree with the respondent that a 38-meter wide road by its nature and definition is a parkway, not a subdivision street.  The construction of Road Lot 1 as part of the parkway, now C-5, is the responsibility of the Department of Public Works and Highways, not that of the developer and not even that of the City.  The lien or reservation was imposed by the national government.

The first ground invoked in this petition for review states that our earlier rulings are clear and unequivocal and nothing more has to be done except to follow them.  Petitioner states that "there is no need, no room, for any interpretation." [17]

We are not persuaded.

The decisions and resolutions in the earlier decisions of this Court show that petitioner's contention about all issues having been settled is belied by questions still awaiting resolution or raised by the decisions themselves.  As we see it, the previous decisions of this Court raise more questions which need to be resolved.

Respondent QCDFC says it has been shuttled from one court to another in its 20-year quest to seek justice.  For one, it seeks an answer to the nagging question:  Why did this Court order that title remain in the name of QCDFC if, as petitioner claims, the land belongs to the government to be used for public purposes?  Then, we need to resolve the all-important issue on what could legally be constructed on the disputed property at this time.  An 18-meter wide strip of raw land alongside a 20-meter wide completed street in a highly developed urban area could hardly be developed for public use other than a highway.

Respondent contends that Road Lot 1 was specifically reserved for only one specific purpose, i.e., the eventual construction of a highway known as C-5 through the area.  Petitioner, on the other hand, argues that the strip of land is reserved for public use.  It refuses to grant that there is any connection between C-5 and the 38-meter wide reserved strip of land.  It claims that there are no more questions to be settled.

However, as we reviewed the previous decisions of this Court, we find that it left certain questions still needing determination.  The final resolution of the Supreme Court in White Plains Association, Inc. vs. Court of Appeals, et. al., G.R. No. 55868, February 1, 1990, actually calls for negotiation or further litigation.  It states:

"G.R. No. 55868 (White Plains Association, Inc. vs. Court of Appeals, et. al.) - Upon consideration of the private respondent’s Motion for Clarification filed December 20, 1989 and petitioner's Comment thereon filed January 30, 1990, the Court Resolved to DENY said Motion, there being nothing to clarify in the Court's Resolution of November 14, 1985, which reinstated the Court of Appeals' Decision of February 12, 1980 in the case brought up for review (CA-G.R. No. 61810-R).  Said Decision issued a simple, unmistakable mandate in terms that cannot be misunderstood and require no amplification, ordering '(t)he Register of Deeds of Quezon City *** to cancel TCT No. 15685, 15686 and 15687 and to issue in their stead TCT No. 112637 and to annotate on the latter the reservation or lien existing thereon prior to the decision of the CFI of Rizal dated May 14, 1970.'  Except for also ordering said respondent to pay attorney's fees of P5,000.00 and costs, it required of said respondent nothing by way of compliance, being specifically directed

to the Register of Deeds.  Such matters alleged in the Motion for Clarification as:  (a) sales of portions of the property covered by said titles to buyers in good faith; (b) private respondent's continuing to pay the real estate taxes thereon despite the declaration that it is beyond the commerce of man; and (c) petitioner's collection of rentals from lessees thereof, can no longer be properly addressed in this proceeding, said Resolution being already long final and executory (Rollo, p. 245), but also for the equally compelling reason that being but newly-raised,their appropriate venue lies in negotiation or further litigation."[18] (Italics supplied)

All of the titles to the land, both the old titles ordered cancelled and the new titles replacing them are in the name of QCDFC.  The reservation or lien claimed by respondent to be for the construction of C5 ordered annotated on TCT No. 112637 is the only barrier or obstacle to respondent's exercise of full ownership rights.  The ruling that negotiation or further litigation is necessary on at least three matters mentioned in the aforequoted resolution calls for further determination by this Court and not a mere dismissal on matters already settled.

In fact, the dictum in G.R. No. 95522, White Plains Association, Inc. vs. Legaspi[19] that the developer can be compelled to execute a deed of donation of the undeveloped strip of Road Lot 1 and, in the event QCDFC refuses to donate the land, that the Register of Deeds of Quezon City may be ordered to cancel its old title and issue a new one in the name of the city was questioned by the respondent QCDFC as contrary to law.  We agree with QCDFC that the final judgment in G.R. No. 95522 is not what appears in the published February 7, 1991 decision in White Plains Association, Inc. vs. Legaspi.[20] It is the following resolution issued three (3) years later, on July 27, 1991, which states, inter alia:

"x x x (T)he Court is constrained to grant the instant Motion for Reconsideration but only insofar as the motion seeks to delete from the dispositive portion of the decision of 07 February 1991 the order of this Court requiring the execution of the deed of donation in question and directing the Register of Deeds of Quezon City, in the event that such deed is not executed, to cancel the title of QCDFC and to issue a new one in the name of the Quezon City government.  It may well be that the public respondents would not be aversed to such modification of the Court's decision since they shall, in effect, have everything to gain and nothing to lose.

WHEREFORE, the second motion for reconsideration is hereby partly granted by MODIFYING the dispositive portion of this Court's decision of 07 February 1991 and to now read, as follows:

'WHEREFORE, the petition is GRANTED.  The questioned orders of respondent judge dated July 10, 1990 and September

26, 1990 are hereby reversed and set aside. x x x. Costs against respondent QCDFC.

SO ORDERED'."[21]

It is true that at some point in time, litigation must come to an end.  However, our two (2) earlier decisions apparently did not finally put an end to the embryonic dispute between the parties relative to this 18meter undeveloped strip of land.  To order that titles remain with QCDFC but with the lien for Highway 38 annotated thereof, cannot, and should not be, a final determination.  This Court also left to future determination the contention that if the reserved land is dedicated to a public purpose other than the original plan, eminent domain proceedings will have to be instituted.  Up to this date, this has remained unresolved and to our mind, there is no need to resolve the question as it has become moot and academic.  For the highway has been built elsewhere, and is now known as C-5.

We have no reason to doubt the respondent court's findings that based on QCDFC's claim and annexed documents,[22] Road Lot 1 has not been donated.  No deed of donation exists. This is not disputed by petitioner nor has it intimated that such a document was ever executed.  The question then is:  May we now force the owner to donate the property?  If the owner refuses, may the Register of Deeds be ordered to cancel the owner's title and issue a new one in the name of the government?  To our mind, this would partake of an illegal taking.  This directive in White Plains Association, Inc. vs. Legaspi[23] has not been executed for almost seven (7) years because it was abandoned by this Court in the second motion for reconsideration and because it is inextricably linked with the other ruling that the 18-meter wide strip is to be utilized for the widening of Katipunan Avenue.  Now that the respondent contends that C-5 has been built elsewhere, this Court cannot close its eyes as to what is alleged as maladministration of justice because of supervening events.  The petitioner's argument that title was ordered registered in QCDFC's name but it has no legal rights to what remains titled in its name and that the strip of land may be used for any public purpose, is incongruous, to say the least. Respondent court resolved the above issue in this wise:

'Thus, to emphasize, the ownership and title to Road Lot 1 remained with QCDFC but there has been no decision which confirms this issue with finality.  There was no donation nor cancellation of title.  The supervening event of the National Government abandoning the parkway that would include Road Lot 1 should now resolve the issue of ownership of the disputed 18-meter wide strip.  Said unused portion will have to revert to its titled owner.

"This brings this Court to another reason for the grant of QCDFC's motion for reconsideration QCDFC is denied the equal protection of the law.  Why were the developers of St. Ignatius Village and Green Meadows Subdivisions allowed to construct only 17 or 18-meter wide roads and sell part of their proposed 38-meter wide major thoroughfare to private persons, while QCDFC must reserve the entire

38-meter wide portion in White Plains Subdivision up to the present and for the indefinite future?  If any expansion of the St. Ignatius and Green Meadows portion of the road would call for expropriation proceedings of the eighteen-meter wide portions, similar treatment must also be given to QCDFC.

It is incorrect to rule that the Quezon City Government, to which Road Lot 1 belongs, has the right to lease/rent and collect from said lot special occupancy dues.  QCDFC could not have donated Road Lot 1 by implication because no parkway was constructed on the disputed area.  Only after a subdivision owner has developed a road may it be donated to the local government, if it so desires.  On the other hand, a subdivision owner may even opt to retain ownership of private subdivision roads, as in fact is the usual practice of exclusive residential subdivisions, for example, those in Makati City.

Neither is it correct to say that Road Lot 1 may be devoted to other public purposes such as a park or playground.  As stressed by QCDFC, Road Lot 1 was reserved in compliance with a requirement imposed by the National Planning Commission that this particular strip Of land should be set aside or allocated for a major thoroughfare as that part of Highway 38, otherwise known as Katipunan Parkway or C-5, passing alongside White Plains Subdivision.  The reservation arose from a specific plan or project of the National Government. It is not required by or implied in any law, regulation or ordinance.  It is not required of subdivision developers.  A parkway by its nature or definition is 38 meters wide and is the exclusive responsibility of the DPWH (National Government).  The requirement of a 38-meter wide road in this case is peculiar for White Plains Subdivision and covers only a specific purpose.  This means that Quezon City cannot claim an idle piece of property intended for a major thoroughfare or parkway and cannot use it for a purpose other than C-5.

It appears that the Government is not paying QCDFC for Road Lot 1 because Quezon City considers the reservation for a major thoroughfare as a 'donation.'  Assuming that Quezon City is correct, it follows that the rules on donation should apply.  Under Article 764 of the Civil Code an action to revoke a donation may be made if the donee fails to comply with the conditions or(sic) the donation.  In Barreto vs. City of Manila, 7 Phil. 416, Barreto donated his lot in front of Malacañang in order to beatify the vicinity in the construction of a great public plaza.  Instead of building a park, the City of Manila decided to use the property for a public street.  Barreto

sued the City of Manila.  The Supreme Court upheld him.  Road Lot 1 in this case was reserved for the construction of a major thoroughfare called C-5; thus, it cannot be dedicated to another public purpose."[24]

We agree with the aforequoted ruling of the respondent court.

The second ground for review is linked to the first ground.  Petitioner questions the factual findings of the respondent court in the assailed resolution, contending that it does not have any factual moorings in the case at bar.  The assailed resolution contains as the "Antecedents," the following:

"(1) The Decision of the Court of First Instance of Rizal, Branch IX, Quezon City, dated November 22, 1976, shows that the White Plains Subdivision was developed by QCDFC as early as 1960.  When the National Planning Commission approved the subdivision plans, it required QCDFC to set aside Road Lot 1 for the construction of a parkway known as Highway 38.  The parkway was also known as an extension of Katipunan Avenue and later as C-5 (hereinafter to be simple(sic) referred to as C-5).

(2) C-5 was planned as a 38-meter wide secondary national road to traverse Quezon City and Rizal Province.  As averred in the complaint filed with the Court of First Instance, there was the undertaking that should the Government construct C-5, reasonable compensation would be paid for the expropriated Road Lot.

(3) The land set aside for C-5 was at the exact place where White Plains Subdivision shares a common boundary with Camp Aguinaldo.  Road Lot 1 traverses the western periphery of the subdivision on a north to south or vice versa direction.  Subdivision developers are usually required to construct their main roads or streets within or through the subdivision proper to maximize the benefits which the project can derive from it.  The fact is that Road Lot 1 is at the western fringe of the two ends of the proposed parkway.

(4) In the present case, QCDFC applied for a writ of preliminary injunction in its complaint.  It was granted by the RTC.

x x x                                                                   x x x                        x x x

The Katipunan Avenue was planned by the National Government as a 38-meter wide road because it formed part of the proposed major thoroughfare now known as C-5.  But actually, only a 20-meter wide strip has been developed into a street by QCDFC.  Any one passing along Katipunan Avenue can readily see that of this 20-meter wide street, only 10 meters wide has been paved and utilized as a

street.  There is an unusually wide sidewalk of 8 meters wide fronting the subdivision, while on the opposite side is the regular two-meter wide sidewalk.

The 18-meter wide remaining portion has remained undeveloped for the past thirty-six (36) years because DPWH could not make up its mind as to when and where the C-5 should be constructed.  It now appears that C-5 was constructed along Libis, a place which completely bypasses White Plains.  As stated by QCDFC, the National Government has fully abandoned its earlier plan.  C-5 is now a fait accompli cutting through the Libis area.  If a piece of private land is reserved for a specific public highway, but the highway is never constructed at that place, to whom does the unused land belong?

Another important consideration in this case is that Road Lot 1 has not only been abandoned by the project for which it was reserved but title thereto has always been and remains in the name of QCDFC.  The fact of QCDFC being the titled owner is recognized by the Supreme Court decision in G.R. No. 55868, entitled White Plains Association, Inc. vs. Court of Appeals, et. al., February 1, 1990.  The Supreme Court ordered the reinstatement of the Court of Appeals decision dated February 12, 1980 and directed the Register of Deeds of Quezon City to cancel TCT Nos.156185, 156186, and 156187 and to issue in lieu thereof TCT No. 112637 with an annotation that a reservation or lien existing prior to the CFI decision dated May 14, 1970 remains.  Otherwise stated, QCDFC is the titled owner on the basis of TCT No. 112637 but a reservation for C-5 is annotated at the back of the title.

This Court's decision dated February 12, 1980, in CA-G.R. No. 61810 makes mention of the trial court's finding that the requirement for a subdivision area is only 15 meters wide which may even be reduced to 12 meters as a collector road and that Quezon City Ordinance 60-4580 which requires that the minimum street-right-of-way for any parkway be 38 meters wide applies only to parkways or avenues which are the responsibility of the National Government."[25]

Petitioner then posits the question:  From whence or where did the respondent court derive some of its factual findings?  The "Antecedents" as narrated by the respondent court apparently is culled from the previous decisions of this Court and respondent court.  The issues in this petition cannot be resolved without resorting to the earlier decisions of this Court and the Court of Appeals decisions mentioned therein.  Petitioner itself raises res judicata as an issue.  Thus, this issue of res Judicata requires an examination of the earlier decisions.

The all important fact that Road Lot 1 was reserved to form part of the national expressway in Quezon City is a finding in G.R. No. 95522.  That it has been denominated as Highway 38 by this Court and not C-5 can be explained by the fact that the name of the new highway as C-5 was publicized only recently.  By way of analogy, no proof is needed for the finding that EDSA was also known earlier as Highway 54.  Neither is proof needed for the existence of C-5.

The nature and appearance of the much traveled street along Camp Aguinaldo on one side and White Plains and St. Ignatius subdivision on the other, are matters of public notice and can be easily confirmed by motorists and/or pedestrians passing along White Plains subdivision.  In its comment, the private respondent invites any homeowner to come out and categorically declare under oath that the existing street is anything other than what was taken notice of by the respondent court.  The petitioner does not refute the factual findings as false, it simply states that they are not found in the records of the instant petition.  However, this petition cannot be resolved in isolation from the earlier cases.  We have to take into account what was taken up earlier.  The allegation of petitioner Association that the setting aside of Road Lot 1 for the construction of a Parkway known as Highway 38, as extension of Katipunan Avenue and later as C-5 does not find any support in the evidence or records is not accurate.  As can be seen in all the decisions of the Court of Appeals and this Court, this is a principal issue discussed in the respondent court and eventually elevated to this Court.

There can be no dispute that Road Lot 1 was set aside for Highway 38.  As argued by the petitioner, it may be true that there is no mention of C-5 in the decisions but as earlier stated, this is called Circumferential Road 5 or C-5, Katipunan Parkway or Avenue and Highway 38 are used interchangeably.  The only 38-meter wide thoroughfare in the vicinity is now called C-5 and it does not pass through Road Lot 1.  Highway 38 cited as Katipunan Avenue in the decision and C-5 are one and the same thoroughfare.  There should also be no gainsaying the fact that the connecting streets on both ends of White Plains subdivision including the street fronting the St. Ignatius Village are much less than 20 meters wide.  Thus, we cannot but agree with QCDFC in its comment, "Whoever heard of a 38-meter wide street within a subdivision?  The undeveloped space was good only and existed solely for a national thoroughfare known as C-5."[26] It would indeed be bizarre if Quezon City will have a 38-meter wide highway less than one (1) kilometer long connected at both ends by standard sized city streets each of which is about 18 meters wide.  Intended to form part of C-5, this is no longer feasible because C-5 has passed elsewhere.  What is the legal significance of this anomalous situation?  Even assuming that in spite of its dimensions, the 18-meter wide and 1 kilometer long undeveloped area may be used for public purpose other than C-5, QCDFC contends in this petition that just compensation will have to be paid for it.  As stated by QCDFC, this is because the area has never been donated; title remains with the developer; the purpose for which the reservation was made can no longer be implemented; and under the law, even indisputably, subdivision streets belong to the owner until donated to the government or until expropriated upon payment of just compensation.[27]

The third ground in this petition refers to the application of the principle of res judicata.  The respondent court resolved inter alia the res judicata issue in this wise:

"x x x.  This Court is aware that in White Plains Association, Inc. vs. Legaspi G.R. No. 95522 (193 SCRA 765) decided on February 7, 1991 the Supreme Court stated that the cause of action of QCDFC in that case was barred by res judicata because of the earlier decision in G.R. 55868.  This Court, with due respect, believes that this may be so, insofar as the decision to uphold the contemplated construction of a 38-meter wide road called C-5 along the area is concerned.  However, as previously explained, supervening events have come in, which brought about a complete change to the scenario.  When the National Government decided to construct C-5 in another part of Quezon City, completely bypassing the White Plains area, the reservation for C-5 in Road Lot 1 ceased to have any meaning.  This Court believes that there can be no res judicata for something which can no longer be accomplished.  Whatever the petitioner wishes to be done on Road Lot 1, be it another road parallel to the existing 20 meter highway or a park, a school building, a market, or a public garden to be leased to private gardeners, is no longer in accord with the purpose for which the reservation of Road Lot 1 was made.  When the National Government abandoned its plan for C-5 or a 38 meter wide parkway through Road Lot 1, this Court is of the view that any claim based on res judicata ceases to have any validity.

Res judicata simply means that when a right or a fact has been judicially determined by a court with competent jurisdiction, the determination is conclusive upon the parties and their privies unless the doctrine is reversed or modified by the Supreme Court or, in proper cases, by statute.  (See Phil. National Bank vs. Baretto 52 Phil.. 816; Sarabia vs. Secretary of Agriculture and Natural Resources 111 Phil. 1081).

x x x                          x x x                                         x x x

But it bears emphasis that there is no finial (sic) judgment or order barring this present case because the Supreme Court Resolution in G.R. No. 55868 merely ordered the issuance of a title in the name of respondent QCDFC with a lien or reservation intended for the 38-meter wide highway or parkway.  Apart from the reservation having been mooted because the parkway was built elsewhere, the lot cannot be used for any other purpose.  Changed circumstances such as the

sale and titling of properties connecting both ends of the proposed parkway have also occurred.

What was settled in G.R. No. 55868 was limited to the construction of the 38-meter wide C-5.  Other matters were left by G.R. No. 55868 itself to negotiation or future litigation.

x x x                          x x x                                         x x x

In fact, to repeat, the February 7, 1991 decision in G.R. No. 95522 was itself modified by the Supreme Court on July 27, 1994 in a resolution acting on a second motion for reconsideration in the case.  If there was res judicata in G.R. No. 55868, neither G.R. No. 95522 nor the July 27, 1994 resolution could have modified it.  Furthermore, both the 1991 decision and the July 27, 1994 modification are premised on C-5 being pushed through in Road Lot 1, something which was not done.

G.R. No. 95522 was not the further litigation that would have settled the sales of portion of the property to buyers in good faith and for value, the payment of real estate taxes by QCDFC, and the collection of rentals from lessees.

This Court therefore believes that there is no conclusive determination of the issues raised in this present petition by the earlier judgments, hence res judicata will not apply. (Moldes vs.  Mullet, 104 Phil. 731; Maxion vs.  Manila Railroad Co., 44 Phil. 595; Bayot vs.  Zurbito, 39 Phil. 651; O'Connell vs. Mayuga, 8 Phil. 442).

This Court need not belabor that the doctrine of res judicata is based on the principle that there should be an end to litigation at some time (PCIBank vs. Pfleider 65 SCRA 22).  But where the previous judgment did not determine all the issues because it required the parties to either negotiate or litigate, res judicata cannot be invoked.  (See Phil. Coal Miners Union vs. Cebu Portland Cement Co. 10 SCRA 784 [1964]).

But even assuming for the sake of argument that the requisites of res judicata are present here, no less than the Supreme Court was(sic) had stated in Teodoro vs.  Carague, 206 SCRA 429 (1992) that:

'Some members of the court, however, frown at the thought of disregarding the principle of res judicata in the instant case.  This frown is hopelessly unrealistic cruel, and verily most unkind.  Be it noted that this is not the first time in American or in Philippine jurisprudence when the principle of res

judicata has been set aside in favor of substantial justice which is after all the avowed purpose of all law and jurisprudence.  Thus, the following are in point.

In this respect it has been declared that res judicata, as the embodiment of a public policy, must at times be weighed against competing interests, and must, on occasion, yield to other policies.  The determination of the question is said to require a compromise, in each case of the two opposing policies, of the desirability of finality and the public interest in searching the right result.  (46 Am. Jur. Pp. 402-403).

Underlying all discussion of the problem must be the principle of fundamental fairness in the due process sense.  It has accordingly been adjudged that the public policy underlying the principle of the res judicata must be considered together with the policy that a party shall not be deprived of a fair adversary proceeding in which to present his case.  (46 Am. Jur. P. 403).

x x x Res judicata is to be disregarded if the application would involve the sacrifice of justice to technicality.'  (159 SCRA 264, Republic vs. De los Angeles)."[28]

We agree.

It may be noted that the respondent court called attention to the fact that the dictum in White Plains Association, Inc. vs. Legaspi found in the published reports[29] had been modified on the basis of a second motion for reconsideration.  It is wrong to accept as settled the doctrine still not clearly resolved that a subdivision developer may be forced to donate a street to the city against the owner's will.  Conclusively so, if the road to be donated was intended for a national highway which has been since abandoned.  This is not what this Court finally promulgated in that case.

In the White Plains Association, Inc. vs. Legaspi case, the Court simply went back to the decision in the earlier case, G.R. No. 55868, which ordered title to remain in the name of QCDFC but with a lien or a reservation for the construction of a thoroughfare or highway.  Permanent ownership was not resolved.

The ruling of the respondent court sustains the rejoinder of QCDFC which cites and then explains the law on subdivision streets donation:

"(c) If Quezon City wants to use the 18 meter wide strip reserved for C-5 and to dedicate it to another public purpose, it must institute eminent domain proceedings and pay just compensation.  It cannot force a private citizen to donate to the city government something

reserved for a specific purpose.  And which purpose has been abandoned.

(d)  In fact, Sec. 31 of P.D. 957 provides:

'The registered owner or developer of the subdivision or condominium project, upon completion of the development of said project, may at his option convey by way of donation the roads and open spaces found within the project to the city or municipality wherein the project is located.  Upon acceptance of the donation by the city or municipality concerned, no portion of the area donated shall thereafter be converted to any other purpose or purposes unless, after hearing, the proposed conversion is approved by the (National Housing) Authority.

-Italics supplied'

Please note the phrase 'at his option.'  There is also the provision that any portion thus donated cannot be converted to a purpose other than the original purpose.  The approval by the National Housing Authority is required only in genuine donations.  Donation has an established meaning in law.  Any change from the original purpose always results in reversion of the donated property to the donor or his heirs.  At any rate, the law calls for a 'donation.'

(e)  P.D. 1216, Section 2 gives the owner or developer the option of donation to either the Homeowners Association or the local government.  There is nothing about forcible donation.  What is mandatory is for the local government to accept a developed road or open space given as a donation."[30]

These provisions of the law are only a carryover from existing jurisprudence.  In the early case of Young vs. City of Manila,[31] this Court ruled:

"We are therefore of the opinion and so hold that the plaintiff cannot compel the defendant City of Manila to purchase from him the street areas described in his complaint.  Neither can he be compelled to donate said land and transfer his title to the city so that the latter may build and maintain the streets.  But as long as the plaintiff retains title and ownership of said street areas, he is under obligation to pay the land taxes thereon as well as to reimburse to the city the expenses of filling the same."

The third and fourth grounds in the petition revolve around the issuance or non-issuance of a preliminary injunction.  The answer to the questions raised by the grounds of the petition are subsumed in the discussion of the first two (2) grounds.  The decision

of the respondent court cannot be faulted for alleged over-breadth.  The issue as to whom rentals should be paid cannot be resolved without determining who legally owns or possesses the property.  It also begs the question on the legality of the gardeners' continued occupancy of the premises.  The petitioner Association admits that it is not the owner of the disputed property.  Quezon City has expressly excluded Road Lot 1 from the streets and open spaces of White Plains donated by QCDFC and accepted by the City.  Quezon City cannot be the owner of a national highway traversing not only the city but other cities and municipalities as well.  The national government has constructed C-5 in another location, thereby abandoning the reserved highway.  We note that only a. lien or reservation for Highway 38 or C-5 was imposed on the developer.  There was no requirement that QCDFC would develop the highway obviously because the construction of national highways is a function of the national government.  Under the facts and applicable law, there is no reason why QCDFC should be restrained from exercising the rights of full ownership and possession with no more reservation or lien.

The respondent court ruled:

"This case has been shuttling back and forth from the trial court to this Court, and then to the Supreme Court for approximately twenty (20) years now without any final resolution of the basic issue as to who should exercise full ownership and possession over the disputed 18-meter wide portion of Road Lot 1.  Since any leasing out or disposition of the property, collection of occupancy dues, and other rights of an owner cannot be justified unless the basic question is resolved, this Court has decided to cut the Gordian knot in this case and hopefully resolve this controversy once and for all.

This Court agrees with QCDFC that the former's decision of December 14, 1995 leaves the status of the disputed land in an even more confusing limbo than before.  Earlier decisions of this Court and the Supreme Court left it to future litigation or negotiations to resolve remaining issues.  QCDFC points out that the parties have now gone to court to resolve this festering sore that has plagued them for 36 years.  It therefore behooves this Court to prevent the seeds of future litigation from flourishing further.  Too much of the precious time and limited resources of our courts of justice have been used up by this one single controversy."

We cannot dispute the wisdom of the aforecited observation of the respondent court.

It is time we think to cut the Gordian knot.  The unresolved issues have to be decided.  Thus, we treat this petition in the light of unsettled matters in our two (2) earlier decisions.  The orders in G.R. No. 55868 and G.R. No. 95522, that title to Road Lot 1 remains with QCDFC but the lien or reservation for the expanded highway shall be

maintained, should be conclusively resolved in the light of the government's abandoning its plan to use Road Lot 1 as part of C-5.

WHEREFORE, the instant petition is DISMISSED.  The reservation or lien on Road Lot 1 intended for a highway or parkway is LIFTED.  Rights of full ownership including the development of the property or the collection of fees and rentals from the gardeners therein are restored to the Quezon City Development & Financing Corporation.

SO ORDERED.

Regalado, (Acting C.J.), Melo, and Mendoza, JJ., concur.Puno, J., No part due to close relation with some parties.

[1] En Banc Resolution in G.R. No. 55685 entitled, "White Plains Association vs. Court of Appeals and Quezon City Development & Financing Corporation" dated November 14, 1985.[2] Decision in G.R. No. 95522.[3] Resolution in G.R. No. 95522 dated July 27, 1994.[4] Rollo, pp. 62-70.[5] Rollo, pp. 46-60.[6] Rollo, pp. 23-24.[7] Petition, p. 2; Rollo, p. 11.[8] 193 SCRA 765 [1991].[9] CA-G.R. 61810.[10] G.R. No. 55868 & G.R. No. 96522.[11] Annex "1-B," Rejoinder, cited as Exh. "GG" in Civil Case No. Q-15914 and p. 162 of the Rollo of G.R. No. 55868.[12] Cited at pp. 200-205 of the rollo in G.R. No. 55868.[13] Annexes "2," "2-A" & "2-R."[14] Petition, p. 22.[15] Annex "1-B" of respondent's rejoinder, cited as p. 162 of the rollo of G.R. No. 55868 and Exhibit "GG" of Civil Case No. Q-15914.[16] Rollo, p. 240.[17] Petition, p. 16.[18] Resolution in G.R. No. 55868 dated February 1, 1990.[19] Supra.[20] 193 SCRA 765, 778 [1991].[21] Resolution in G.R. No. 95522 dated July 27, 1991.[22] Annexes "2," "2-A" & "2-B," Rejoinder to Petitioner's Reply.[23] Supra.[24] Rollo, pp. 53-54.[25] Rollo, pp. 48-50.[26] Rollo, p. 248.[27] Young vs. City of Manila, 73 Phil. 538 at p. 957.[28] Rollo, pp. 55-59.[29] Supra at p. 778.[30] Rollo, pp. 242-243.[31] 73 Phil. 537.

[G.R. No. 112733.  October 24, 1997]

PEOPLE’S INDUSTRIAL AND COMMERCIAL CORPORATION, petitioner, vs. COURT OF APPEALS AND MAR-ICK INVESTMENT CORPORATION,respondents.

D E C I S I O N

ROMERO, J.:

This petition for review on certiorari of the Decision[1] of the Court of Appeals arose from the complaint for accion publiacana de posesion over several subdivision lots that was premised on the automatic cancellation of the contracts to sell those lots.

Private respondents Mar-ick Investment Corporation is the exclusive and registered owner of Mar-ick Subdivision in Barrio Buli, Cainta, Rizal. On May 29, 1961, private respondents entered into six (6) agreements with petitioner People’s Industrial and Commercial Corporation whereby it agreed to sell to petitioner six (6) subdivision lots.[2] Except for Lot No. 8 that has an area of 253 square meters, all the lots measure 240 square meters each.  Five of the agreements, involving Lots. Nos. 3, 4, 5, 6 and 7, similarly stipulate that the petitioner agreed to pay private respondents for each lot, the amount of P 7,333.20 with a down payment of P 480.00. The balance of P 6,853.20 shall be payable in 120 equal monthly installments of P 57.11 every 30th of the month, for a period of ten years.  With respect to Lot No. 8, the parties agreed to the purchase price of P7,730.00. With a down payment of P506.00 and equal monthly installments of P60.20.

All the agreements have the following provisions:

“9.  Should the PURCHASER fail to make the payment of any of the monthly installments as agreed herein, within One Hundred Twenty (120) days from its due date, this contract shall, by the mere fact of nonpayment, expire by it self and become null and void without necessity of notice to the PURCHASER or of any judicial declaration to the effect, and any and all sums of money paid under this contract shall be considered and become rentals on the property, and in this event, the PURCHASER should he/she be in possession of the property shall become a mere intruder or unlawful detainer of the same and may be ejected therefrom by means provided by law for trespassers or unlawful detainers.  Immediately after the expiration of the 120 days provided for in this clause, the OWNER shall be at liberty to dispose of and sell said parcel of land to any other person in the same manner as if this contract had never been executed or entered into.

The breach by the PURCHASER of any of the conditions considered herein shall have the same effect as non-payment of the installments of the purchase price.

In any of the above cases the PURCHASER authorizes the OWNER or her representative to enter into the property to take possession of the same and take

whatever action is necessary or advisable to protect its rights and interest in the property , and nothing that may be done or made by the PURCHASER shall be considered as revoking this authority or a denial thereof.”[3]

After the lapse of ten years, however, petitioner still had not fully paid for the six lots; It had paid only the down payment and eight (8) installments, even after private respondents had given petitioner a grace period of four months to pay the arrears. [4] As of May 1, 1980, the total amount due to private respondents under the contract was P214,418.00.[5]

In this letter of March 30, 1980 to Mr. Tomas Siatianum (Siatianun) who signed the agreements for petitioner, private respondent’s counsel protested petitioner’s encroachment upon a portion of its subdivision particularly Lots Nos. 2, 3, 4, 5, 6, 7, and 8.  A portion of the letter reads:

“Examinations conducted on the records of said lots revealed that you once contracted to purchase said lots but your contracts were cancelled for non-payment of the stipulated installments.

Desirous of maintaining good and neighborly relations with you, we caused to send you this formal demand for you to remove your said wall within fifteen (15) days from your receipt hereof, otherwise, much to our regret, we shall be constrained to seek redress before the courts and at the same time charge you with reasonable rentals for the use said lots at the rate of One (P1.00) Peso per square meter per month until you shall have finally removed said wall.”[6]

Private respondent reiterated its protest against the encroachment in a letter dated February 16, 1981.[7] It added that petitioner had failed to abide by its promise to remove the encroachment, or to purchase the lots involved “at the current price or pay the rentals on the basis of the total area occupied, all within a short period of time.”   It also demanded the removal of the illegal constructions on the property that had prejudiced the subdivision and its neighbors.

After a series of negotiations between the parties, they agreed to enter into a new contract to sell[8] involving seven (7) lots, namely, Lots Nos. 2, 3, 4, 5, 6, 7 and 8, with a total area of 1,693 square meters.  The contract stipulates that the previous contracts involving the same lots (actually minus Lot No.2) “have been cancelled due to the failure of the PURCHASER to pay the stipulated installments.”  It states further that the new contract was entered into “to avoid litigation, considering that the PURCHASER has already made use of the premises since 1981 to the present without paying the stipulated installments.”  The parties agreed that the contract price would be P423,250.00 with a down payment of P42,325.00 payable upon the signing of the contract and the balance of P380,925.00 payable in forty-eight (48) equal monthly amortization payments of P7,935.94.

The new contract bears the date of October 11, 1983 but neither of the parties signed it.  Thereafter, Tomas Siatianum issued the following checks in the total amount of P37,642.72 to private respondent:  (a) dated March 4, 1984 for P10,000.00;  (b) dated March 31, 1984 for P10,000.00;  (c) dated April 30, 1984 for P 10,000.00 ;  (d) dated May 31, 1984 for P 7,079.00, and (e) dated May 31, 1984 for P563.72.[9]

Private respondent received but did not encash those checks.  Instead, on July 12, 1984 it filed in the Regional Trial Court of Antipolo, Rizal, a complaint for accion publicianan de posesion against petitioner and Tomas Siatianum, as president and majority stockholder of petitioner.[10] It prayed that petitioner be ordered to removed the wall on the premises and to surrender in possession of lots Nos. 2 to 8 of Block 11 of the Mar-ick subdivision, and that petitioner and Tomas Siatianum be ordered to pay: (a) P259,074.00 as reasonable rentals for the use of the lots from 1961,” plus P1,680,074.00 per month from July 1, 1984 up to and until the premises shall have been vacated and the wall demolished”; (b) P10,000.00 as attorney’s fees;  (c) moral and exemplary damages, and (d)costs of suit.  In the alternative , the complaint prayed that should the agreements be deemed not automatically cancelled, the same agreements should be declared null and void.

In due course, the lower court [11] rendered a decision finding that the original agreements of the parties were validly cancelled in accordance with provision No.9 of each agreement. The parties did not enter into a new contract in accordance with Art. 1403 (2) of the Civil Code as the parties did not sign the draft contract.  Receipt by private respondent of the five checks could not amount to perfection of the contract because private respondent never encash and benefited from those checks.  Furthermore, there was no meeting of the minds between the parties because Art 1475 of the Civil Code should be read with the Statute of Frauds that requires the embodiment of the contract in a note or memorandum.

The lower court opined that the checks represented the deposit under the new contract because petitioner failed to prove that those were monthly installments that private respondent refused to accept.  What petitioner prove instead was the fact that it was not able to pay the rest of the installments because of a strike, fire and storm that affected its operations.  Be that is as it may, what was clearly proven was that both parties negotiated a new contract after the termination of the first.  Thus, the fact that the parties tried to negotiate a new contract indicated that they considered that first contract as already cancelled.”

With respect to petitioner’s allegation on a "free right-of-way” constituted on Lot No. 2, the lower court found that the agreement thereon was oral and not in writing.  As such, it was not in accordance with Art. 749 of the Civil Code requiring that, to be valid, a donation must be in a public document.  Consequently, because of the principle against unjust enrichment, petitioner must pay rentals for the occupancy of the property.  The lower court disposed of the case as follows:

“IN VIEW OF ALL THE FOREGOING, Defendant Corporation is hereby directed to return subjects Nos. 2, 3, 4, 5, 6, 7, and 8 to Plaintiff Corporation, and to pay the latter the following amounts:

1.  reasonable rental of P1.00 per square meter per month from May 29,1961, for Lots Nos. 3, 4, 5, 6, 7, and 8, and from July 21, 1984, for lot No. 2, up to the date they will vacate said lots.  The amount of P4,735.21 (Exhibit ‘R’) already paid by defendant corporation to plaintiff corporation for the six (6) lots under the original contracts shall be deducted from the said rental;

2.  attorney’s fees in the amount of P10,000.00; and

3.  costs of the suit.

SO ORDERED."

Petitioner elevated the case to the Court of Appeals.  However, or October 16, 1992, the Court of Appeals affirmed in toto the lower court’s decision.  Petitioner’s motion for reconsideration having been denied, it instituted the instant petition for review on certiorari raising the following issues for resolution:

(1)  whether or not the lower court had jurisdiction over the subject matter of the case in view of the provisions of Republic Act No. 6552 and Presidential Decree No. 1344;

(2)  whether or not there was a perfected and enforceable contract of sale (sic) on October 11, 1983 which modified the earlier contracts to sell which had not been validly rescinded;

(3)  whether or not there was a valid grant of right of way involving Lot No. 2 in favor of petitioner; and

(4)  whether or not there was justification for the grant of rentals and the award of attorney’s fees in favor of private respondent.[12]

The issue of jurisdiction has been precluded by the principle of estoppel.  It is settled that lack of jurisdiction may be assailed at any stage of the proceedings.  However, a party’s participation therein the issue.[13] Petitioner undoubtedly has actively participated in the proceedings from its inception to date.  In its answer to the complaint, petitioner did not assail the lower court jurisdiction ; instead, it prayed for affirmative relief.[14] Even after the lower court had decided against it, petitioner continued to affirm the lower court’s jurisdiction by elevating the decision to the appellate court,[15] hoping to obtain a favorable decision but the Court Of Appeals affirmed the court a quo’s ruling.  Then and only then did petitioner raise the issue of jurisdiction-in its motion for reconsideration of the appellate court’s decision.  Such a practice, according to Tijam v. Sibonghanoy,[16] cannot be countenanced for reasons of public policy.

Granting, however, that the issue was raised seasonably at the first opportunity, still, petitioner has incorrectly considered as legal bases for its position on the issue of jurisdiction the provisions of P.D. Nos. 957 and 1344 and Republic Act No. 6552 P.D. No. 957, the “Subdivision and Condominium Buyers’ Protective Decree” which took

effect upon its approval on July 12, 1976, vest upon the National Housing Authority (NHA) “exclusive jurisdiction to regulate the real estate trade and business “ in accordance with the provisions of the same decree. [17]P.D. No. 1344, issued on April 2, 1978, empowered the National Housing Authority to issue a writ of execution in the enforcement of its decisions under P.D. No. 957.

These decrees, however, were not yet in existence when private respondents invoked provision No. 9 of the agreements of contracts to sell and cancelled these in October 1971.[18]Article 4 of the Civil Code provides that laws shall have no retroactive effect unless the contrary is provided.  Thus, it is necessary that an express provision for its retroactive application must be made in law. [19] There being no such provision in both P.D. Nos. 957 and 1344, these decrees cannot be applied to a situation that occurred years before their promulgation. Moreover, granting that said decreed indeed provide for a retroactive application, still, these may not applied in this case.

The contracts to sell of 1961 were cancelled in virtue of provision No. 9 thereof to which the parties voluntarily bound themselves.  In Manila Bay Club Corp. v. Court of Appeals,[20] this Court interpreted as requiring mandatory compliance by the parties, a provision in a lease contract that failure or neglect to perform or comply with any of the covenants, conditions, agreements or restrictions stipulated shall result in the automatic termination and cancellation of the lease.  The Court added:

“x x x .  Certainly, there is nothing wrong if the parties to the lease contract agreed on certain mandatory provisions concerning their respective rights and obligations, such as the procurement of insurance and the rescission clause.  For it is well to recall that contracts are respected as thelaw between the contracting parties, and they may establish such stipulations, clauses, terms and conditions as they may want to include.  As long as such agreements are not contrary to law, moral, good customs, public policy or public order they shall have the force of law between them.”

Consequently, when petitioner failed to abide by its obligation to pay the installments in accordance with the contracts to sell, provision No. 9 automatically took effect.  That private respondent failed to observe Section 4 of Republic Act No. 6552, the  “Realty installment Buyer Protection Act,” is if no moment.  That section provides that “(I)f the buyers fails to pay the installment due at the expiration of the grace period, the seller may cancel the contract after thirty days from receipt by the buyer of the notice of cancellation or the demand for rescission of the contract by a notarial act.”  Private respondent’s cancellation of the agreements without a duly notarized demand for rescission did not mean that it violated said provision of law. Republic Act No. 6552 was approved on August 26, 1972, long after provision No.9 of the contracts to sell had become automatically operational.  As with P.D. Nos. 957 and 1344, Republic act No. 6552 does not expressly provide for its retroactive application and, therefore, it could not have encompassed the cancellation of the contracts to sell in this case.

At this juncture, it is apropos to stress that the 1961 agreements are contracts to sell and not contracts of sale.  The distinction between these contracts is graphically depicted in Adelfa Properties, Inc. v. Court of Appeals,[21] as follows:

“x x x .  The distinction between the two is important for in a contract of sale, the title passes to the vendee upon the delivery of the thing sold; whereas in a contract to sell, by agreement the ownership is reserved in the vendor and is not to pass until the full payment of the price.  In a contract of sale, the vendor is not to pass until the full payment of the price.  In a contract of sale, the vendor has lost and cannot recover ownership until and unless the contract is resolved or rescinded; whereas, in a contract to sell, title is retained by the vendor until the full payment of the price , such payment being a positive suspensive condition and failure of which is not a breach but an event that prevents the obligation of the vendor to convey title from becoming effective.  Thus, a deed of sale is considered absolute in nature where there is neither a stipulation in the deed that title to the property sold is reserved in the seller until the full payment of the price, nor one giving the vendor the right to unilaterally resolve the contract the moment the buyer fails to pay within a fixed period.”

That the agreements of 1961 are contracts to sell is clear from the following provisions thereof:

“3.  Title to said parcel of land shall remain in the name of the OWNER until complete payment by the PURCHASER of all obligations herein stipulated, at which time the OWNER agrees to execute a final deed of sale in favor of the PURCHASER and cause the issuance of a certificate of title in the name of the latter, free from liens and encumbrances except those provided in the Land Registration Act, those imposed by the authorities, and those contained in Clauses Nos. Five (5) and Six (6) of this agreement.

x x x                                             x x x                                     x x x.

4.  The PURCHASER shall be deemed for all purpose to take possession of the parcel of land upon payment of the down or first payment; provided, however, that his/her possession under this section shall be only of the that of a tenant or lessee and subject to ejectment proceeding during all the period of this agreement.

5.The parcel of land subject of this agreement shall be used by the PURCHASER exclusively for legal purposes, and he shall not be entitled to take or remove soil, stones, or gravel from it or any other lots belonging to the owner.”

Hence, being contracts to sell, article 592 of the Civil Code which requires rescission either by judicial action or notarial act is not applicable.[22]

Neither may petitioner claim ignorance of the cancellation of the contracts.  Aside from his letters of March 30, 1980 and February 16, 1981, private respondent’s counsel. Atty. Manuel Villamor, had sent petitioner other formal protest and demands. [23] These letters adequately satisfied the notice requirement stipulated in provision No.9 of the contracts to sell.  If petitioner had not agreed to the automatic and extrajudicial cancellation of the contracts, it could have gone to court to impugn the same but it did not.  Instead, it sought to enter into a new contract to sell, thereby confirming its veracity and validity of the extrajudicial rescission.[24] Had not private respondent filed the accion publiciana de posesion, petitioner would have remained silent about the whole situation. It is now estopped from questioning the validity of the cancellation of the contracts.  An unopposed rescission of a contract has a legal effects.[25]

Petitioner’s reliance on the portion of the Court of Appeals’ Decision stating that private respondent had not made known to petitioner its supposed rescission of the contract,[26] is misplaced.  Moreover, it quoted only the portion that appears favorable to its case.  To be sure, the Court of Appeals quoted provision No. 9 which requires that “actual cancellation shall take place thirty days from receipt by the buyer of the notice of cancellation or demand for rescission of the contract by a notarial act and upon full payment of the cash surrender value,” and added that “R.A. 6552 even more underscored the indispensability of such notice to the defaulting buyer.”  However, the same appellate court continued:

“The absence of the aforesaid notice in the case at bar in the forms respectively deemed efficacious before and after the passage of R.A. 6552 does not, however, necessarily impress merit in the appellant’s position.  Extrajudicial rescission, after all, has legal effect where the other party does not oppose it (Zulueta vs. Mariano, 111 SCRA 206; Nera vs. Vacante, 3 SCRA 505; Magdalena Estate vs. Myrick, 71 Phil.344).  Where it is objected to, a judicial determination of the issue is still necessary.  In other words resolutions of reciprocal contracts maybe made extrajudicially unlesssuccess fully impugned in court. If the debtor impugns the declaration it shall be subject to judicial determination (Jison vs. court of Appeals,164 SCRA 339, citing Palay Inc. vs. Clave, supra; Univ. of the Philippines vs. Angeles , supra).  In its July 5, 1984 complaint, the appellee had, in fact, significantly prayed for the cancellation of the said sales agreement in the alternative (p. 4, orig. rec.)”[27] (Italics supplied.)

Moreover, private respondent’s act of cancelling the contracts to sell was not done arbitrarily.  The record shows that private respondent dealt with petitioner with admirable patience, probably in view of the strike, the fire in 1968 that burned petitioner’s factory, and the typhoon in 1970.[28] It exercised its contractual authority to cancel the agreements only after petitioner had reneged in its obligation after paying only eight (8) installments.  When the contracts matured, it still gave petitioner a grace period of four (4) months within which to comply with its obligations.  It considered the contracts cancelled only as of October 1971 or several years after petitioner’s last

installment payment[29] and definitely more than ten years after the agreements were entered into.

Because the contracts to sell had long been cancelled when private respondents filed the accion publiciana de posesion on July 12, 1984, it was the proper Regional Trial Court that had jurisdiction over the case.  By then, there was no more installment buyer and seller relationship to speak of.  It had been recuded to a mere case of an owner claiming possession of its property that had long been illegally withheld from it by another.

Petitioner alleges that there was a “new perfected and enforceable contract of sale" between the parties in October 1983 for two reasons.  First, it paid private respondent the down payment or “deposit of Contract” [30] through the five checks.  Second, the receipt signed by private respondent’s representatives satisfies the requirement of a “note or memorandum’’ under Article 1403 (2) of the Civil Code because it states the object of the contract (six lots of Mar-Ick Subdivision measuring 1,453 square meters), the price (P250.00 per square meter with a down payment of 10% or P 37,542.72), and the receipt itself opens with a statement referring to the “purchase” of the six lots of Mar-Ick Subdivision.[31]

The contract of October 1983 which respondents offered in evidence as Exhibit S, is entitled “CONTRACT TO SELL.”  While the title of a contract is not controlling, its stipulations confirm the nature of that contract.  Thus, it provides:

“5.      Title to said parcels of land shall remain in the name of the OWNER until complete payment by the PURCHASER of all obligations herein stipulated, at which time, the OWNER agrees to execute a final deed of sale in favor of the PURCHASER and cause the issuance of certificates of title in the name of the latter, free from all liens and encumbrances except those provided in the Land Registration Act, those imposed by the authorities, and those contained in the stipulation that follow.”

Under the law, there is a binding contract between the parties whose minds met on a certain matter notwithstanding that they did not affix their signature to its written form.

In the case at the bar, it was private respondent’s company lawyer and sole witness, Atty. Manuel Villamayor, who volunteered that after the cancellation of the 1961 agreements, the parties should negotiate and enter into “a new agreement based on the current price” or at P400.00 per square meter.  However, there was a hitch in the negotiations because after he had drafted the contract and sent it to the petitioner, the latter “deposited a check for down payment” but its representative refused to sign the prepared contract.[32] Private respondent even offered the contract to sell as its Exhibit S.[33] In the absence of proof to the contrary, this draft contract may be deemed to embody the agreement of the parties.  Moreover, when Tomas Siatianun, petitioner president, testified, private respondent cross-examined him as regards to the October 1983 contract.[34] Private respondents did not and has not denied the existence of that contract.

Under these facts, therefore, the parties may ideally be considered as having perfected the contract of October 1983.  Again in Adelfa Properties, Inc. v. Court of Appeals, the Court said that

“x x x  a contract, like a contract to sell, involves a meeting of the minds between two persons whereby one binds himself, with respect to the other, to give something or to render some service.  Contracts, in general, are perfected by mere consent, which is manifested by the meeting of the offer and the acceptance upon the thing and the cause which are to constitute the contract.  The offer must be certain and the acceptance absolute.[35]

Moreover, private respondent’s offer to sell and petitioner’s acceptance thereof are manifest in the documentary evidence presented the (5) checks [36] that, through Atty. Villamayor, it admitted as the down payment under the October 1983 contract.  Private respondent’s intentional non- encashment of the check cannot serve to belie the fact of its tender as down payment.  For its part, petitioner presented Exhibit 10, a receipt dated February 28, 1984, showing that private respondent’s authorized representative received the total amount ofP37,642.72 represented by said five checks as “deposit of Contract (sic).”  As this Court also held in the Adelfa Properties case, acceptance may be evidenced by some acts or conduct communicated to the offeror, either in a formal or an informal manner, that clearly manifest the intention of determination to accept the offer to buy or sell.[37]

Justice and equity, however, will not be served by a positive ruling on the perfection and performance of the contract to sell.  There are facts on record proving that, after all, the parties had not arrived at a definite agreement.  By Atty. Villamayor’s admission, the checks were not encashed because Tomas Siatianun did not sign the draft contract that he had prepared.[38]On his part, Tomac Siatianun explained that he did not sign the contract because it covered seven (7) lots while their agreement was only for six (6) lots.  According to him, private respondent had conceded that Lot No. 2 was meant for petitioner’s right of way[39] and, therefore, it could not have been part of the properties it wanted to buy.   It is on record, moreover, that the only agreement that the parties arrived at in a conference at the Silahis Hotel was the price indicated in the draft contract.[40]

The number of lots to be sold is a material component of the contract to sell.  Without an agreement on the matter, the parties may not in any way be considered as having arrived at a contract under the law.  The parties’ failure to agree on a fundamental provision of the contract was aggravated by petitioner’s failure to deposit the installments agreed upon.  Neither did it attempt to make a consignation of installments.  This Court’s disquisition on the matter in the Adelfa Properties case is relevant.  Thus:

“The mere sending of a letter by the vendee expressing the intention to pay, without the  accompanying payment, is not considered a valid tender of payment.  Besides, a mere tender of payment is not sufficient to compel private respondents to deliver the

property and execute the deed of absolute sale.  It is consignation which is essential in order to extinguish petitioner’s obligation to pay the balance of the purchase price.  The rule is different in case of an option contract or in legal redemption or in a sale with right to repurchase, wherein consignation is not necessary because this cases involves an exercise of a right privilege (to buy, redeem, or repurchase) rather than the discharge of the obligation, hence tender of payment would be sufficient to preserve the right or privilege.  This is because the provision on consignation are not applicable when there is no obligation to pay.  A contract to sell, as in the case before us, involves the performance of an obligation, not merely the exercise of the privilege or a right.   Consequently, performance or payment may be effected not by tender of payment alone but by both tender and consignation.”[41] (Underscoring supplied.)

As earlier noted, petitioner did not lift a finger towards the performance of the contract other than the tender of down payment.  There is no record that it even bothered to tender payment of the installments or to amend the contract to reflect the true intention of the parties as regards the number of lots to be sold.  Indeed, by petitioner’s inaction, private respondents may not be judicially enjoined to validate a contract that the former appeared to have taken for granted.  As in the earlier agreements, petitioner ignored opportunities to resuscitate a contract to sell that was rendered moribund and inoperative by it’s inaction.

In view of the foregoing, there is no need to discuss the issue of whether or not there was a valid grant of right of way in favor of the petitioners.  Suffice it to say that the documentary evidence offered by the petitioner on the matter manifest that the right of way on an unidentified property was granted in April 1961 by private respondents board of directors to W. Ick & Sons, Inc. and Julian Martinez. [42] On May 12, 1961, Fritz Ick, the president of W. Ick & Sons, Inc., in turn indorsed the unidentified property to petitioner.[43]

What needs stressing is that the installment paid by the petitioner on the land should be deemed rentals in accordance with provision No.9, as well as by law.  Article 1486 of the Civil Code provides that a stipulation that the installments or rents paid shall not be returned to the vendee or lessee shall be valid insofar as the same may not be unconscionable under the circumstances.[44] The down payment and the eight (8) installments paid by the petitioner on the six lots under the 1961 agreements amount to P5,672.00.  The lots, including Lot No. 2, adjoins petitioner’s Vetsin and oil factories constructed on a 20,111-square-meter land that petitioner likewise bought from private respondent.  Obviously, petitioner made use of the lots not only the construction of the factories but also during its operations as an oil factory.  Petitioner enclosed the area with a fence and made construction thereon.  It is, therefore, not unconscionable to allow respondents rentals on the lots are correctly decreed by the lower court.

As to attorney’s fees, Article 2208 of the Civil Code allows the award of such fees when its claimants is compelled to litigate with third persons or to incur expenses to protect its just and valid claim.  In view of petitioner’s rejection of private respondent’s

demands for rentals[45] and its unjustified refusal to settle private respondent’s claims,[46] the award of attorney’s fees ofP10,000.00 is more than just and reasonable.[47]

WHEREFORE, the instant petition for review on certiorari is hereby denied and the questioned Decision of the Court of Appeals is AFFIRMED.  This Decision is immediately executory. Cost against petitioner.

SO ORDERED.

Melo, Francisco, and Panganiban, JJ., concur.Narvasa, C.J., (Chairman), on leave.

[1] Penned by Associate Justice Nathanael P. de Pano, Jr. and concurred in by Associate Justices Jesus M. Elibinias and Angelina S. Gutierrez.

[2] Exhs. I, J, K, L, M & N.

[3] Exh. l-1.

[4] Exh. R.

[5] Exh. 9.

[6] Exh. O.

[7] Exh. P.

[8] Exh. S.

[9] Exhs. Q, Q-1, Q-2, Q-3 & Q-4.

[10] Rollo, p. 33.

[11] Presided by Judge Ma. Cristina C. Esrada.

[12] Petition, p. 7.

[13] Romualdez v. RTC, Br.7, Tacloban City, G.R. No. 104960, September 14, 1993, 226 SCRA 408, 414 citing Aquino v. Court of Appeals, G.R. No. 91896, November 21, 1991, 204 SCRA 240; Salen v.Dinglasan, G.R. No. 59082, June 28, 1991, 198 SCRA 623; Tijam v. Sibonghanoy, 131 Phil. 556 (1968).

[14] Rollo, pp. 37-40.

[15] Ibid., pp. 58-74.

[16] Supra, at p. 564-565 cited in Cloma v. Court of Appeals, G.R. No. 100153, august 2, 1994, 234 SCRA 665, 673 and Pilipinas Shell Petroleum Corporation v. Dumlao, L-44888, February 7, 1992, 206 SCRA 40, 50.

[17] Sec. 3.

[18] Exh. R.

[19] Nilo v. Court  of Appeals, 213 Phil. 460, 467 (1984).

[20] 315 Phil. 805, 826 (1995).

[21] 310 Phil. 623, 637 (1995).

[22] Ibid., at p. 650 citing Albea v. Inquimboy, 86 Phil. 477 (1950); Alfonso v. Court of Appeals, G.R. No. 63745, June 8, 1990, 186 SCRA 400.

[23] TSN,July 24, 1987, p.28.

[24] TSN, October 9, 1987, p. 19.

[25] Adelfa Properties, Inc. v. Court of Appeals, supra, at p. 651.

[26] Petition, p. 14.

[27] CA Decision, p. 11.

[28] TSN, January 5, 1989, p.27.

[29] Exh. R.

[30] Exh.10.

[31] Petition, p.16.

[32] TSN, June 18, 1987, p.18.

[33] TSN, October 9, 1987, p.31.

[34] TSN, March 9, 1989, p.29.

[35] Supra, at p. 641.

[36] Exhs. Q to Q-4.

[37] Supra, at p.642.

[38] TSN, October 9, 1987, pp. 4-5.

[39] TSN, January 5, 1989, pp. 29-30.

[40] TSN, October 9, 1987, pp. 9-12.

[41] Supra, at pp. 649-650.

[42] Exh. 4.

[43] Exh.5.

[44] Cited in Delta Motor Sales Corporation v. Niu Kim Duan, G.R. No. 61043, September 2, 1992, 213 SCRA 259, 263.

[45] Rizal Surety & Insurance Company v. Court of Appeals, G.R. No. 96727, August 28, 1996, 261 SCRA 69, 88-89 citing Solid Homes, Inc. v. Court of Appeals, G.R. No. 97255, August 12, 1994, 235 SCRA 299, 303-304 and Universal Shipping Lines, Inc. v. IAC, G.R. 74125, July 31, 1990, 188 SCRA 170, 174.

[46] Baliwag Ransit,Inc. v. Court of Appeals, G.R. no. 116110, May 15, 1996, 256 SCRA 746, 755.

[47] Heirs of Amparo de los Santos v. Court of Appeals, G.R. No. 51165, June 21, 1990, 186 SCRA 649, 663.