SECOND DIVISION

[G.R. No. L-27013. October 18, 1977.]

ANGEL MASCUÑANA and ANGELES M. VERDEFLOR, petitioners-appellants, vs. THE PROVINCIAL BOARD OF NEGROS OCCIDENTAL, MUNICIPAL COUNCIL OF TALISAY, NEGROS OCCIDENTAL, LEON T. TREYES, ULPIANA INSON, GONZALO ORDANIEL and FLORENTINO GARGALLANO,respondents-appellees.

Arcadio C. Sevilla and Eduardo Arboleda, Jr. for appellants.

Provincial Fiscal Fidencio S. Raz for appellees The Provincial Board of Negros Occidental, etc.

Artemio A. Treyes for private appellee.

D E C I S I O N

AQUINO, J p:

This appeal is about the legality of Resolution No. 59, dated September 8, 1962, of the municipal council of Talisay, Negros Occidental, declaring, as municipal property closed to vehicular traffic, a piece of land situated near the intersection of Burgos and Rizal Streets and adjacent to the bank of the Minuluan River and to some lots of the Talisay cadastre. cdrep

According to the petition, among those adjacent lots are Lot No. 80 owned by Angel Mascuñana and Lots 81-A, 81-B and 81-C registered in the names of his children, Angeles M. Verdeflor, Angel, Jr. and Manuel.

Angel Mascuñana alleged that the piece of land in question is the terminus or extension of Burgos Street. It is occupied by Councilor Leon T. Treyes, Ulpiana Inson, Gonzalo Ordaniel and Florentino Gargallano who had constructed houses thereon.

Mascuñana and his daughter, Angeles, in a letter dated March 20, 1962 informed the mayor of Talisay that portion of Burgos Street was occupied by squatters.Mascuñana said that the constructions of the squatters were prejudicial to the public particularly to the owner of Lot No. 81-A, his daughter Angeles, who wanted to build a residential house on her lot. Mascuñana asked the mayor to take the necessary steps to clear the area of squatters so that the public could use that part of Burgos Street.

The mayor took up Mascuñana's request with the municipal council. The council indorsed Mascuñana's letter to the municipal treasurer for verification, opinion and comment.

The treasurer found that the alleged portion or extension of Burgos Street mentioned in Mascuñana's letter is the property of the municipality of Talisay. The treasurer was not certain as to whether the said land had been used as a street, or had been withdrawn from that use or had been abandoned or had never been designated for public use. To determine the "character"

of the said land, he suggested that the matter be referred to the municipal attorney for further study.

On July 30, 1962 the acting provincial fiscal, to whom the matter was referred by the municipal attorney of Talisay, rendered the opinion that "Burgos Street is a municipal street and under the law is a property devoted for public use" and is outside the commerce of man; that there was no record to show that portion of Burgos Street in question had been withdrawn from public use by the municipal council, and that nonuser alone would not destroy its public nature.

The members of the municipal council of Talisay made an ocular inspection of the questioned area. They concluded that there was no valid reason for opening it to vehicular traffic. The council passed the aforementioned Resolution No. 59 which reads in part as follows:

". . ., THE COUNCIL RESOLVED, that considering the abovementioned portion of land being a municipal property, therefore, to declare the same as closed or not necessary for vehicular traffic.

"FURTHER RESOLVED, that this Body will take up on their next coming session the question of the residents presently having their houses located on the portion of land referred to in this resolution."

A month later, or on October 20, 1962, the municipal council passed Resolution No. 82 wherein it referred once more to the provincial fiscal the question of whether the municipality has legal authority "to dispose of, lease, transfer, sale (sell), mortgage and subdivide to the present occupants" the land in question.

In a letter dated November 2, 1962 the acting provincial fiscal informed the municipal council of Talisay that the closure of a municipal street is governed by section 2246 of the Revised Administrative Code which authorizes a municipal council to close a municipal road, street, alley, park or square, after indemnifying any person prejudiced thereby, and to use or convey for any lawful purpose such property withdrawn from public servitude.

The fiscal advised that any resolution approving the closure of the street should be accompanied with the following data required in a circular of the Executive Bureau: (I) the recommendation of the district engineer; (2) certified copies of documents executed by owners of lots adjacent to the street to be closed waiving all claims for damages to their respective properties, and (3) a statement of the provincial fiscal as to the sufficiency of the documents submitted.

The matter did not end there. The controversy was elevated to the provincial board of Negros Occidental. That board resolved on June 26, 1964 to make an ocular inspection of Burgos Street together with the municipal council of Talisay, the parties concerned and the provincial fiscal.

After that ocular inspection, or on June 30, 1965, the provincial fiscal rendered an opinion upholding the validity of the municipal council's Resolution No. 59 and stating that the council may dispose of the land in question, as its patrimonial property, in any manner which it may deem proper. The opinion contains the following findings:

"The immediate conclusion reached after the investigation is that the parcel of land claimed to be an extension of Burgos Street of the Municipality of Talisay does not practically exist as a street; there is a small alley between houses from a meeting of two streets leading towards a creek passable by one person at a time or with one following another with a length of about twenty meters. Even without those houses, the width of the alley could not be widened to conform with Burgos Street as it is on the brink of a creek which in turn connects to the open sea. That portion of land cannot be even considered as part of Burgos Street nor (may) it be properly called a thoroughfare. Such being the case, the requirement of Section 2246 of the Revised Administrative Code need not be complied with."

In view of those findings, the provincial board passed on July 30, 1965 Resolution No. 1035 approving the municipal council's Resolution No. 59.

More than seven months later, or on March 15, 1966, Mascuñana and his daughter Angeles filed in the Court of First Instance of Negros Occidental against the provincial board, the municipal council and the four occupants of the area in question, namely, Councilor Leon T. Treyes, Ulpiana Inson, Gonzalo Ordaniel and Florentino Gargallano, a petition wherein they prayed that Resolution No. 59 of the municipal council and Resolution No. 1035 of the provincial board be declared void. They also prayed for other equitable relief.

Annexed to the said petition is a cadastral map showing the lots and streets in the Talisay poblacion. That map of the Talisay cadastre, which was traced by Adolfo T. Treyes on July 25 and 26, 1960 under the supervision of Rafael Guerrero, Jr., a private land surveyor, is known as Index Sheet No. 102, approved by the Director of Lands on February 25, 1916. It shows that while Burgos Street ends at the bank of the river (its mouth apparently), Zamora, Capitan Saba, Libertad and Bonifacio Streets end at the shores of Guimaras Strait.

The petitioners alleged that a verification of the cadastral map would show that the disputed area, which is between Lots 82 and 81, was originally a part of Burgos Street. They further alleged that Resolution No. 59 is void because there was no compliance with the three requisites, prescribed in section 161 of the Compilation of Provincial Circulars of the Executive Bureau, for the closure of municipal streets as authorized in section 2246 of the Revised Administrative Code.

The petitioners insinuated that the municipal council was influenced by Councilor Treyes, one of the occupants of the disputed area. They alleged that the provincial board made itself a party to an illegal act in order to justify the stay of Councilor Treyes in that area.

The provincial board in its answer alleged that section 2246 cannot be invoked because the disputed portion is not a part of Burgos Street. The municipal council did not file any answer. The four private respondents filed motions to dismiss.

In his motion respondent Treyes alleged that he had occupied a part of the disputed area since 1942 and that he had constructed thereon a house worth not less than P47,000 while his three co-respondents had occupied the area for more than twenty years. For that reason, according to Treyes, the remedy of declaratory relief is not proper in this case since it would not terminate the uncertainty or controversy. Treyes further alleged that if, as shown in Mascuñana's letter to the mayor, he had subdivided his lot and transferred it to his three children, he is not a real party in interest. The other three private respondents adopted the arguments of Treyes in their motion to dismiss. prcd

The petitioners in their opposition contended that their action might be treated as an action for prohibition wherein they seek to enjoin the enforcement of Resolution No. 59.

The lower court issued a minute or laconic order dated August 8, 1966 which reads: "Finding the argument in support of the motion to dismiss to be well-founded, the petition dated March 7, 1966 is hereby dismissed". It denied petitioners' motion for reconsideration in the same court

manner: "Finding the Motion for Reconsideration to be without merit, the same is hereby denied."

Mascuñana and Angeles M. Verdeflor appealed. The four private respondents did not file any appellees' brief. The fiscal filed an appellees' brief for the provincial board and the municipal council (The council, being in default for not having answered the petition, had no right to file an appellees' brief).

 

The issue is whether the petition states a cause of action which the trial court should have tried on the merits instead of having summarily dismissed it in a minute order or the basis of the private respondents' motions to dismiss and without having discussed petitioners' contentions.

As Angel Mascuñana had transferred his Lot 81 to his children, he might have ceased to have a direct interest in the opening to vehicular traffic of the disputed area. But his co-petitioner, Angeles M. Verdeflor, as the owner of Lot 81-A, has such an interest because that lot is adjacent to the said area. (Note that the cadastral map shows that Lot 80, belonging to Angel Mascuñana, as a lot distinct and separate from Lot 81, has some proximity to the disputed area).

The petitioners labor under the impression that their action is for declaratory relief. On the other hand, the fiscal, as counsel for the provincial board, contends that an action to declare void Resolution No. 59 of the municipal council is not an action for declaratory relief because section 1, Rule 64 of the Rules of Court refers to an ordinance and not to a resolution.

A municipal ordinance is not the same as a resolution of the municipal council. Legislative acts passed by the municipal council in the exercise of its lawmaking authority are denominated ordinances (Sec. 2227, Revised Administrative Code).

A resolution is less solemn and formal than an ordinance. It "is an act of a special or temporary character, not prescribing a permanent rule of government, but is merely declaratory of the will or opinion of a municipal corporation in a given matter, and in the nature of a ministerial or administrative act, and is not a law" (62 C.J.S. 786-7).

In reality, petitioners' action is not for declaratory relief but is an ordinary action for the enforcement of section 2246 of the Revised Administrative Code and for the opening to vehicular traffic of the disputed area. That section reads as follows:

"SEC. 2246. Authority to close thoroughfare. — With the prior authorization of the Department Head, a municipal council may close any municipal road, street, alley, park, or square; but no such way or place aforesaid, or any part thereof, shall be closed without indemnifying any person prejudiced thereby.

"Property thus withdrawn from public servitude may be used or conveyed for any purpose for which other real property belonging to the municipality might be lawfully used or conveyed."

As stated on pages 9 to 11 of their brief, petitioners' contention is that Resolution No. 59 is void because the municipal council did not observe the requisites delineated in section 161 of the Compilation of Provincial Circulars which requisites were prescribed by the Executive Bureau for the implementation of section 2246.

If the disputed area is proven to have been a part of Burgos Street, as the cadastral map seems to indicate, and if its closure to vehicular traffic, as effectuated under Resolution No. 59, is held to be illegal, petitioner Verdeflor might claim damages.

Thus, in Abella vs. Municipality of Naga, 90 Phil. 385, it was held that where the municipality closed that part of a municipal street, which ran between the public market and the plaintiff's property, and the said adjoining property owner was admittedly damaged by such action, he was entitled to recover the amount of the damage by virtue of section 2246. The municipality's

contention that it was not liable for damages because it acted in the exercise of its police power and for the public welfare was not sustained. (Compare with Unson vs. Lacson and Genato Commercial Corp., 100 Phil. 695 and 112 Phil. 752, regarding the lease of a part of a Manila street to a private firm which was declared void).

Mascuñana's letter to the mayor shows petitioners' cause of action. In that better, he requested the mayor to clear the disputed area of squatters because their constructions are prejudicial to the public in general and, in particular, to petitioner Verdeflor as owner of Lot 81-A.

From petitioners' viewpoint, they have reason to complain of a delict or wrong caused by the closure of the disputed area to vehicular traffic due to the acts of the private respondents in occupying that area and to the act of the public respondents in giving to that closure a semblance of legality by means of their resolutions which have been questioned by the petitioners in this case.

The finding of the fiscal and other provincial officials during their ocular inspection that the disputed area is not a part of Burgos Street because it is not passable at all strengthens petitioners' cause of action that the resolution declaring it closed to vehicular traffic should be voiced and that the area should be cleared of squatters so that it could be used by the public.

If, as revealed in the cadastral map, the disputed area was originally a part of Burgos Street, then the constructions of the four private respondents on said area, which obstruct and interfere with the free passage of the street, may possibly be characterized as a nuisance which can be abated summarily (Arts. 694 and 695, Civil Code; Letter of Instruction No. 19, dated October 2, 1972, 68 O. G. 7962; Sitchon vs. Aquino, 98 Phil. 458).

The trial court in disposing of the case in a minute order gave the impression that it had ignored or cavalierly treated petitioners' contentions.

It is true that there is no rule requiring a trial court to make findings of fact and law in an order of dismissal. The constitutional requirement of making findings of fact and law applies only to decisions. Nevertheless, it should be borne in mind that a trial court's order dismissing a complaint or petition is appealable like a final judgment. Therefore, for the satisfaction of the losing party and to assist the appellate court in resolving the appeal, the trial court should take some pains to reason out its order of dismissal and should not merely incorporate therein, by reference, the motion to dismiss.

We should not be understood as having prejudged this case in favor of the petitioners-appellants. What is being underscored is that the ends of justice would be better served by holding in this case a trial on the merits if no amicable settlement is arrived at during the pre-trial or if there is no agreed statement of facts. The legal points raised by the petitioners should be resolved in a decision on the merits of the case.

WHEREFORE, the trial court's minute order of dismissal is reversed and set aside with costs against the private respondents-appellees.

SO ORDERED.

||| (Mascuñana v. Provincial Board of Negros Occidenta, G.R. No. L-27013, October 18, 1977)

EN BANC

[G.R. No. 48859. November 28, 1942.]

EMILIANO J. VALDEZ, petitioner, vs. FERNANDO JUGO, Judge of First Instance of Manila, ET AL., respondents.

Felix B. Bautista for petitioner.

Gregorio Perfecto for respondent Central Luzon Milling Co.

P. J. Dayrit and Bengson & Magsanoc for other respondents.

SYLLABUS

1. APPEAL AND ERROR; "PRO-FORMA" MOTION FOR NEW TRIAL IS OFFENSIVE TO NEW RULES OF COURT AND DOES NOT INTERRUPT PERIOD FOR APPEAL; NECESSITY OF SPECIFICALLY SETTING OUT REASONS IN SUPPORT OF MOTION FOR NEW TRIAL. — Petitioner's motion for new trial did not and could not interrupt the period for appeal, it having failed to state in detail as required by the rules, the reasons in support of the grounds alleged therein. Under Rule 37, section 2, third paragraph, it is now required to "point out specifically the findings or conclusions of the judgment which are not supported by the evidence or which are contrary to law, making express reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary to such findings or conclusions." And when, as in the instant case, the motion fails to make the specification thus required, it will be treated as a motion pro-forma intended merely to delay the proceedings, and as such, it shall be stricken out as offensive to the new rules.

2. ID.; ID.; ID.; DELIBERATE ATTEMPT TO DELAY PROCEEDINGS. — Petitioner's case justifies indeed the full rigor of the new rules, there being circumstances showing a deliberate attempt on his part to delay the proceedings for his own convenience. He filed his motion for new trial on November 22, 1941, and set it for hearing almost one month thereafter, i. e., on December 20, 1941. The reason he gave in his oral argument to justify such delayed hearing was that he wanted to have time to study the transcript of the testimony of witnesses and find out reasons in support of the grounds alleged in his motion. Unquestionably, therefore, he filed his motion without knowing whether the grounds therefor were or were not good, and wanted to delay the proceedings to gain time for study. Again, asked as to why, when he was already in Manila and the Manila courts were already open, he failed to inquire as to the result of his motion for new trial, he candidly answered that he was not interested in speeding up the proceedings because he was the defeated party. With such an attitude this Court cannot be moved to grant an equitable relief.

 

||| (Valdez v. Jugo, G.R. No. 48859, November 28, 1942) Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. L-30570             July 29, 1969

JOSEPH EJERCITO ESTRADA and HON. ANDRES REYES, Judge of the Court of First Instance of Rizal (Branch VI), petitioners, vs.BRAULIO STO. DOMINGO and the COURT OF APPEALS, respondents.

Jesus G. Barrera and Suanes and Dallete for petitioner Joseph Ejercito Estrada.Salonga, Ordoñez, Yap, Sicat and Associates and Neptali Gonzales for respondent.

SANCHEZ, J.:

Petitioner Joseph Ejercito Estrada invokes the authority of this Court to overturn the judgment of the Court of Appeals — voting three to two — which (1) declared that the Court of First Instance of Rizal acted with grave abuse of discretion for not resolving on the merits respondent Braulio Sto. Domingo's motion for reconsideration of its decision of October 29, 1968, and (2) nullified said trial court's order of November 25, 1968 which held final and executory the decision aforementioned declaring petitioner the winner in the election contest for the mayoralty of San Juan, Rizal.

The controlling facts may be recited as follows:

In the local elections in San Juan, Rizal held on November 14, 1967, candidates for Mayor were then incumbent Mayor Nicanor Ibuna, Nacionalista Party official candidate; respondent Braulio Sto. Domingo, Liberal Party official candidate; petitioner Joseph Ejercito Estrada, independent; and Enrique Lenon, also independent. On December 31, 1967, the municipal board of canvassers proclaimed Braulio Sto. Domingo as elected Mayor with 7,926 votes as against Joseph Ejercito Estrada with 7,882, or a plurality of 44 votes. Nicanor Ibuna ran third with 6,775 votes. Enrique Lenon obtained 55 votes. In due course, petitioner Estrada lodged an election protest, and respondent Sto. Domingo counter-protested, in the Court of First Instance of Rizal. 1 On October 29, 1968, judgment was rendered in said election protest, thus:

IN VIEW OF ALL THE FOREGOING, the Court hereby annuls and sets aside the proclamation of the protestee, Dr. Braulio Sto. Domingo and hereby proclaims and declares the protestant, Joseph Ejercito Estrada as the Mayor duly elected for the Municipality of San Juan, Province of Rizal in the elections held on November 14, 1967, with a plurality of 192 votes, with costs against the protestee.

Sto. Domingo's counsel was served with copy of the decision on October 30, 1968.

At 1:45 p.m. on November 4, 1968, the last day of the five-day period to appeal statutorily fixed by Section 178, Revised Election Code, Sto. Domingo filed a motion to reconsider the decision. Copy of the motion was sent to Estrada's counsel by registered special delivery mail and with notice that the motion would be heard on the following Saturday, November 9, 1968 at 8:30 a.m. Attached to the motion was registry receipt 17713. Sto. Domingo therein averred that the trial judge erred (1) in reviewing and annulling the decisions of the other branches of the same court on the exclusion of voters; (2) in rejecting "Boyong" and "Dr. Boyong" votes; (3) in rejecting protestee's (private respondent's) evidence on the tampering of ballots after revision; and (4) in appreciating certain ballots.

Came the morning of November 9, 1968. Sto. Domingo and his counsel appeared in court. Absent were Estrada and his counsel, both of whom until then had not received copy of the motion. For lack of proof that Estrada had received notice of the motion for reconsideration of November 4, 1968, the hearing thereof was reset for November 16, 1968 at 8:30 a.m.

In the afternoon of November 9, 1968 Estrada, who got wind of what took place in the trial court that morning filed an "omnibus motion" alleging that Sto. Domingo's motion for reconsideration was not legally sanctioned, flimsy and frivolous, a mere scrap of paper, and intended for delay. He prayed that motion be stricken out and that the judgment be immediately executed as it had become final and executory. The omnibus motion he set for hearing on November 12, 1968 at 8:30 a.m.

Parenthetically, Estrada's counsel was personally served a copy of the motion for reconsideration only on November 11, 1968 upon the court's verbal order given on the 9th of

November. The copy sent by registered mail reached his counsel only on November 13, 1968, four days after it was set for hearing (November 9, 1968, 8:30 a.m.).

At the November 12 hearing, the judge advised the parties to submit memoranda of authorities and reset both the omnibus motion and the motion to reconsider on November 16, 1968.

It was on the scheduled hearing of November 16 that Sto. Domingo completed proof of service by mail of his motion for reconsideration by the presentation of the registry return card postmarked November 13, a certification by the Acting Postmaster of Makati as to the mailing of registered letter No. 17713 on November 4, 1968, and the affidavit of Manuel B. Busico who posted the mail. Estrada's counsel orally moved for the immediate resolution of the pending incidents. The judge was ready to rule on the motions. Sto. Domingo demurred, pleaded that his memorandum and opposition to the omnibus motion be first considered; that in the event of an adverse resolution he be allowed at least five (5) days from receipt to enable him to procure extraordinary relief from the Court of Appeals. The judge thereupon declared that he would promulgate the resolution in open court on November 23, 1968, a Saturday.

On November 19, 1968, Sto. Domingo filed a cautionary notice of appeal, manifesting that he would appeal to the Court of Appeals in the event his motion for reconsideration be thwarted. Admittedly, however, he withdrew the cautionary notice of appeal later. This withdrawal was granted by the court on November 21, 1968.

On November 20, 1968, upon Sto. Domingo's urgent motion, the judge calendared the promulgation of the resolution for Monday, November 25, 1968, at 8:30 a.m.

Allegedly informed that resolution on his reconsideration motion would be adverse to him, Sto. Domingo's counsel sought the judge in the morning of November 23, 1968, asked the latter to give him a copy of the order before the close of office hours on that day. The judge declined, instead he stated that the order would be read and released in open court the following Monday, November 25, 1968.

A hectic day, November 25, began at 7:30 a.m. when Sto. Domingo's counsel saw the judge to ask for a copy of the order. The judge told him to wait until the order shall have been read in open court. An hour later, 8:30 a.m., when the case was called, Sto. Domingo's counsel requested that the case be called again at 10:00 a.m. purportedly on the ground that he would first ask for the postponement of another case in Caloocan City. The court granted the request. At 10:00 a.m., the disputed order was read and promulgated in open court. The parties secured their copies of the order at 10:15 a.m. The dispositive portion of the order reads: "IN VIEW OF ALL THE FOREGOING CONSIDERATIONS, it is the opinion of the Court that the reconsideration of its decision dated October 29, 1968 is not in order as the same had already become final and executory."

Then and there, Sto. Domingo's counsel orally moved to reconsider. The judge after hearing the arguments of the parties denied the motion.  2 Sto. Domingo's counsel was prepared to meet this contingency. He drew from his pocket and exhibited to the judge a copy of the Court of Appeals' restraining order.

It developed that some two hours earlier, at 8:04 a.m. on November 25, Sto. Domingo's counsel lodged with the Court of Appeals a three-pronged double spaced 15-page petition with Annexes A to J for certiorari, prohibition and mandamus with preliminary injunction. 3 Counsel secured in the appellate court in about an hour's time a full-page single spaced typewritten summons and a one-and-a-half page single spaced temporary restraining order enjoining the Court of First Instance of Rizal "from executing any order and/or writ of execution ... in Election Case No. 10545" and from declaring the decision in said case "final and executory."

Upon the other hand, with equal dispatch, Estrada tried to fend off Sto. Domingo's move when he filed with the Court of Appeals, although belatedly, at 10:43 a.m., a 5-page opposition to the petition for certiorari, prohibition and mandamus attaching thereto his oath of office.

At 10:52 a.m. before the trial court adjourned, a bailiff of the Court of Appeals served on then Judge Andres Reyes, presiding over the trial court, the summons and restraining order; and at 11:50 a.m. likewise served the summons and restraining order upon Estrada.

After hearing, respondent Court of Appeals rendered the disputed decision of February 13, 1969, mentioned at the start of this opinion. Reconsideration thereof was denied by said court, again voting three to two, on May 22, 1969.

1. The forefront question to draw our attention is the correctness of the temporary restraining order of November 25, 1968 issued ex parte by the Court of Appeals promptly upon the filing therein of the certiorari, prohibition andmandamus petition. The directive in that restraining order is that respondents before the Court of Appeals refrain "from executing any order and/or writ of execution issued by respondent Judge declaring the decision in Election Case No. 10545 of the CFI-Rizal final and executory, from removing petitioner from his office as municipal mayor of San Juan, Rizal, from installing respondent Joseph Ejercito Estrada in petitioner's place as said mayor, and from otherwise molesting, disturbing petitioner in, or excluding him from, his lawful exercise and performance of his duties, rights and prerogatives as municipal mayor, until further orders from this court." Well to remember is that the restraining order was issued even before the trial court could release the very order complained of in the petition.

The averments in Sto. Domingo's petition before the Court of Appeals upon which the restraining order was issued are:

17. — That while petitioner has been unable to secure an official copy of the resolution of respondent Judge (for reasons hereinafter stated) he has been reliably informed (and because of the afore-mentioned circumstances and the persistent reports circulated by followers of respondent 'Estrada' that he [Estrada] will 'sit as Mayor on Monday', has reason to believe) that at the hearing at 8:30 o'clock this morning (Nov. 25, the respondent Judge will in open court (1) disregard or strike out petitioner's motion for reconsideration as prayed for by respondent 'Estrada' on the ground that the Election Code does not provide for a motion for reconsideration but only for appeal and that there was no proof of service of the motion, both of which are incorrect; (2) declare as final and executory his decision ousting petitioner as Municipal Mayor of San Juan and installing respondent Estrada in petitioner's stead; (3) order the execution or enforcement of said decision with the petitioner considered notified of said order in open court (as in a criminal case) and to abide by the same (while respondent 'Estrada' takes his 'oath' as mayor immediately if not also 'in open court'); and thereby deprive petitioner of any opportunity to contest the said order and execution in the appellate courts before they are carried out by the respondents over his objection.

18. — That the aforesaid actuations of respondent Judge have given rise to serious anxiety and great tension among the parties and their followers, as well as among the people of San Juan, Rizal and, as this petition is being filed by petitioner, the respondent 'Joseph Ejercito Estrada' and his men, many of whom are armed, are reported to be poised to forcibly execute the order to be issued by respondent Judge this morning while the petitioner's men, despite his instructions and advice to them to keep the peace and to ignore the taunts and challenges hurled at them by respondent 'Estrada' and his men, may not be able to restrain themselves if unduly provoked or harmed, and unless a restraining order or writ of preliminary injunction is issued by this Honorable Court against the respondents, their employees, agents, men and

representatives, violence and disorder, and possibly bloodshed, are likely to break out in the municipality of San Juan, Rizal to the consequent injury not only of the parties and their men, but also of other people, and the petitioner will be forcibly and unlawfully removed from his office as mayor without due process of law.

19. — That in spite of petitioner's efforts to secure a copy of the respondent judge's resolution up to the close of office hours last Saturday, he has been unable to do so, he being informed that the said Order would be read in open court this morning and any written order would be released only thereafter; hence, the inability of petitioner to attach a copy of said resolution to this Petition which, because of the extraordinary circumstances above cited, has to be filed even before receipt of said copy. Petitioner, however, shall file said copy by way of supplemental pleading immediately upon receipt thereof this morning if the same is reduced to writing by respondent Judge.

20. — That by the foregoing acts — the disregard or striking out of petitioner's motion for reconsideration of his decision without just and legal ground, the denial of petitioner's remedy of appeal from said decision as provided by law, and the execution of the said decision although the same is not yet final and executory (by reason of petitioner's motion for reconsideration and also the cautionary notice of appeal), and the opportunity given to respondent 'Joseph Ejercito Estrada' and his men to forcibly and unlawfully remove petitioner from his office as mayor immediately without giving petitioner adequate opportunity to seek relief from the appellate courts — the respondent Judge has unlawfully neglected the performances of an act which the law specifically enjoins as a duty resulting from his office as Judge, unlawfully excludes the petitioner from enjoyment or exercise of his legal right to move for the reconsideration of respondent Judge's decision and to appeal therefrom, and likewise unlawfully sanctions the petitioner's removal from his lawful office without due process of law.

We take a grave view of the averments in Sto. Domingo's petition before the Court of Appeals just transcribed. We particularly note his statement that later on that day, November 25, the judge in open court would disregard or strike out petitioner's (Sto. Domingo's) motion for reconsideration, declare final his decision, and order the execution or enforcement thereof. All of these upon the allegation that Sto. Domingo had "been reliably informed" of the contents of the trial court's yet unreleased order. What is disturbing is that the information thus obtained constitutes the substance of the lower court's resolution eventually promulgated on that day, November 25.

Whatever merit may be accorded to the averments in the petition before the Court of Appeals aforesaid, our deepening concern for public policy will prevent us from lending support to the appellate court's restraining order. For, the information was secured upon a betrayal of trust. Not by the trial judge; he had consistently refused to divulge the contents of the resolution prior to its promulgation. The only logical conclusion is that the information must have been given by those closely associated with the judge in the discharge of his official duties.

Decisions or orders of courts must be kept inviolate until they shall have been promulgated or released. Officials and employees of the courthouse must be strictly enjoined against giving any information in advance as to what will be done by the judge. No opportunity should be afforded the unscrupulous litigants, their lawyers, friends, relatives, sympathizers or those with power or influence to go to court employees and by insidious means and even bribery acquire advance information on the desired judgment or order of the court. Employees should be made to understand that they are not to succumb to greed, to temptations for advancement in public service, that cause them to destroy the integrity of court proceedings or court records. A relaxation of this rule would embolden officials and employees of courts to seek out interested parties in a case, give them the so-called "inside information" on the decision or order, or furnish them with copy of an unreleased decision or order, or hide, destroy or steal court records, or

hold unserved a decision or resolution to promote a party's cause — thereby to earn a quick peso. Some such occurrence as has happened in this case should be stamped out. A contrary proposition would breed graft and corruption and erode confidence in the administration of justice.

Since the information procured is the "fruit of the poisonous tree"  4 — the betrayal of trust — private respondent should not be allowed to benefit by it. Information immorally extracted cannot be dignified with the imprimatur of courts of justice. For this reason alone, we hold that there was abuse of discretion on the part of the Court of Appeals in granting the restraining order on the basis of the allegations rooted on what Sto. Domingo calls "reliable information".

But herein respondent Sto. Domingo avers that petitioner Estrada and his men, many of whom were armed, were reportedly poised to forcibly execute the order enforcing the judgment as yet to be issued in the morning of November 25. Said respondent told the Court of Appeals that a restraining order was a necessity to forestall impending bloodshed because his men, in the words of his petition before the appellate court, "despite his instructions and advice to them to keep the peace and to ignore the taunts and challenges hurled at them by respondent 'Estrada' and his men, may not be able to restrain themselves if unduly provoked or harmed."

This is an imagined wrong. It is so easy to conjure some such situation. Rumors may be blown into hysteria. Surely, the trial judge is not a party to this alleged scheme. Nor will he consent, we are sure, to be a party to such dastardly acts.

It is because of this that courts should be careful, indeed very cautious, in giving in to averments such as are heretofore recited. Courts should be on guard against litigants who swell up a picture into an alarming situation. We do not hesitate to say that at the time the petition (lodged in the Court of Appeals as early as 8:04 a.m.) was being thought of, framed in the minds of the lawyers and eventually typewritten, there was no such grave problem of threatening armed clashes or bloodshed as would call for the remedy of a restraining order from the Court of Appeals. If tension such as was depicted by Sto. Domingo existed, it would not have escaped notice of the trial judge. He was at the vortex of the alleged ominous events. Representations then could have been made to him in view of the alleged turbulence of the atmosphere either to do away with the oral promulgation of the resolution altogether, or after the promulgation thereof, to have its enforcement delayed so that appropriate relief may be had in the appellate courts. So it is, that the averment in the Court of Appeals' petition that the judge would purportedly refuse to afford respondent Sto. Domingo's opportunity to seek aid from the appellate courts is premature and at best pure conjecture. And, if it were really true that there was the gathering momentum leading to violence, we believe that guardians of the law should likewise have known of the same — which is not even suggested in the record — and readied themselves to forestall armed clashes.

It thus results that there is a remedy elsewhere other than in the form of a premature restraining order from the Court of Appeals.

Besides, if the judge would declare his decision final and executory, as he later on did, and the forces of respondent Sto. Domingo would resist petitioner Estrada's takeover, such a resistance would certainly be patently illegal and indeed even criminal. Surely, impending bloodshed can never be a valid ground to restrain a lawful assumption of office. What will happen to the rule of law?

It is in the context heretofore recited that we hold that the Court of Appeals committed a grave abuse of discretion in issuing ex parte the restraining order here complained of. For this reason, we strike down the said restraining order.

2. We face the problems ahead with an eye to the nature of election contest proceedings.

The statutory scheme clearly mapped out in the Revised Election Code is that proceedings in election protests are special and expeditious. The periods for filing pleadings are short. Trials are swift. Decisions in municipal election contests are to be handed down in six months after the protest is presented. The time to file a notice of appeal is cut short to five days from notice of the decision. Appeal is to be decided within three months after the case is filed with the clerk of the court to which appeal is taken. Preferential disposition of election contests except as to habeas corpus proceedings is set forth in the law. 5 Even the Rules of Court make it abundantly clear that election cases enjoy preferential status. 6 The proceedings should not be encumbered by delays. All of these are because the term of elective office is likewise short. There is the personal stake of the contestants which generates feuds and discords. Above all is the public interest. Title to public elective office must not be left long under cloud. Efficiency of public administration should not be impaired. It is thus understandable that pitfalls which may retard the determination of election contests should be avoided. Courts should heed the imperative need for dispatch. Obstacles and technicalities which fetter the people's will should not stand in the way of a prompt termination of elections contests.

Since 1966, when this Court in Lagumbay vs. Climaco 7 projected the pressing need to strike a blow at the "pernicious 'grab-the-proclamation-prolong-the-protest' slogan of some candidates or parties", we observe, to our dismay, that courts of justice still have to cope with oft-recurring cases which come about in utter disregard of this rule. 8

These are the desiderata which should be uppermost in the mind of courts of justice, if only to give substance to the constitutional precept that "[s]overeignty resides in the people and all government authority emanates from them." 9

3. The thrust of Sto. Domingo's petition before the Court of Appeals is that therein respondent Judge Andres Reyes did not resolve his motion for reconsideration on the merits; that accordingly mandamus should issue to compel him so to do; and that in the event the resolution be adverse, the judge be directed to give due course to his cautionary notice of appeal.

The majority decision of the Court of Appeals gave its nod to the posture so taken and directed the judge "to act upon and resolve petitioner's [private respondent's] motion for reconsideration of the decision in said case on the merits."

A reading of the November 25 order of Judge Andres Reyes brings about the salient points thereof, viz:

To begin with, the Court does not believe that the filing of a motion for reconsideration in an election case is in order ....

x x x           x x x           x x x

And even granting for the sake of argument that the aggrieved party can file a motion for reconsideration, the instant motion filed by Braulio Sto. Domingo is pro forma and therefore, did not suspend the running of the period of appeal. It is pro forma because the said motion for reconsideration was but a repetition of the contents of the memorandum filed by the said protestee and in a small way, a refutation of a portion of the memorandum filed by the protestant, which the movant could have refuted by filing a reply memorandum before the case was submitted for decision. To make it short, the motion for reconsideration merely makes reference to the contents of the memorandum filed by other parties which had already been considered by the Court before rendering its decision. (Arnaldo vs. Bernabe, 87 Phil. 379)

Not only this, even granting for the sake of argument again, that the instant motion for reconsideration was notpro forma, still the Court believes that the filing of the said motion was fatally defective, and such being so, the motion is but a mere scrap of paper which did not stop the running of the period for appeal. ....

The motion lacked the required affidavit. The affidavit is a very important requirement considering the fact that a registry receipt does not show the nature of the contents of the letter that has been mailed. The deficiency was not cured when the movant Braulio Sto. Domingo submitted the affidavit of a certain Manuel Busico which is dated November 13, 1968, or four (4) days after the date when said motion was set for hearing. The failure therefore of the protestee to attach the affidavit to the motion was fatal.

And not only this. The failure of the protestee to comply with the requirements of Section 2, Rule 37, Section 4, Rule 15 and Section 8, Rule 3 ... is likewise fatal. A copy of the motion for reconsideration was not served on the protestants three (3) days before the date set for hearing. The record shows that the protestant received the copy of the motion for reconsideration of the protestee only on November 13, 1968 or four (4) days after the said motion was set for hearing by the movant on November 9, 1968."

Nothing more forcefully downgrades the charge that the judge did not fully resolve the motion for reconsideration than the recitals in the order just quoted. To be sure, Section 12, Article VIII, Constitution, and Section 1, Rule 36, Rules of Court which require express findings of fact in a decision, both have no application to the questioned order. Here involved is not a decision on the merits but a mere order upon a motion to reconsider. The judge could simply dish out a routine capsule-form order "Denied for lack of merit" or "Motion for reconsideration denied". And yet, that kind of order would serve to immunize the judge against an unlawful neglect-of-duty charge. But the judge did not merely content himself with a perfunctory order. He wrote a reasoned out five-page resolution.

Nor is it correct to tag the judge's order with failure to consider the motion for reconsideration on the merits. Meaning should be attached to the judge's statement that the motion for reconsideration is pro forum because the same is "but a repetition of the contents of the memorandum filed by the said protestee and in a small way, a refutation of a portion of the memorandum filed by the protestant, which the movant could have refuted by filing a reply memorandum before the case was submitted for decision." The judge added that: "To make it short, the motion for reconsideration merely makes reference to the contents of the memorandum filed by both parties which had already been considered by the Court before rendering its decision." Implicit in these statements is that the judge waded through private respondent's motion for reconsideration, read and examined the merits of the arguments therein, compared them with those set forth in private respondent's memorandum and then came to the conclusion that the arguments advanced would not change the result. Had the judge found in that motion for reconsideration some argument of weight or substance which would bring about a conclusion different from that reached in his decision, surely enough, he would have spelled it out and written it in an amended decision. For, the presumption is that a judge performs his duty to the best of his knowledge and ability. Since the judge did not change his decision, then under the circumstances his November 25 order amounted to a denial of the motion for reconsideration on the merits. And this is quite clear from the dispositive part thereof which stated that the order was "IN VIEW OF ALL THE FOREGOING CONSIDERATIONS".

We thus find ourselves unable to go along with the Court of Appeals' insistence that the judge's statement that the motion was pro forma is not to be taken as a resolution of the motion on the merits. The reasons the appellate cotext gave are: first, such pro forma finding "merely supported [i.e., for the sake of argument] the main thesis ... that the decision 'had already become final and executory'"; and second, it is inconsistent for the judge "to say that the remedy of reconsideration is not available and at the same time pass upon it [the motion] on the merits." Courts at times do not hesitate to avail of all grounds to throw out a motion or pleading. It is not

uncommon to read in decisions or orders some such statement as this: Viewed from any angle, the petition in this case should be dismissed." 10

For these reasons, it is difficult to hew to the Court of Appeals' view that the judge so unlawfully neglected his duty to rule on the merits of the motion for reconsideration. It bears repeating that the judge did more than what was expected; that instead of mechanically writing "Denied for lack of merit", he examined the arguments set forth in said motion and explained as cogently as he could why it should not be granted. His order meets the rigid standards expected of his judicial position.

And more. In the resolution of a motion for reconsideration, judges wiled sound discretion. As Mr. Justice Edilberto Soriano of the Court of Appeals, in his dissent to the resolution denying reconsideration, aptly observed, "[h]ow he was going to go about it, or upon what ground or grounds, is of little moment." The fact is that the judge's duty under the premises is to grant or deny. He did deny. He is not remiss in his duty. We, accordingly, hold that the trial court's order of November 25, 1968 properly ruled on private respondent's motion for reconsideration.

4. The conclusion just reached brings us to the next question: Did private respondent's motion for reconsideration arrest the five-day period for appeal set forth in Section 178 of the Revised Election Code?

To repeat, the motion for reconsideration of the decision was based on four grounds, namely, the court erred (1) in reviewing and annulling the decisions of the other branches of the same Court of First Instance in exclusion cases; (2) in rejecting the so-called "Boyong" and "Dr. Boyong" votes; (3) in rejecting protestee's evidence on the tampering of ballots after revision; and (4) in appreciating certain ballots. And we have said that the lower court in rejecting this motion ruled that it was pro forma in that the matters therein discussed "had already been considered by the Court before rendering its decision." There is much to the trial judge's statement just quoted.

On the first ground which refers to the decision of the other branches of the Court of First Instance in exclusion cases, it is clear from the decision that this matter had already been brought to the attention of the trial judge before the decision was rendered. Said the trial judge:

According to the protestee, 659 out of 1,508 excluded voters were able to vote, and 285 of them voted for Estrada, 95 for Sto. Domingo, and 279 for Ibuna. This was determined by a matching conducted by a witness for the protestee by the name of Major Catalino Hernandez. To represent the facts clearer, the results of this matching are tabulated and appears on page 8 of Protestee's memorandum.

The protestee vigorously claims that the ballots cast by these excluded voters should be deducted from the number of votes credited to Estrada, Sto. Domingo, and Ibuna. 11

On the so-called "Boyong" and "Dr. Boyong" votes, there is the admission on the part of counsel for Sto. Domingo (during the course of oral arguments before the trial judge on November 25, 1968 in support of his verbal motion to reconsider the denial of his motion for reconsideration of the decision) that "we raised this question in our memorandum because of the exception laid down in the case of Abrea vs. Lloren but also on the principle of idem sonans." 12

On the alleged tampered ballots, the trial judge, on pages 56 and 57 of the decision, explained quite in detail how, after this case had been submitted for decision, the protestee (respondent Sto. Domingo), on August 27, 1968, moved to reopen the case alleging evidence to show that said ballots were tampered. Of the 264 ballots, respondent Sto. Domingo only claims 31 ballots

stating: "By our count, a total of 31 ballots wherein the protestee was voted for Mayor were rejected by the Court as marked ballots because of such 'marks' as '3 stars', swastika figures, drawings of bottles of beer and the word 'toma', likeness of human face, carbon traces, 'Jr. 007', '...' below OFFICIAL BALLOT, etc. appearing thereon." On the question of whether these 31 ballots should be counted for Sto. Domingo, his counsel admitted that: "We cited the arguments and the law applicable. We learned this appreciation only upon receipt of the decision. We could not have anticipated it because we have vigorously maintained that the alleged 'marks' there were not placed by the voters themselves but by other persons without their consent. How then could our motion be pro-forma?" 13 Respondent Sto. Domingo in his motion for reconsideration would want the trial court to read the memorandum of objections filed by protestant (petitioner Estrada) to convince said court that its ruling on this point was wrong. But this memorandum of objections had already been considered by the trial court when it said, on page 57 of its decision: "Anyone who tampers these ballots must also be familiar with the memorandum of objections filed by the protestant as early as May, 1968 in order to harmonize the written objections with the physical appearance of the 264 ballots."

Nor will the appreciation of 56 ballots given as the fourth and last ground of the motion for reconsideration be of any importance. The question of appreciation of ballots in election protests comes up after those ballots have been challenged. They are separated. The parties are heard on their reasons pro and con. Only thereafter does the judge weigh the relative value of the reasons given by one party or the other.

It is quite apparent then that the questions raised in the motion for reconsideration have already been considered by the trial judge before the decision of the case on the merits. This is an election protest. Public policy demands that it be instituted and finished with utmost promptitude. It was indeed an utter waste of time for private respondent to have sought reconsideration upon questions which, after all, could have been very well decided by the appellate court.

We, accordingly, rule that where in an election protest a motion for reconsideration of the decision on the merits presents questions which have already been considered by the court prior to or upon the promulgation of such decision, said motion for reconsideration is pro forma and does not suspend the running of the period for appeal. This rule, we are confident, helps remove from the reach of proclamation grabbers a dilatory device conveniently used by them to keep them in office and to frustrate the victors from taking the seats that are justly theirs.

As we look back at the facts, we discern a pattern of delay on the part of private respondent. Recited by petitioner Estrada are the following which took place in the trial court: (1) Motion to reduce deposit from P7,500 to P4,000 dated February 12, 1968; 14 (2) Motion for time to evaluate revision dated February 14, 1968; 15 (3) Motion to allow services of handwriting expert dated February 16, 1968; 16 (4) Motion to reset beginning of technical examination by handwriting expert dated February 27, 1968; 17 (5) Urgent motion to suspend revision of counter-protested precincts dated February 27, 1968; 18 (6) Motion to conduct matching tests with respect to Precinct Nos. 8, 72 and 77 dated June 5, 1968; 19 and (7) Petition to reopen the case to adduce evidence of tampering dated August 26, 1968. 20 This last motion was granted by the judge despite the fact that the tampering, on which evidence was to be adduced, was already previously brought to his attention.

Indeed, even private respondent's conduct after the trial court's decision is not arguably insulated from the charge of delaying tactics. It was on the last day of the statutory period fixed for appealing the main decision — November 4, 1968 — that private respondent's motion for reconsideration was filed. And then, instead of serving a copy thereof on petitioner personally, as had at times been done before admittedly with previous pleadings, 21service on petitioner was made by registered special delivery mail, with notice that the incident would be heard on the following Saturday, November 9. Copy of the motion and the notice of hearing sent by mail did not reach petitioner on time. Petitioner actually received the mailed matter on November 13, four days after the motion for reconsideration was set for hearing. This was, of course, to be

expected from the experience people have with our postal system. Private respondent, we are sure, knew this. Because service was effected thru the mails, private respondent won a week's delay — the judge reset the hearing on the motion for reconsideration on November 16.

On November 16, when the judge announced his readiness to rule on the motion, we find private respondent objecting, asking that his memorandum and opposition to petitioner's omnibus motion be first considered and suing for time to procure extraordinary relief from the Court of Appeals. Private respondent won another week's delay. The judge declared that he would promulgate the resolution in open court on November 23, the next Saturday. In the meantime, however, private respondent made another move to postpone the promulgation. The judge again reset the same on Monday, November 25.

On November 25 at 8:30 a.m., private respondent's counsel successfully obtained a one-and-a-half hour delay upon the ground that he had to postpone another case in Caloocan City. It turned out that, meanwhile, private respondent's lawyers were frantically attempting to secure a restraining order from the Court of Appeals. They filed a special civil action with the said appellate court at 8:04 a.m. that same morning. When private respondent received a copy of the judge's order disposing of their motion for reconsideration at 10:15 a.m., and when the judge denied private respondent's oral motion for reconsideration thereof, the latter was ready. Private respondent's counsel came out with the restraining order from the Court of Appeals.

Consider also the time consumed by the present proceedings in the Court of Appeals. Private respondent's petition was filed on November 25, 1968. It was finally resolved only on May 22, 1969. And yet, upon the excuse that his motion for reconsideration of the decision was not ruled upon on the merits, private respondent would want the appellate court to command the trial judge first to rule on the said motion and thereafter give due course to his appeal. One may well imagine the baneful effects of some such procedure. Had his petition prospered, it is not unlikely that by the time the case is finally decided, the pyrrhic victory which courts abhor would again be repeated.

It must be emphasized that the questions raised in the motion for reconsideration could very well be disposed of, and with finality, on appeal. In the realities of political life, it is unreasonable to assume that whatever be the resolution on the motion for reconsideration, the defeated party would take that resolution hands down. It is not to be expected that respondent Sto. Domingo, who is presently sitting as Mayor would not appeal from the decision adverse to him.

If any meaning is to be attached to the events in the lower courts, it is that private respondent has, in ingeniouly chiseled language, so skillfully taken advantage of judicial procedure to stave off the day of reckoning when petitioner would replace him as Mayor of San Juan, Rizal. The pattern of delay is patent.

A principle already forged by this Court is that a motion for reconsideration which has no other purpose than to gain time is pro forma and does not stop the period of appeal from slipping away. 22 It is in recognition of this doctrine that we hold that where a motion for reconsideration in an election case is taken advantage of for purposes of delay to the prejudice of the adverse party or where such motion forms part of a matrix of delay, that motion does not stop running of the five-day period for appeal.

The foregoing discussions pave the way for an examination of the remedies, if any, available to private respondent.

5. Mandamus will not issue to compel the trial judge to decide private respondent's motion for reconsideration. That motion for reconsideration, we say again, had been decided on the merits. And even on the assumption that the court did not so decide, mandamus will not issue. For, the

court did decide; it denied the motion. Perhaps in a way not satisfactory to private respondent. But then, mandamus is no remedy to control the exercise by the court of its discretion. 23 Nor will it avail to compel him to resolve an incident in a particular way. 24 Reason for this is that the law concedes to judges the right to decide questions according to their own judgment and understanding of the law. If the court's resolution is wrong, correctible it is by appeal, not mandamus. 25

As unavailing is mandamus to compel the judge to approve his appeal. Private respondent has not appealed from the judgment. He cannot rely on the cautionary notice of appeal which he has withdrawn.

6. Nor will the writs of certiorari and prohibition issue. Their function is to keep an inferior court within the bounds of its jurisdiction or to prevent it from committing such a grave abuse of discretion amounting to excess of jurisdiction. 26 Admittedly, the trial court had jurisdiction over the election case. The questioned order of November 25, 1968 was issued in the proper exercise of such jurisdiction. Granting or denying a motion for reconsideration indeed involves an exercise of discretion. 27 As was pointed out in Bustos vs. Moir, 35 Phil. 415, 417, an election case: "It is absurd to claim that a court has no jurisdiction to do the very thing which the law authorizes it to do. The mere fact that it decides the question wrong is ... utterly immaterial to the question of its jurisdiction." And discretion has not been abused.

Respondent Sto. Domingo's motion for reconsideration did not stop the running of the five-day period for appeal. No appeal has been taken from the judgment dislodging said respondent from his seat as Mayor. Accordingly, that judgment has become final.

Besides, as adverted to earlier in this opinion, the trial court — upon the allegations set forth in paragraphs 17 to 20 of private respondent's petition before the Court of Appeals based on alleged "reliable information" — may not be restrained by the latter court from enforcing the order of November 25, 1968 denying the motion for the reconsideration of its main decision. We have also said that the trial court has correctly denied said motion for reconsideration. It follows then that neither certiorari nor prohibition will issue against the trial judge to stop him from proceeding with the execution of his judgment.

7. In fact, no extraordinary writ may at all issue in the present case. For, a rule that has definitely crystallized because of frequent reiteration is that extraordinary remedies—such as mandamus, certiorari and prohibition may not be sought if there is another remedy as adequate and speedy. 28 We have no doubt that an appeal within the statutory period from the judgment rendered on October 29, 1968 in this election case is as adequate and as speedy as any special civil action. Faster it could be. For, the law commands that election contest appeals "shall be decided within three months after the filing of the case in the office of the clerk of the court to which the appeal has been taken." 29 This is fortified by another statutory precept which directs the trial and appellate courts to "give preference to election contests over all other cases, except those of habeas corpus" and to "hear and decide them without delay, within the time limits fixed by law, whether they are holding regular sessions or not." 30But appeal, we have heretofore stated, is lost. No remedy is left.

8. In a last ditch attempt to keep this case alive, respondent Sto. Domingo now comes to this Court with the plea "that in the remote possibility that his petition" in the Court of Appeals "for any reason be denied, the same be considered or treated as an appeal."

Reasons there are why this cannot be done. First. At the time the petition before the Court of Appeals was filed, the judgment of the trial court was already final.  Second. Said respondent cannot now invoke this Court's power to help him retrieve his right to appeal which he has deliberately discarded in favor of a special civil action — which, mildly put, has served no purpose other than to delay these proceedings. He has already eaten up almost one-half of the

term of office that the electorate, to all appearances, had not entrusted to him. He cannot gamble with one court proceeding, and failing in this, resort to another. Indeed, resorting piecemeal to one remedy after another could be an instrument of oppression against the adversary. Third. Respondent Sto. Domingo's petition before the Court of Appeals is bereft of any allegation indicative of any intention of his to appeal. On the contrary, it was meant to procure a decision remanding the case to the court below for further proceedings.

These are considerations which deter us from heeding Sto. Domingo's plea that the special civil action in the Court of Appeals be treated as an appeal. In those cases where this Court considered an appeal as a special civil action or vice-versa, there was reason therefor: to avoid delay and to thwart the commission of injustice. 31 But for this Court to grant said respondent Sto. Domingo's plea, delay instead of being avoided would be encouraged; justice instead of being advanced, denied. No equitable consideration there is which would give some semblance of authority to consider the special civil action as an appeal. He lost his remedy of appeal. Not through fraud, accident, mistake, or excusable negligence, 32 or through the court's own fault. 33 If negligence or mistake there was, we are certain it was not excusable. The short of it is that private respondent opted to travel the road of extraordinary remedies, not with the intention of having the case brought up for appellate review on the merits. Clear was his aim to have the present questions decided first and, if adversely resolved against him, to appeal. To legitimize such maneuvers is to run smack against the letter and spirit of the election law. Temporizing with delay in election cases is repugnant to our sense of justice. It is our duty to hold that appeal as a remedy has been totally foreclosed to respondent Sto. Domingo.

The merits of the election protest are not before us in these proceedings. But as this decision will have the effect of affirming the finality of the judgment of the trial court upholding the protest of petitioner Joseph Ejercito Estrada, we have gone over the records of the Court of First Instance and the Court of Appeals which have been alevated to this Court. And we are satisfied that our decision here does not defeat the expressed will of the electorate of San Juan, Rizal.

For the reasons given —

(1) the judgement of the Court of Appeals promulgated on February 13, 1969 is hereby set aside; and.

(2) the judgement of the Court of First Instance of Rizal in Election Case No. 10545 entitled "Joseph Ejercito Estrada, Protestant, versus Braulio Sto. Domingo, Protestee", declaring Joseph Ejercito Estrada as the duly elected Mayor for the Municipality of San Juan, Province of Rizal in the elections held on November 14, 1967 with a plurality of 192 votes, with costs against protestee, is hereby declared final and executory as of November, 5, 1968.

Our decision herein shall become final five (5) days from notice hereof.

Costs against private respondent Braulio Sto. Domingo. So ordered.

Concepcion, C.J., Reyes, J.B.L., Zaldivar, Castro, Fernando, Capistrano and Teehankee, JJ., concur.Makalintal, J., took no part.

SECOND DIVISION

[G.R. No. L-55694. October 23, 1981.]

ADALIA B. FRANCISCO, ZENAIDA FRANCISCO, ESTER FRANCISCO, ADELUISA FRANCISCO and ELIZABETH FRANCISCO, petitioners, vs. HON. BENIGNO M. PUNO, as Presiding Judge, Court of First Instance of Quezon, Branch II, Lucena City and JOSEFINA D. LAGAR, respondents.

Virgilio M. Pablo for petitioners.

Bienvenido A. Mapaye and Amado B. Zaballero for respondents.

SYNOPSIS

Before the lower court, private respondent filed a civil case for reconveyance of property and damages. The complaint was dismissed notwithstanding defendant's having been declared in default on the ground of insufficiency of evidence to sustain the cause of action alleged. Subsequently, private respondent filed a Motion for New Trial and/or Reconsideration which was likewise denied for having been filed out of time, 32 days after the copy of the decision was served on her counsel-of-record. A petition for relief under Rule 38 was then resorted to. Petitioners maintained that aside from the fact that no excusable negligence has been alleged, the petition was filed out of time. The respondent Judge granted the petition ruling that it is the date when private respondent actually learned of the decision from which she seeks relief that should be considered incomputing the 60 days prescribed for purposes of determining the timeliness of the petition and not the date of service to counsel. On certiorari, the Supreme Court held that the remedies of new trial and for relief are exclusive of each other; that a petition for relief is not appropriate in the case at bar as another remedy, a motion for new trial, was previously resorted to. The petition for relief was decidedly filed out of time, despite the lower court's view that the period should be computed only from March 17, 1980 when private respondent learned of the decision as notice to counsel is notice to the party for purposes of Section 3, of Rule 38. The resolution of respondent Judge of October 8, 1980 was set aside and the decision of January 8, 1980 was reinstated, the same having become final and executory.

SYLLABUS

1. REMEDIAL LAW; CIVIL PROCEDURE; JUDGMENTS; PETITION FOR RELIEF UNDER RULE 38; NOT APPROPRIATE AFTER DENIAL OF A MOTION FOR NEW TRIAL. — A party who has filed a timely motion for new trial cannot file a petition for relief after his motion has been denied. These two remedies are exclusive of each other. It is only in appropriate cases where a party aggrieved by a judgment has not been able to file a motion for new trial that a petition for relief can be filed.

2. ID.; ID.; ID.; ID.; PETITION IN CASE AT BAR FILED OUT OF TIME. — The petition for relief of private respondent was filed out of time. We cannot sanction respondent court's view that the period should be computed only from March 17, 1980 when she claims self-servingly that she first knew of the judgment because she signed and even swore to the truth of the allegations in her motion for new trial filed by her lawyer on Feb. 16, 1980 or a month earlier. To give way to her accusations of incompetency against the lawyer who handled her case at the pre-trial, which resulted in a decision adverse to her despite the absence of petitioners, and charge again later that her new counsel did not inform her properly of the import of her motion for new trial and/or reconsideration is to strain the quality of mercy beyond the breaking point and could be an unwarranted slur on the members of the bar.

3. ID.; ID.; ID.; ID.; PERIOD FOR THE FILING THEREOF COMMENCES TO RUN FROM NOTICE TO COUNSEL. — Notice to counsel of the decision is notice to the party for purposes of Sec. 3 of Rule 38. The principle that notice to party, when he is represented by a counsel of record, is not valid is applicable here in the reverse for the very same reason that it is the lawyer who is supposed to know the next procedural steps or what ought to be done in law henceforth for the protection of the rights of the client, and not the latter.

4. ID.; ID.; ID.; ID.; RESPONDENT JUDGE'S COGNIZANCE OF PETITION FILED OUT OF TIME, EFFECT OF. — Respondent judge acted beyond his jurisdiction in taking cognizance of private respondent's petition for relief and, therefore, all his actuations in connection therewith are null and void, with the result that his decision of January 8, 1980 should be allowed to stand, the same having become final and executory.

D E C I S I O N

BARREDO, J p:

Petition for certiorari impugning the resolution of respondent judge of October 8, 1980 granting private respondent's petition for relief from the judgment rendered by the same respondent judge on January 8, 1980 in Civil Case No. 8480 of the Court of First Instance of Quezon which dismissed private respondent's complaint for reconveyance of a parcel of land and damages. That decision was rendered notwithstanding the absence of petitioners at the pre-trial by reason of which they were declared in default. It was based alone on the testimony of private respondent Josefina D. Lagar and documents she presented.

On August 29, 1979, private respondent filed with respondent judge a complaint for reconveyance of a parcel of land and damages alleging inter alia that respondent's father caused the land in question titled in his name alone as "widower", after her mother's death, in spite of the property being conjugal, and then sold it to the predecessor in interest of petitioners from whom they bought the same. LLpr

After the defendants, herein petitioners had filed their answer, wherein they alleged lack of personality of plaintiff to sue, prescription and that they are buyers in good faith, the case was set for pre-trial, but petitioners failed to appear thereat. Taking advantage of such absence, private respondent's counsel move that they be declared in default and that private respondent, with the assistance of her counsel, Atty. Pacifico M. Monje, be allowed to present their evidence. The motion was granted and after presenting her evidence, counsel rested her case. On the same date, respondent judge rendered judgment finding the evidence insufficient to sustain the cause of action alleged and therefore dismissing the complaint. That was on January 8, 1980. On February 15, 1980, respondent's counsel was served with copy of the decision. (See Annex G of the petition.)

On February 16, 1980, private respondent filed, thru a new counsel, Atty. Bienvenido A. Mapaye, a motion for new trial and/or reconsideration alleging that the insufficiency of her evidence was due to the fault of her counsel who presented the same without her being fully prepared. In other words, she claimed, she had newly discovered evidence that could prove her cause of action. It is relevant to note that said motion was signed and sworn to by private respondent herself together with her counsel.

Acting on the said motion for new trial and/or reconsideration, on April 28, 1980, respondent judge denied the same for having been filed out of time. Indeed, from January 15, 1980, when respondent's counsel was serve with the decision, to February 16, 1980, when the motion was filed, more than 30 days had already elapsed (32 days to be exact).

Persisting in her effort to pursue her claim, under date of May 7, 1980, private respondent filed, thru another new counsel, Atty. Ricardo Rosales, Jr., a petition for relief, purportedly under Rule 38, claiming:

"1. She filed civil case 8480 for Reconveyance and Damages against defendants Luis Francisco, et al., on August 29, 1979.

"2. The main trust in petitioner's action against defendant was her unlawful deprivation of one-half of the property covered by TCT No. 2720 and denominated as Lot 4864 of the cadastral survey of Lucena, as said parcel belongs to the conjugal partnership of Dionisio Lagar and Gaudencia Daelo, plaintiff-petitioner's immediate predecessor-in-interest.

"3. Gaudencia Daelo having predeceased her husband, petitioner contends that one-half of the property belongs to her mother and therefore should rightfully by inherited by her after her mother's death, but failed however, to inherit any part thereof, because her father sold the entire parcel to the defendant Luis Francisco.

"4. On January 8, 1980, a pre-trial hearing was scheduled, where defendants were declared as if in default thereafter an order of default was issued and plaintiff adduced evidence ex-parte.

"5. On the same date, January 8, 1980, a decision was rendered dismissing the case after plaintiff took the witness stand, who through excusable neglect was not able to expound on very vital points and inadvertently failed to introduce in support of her theory.

"6. Because plaintiff-petitioner was under the belief that the scheduled hearing was one where no testimony is yet to be taken, coupled by the fact that she was not prepared to testify, and that it was her first time to take the witness stand, she did not fully comprehend the questions propounded to her.

"7. Plaintiff-petitioner filed a Motion for Reconsideration and/or new trial but was denied in its order dated April 28, 1980, which petitioner received on May 5, 1980.

"8. If plaintiff-petitioner will be allowed to introduce evidence in her possession, which by excusable neglect and/or mistake were not introduced, the same will necessarily alter and/or change the decision in her favor, attached is her affidavit of merits.

"9. Evidence in support of her claim that it is a conjugal property consist of a deed of sale executed by Manual Zaballero and Germana Ona in favor of the conjugal partnership of Dionisio Lagar and Gaudencia Daello (Doc. No. 412; Page No. 55; Book No. II; Series of 1948 of Notary Public Francisco Mendioro), xerox copy thereof is attached herewith as Annex `A'.

"10. The deed of sale ratified by Notary Public Ramon Ingente (Doc. No. 68; Page No. 7; Book No. VI; Series of 1955) executed by Dionisio Lagar should refer only to one-half (1/2) and therefore is annulable in so far as the other half of the property is concerned.

 

"11. That the petition wherein Dionisio Lagar sought to change his civil status was not known personally to the plaintiff-petitioner and/or not understood by her, otherwise she could have made reservations in that

petition eventually protecting her right insofar as one-half (1/2) of the property is concerned.

"12. Plaintiff-petitioner has a valid substantial cause of action consisting of evidence enumerated above, which by excusable negligence or error was not presented otherwise, the decision will be in favor of the plaintiff herein petitioner." (Petition for Relief of Judgment, pp. 50-52, Record)

Answering the petition for relief, petitioners maintained that aside from the fact that no excusable negligence has been alleged, for, on the contrary, there was an evident effort on respondent's part to take advantage of the absence and default of petitioners when respondent presented her evidence, the petition for relief was filed out of time in the light of Section 3 of Rule 38, which provides that such a petition should be "filed within sixty (6) days after the petitioner learns of the judgment, order or proceeding to be set aside, and not more than six (6) months after such judgment or order was entered or such proceeding was taken."

In his resolution of October 8, 1980 now under question, respondent judge ruled that: LLpr

"Defendants' claim that plaintiff is presumed to have learned of the judgment of January 8, 1980, either on January 15, 1980 when Atty. Monje received a copy thereof or on February 15, 1980, when plaintiff signed the Motion for Reconsideration and/or New Trial prepared by Atty. Mapaye, in either case, the petition for relief of May 8, 1980 by Atty. Rosales was resorted to beyond the 60-day period prescribed under Section 3, Rule 38 of the Rules of Court; from January 15 to May 8 is a period of 114 days and from February 15 to May 8 is a period of 84 days; in either case, the filing of the petition for relief is beyond 60 days from the time plaintiff is presumed to have learned of said decision of January 8, although, in either or both events, the filing thereof is admittedly within 6 months from the issuance of said decision; on the other hand, the plaintiff stated that she did not actually learn of the decision of January 8, until she received a copy thereof on March 17, 1980 (p. 67 of Record or Exh. `G') and that she was not informed of the contents of the motion for new trial and/or reconsideration on February 15, 10980 when she was made to sign it (TSN, pp. 20-21, July 28, 1980).

"`Q — From where did you secure that copy of the decision?

A — I went to the court myself and secured a copy of the decision.' (TSN, p. 16-id)

xxx xxx xxx

Q — And you are sure of the fact that you only became aware of the decision in the month of March, 1980?

A —Yes, sir,' (TSN, p. 20, id).

"In the light of the circumstances obtaining in this case, it is the opinion of the Court that it is the date when plaintiff actually learned of the decision from which she seeks relief that should be considered in computing the period of 60 days prescribed under Sec. 3, Rule 38 of the Rules of Court for purposes of determining the timeliness of the said petition for relief; this opinion finds support in Cayetano vs. Ceguerra, et al., No. L-18831, 13 SCRA, where the Supreme Court, in effect, held that the date of `actual knowledge' (and not the presumed date of receipt or knowledge) of the decision, order or judgment from which relief is sought shall be the date which should be considered in determining the timeliness of the filing of a petition for relief; in that case, the Supreme Court said:

"`It is conceded that defendants received a first registry notice on January 13, 1961, but they did not claim the letter, thereby giving rise to the presumption that five (5) days after receipt of the first notice, the defendants were deemed to have received the letter. This Court, however, cannot justly attribute upon defendants actual knowledge of the decision, because there is no showing that the registry notice itself contained any indication that the registered letter was a copy of the decision, or that the registry notice referred to the case being ventilated. We cannot exact a strict accounting of the rules from ordinary mortals, like the defendants.'" (Resolution, pp. 67-68, Record.)

We cannot agree, for two reasons. First, according to Chief Justice Moran:

"The relief provided for by this rule is not regarded with favor and the judgment would not be avoided where the party complaining `has, or by exercising proper diligence would have had, an adequate remedy at law, or by proceedings in the original action, by motion, petition, or the like to open, vacate, modify, or otherwise obtain relief against, the judgment.' (Fajardo v. Judge Bayona, etc., et al., 52 O.G. 1937; See Alquesa v. Cavoda, L-16735, Oct. 31, 1961, citing 49 C.J.S. 695.) The remedy allowed by this rule is an act of grace, as it were, designed to give the aggrieved party another and last chance. Being in the position of one who begs, such party's privilege is not to impose conditions, haggle or dilly-dally, but to grab what is offered him (Palomares, et al. v. Jimenez, et al., L-4513 Jan. 31, 1952.)" (Page 226, Moran, Comments on the Rules of Court, Vol. 2, 1979 Edition.).

In other words, where, as in this case, another remedy is available, as, in fact, private respondent had filed a motion for new trial and/or reconsideration alleging practically the same main ground of the petition for relief under discussion, which was denied, what respondent should have done was to take to a higher court such denial. A party who has filed a timely motion for new trial cannot file a petition for relief after his motion has been denied. These two remedies are exclusive of each other. It is only in appropriate cases where a party aggrieved by a judgment has not been able to file a motion for new trial that a petition for relief can be filed. cdrep

Second, it is beyond doubt that the petition for relief of private respondent was filed out of time We cannot sanction respondent court's view that the period should be computed only from March 17, 1980 when she claims self-servingly that she first knew of the judgment because, as stated above, she signed and even swore to the truth of the allegations in her motion for new trial filed by Atty. Mapaye on February 16, 1980 or a month earlier. To give way to her accusations of incompetency against the lawyer who handled her case at the pre-trial, which resulted in a decision adverse to her despite the absence of petitioners, and charge again later that her new counsel did not inform her properly of the import of her motion for new trial and/or reconsideration is to strain the quality of mercy beyond the breaking point and could be an unwarranted slur on the members of the bar. That, however, Atty. Mapaye did not pursue the proper course after his motion for new trial was denied is, of course, unfortunate, but We are unaware of the circumstances of such failure and how much of it could be attributed to respondent herself, hence We cannot say definitely that it was counsel's fault.

In any event, We hold that notice to counsel of the decision is notice to the party for purpose of Section 3 of Rule 38. The principle that notice to the party, when he is represented by a counsel of record, is not valid is applicable here in the reverse for the very same reason that it is the lawyer who is supposed to know the next procedural steps or what ought to be done in law henceforth for the protection of the rights of the client, and not the latter.

Under the circumstances, We hold that respondent judge acted beyond his jurisdiction in taking cognizance of private respondent's petition for relief and, therefore, all his actuations in connection therewith are null and void, with the result that his decision of January 8, 1980 should be allowed to stand, the same having become final and executory.

ACCORDINGLY, judgment is hereby rendered setting aside the resolution of respondent judge of October 8, 1980 and reinstating his decision of January 8, 1980 in Civil Case No. 8480 of his court, which latter decision may now be executed, the same being already final and executory. No costs.

Aquino, Concepcion Jr., Abad Santos and De Castro, JJ., concur.

||| (Francisco v. Puno, G.R. No. L-55694, October 23, 1981)

SECOND DIVISION

[G.R. No. 115595. November 14, 1994.]

ANTONIO DEMETRIOU, HARRIET DEMETRIOU, ET AL., petitioners, vs. COURT OF APPEALS, HON. JUDGE RHODIE A. NIDEA, and HILDA RALLA-ALMINE,respondents.

D E C I S I O N

MENDOZA, J p:

Petitioners brought an action in the Court of Appeals seeking the annulment of the decision of the Regional Trial Court at Tabaco, Albay which ordered the Register of Deeds to issue a new owner's duplicate certificate of title to private respondent. Their petition was, however, denied due course on the ground that the fraud alleged therein was not extrinsic fraud but, if at all, only intrinsic fraud which did not justify setting aside the final decision of the trial court. Hence this petition for review of the decision of the Court of Appeals. 1

The allegations of the petition for annulment of judgment are summarized in the following portion of the decision of the Court of Appeals:

Alleged in the petition, among other things, are that petitioners are the co-owners (to the extent of 2/3) of Lot No. 7651-A of the subdivision survey PSD-05-005263 (a portion of Lot 7651 Cad. 221 Tabaco Cadastre) situated at Poblacion, Tabacco, Albay, containing an area of one thousand ten (1,010) square meters covered by Transfer Certificate of Title No. T-65878 of the register of Deeds of the Province of Albay in the name of Pablo Ralla, private respondent's deceased father (hereinafter referred to as the "Property"); that petitioners acquired two-thirds of the Property from Miriam Catherine Ralla by virtue of two deeds of absolute sale both executed on 11 July 1985, the sale from Miriam Catherine Ralla was reconfirmed by another Deed of Absolute Sale executed on July 1986 [sic], while the sale from Joan Pauline R. Belista was ratified and confirmed by virtue of an order date 11 May 1989 of the Regional Trial Court of Fifth Judicial Region, Branch 8 Legaspi City; that at the time of the sale of the Property to the petitioners, there was a ten-year lease contract over the property which was scheduled to expire on 15 July 1991, for this reason, the petitioners decided to await the termination of the lease before registering the sale and obtaining a new title in their name; that soon after the expiration of the lease contract,

sometime in the first week of August 1991, the father of the petitioners went to the Register of Deeds to have the deed of sale registered and to obtain new title in the name of the petitioners; that to his great surprise and shock, the father of petitioners learned from the Register of Deeds that by an order of Judge Rhodie A. Nidea of the RTC of Tabaco, Albay, Branch 16, the owner's duplicate copy of TCT No. T-65878 in the possession of the petitioner had been declared of no further force and effect and that a new second owner's duplicate copy of said title has been issued to the private respondent; that subsequent investigation by the petitioners disclosed that on Sept. 20, 1990 private respondent filed a petition with the RTC of Tabaco, Albay, Branch 16 and docketed as CAD Case No. T-1024 wherein she falsely and fraudulently alleged that "the owner's duplicate copy of the said Transfer Certificate of Title No. T-65878 was lost and/or destroyed while in the possession and custody of herein petitioner as per her Affidavit of Affidavit of Loss and despite earnest effort to locate said title, the same have been fruitless, "that the representation of private respondent in her aforesaid petition and affidavit of loss that the owner's duplicate copy of Transfer Certificate No. T-65878 was delivered to her mother after the death of her father and that she lost the said copy during the devastation brought by typhoon "Sisang" is patently false, fraudulent, and perjurious since she knew fully well or ought to have known that 2/3 of the property covered by TCT No. T-65878 had already been sold to the petitioners on July 11, 1985 and the owner's duplicate copy of the said title was delivered by private respondent's brother, Gerardo Ralla, to the petitioners on the same day; that on the basis of the fraudulent representation of the respondent Judge Rhodie A. Nidea, the Presiding Judge of the Regional Trial Court of Tabaco, Albay, Branch 16, issued an order dated Dec. 7, 1990 ordering the Register of Deeds to issue a second owner's duplicate copy of transfer certificate of title No. T-65878 with all the annotations and encumbrances thereon, which shall be of like faith and credit as the one lost and declaring the lost or destroyed owner's duplicate copy of the TCT No. T-65878 of no further force and effect, and that pursuant to the order, the Register of Deeds issued a new second owner's duplicate copy of TCT No. T-65878 to the private respondent; that despite repeated demands by petitioners and despite protracted attempts at settlement, private respondent refused to deliver or turn over to the petitioners the second owner's duplicate copy of TCT No. 65878 issued pursuant to the aforesaid order of Judge Rhodie A. Nidea; that the aforesaid order of Judge Rhodie A. Nidea has become final and executory, that it was clearly issued on the basis of the false and fraudulent representation of private respondent, hence, it is null and void and must be annulled and set aside, and that because of private respondent's refusal to satisfy the petitioners' plainly valid and just claim, the petitioners have been compelled to litigate and to hire counsel for a fee and to incur other expenses of litigation.

On the basis of these allegations the appellate court ruled that the fraud alleged was, if at all, only intrinsic and not extrinsic in character:

An action to annul a final judgment on the ground of fraud will lie only if the fraud is extrinsic or collateral in character. Extrinsic fraud refers to any fraudulent act of the prevailing party in the litigation which is committed outside of the trial of the case, whereby the defeated party has been prevented from exhibiting fully his side of the case, by fraud or deception practiced on him by his opponent (Macabingkil vs. People's Homesite and Housing Corporation, 72 SCRA 326 cited in Canlas vs. CA. 164 SCRA 160). On the other hand, intrinsic

fraud takes the form of "acts of a party in a litigation during the trial such as the use of forged or false document or perjured testimony, which did not affect the presentation of the case, but did prevent a fair and just determination of the case" (Libudan vs. Gil, 45 SCRA 17). In the present petition, the allegation of fraud involves admission by the respondent court of an alleged false affidavit of loss, which alleged fraud is intrinsic in character. Thus, as the alleged fraud committed by the private respondent is not extrinsic in character, the instant petition for annulment of the said December 1, 1990 order of the lower court should be dismissed.

The appellate court is certainly right in holding that the use of a false affidavit of loss does not constitute extrinsic fraud to warrant the invalidation of a final judgment. The use of the alleged false affidavit of loss by private respondent is similar to the use during trial or forged instruments or perjured testimony. In the leading case of Palanca v. Republic,2 it was held that the use of a forged instrument constituted only intrinsic fraud for while perhaps it prevented a fair and just determination of a case, the use of such instrument or testimony did not prevent the adverse party from presenting his case fully and fairly. In the case at bar, petitioners were not really kept out of the proceedings because of the fraudulent acts of the private respondent. They could have rebutted or opposed the use of the affidavit and shown its falsity since they were theoretically parties in the case to whom notice had been duly given. LibLex

But a judgment otherwise final may be annulled not only on the ground of extrinsic fraud but also because of lack of jurisdiction of the court which rendered it. In Serra Sera v. Court of Appeals, 3 on facts analogous to those involved in this case, this Court already held that if a certificate of title has not been lost but is in fact in the possession of another person, the reconstituted title is void and the court rendering the decision has not acquired jurisdiction. Consequently the decision may be attacked any time. Indeed, Rep. Act No. 26, § 18 provide that " in case a certificate of title, considered lost or destroyed be found or recovered, the same shall prevail over the reconstituted certificate of title." It was, therefore, error for the Court of Appeals to dismiss the petition for annulment of judgment of the petitioners.

Nor was the filing of such a petition forum shopping in violation of Circular No. 28-91. Private respondents allege that in an action for recovery of possession of the lands which they had brought against the JB Line in the Regional Trial Court of Albay (Civil Case No. T-1590), petitioners intervened and alleged substantially the same facts as those alleged by them in their petition for annulment of judgment. We have gone over petitioners' answer in intervention in that case. We find that the allegation of forum shopping is without basis. While they indeed alleged that private respondent had obtained a second owner's duplicate of TCT T-65878 knowing that 2/3 of the land covered by the certificate had been sold to them and that the "2nd owner's copy should be cancelled and recalled considering the fact that the original is in fact still existing and not lost," the allegation was made more for the purpose of demanding a partition, recognizing that private respondent is the owner of 1/3 of the land. Petitioner's intervention is thus different from their action in the Court of Appeals which is solely for the purpose of seeking the annulment of the judgment in CAD Case No. T-1024 granting private respondent's petition for the issuance of a new owner's duplicate certificate of title.

WHEREFORE, the decision appealed from is REVERSED and the case is REMANDED to the Court of Appeals for further proceedings. llcd

 

||| (Demetriou v. Court of Appeals, G.R. No. 115595, November 14, 1994)