Philippine Amanah Bank (Now Al-manah Islamic Investment Bank of the Philippines) v. Evangelista ContrerasG.R. 173168Sept. 29, 2014

FactsOn July 21, 1981, the respondent filed a complaint forannulment of real estate mortgage, cancellation of original certificate of title, reconveyance, recovery of possession and damages before the RTC of Cagayan de Oro City against spouses Calinico and Elnora Ilogon and the petitioner bank.

Respondent alleged that he was the owner of Cadastral Lot No. 19316-D, a 640 square meter parcel of land located in Cagayan de Oro City. On August 1, 1980, the respondent went to the house of his brother-in-law, Calinico Ilogon, to seek assistance in obtaining a loan from the petitioner bank since he (Calinico) is a friend of the banks Chief of the Loan Division. The respondent brought with him the documents of the subject lot, and told Calinico that he was willing to mortgage this property as security for the loan. Three days later, Calinico told the respondent that the petitioner bank could grant a loan up to P200,000.00 if the subject property would be titled.

On August 3, 1980, the respondent and Calinico, upon the suggestion of the Chief of the petitioner banks Loan Division, entered into aDeed of Confirmation of Sale under which they transferred the title of the land to Calinico who, in turn, mortgaged it to the petitioner bank. On October 25, 1980, Calinico and the respondent executed an Agreementstating, among others, that the deed of sale they executed was for the purpose of securing a loan with the petitioner bank.

On May 20, 1981, the respondent wrote a letter and went to the petitioner bank directing the latters manager not to release the loan to Calinico. The next day, the respondent again went to the petitioner bank, but was informed that the loaned amount of P50,000 had already been given to Calinico earlier that morning. The respondent thereafter learned that the petitioner released another P50,000 as loan to Calinico.

That petitioner bank subsequently extrajudicially foreclosed the mortgage due to the Ilogon spouses failure to pay the loan. On January 9, 1989, the Provincial Sheriff sold the mortgaged property at public auction to the petitioner bank as the highest bidder. On October 31, 1989, the Provincial Sheriff issued a Certificate of Sale in favor of the petitioner bank.

For the mortgagors failure to redeem the mortgaged property within the period prescribed by law, the title to the property was consolidated in the petitioner bank's name. Consequently, Original Certificate of Title (OCT) No. P-20348was cancelled and TCT No. T-63331was issued in the petitioner bank's name.

The RTC dismissed the complaint for lack of merit. It held that the petitioner bank was not aware of the agreement between the respondent and the Ilogon spouses, and that the respondent failed to present any evidence as basis to annul the mortgage contract. The respondent moved to reconsider this decision, but the RTC denied his motion for having been filed out of time. Accordingly, the RTC declared its September 13, 1993 decision final and executory.

The respondent appealed to the CA. The CA set aside the RTCs July 1, 1994 order, and declared the real estate mortgage null and void. It also ordered the petitioner bank to reconvey the land covered by TCT No. T-63331 to the respondent within sixty (60) days from entry of judgment.It further directed the petitioner bank to pay the equivalent monetary value of the land based on the price of the property at the public auction, with 6% interest per annum from the date of the sheriffs auction sale or the amount of the sale of the lot by the bank to third persons plus 6% interest per annum, in the event that the property had already been conveyed by the petitioner bank to third persons.

The CA held that while the respondent was late in filing his motion for reconsideration, the rules of procedure should be relaxed since the matters he raised in his petition were meritorious.

The Petition for Review onCertiorari

In the present petition, the petitioner bank alleged that the respondents petition for relief from judgment is unmeritorious as it was filed only after the lapse of ninety-one (91) days from his (respondents) notice of the adverse judgment. The bank also claimed that the failure of the respondents counsel to file a timely motion for reconsideration from the RTCs judgment did not constitute excusable negligence so as to warrant the granting of the respondents petition.

The petitioner bank further maintained that the real estate mortgage over the land was valid because: (1) its validity was never raised as an issue before the trial court; and (2) the petitioner bank is exempted from the 5-year prohibitory period since it is a Government branch, unit or institution.

In his comment, the respondent, represented by his heirs, maintained that his counsels negligence was excusable, and that the petitioner bank was a mortgagee in bad faith.

HeldAfter due consideration, we resolve to grant the petition.

RTC judgment already final and executory

We note at the outset that the RTCs September 13, 1993 decision which dismissed the respondents complaint forannulment of real estate mortgage, cancellation of original certificate of title, reconveyance, recovery of possession and damageshad already become final and executory due to the failure of his counsel to file a timely motion for reconsideration. Both the law and jurisprudence hold that the perfection of an appeal in the manner and within the period prescribed by law is mandatory. Failure to conform to the rules on appeal renders the judgment final, executory and unappealable.

The Petition for Relief was filed out of time

We sustain the trial courts denial of the respondents petition for relief from judgment to challenge its final and executory decision.

A party filing a petition for relief from judgment must strictly comply with two (2) reglementary periods: first,the petition must be filed within sixty (60) days from knowledge of the judgment, order or other proceeding to be set aside; andsecond, within a fixed period of six (6) months from entry of such judgment, order or other proceeding. Strict compliance with these periods is required because a petition for relief from judgment is a final act of liberality on the part of the State, which remedy cannot be allowed to erode any further the fundamental principle that a judgment, order or proceeding must, at some definite time, attain finality in order to put an end to litigation.wlawlibraryIn the present case, the respondents counsel received a copy of the RTCs decision dated September 13, 1993 on September 15, 1993. Thus, the petition for relief from judgment should have been filed on or before November 14, 1993. However, the records showed that the petition was filed only on December 15, 1993, or ninety-one (91) days later.

The respondents cited circumstances are not the proper subject of a petition for relief from the judgment

Section 1, Rule 38 of the 1997 Rules of Civil Procedure provides that [w]hen a judgment or final order is entered, or any other proceeding is thereafter taken against a party in any court through fraud, accident, mistake, or excusable negligence, he may file a petition in the same court and in the same case praying that the judgment, order or proceeding be set aside.

Relief from judgment is a remedy provided by law to any person against whom a decision or order is entered through fraud, accident, mistake, or excusable negligence. It is a remedy, equitable in character, that is allowed only in exceptional cases when there is no other available or adequate remedy. When a party has another remedy available to him, which may either be a motion for new trial or appeal from an adverse decision of the trial court, and he was not prevented by fraud, accident, mistake, or excusable negligence from filing such motion or taking such appeal, he cannot avail of the remedy of petition for relief.17cralawlawlibraryIn the present case, the respondent alleged that he had been prevented from moving for the timely reconsideration of the trial courts decision or to appeal this decision on time due to the death of his wife on September 13, 1993. He explained that his counsel, Atty. Valmorida, was the brother of his deceased wife, and could not bear to tell him that he had lost his case in the RTC given the circumstances. Atty. Valmorida only informed him of the courts adverse decision thirty-seven (37) days after his (Atty. Valmoria's) receipt of the adverse decision. This circumstance, according to the respondent, was a clear case of excusable negligence on the part of his counsel, warranting relief from judgment.

We are aware of the rule that banks are expected to exercise more care and prudence than private individuals in their dealings, even those involving registered lands, since their business is impressed with public interest. The rule that persons dealing with registered lands can rely solely on the certificate of title does not apply to banks.19Simply put, the ascertainment of the status or condition of a property offered to it as security for a loan must be a standard and indispensable part of a banks operations.20cralawlawlibrary

In the present case, however, nothing in the documents presented by Calinico would arouse the suspicion of the petitioner bank to prompt a more extensive inquiry. When the Ilogon spouses applied for a loan, they presented as collateral a parcel of land evidenced by OCT No. P-2034 issued by the Office of the Register of Deeds of Cagayan de Oro, andregistered in the name of Calinico. This document did not contain any inscription or annotation indicating that the respondent was the owner or that he has any interest in the subject land. In fact, the respondent admitted that there was no encumbrance annotated on Calinicos title at the time of the latters loan application. Any private arrangement between Calinico and the respondent regarding the proceeds of the loan was not the concern of the petitioner bank, as it was not a privy to this agreement. If Calinico violated the terms of his agreement with the respondent on theturn-over of the proceeds of the loan, then the latter's proper recourse was to file the appropriate criminal action in court.

The respondent also failed to prove its allegation that the petitioner bank knew, thru a letter sent by the formers lawyer, Atty. Crisanto Mutya, Jr., that the sale of the subject land between him and Calinico was made only for loan purposes, and that failure of Calinico to turn over the proceeds of the loan will invalidate the sale. Clearly, the respondent testified on matters not of his own personal knowledge, hence hearsay. Corollarily, the respondents son was never presented in court. Even assuming, for the sake of argument, that the petitioner bank received a copy of Atty. Mutyas letter,22it was still well-within its discretion to grant or deny the loan application after evaluating the documents submitted for loan applicant. As earlier stated, OCT No. P-2034 issued in Calinicos favor was free from any encumbrances. The petitioner bank is not anymore privy to whatever arrangements the owner entered into regarding the proceeds of the loan.

Finally, we point out that the petitioner bank is a government owned or controlled corporation. While OCT No. P-2034 (issued in favor of Calinico by virtue of thedeed of confirmation of sale) contained a prohibition against the alienation and encumbrance of the subject land within five (5) years from the date of the patent, the CA failed to mention that by the express wordings of the OCT itself, the prohibition does not cover the alienation and encumbrance in favor of the Government or any of its branches, units or institutions.cralawlaw

Crisostomo Aquino v. Municipality of MalayG.R. 211356Sept. 29, 2014

FactsPetitioner is the president and chief executive officer of Boracay Island West Cove Management Philippines, Inc. (Boracay West Cove). On January 7, 2010, the company applied for a zoning compliance with the municipal government of Malay, Aklan. While the company was already operating a resort in the area, the application sought the issuance of a building permit covering the construction of a three-storey hotel over a parcel of land measuring 998 sqm. located in Sitio Diniwid, Barangay Balagab, Boracay Island, Malay, Aklan, which is covered by a Forest Land Use Agreement for Tourism Purposes (FLAgT) issued by the DENR in favor of Boracay West Cove.

Through a Decision on Zoning, the Municipal Zoning Administrator denied petitioners application on the ground that the proposed construction site was within the no build zone demarcated in the Ordinance. As provided in the Ordinance:chanRoblesvirtualLawlibrary

SECTION 2. Definition of Terms. As used in this Ordinance, the following words, terms and phrases shall mean as follows:chanRoblesvirtualLawlibrary

x x x x

(b) No Build Zone the space twenty-five (25) meters from the edge of the mean high water mark measured inland;

x x x x

SECTION 3. No building or structure of any kind whether temporary or permanent shall be allowed to be set up, erected or constructed on the beaches around the Island of Boracay and in its offshore waters. During the conduct of special activities or special events, the Sangguniang Bayan may, through a Resolution, authorize the Office of the Mayor to issue Special Permits for construction of temporary structures on the beach for the duration of the special activity as embodied in the Resolution.

In due time, petitioner appealed the denial action to the Office of the Mayor on February 1, 2010. On May 13, 2010, petitioner followed up his appeal through a letter but no action was ever taken by the respondent mayor. On April 5, 2011, however, a Notice of Assessment was sent to petitioner asking for the settlement of Boracay West Coves unpaid taxes and other liabilities under pain of a recommendation for closure in view of its continuous commercial operation since 2009 sans the necessary zoning clearance, building permit, and business and mayors permit. In reply, petitioner expressed willingness to settle the companys obligations, but the municipal treasurer refused to accept the tendered payment. Meanwhile, petitioner continued with the construction, expansion, and operation of the resort hotel.

Subsequently, on March 28, 2011, a Cease and Desist Order was issued by the municipal government, enjoining the expansion of the resort, and on June 7, 2011, the Office of the Mayor of Malay, Aklan issued the assailed EO 10, ordering the closure and demolition of Boracay West Coves hotel.

EO 10 was partially implemented on June 10, 2011. Thereafter, two more instances followed wherein respondents demolished the improvements introduced by Boracay West Cove, the most recent of which was made in February 2014.

Alleging that the order was issued and executed with grave abuse of discretion, petitioner filed a Petition for Certiorari with prayer for injunctive relief with the CA. He argued that judicial proceedings should first be conducted before the respondent mayor could order the demolition of the companys establishment; that Boracay West Cove was granted a FLAgT by the DENR, which bestowed the company the right to construct permanent improvements on the area in question; that since the area is a forestland, it is the DENRand not the municipality of Malay, or any other local government unit for that matterthat has primary jurisdiction over the area, and that the Regional Executive Director of DENR-Region 6 had officially issued an opinion regarding the legal issues involved in the present case; that the Ordinance admits of exceptions; and lastly, that it is the mayor who should be blamed for not issuing the necessary clearances in the companys favor.

In rebuttal, respondents contended that the FLAgT does not excuse the company from complying with the Ordinance and Presidential Decree No. 1096 (PD 1096), otherwise known as the National Building Code of the Philippines. Respondents also argued that the demolition needed no court order because the municipal mayor has the express power under the Local Government Code (LGC) to order the removal of illegally constructed buildings.

The CA dismissed the petition solely on procedural ground, i.e., the special writ ofcertiorarican only be directed against a tribunal, board, or officer exercising judicial or quasi-judicial functions and since the issuance of EO 10 was done in the exercise of executive functions, and not of judicial or quasi-judicial functions,certiorariwill not lie. Instead, the proper remedy for the petitioner, according to the CA, is to file a petition for declaratory relief with the Regional Trial Court.

Issues1. The propriety under the premises of the filing of a petition forcertiorariinstead of a petition for declaratory relief;a. Whether or not declaratory relief is still available to petitioner;b. Whether or not the CA correctly ruled that the respondent mayor was performing neither a judicial nor quasi-judicial function when he ordered the closure and demolition of Boracay West Coves hotel;

2. Whether or not respondent mayor committed grave abuse of discretion when he issued EO 10;a. Whether or not petitioners right to due process was violated when the respondent mayor ordered the closure and demolition of Boracay West Coves hotel without first conducting judicial proceedings;b. Whether or not the LGUs refusal to issue petitioner the necessary building permit and clearances was justified;c. Whether or not petitioners rights under the FLAgT prevail over the municipal ordinance providing for a no-build zone; andChanRoblesVirtualawlibraryd. Whether or not the DENR has primary jurisdiction over the controversy, not the LGU.

HeldWe deny the petition.

Certiorari, not declaratory relief, is the proper remedy

a. Declaratory relief no longer viableResolving first the procedural aspect of the case, We find merit in petitioners contention that the special writ ofcertiorari, and not declaratory relief, is the proper remedy for assailing EO 10. As provided under Sec. 1, Rule 63 of the Rules of Court:chanRoblesvirtualLawlibrarySECTION 1. Who may file petition. Any person interested under a deed, will, contract or other written instrument, whose rights are affected by a statute, executive order or regulation, ordinance or any other governmental regulation may,before breach or violationthereof, bring an action in the appropriate Regional Trial Court to determine any question of construction or validity arising, and for a declaration of his rights or duties, thereunder. x x x (emphasis added)

In the case at bar, the petition for declaratory relief became unavailable by EO 10s enforcement and implementation. The closure and demolition of the hotel rendered futile any possible guidelines that may be issued by the trial court for carrying out the directives in the challenged EO 10. Indubitably, the CA erred when it ruled that declaratory relief is the proper remedy given such a situation.

b. Petitioner correctly resorted tocertiorariOn the propriety of filing a petition forcertiorari, Sec. 1, Rule 65 of the Rules of Court provides:chanRoblesvirtualLawlibrarySection 1. Petition forcertiorari. When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require. x x x

Forcertiorarito prosper, the petitioner must establish the concurrence of the following requisites, namely:chanRoblesvirtualLawlibrary1. The writ is directed against a tribunal, board, or officer exercising judicial or quasi-judicial functions;2. Such tribunal, board, or officer has acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction; andChanRoblesVirtualawlibrary3. There is no appeal or any plain speedy, and adequate remedy in the ordinary course of law.

In the case at bench, the assailed EO 10 was issued upon the respondent mayors finding that Boracay West Coves construction, expansion, and operation of its hotel in Malay, Aklan is illegal. Such a finding of illegality required the respondent mayors exercise of quasi-judicial functions, against which the special writ ofcertiorarimay lie.

With the foregoing discussion, the CA erred in ruling that the respondent mayor was merely exercising his executive functions, for clearly, the first requisite for the special writ has been satisfied.

Aside from the first requisite, we likewise hold that the third element, i.e., the unavailability of a plain, speedy, or adequate remedy, is also present herein. While it may be argued that, under the LGC, Executive Orders issued by mayors are subject to review by provincial governors,this cannot be considered as an adequate remedy given the exigencies of petitioners predicament.libraryBefore applying this doctrine, it must first be borne in mind that respondents in this case have already taken measures towards implementing EO 10. In fact, substantial segments of the hotel have already been demolished pursuant to the mayors directive. It is then understandable why petitioner prayed for the issuance of an injunctive writa provisional remedy that would otherwise have been unavailable had he sought a reversal from the office of the provincial governor of Aklan. Evidently, petitioner correctly saw the urgent need for judicial intervention viacertiorari. In light of the foregoing, the CA should have proceeded to grab the bull by its horns and determine the existence of the second element ofcertiorariwhether or not there was grave abuse of discretion on the part of respondents.

Upon Our finding that a petition forcertiorariunder Rule 65 is the appropriate remedy, We will proceed to resolve the core issues in view of the urgency of the reliefs prayed for in the petition.

Respondents did not commit grave abuse of discretion

a. The hotels classification as a nuisance

In establishing a no build zone through local legislation, the LGU effectively made a determination that constructions therein, without first securing exemptions from the local council, qualify as nuisances for they pose a threat to public safety. No build zones are intended for the protection of the public because the stability of the grounds foundation is adversely affected by the nearby body of water. The ever present threat of high rising storm surges also justifies the ban on permanent constructions near the shoreline. Indeed, the areas exposure to potential geo-hazards cannot be ignored and ample protection to the residents of Malay, Aklan should be afforded.

As jurisprudence elucidates, nuisances are of two kinds: nuisanceper seand nuisanceper accidens. The first is recognized as a nuisance under any and all circumstances, because it constitutes a direct menace to public health or safety, and, for that reason, may be abated summarily under the undefined law of necessity. The second is that which depends upon certain conditions and circumstances, and its existence being a question of fact, it cannot be abated without due hearing thereon in a tribunal authorized to decide whether such a thing does in law constitute a nuisance. In the case at bar, the hotel, in itself, cannot be considered as a nuisanceper sesince this type of nuisance is generally defined as an act, occupation, orstructure,which isa nuisance at all timesand under any circumstances,regardless of locationor surrounding.Here, it is merely the hotels particular incidentits locationand not its inherent qualities that rendered it a nuisance. Otherwise stated, had it not been constructed in the no build zone, Boracay West Cove could have secured the necessary permits without issue. As such, petitioner is correct that the hotel is not a nuisanceper se, but to Our mind, it is still a nuisanceper accidens.

b. Respondent mayor has the power to order the demolition of illegal constructions

Generally, LGUs have no power to declare a particular thing as a nuisance unless such a thing is a nuisanceper se. Despite the hotels classification as a nuisanceper accidens, however, We still find in this case that the LGU may nevertheless properly order the hotels demolition. This is because, in the exercise of police power and the general welfare clause,18property rights of individuals may be subjected to restraints and burdens in order to fulfill the objectives of the government. Otherwise stated, the government may enact legislation that may interfere with personal liberty, property, lawful businesses and occupations to promote the general welfare.

c. Requirements for the exercise of the power are presenti. Illegality of structuresIn the case at bar, petitioner admittedly failed to secure the necessary permits, clearances, and exemptions before the construction, expansion, and operation of Boracay Wet Coves hotel in Malay, Aklan. To recall, petitioner declared that the application for zoning compliance was still pending with the office of the mayor even though construction and operation were already ongoing at the same time. As such, it could no longer be denied that petitioner openly violated Municipal Ordinance 2000-131, which provides:chanRoblesvirtualLawlibrarySECTION 9. Permits and Clearances.(a)No building or structure shall be allowed to start construction unless a Building Permit therefore has been duly issued by the Office of the Municipal Engineer.Once issued, the building owner or any person in charge of the construction shall display on the lot or on the building undergoing construction a placard containing the Building Permit Number and the date of its issue.The office of the Municipal Engineer shall not issue any building permit unless:

1. The proposed construction has been duly issued a Zoning Clearance by the Office of the Municipal Zoning Officer;2. The proposed construction has been duly endorsed by the Sangguniang Bayan through a Letter of Endorsement.

(b)Only buildings/structures which has complied with all the requirements for its construction as verified to by the Building Inspector and the Sangguniang Bayan shall be issued a Certificate of Occupancy by the Office of the Municipal Engineer.

(c)No Business or Mayors Permit shall be issued to businesses being undertaken on buildings or structures which were not issued a certificate of Occupancy beginning January 2001 and thereafter.

Petitioner cannot justify his position by passing the blame onto the respondent mayor and the latters failure to act on his appeal for this does not, in any way, imply that petitioner can proceed with his infrastructure projects. On the contrary,this only means that the decision of the zoning administrator denying the application still stands and that petitioner acquired no right to construct on the no build zone. The illegality of the construction cannot be cured by merely tendering payment for the necessary fees and permits since the LGUs refusal rests on valid grounds.

This twin violation of law and ordinance warranted the LGUs invocation of Sec. 444 (b)(3)(vi) of the LGC, which power is separate and distinct from the power to summarily abate nuisancesper se.Under the law, insofar as illegal constructions are concerned, the mayor can, after satisfying the requirement of due notice and hearing, order their closure and demolition.

ii. Observance of procedural due process rightsIn the case at bench, the due process requirement is deemed to have been sufficiently complied with. First,basic is the rule that public officers enjoy the presumption of regularity in the performance of their duties.The burden is on the petitioner herein to prove that Boracay West Cove was deprived of the opportunity to be heard before EO 10 was issued. Regrettably, copies of the Cease and Desist Order issued by the LGU and of the assailed EO 10 itself were never attached to the petition before this Court, which documents could have readily shed light on whether or not petitioner has been accorded the 10-day grace period provided in Section 10 of the Ordinance. In view of this fact, the presumption of regularity must be sustained.Second, as quoted by petitioner in his petition before the CA, the assailed EO 10 states that petitioner received notices from the municipality government on March 7 and 28, 2011, requiring Boracay West Cove to comply with the zoning ordinance and yet it failed to do so. If such was the case, the grace period can be deemed observed and the establishment was already ripe for closure and demolition by the time EO 10 was issued in June.Third,the observance of the 10-day allowance for the owner to demolish the hotel was never questioned by petitioner so there is no need to discuss the same. Verily, the only grounds invoked by petitioner in crying due process violation are (1) the absence of a court order prior to demolition and (2) the municipal governments exercise of jurisdiction over the controversy instead of the DENR. Therefore, it can no longer be belatedly argued that the 10-day grace period was not observed because to entertain the same would result in the violation of the respondents own due process rights.

Given the presence of the requirements under Sec. 444 (b)(3)(vi) of the LGC, whether the building constituted a nuisanceper seor a nuisanceper accidensbecomes immaterial. The hotel was demolished not exactly because it is a nuisance but because it failed to comply with the legal requirements prior to construction. It just so happened that, in the case at bar, the hotels incident that qualified it as a nuisanceper accidensits being constructed within the no build zonefurther resulted in the non-issuance of the necessary permits and clearances, which is a ground for demolition under the LGC. Under the premises, a court order that is required under normal circumstances is hereby dispensed with.

d. The FLAgT cannot prevail over the municipal ordinance and PD 1096

The rights granted to petitioner under the FLAgT are not unbridled. Forestlands, although under the management of the DENR, are not exempt from the territorial application of municipal laws, for local government units legitimately exercise their powers of government over their defined territorial jurisdiction.

Furthermore, the conditions set forth in the FLAgT and the limitations circumscribed in the ordinance are not mutually exclusive and are, in fact, cumulative. Thus, aside from complying with the provisions in the FLAgT granted by the DENR, it was incumbent on petitioner to likewise comply with the no build zone restriction under Municipal Ordinance 2000-131, which was already in force even before the FLAgT was entered into. On this point, it is well to stress that Sections 6 and 8 of the Ordinance do not exempt petitioner from complying with the restrictions since these provisions adverted to grant exemptions from the ban on constructions on slopes and swamps, not on the no build zone.

Additionally, the FLAgT does not excuse petitioner from complying with PD 1096. As correctly pointed out by respondents, the agreement cannot and will not amend or change the law because a legislative act cannot be altered by mere contractual agreement. Hence, petitioner has no valid reason for its failure to secure a building permit pursuant to Sec. 301 of the National Building Code.

e. The DENR does not have primary jurisdiction over the controversyLastly, in ascribing grave abuse of discretion on the part of the respondent mayor, petitioner argued that the hotel site is a forestland under the primary jurisdiction of the DENR. As such, the merits of the case should have been passed upon by the agency and not by the LGU.

In alleging that the case concerns the development and the proper use of the countrys environment and natural resources, petitioner is skirting the principal issue, which is Boracay West Coves non-compliance with the permit, clearance, and zoning requirements for building constructions under national and municipal laws. He downplays Boracay West Coves omission in a bid to justify ousting the LGU of jurisdiction over the case and transferring the same to the DENR. He attempts to blow the issue out of proportion when it all boils down to whether or not the construction of the three-storey hotel was supported by the necessary documentary requirements.

Based on law and jurisprudence, the office of the mayor has quasi-judicial powers to order the closing and demolition of establishments. This power granted by the LGC, as earlier explained, We believe, is not the same power devolved in favor of the LGU under Sec. 17 (b)(2)(ii), as above-quoted, which is subject to review by the DENR. The fact that the building to be demolished is located within a forestland under the administration of the DENR is of no moment, for what is involved herein, strictly speaking, is not an issue on environmental protection, conservation of natural resources, and the maintenance of ecological balance, but the legality or illegality of the structure. Rather than treating this as an environmental issue then, focus should not be diverted from the root cause of this debaclecompliance.

Ultimately, the purported power of review by a regional office of the DENR over respondents actions exercised through an instrumentality of an ex-parte opinion, in this case, finds no sufficient basis. At best, the legal opinion rendered, though perhaps informative, is not conclusive on the courts and should be taken with a grain of salt.

Federico Sabay v. People of the PhilippinesG.R. 192150Oct. 1, 2014FactsAt around three oclock to four oclock in the afternoon of June 12, 2001, while the petitioner and his daughter Erlinda Sabay (Erlinda) were busy laying wood and water pipes in the yard of Godofredo Lopez (Godofredo), the latter confronted the petitioner about his (the petitioners) alleged intrusion into Godofredos property. A verbal altercation ensued between them.In the course of the verbal exchange, Erlinda hit Godofredo on the head with a hard object. The petitioner joined in by throwing a stone at Godofredos face, breaking the latters eyeglasses. Godofredo claimed that as a result, he felt dizzy. The petitioner and Erlinda then shouted at Godofredo and threatened to kill him.Immediately thereafter, Jervie Lopez (Jervie) came and pacified the three. But in the course his efforts, he was hit in the hand with a bolo.The neighbors intervened not long after and pacified the parties. The Medico Legal Certificates7dated June 12, 2001 showed that Godofredo suffered a contusion on the left parietal area of his head and an abrasion in his left cheek, while Jervie sustained a wound in his right palm.On June 13, 2001, Godofredo and Jervie filed a complaint against the petitioner before the barangay. The parties agreed to settle the complaint based on the recommendation of the building inspector and reflected their agreement in their Kasunduang Pag-aayos9(Kasunduan) dated June 20, 2001. The Kasunduan, however, was not implemented because the building inspector failed to make the promised recommendation to resolve the boundary dispute between the parties. Thus, the Office of the Barangay Captain issued a Certificate to File an Action.The petitioner was accordingly charged before the MTC with the crime of Physical Injuries under two (2) Informations that read:Criminal Case No. 209934That on or about the 12th day of June 2001, in Caloocan City, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused, without justifiable cause, did then and there willfully, unlawfully and feloniously hit with a bolo one JERVIE LOPEZ, thereby inflicting upon the latter physical injuries which required and will require medical attendance for not more than seven (7) days or incapacitated or will incapacitate said victim from performing his habitual work for the same period of time.CONTRARY TO LAW.Criminal Case No. 209935That on or about the 12th day of June 2001, in Caloocan City, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused, without justifiable cause, did then and there willfully, unlawfully and feloniously hit with a bolo one GODOFREDO LOPEZ, thereby inflicting upon the latter physical injuries which required and will require medical attendance for not more than seven (7) days or incapacitated or will incapacitate said victim from performing his habitual work for the same period of time.CONTRARY TO LAW.The petitioner, together with his daughter Erlinda, was also charged with Light Threats for allegedly uttering threatening words against the private complainant, Godofredo.When arraigned, both accused pleadednot guilty to all the charges. Trial on the merits thereafter ensued.The petitioner denied the charge and claimed that he had simply acted in self-defenseThe MTC believed the prosecution's version of the incident and found the petitioner guilty beyond reasonable doubt of two (2) counts of slight physical injuries. The MTC, however, dismissed the light threats charged, as this offense is deemed absorbed in the crime of slight physical injuries. Further, it absolved Erlinda for the crime of light threats as there was no allegation that she uttered threatening words against Godofredo.The MTC rejected the petitioners claim of self-defense. It held that the petitioner failed to prove that there had been unlawful aggression by Godofredo.The RTC affirmed the MTCs decision.The CA affirmed the RTCs decision. It also dismissed the petitioners plea of self-defense. The CA ruled that self-defense is essentially a factual matter that isbest addressed by the trial court; in the absence of any showing that both the MTC and the RTC overlooked weighty and substantial facts or circumstances that could alter their conclusion, the appellate court saw no reason to disturb their factual ruling.IssueW/N the CA erred in its rulling? NO.HeldWe find no reversible error committed by the CA and affirm the petitioners conviction for two counts of slight physical injuries.The petitioner also contends that the CA erred in not holding that the MTC has no jurisdiction over the criminal cases in view of the noncompliance (i.e., issuance of the Certification toFile an Action despite the existence of an agreement) with conciliation procedures under Presidential Decree No. 1508.We see no merit in these contentions.The Office of the Barangay Captain Cannot be Precluded From Issuing a Certification to File an Action Where No Actual Settlement Was Reached; the Certification to File an Action Issued by The Office of The Barangay is Valid.The present case was indisputably referred to the Barangay Lupon for conciliation prior to the institution of the criminal cases before the MTC. The parties in fact admitted that a meeting before the Lupontranspired between them, resulting in a Kasunduan.Granting that an irregularity had intervened in the Barangay Captains issuance of the Certification toFile and Action, we note that this irregularity is not a jurisdictional flaw that warrants the dismissal of the criminal cases before the MTC. Thus, the MTC has jurisdiction to try and hear the petitioners case; the claimed irregularity in conciliation procedure, particularly in the issuance of the Certification to File an Action, did not deprive the court of its jurisdiction. If at all, the irregularity merely affected the parties cause of action. The Certification to File an Action is Admissible.Section 34 of Rule 132 of our Rules on Evidence provides that the court cannot consider any evidence that has not been formally offered. Without a formal offer of evidence, courts cannot take notice of this evidence even if this has been previously marked and identified. This rule, however, admits of an exception. The Court, in the appropriate cases, has relaxed the formal-offer rule and allowed evidence not formally offered to be admitted.In the present case, we find that the requisites for the relaxation of the formal-offer rule are present. As the lower courts correctly observed, Godofredo identified the Certification to File an Action during his cross examination, to wit: Q: And Im referring to you thisCertification from the Office of the Brgy. docketed as 181-01, is this the one you are referring to?A: This is with respect to the hitting of my head.Atty. Bihag: At this juncture, your Honor, we would like to request that this particular certification referring to the case 181-01 entitled Mr. Godofredo Lopez, Mr. Jervie Lopez versus Mr. Federico Sabay and Mrs. Erlinda Castro, be marked as Exh. "1" for the defense. Although the Certification was not formally offered in evidence, it was marked as Exhibit "1" and attached to the records of the case.25Significantly, the petitioner never objected to Godofredos testimony, particularly with the identification and marking of the Certification. In these lights, the Court sees no reason why the Certification should not be admitted.The Claim of Self-DefenseOn the claim of self-defense, we recognize that the factual findings and conclusions of the RTC, especially when affirmed by the CA as in this case, are entitled to great weight and respect and are deemed final and conclusive on this Court when supported by the evidence on record. In the absence of any indication thatthe trial and the appellate courts overlooked facts or circumstances that would result in a different ruling in this case, we will not disturb their factual findings. In sum, we are fully satisfied that the petitioner is guilty beyond reasonable doubt of two (2) counts of slight physical injuries, as the lower courts found. His claim of self-defense fails for lack of supporting evidence; he failed to present any evidence of unlawful aggression and cannot thus be said to have hit Godofredo as a measure to defend himself.WHEREFORE, premises considered, we DENY the appeal and AFFIRM the decision dated October 23, 2009 and the resolution dated March 22, 2010 of the Court of Appeals in CA-G.R. CR No. 31532.Fe U. Quijano v. Atty. Darill AlmanteG.R. 164277Oct. 8, 2014FactsThe petitioner and her siblings, namely: Eliseo, Jose and Gloria, inherited from their father, the late Bibiano Quijano, the parcel of land registered in the latter's name under Original Certificate of Title (OCT) No. 0-188 of the Registry of Deeds in Cebu City with an area of 15,790 square meters, more or less.On April 23, 1990, prior to any partition among the heirs, Eliseo sold a portion of his share, measuring 600 square meters, to respondent Atty. Daryll A. Amante (respondent), with the affected portion being described in the deed of absolute sale Eliseo executed in the following manner:A portion of a parcel of land located at the back of the Pleasant Homes Subdivision and also at the back of Don Bosco Seminary, Punta Princesa, Cebu City, to be taken from my share of the whole lot; the portion sold to Atty. Amante is only 600 square meters which is the area near the boundary facing the Pleasant Homes Subdivision, Cebu City. On July 25, 1991, Eliseo, sickly and in need of money, sold an additional 1/3 portion of his share inthe property to the respondent, with their deed of absolute sale stating that the sale was with the approval of Eliseos siblings, and describing the portion subject of the sale as: That the portion covered under this transaction is specifically located right at the back of the seminary facing Japer Memorial School and where the fence and house of Atty. Amante is located.On September 30, 1992, Fe, Eliseo, Jose and Gloria executed a deed of extrajudicial partition to divide their fathers estate (consisting of the aforementioned parcel of land) among themselves. Pursuant to the deed extrajudicial partition, OCT No. O-188 was cancelled, and on July 12, 1994 the Register of Deeds issued TCT No. 6555, TCT No. 6556, TCT No. 6557 and TCT No. 6558to the petitioner, Gloria, Jose, and Eliseo, respectively. The partition resulted in the portions earlier sold by Eliseo to the respondent being adjudicated to the petitioner instead of to Eliseo. Due to the petitioners needing her portion that was then occupied by the respondent, she demanded that the latter vacate it. Despite several demands, the last of which was by the letter dated November 4, 1994,the respondent refused to vacate, prompting her to file against him on February 14, 1995 a complaint for ejectment and damages in the MTCC. The respondent denied that his possession of the disputed portion had been by mere tolerance of Eliseo. He even asserted that he was in fact the owner and lawful possessor of the property, having bought it from Eliseo; that the petitioner and her siblings could not deny knowing about the sale in his favor because they could plainly see his house from the road; and that the deed of absolute sale itself stated that the sale to him was with their approval, and that they had already known that his house and fence were existing; that before he purchased the property, Eliseo informed him that he and his co-heirs had already orally partitioned the estate of their father, and that the portion being sold to him was Eliseos share; and that with his having already purchased the property before the petitioner acquired it under the deed of extrajudicial partition, she should respect his ownership and possession of it. The MTCC rendered its decision in favor of the petitioner, ruling that the deeds of sale executed by Eliseo in favor of the respondent did not have the effect of conveying the disputed property to him inasmuch as at the time of the sale, the parcel of land left by their father, which included the disputed property, had not yet been partitioned, rendering Eliseo a mere co-owner of the undivided estate who had no right to dispose of a definite portion thereof; that as a co-owner, Eliseo effectively conveyed to the respondent only the portion that would ultimately be allotted to him once the property would be subdivided; that because the disputed property was adjudicated to the petitioner under the deed of extrajudicial settlement and partition, she was its owner with the consequent right of possession; and that, as such, she had the right to demand that the respondent vacate the land.On appeal, the Regional Trial Court (RTC) reversed the judgment of the MTCC, and dismissed the complaint, holding that the summary proceeding for ejectment was not proper because the serious question of ownership of the disputed property was involved.The petitioner appealed to the CA by petition for review. The CA affirmed the decision of the RTC, and dismissing the case for ejectment, but on the ground that the respondent was either a co-owner or an assignee holding the right of possession over the disputed property.The CA observed that the RTC correctly dismissed the ejectment case because a question of ownership over the disputed property was raised; that the rule that inferior courts could pass upon the issue of ownership to determine the question of possession was well settled; that the institution of a separate action for quieting of title by the respondent did not divest the MTCC of its authority to decide the ejectment case; that Eliseo, as a coowner, had no right to sell a definite portion of the undivided estate; that the deeds of sale Eliseo executed in favor of the respondent were valid only with respect to the alienation of Eliseos undivided share; that after the execution of the deeds of sale, the respondent became a co-owner along with Eliseo and his co-heirs, giving him the right toparticipate in the partition of the estate owned in common by them; that because the respondent was not given any notice of the project of partition or of the intention to effect the partition, the partition made by the petitioner and her co-heirs did not bind him; and that, as to him, the entire estate was still co-owned by the heirs, giving him the right to the co-possession of the estate, including the disputed portion.IssueWho between the petitioner and the respondent had the better right to the possession of the disputed property?HeldAn ejectment case can be eitherfor forcible entry or unlawful detainer. It is a summary proceeding designed to provide expeditious means to protect the actual possession or the right to possession of the property involved. The sole question for resolution in the case is the physical or material possession (possession de facto) of the property in question, and neither a claim of juridical possession (possession de jure) nor an averment of ownership by the defendant can outrightly deprive the trial court from taking due cognizance of the case. Hence,even if the question of ownership is raised in the pleadings, like here, the court may pass upon the issue but only to determine the question of possession especially if the question of ownership is inseparably linked with the question of possession. The adjudication of ownership in that instance is merely provisional, and will not bar or prejudice an action between the same parties involving the title to the property. Considering that the parties are both claiming ownership of the disputed property, the CA properly ruled on the issue of ownership for the sole purpose of determining who between them had the better right to possess the disputed property.The disputed property originally formed part of the estate of the late Bibiano Quijano, and passed on to his heirs by operation of law upon his death. Prior to the partition, the estate was owned in common by the heirs, subject to the payment of the debts of the deceased. In a co-ownership, the undivided thing or right belong to different persons, with each of them holding the property pro indivisoand exercising her rights over the whole property. Each co-owner may use and enjoy the property with no other limitation than that he shall not injure the interests of his co-owners. The underlying rationale is that until a division is actually made, the respective share of each cannot be determined, and every co-owner exercises, together with his co-participants, joint ownership of the pro indiviso property, in addition to his use and enjoyment of it. Even if an heirs right in the estate of the decedent has not yet been fully settled and partitioned and is thus merely inchoate, Article 493 of the Civil Codegives the heir the right to exercise acts of ownership. Accordingly, when Eliseo sold the disputed property to the respondent in 1990 and 1991, he was only a co-owner along with his siblings, and could sell only that portion that would beallotted to him upon the termination of the co-ownership. The sale did not vest ownership of the disputed property in the respondent but transferred only the sellers pro indiviso share to him, consequently making him, as the buyer, a co-owner of the disputed property until it is partitioned. As Eliseos successor-in-interest or assignee, the respondent was vested with the right under Article 497 of the Civil Codeto take part in the partition of the estate and to challenge the partition undertaken without his consent. There is no question that the holder of a Torrens title is the rightful owner of the property thereby covered and is entitled to its possession. However, the Court cannot ignore thatthe statements in the petitioners complaint about the respondents possession of the disputed property being by the mere tolerance of Eliseo could be the basis for unlawful detainer. Unlawful detainer involves the defendants withholding of the possession of the property to which the plaintiff is entitled, after the expiration or termination of the formers right tohold possession under the contract, whether express or implied. A requisite for a valid cause of action of unlawful detainer is that the possession was originally lawful, but turned unlawful only upon the expiration of the right to possess.To show that the possession was initially lawful, the basis of such lawful possession must then be established. With the averment here that the respondents possession was by mere tolerance of the petitioner, the acts of tolerance must be proved, for bare allegation of tolerance did not suffice. At least, the petitioner should show the overt acts indicative of her or her predecessors tolerance, or her co-heirs permission for him to occupy the disputed property. But she did not adduce such evidence. Instead, she appeared to be herself not clear and definite as to his possession of the disputed property being merely tolerated by Eliseo.Considering that the allegation of the petitioners tolerance of the respondents possession of the disputed property was not established, the possession could very well be deemed illegal from the beginning. In that case, her action for unlawful detainer has to fail. Even so, the Court would not be justified to treat this ejectment suit as one for forcible entry because the complaint contained no allegation thathis entry in the property had been by force, intimidation, threats, strategy or stealth.Regardless, the issue of possession between the parties will still remain. To finally resolve such issue,t hey should review their options and decide on their proper recourses. In the meantime, it is wise for the Court to leave the door open to them in that respect. For now, therefore, this recourse of the petitioner has to be dismissed.WHEREFORE, the Court AFFIRMS the decision promulgated on May 26, 2004 subject to the MODIFICATION that the unlawful detainer action is dismissed for being an improper remedy; and ORDERS the petitioner to pay the costs of suit.

Centennial Guarantee Assurance Corporation v. Universal Motors Corporation, Rodrigo Janeo, Jr., Gerardo Gelle, et al. G.R. 189358Oct. 8, 2014FactsThe instant petition originated from a Complaint for Breach of Contract with Damages and Prayer for Preliminary Injunction and Temporary Restraning Order filed by Nissan Specialist Sales Corporation (NSSC) and its President and General Manager, Reynaldo A. Orimaco (Orimaco), against herein respondents Universal Motors Corporation (UMC), Rodrigo T. Janeo, Jr. (Janeo, Jr.), Gerardo Gelle (Gelle), Nissan Cagayan de Oro Distributors, Inc. (NCOD), Jefferson U. Rolida (Rolida), and Peter Yap (Yap). The TRO prayed for was eventually issued by the RTC upon the posting by NSSC and Orimaco of a 1 M injunction bond issued by their surety, CGAC. The TRO enjoined respondents UMC, Rolida, Gelle, Janeo, Jr., NCOD, and Yap (respondents) from selling, dealing, and marketing all models of motor vehicles and spare parts of Nissan, and from terminating the dealer agreement between UMC and NSSC. It likewise restrained UMC from supplying and doing trading transactions with NCOD, which, in turn, was enjoined from entering and doing business on Nissan Products within the dealership territory of NSSC as defined in the Dealer Agreement. The TRO was converted to a writ of preliminary injunction on April 2, 2002. Respondents filed a petition for certiorari and prohibition before the CA to assail the issuance of the aforesaid injunctive writ. The CA rendered a Decision holding that the RTC committed grave abuse of discretion in issuing the writ absent a clear legal right thereto on the part of NSSC and Orimaco. Consequently, the April 2, 2002 Writ of Preliminary Injunction issued by the RTC was ordered dissolved. The RTC rendered a Decisiondismissing the complaint for breach of contract with damages for lack of merit. It further ordered NSSC, Orimaco, and CGAC to jointly and severally pay respondents the following amounts: actual damages and lost opportunities suffered by UMC as attorneys fees and lost income in favor of NCOD, Rolida, and Yap; and exemplary damages for each of the respondents. Upon respondents motion, the RTC granted Execution Pending Appeal of its October 31, 2007 Decision.CGAC assailed the RTCs January 16, 2008 Order before the CA through a petition for certiorari, docketed as CA-G.R. SP No. 02459-MIN, questioning the existence of good reasons to warrant the grant of execution pending appeal and the propriety of enforcing it against one which is not the losing party in the case but a mere bondsman whose liability is limited to the surety bond it issued.The CA affirmed in part the assailed order by allowing the execution pending appeal of the RTCs October 31, 2007 Decision but limiting the amount of CGACs liability to only 1 M. IssuesThe central issues in this case are: (a) whether or not good reasons exist to justify execution pending appeal against CGAC which is a mere surety; and (b) whether or not CGACs liability on the bond should be limited to 500,000.00.HeldThe petition is unmeritorious.The execution of a judgment pending appeal is an exception to the general rule that only a final judgment may be executed; hence, under Section 2, Rule 39 of the Rules of Court (Rules), the existence of "good reasons" for the immediate execution of a judgment is an indispensable requirement as this is what confers discretionary power on a court to issue a writ of execution pending appeal. Good reasons consist of compelling circumstances justifying immediate execution, lest judgment becomes illusory, that is, the prevailing partys chances for recovery on execution from the judgment debtor are altogether nullified. The "good reason" yardstick imports a superior circumstance demanding urgency that will outweigh injury or damage to the adverse party and one such "good reason" that has been held to justify discretionary execution is the imminent danger of insolvency of the defeated party. The factual findings that NSSC is under a state of rehabilitation and had ceased business operations, taken together with the information that NSSC President and General Manager Orimaco had permanently left the country with his family, constitute such superior circumstances that demand urgency in the execution of the October 31, 2007 Decision because respondents now run the risk of its non-satisfaction by the time the appeal is decided with finality. Notably, as early as April 22, 2008, the rehabilitation receiver had manifested before the rehabilitation court the futility of rehabilitating NSSC because of the latters insincerity in the implementation of the rehabilitation process.28Clearly, respondents diminishing chances of recovery from the favorable Decision is a good reason to justify immediate execution; hence, it would be improper to set aside the order granting execution pending appeal.That CGACs financial standing differs from that of NSSC does not negate the order of execution pending appeal.1wphi1As the latters surety, CGAC is considered by law as being the same party as the debtor in relation to whatever is adjudged touching the obligation of the latter, and their liabilities are interwoven as to be inseparable. Verily, in a contract of suretyship, one lends his credit by joining in the principal debtors obligation so as to render himself directly and primarily responsible with him, and without reference to the solvency of the principal. Thus, execution pending appeal against NSSC means that the same course of action is warranted against its surety, CGAC. The same reason stands for CGACs other principal, Orimaco, who was determined to have permanently left the country with his family to evade execution of any judgment against him.Now, going to the second issue as above-stated, the Court resolves that CGACs liability should as the CA correctly ruled be confined to the amount of 1,000,000.00, and not 500,000.00 as the latter purports.Section 4(b), Rule 58 of the Rules provides that the injunction bond is answerable for all damages that may be occasioned by the improper issuance of a writ of preliminary injunction. The Court has held in Paramount Insurance Corp. v. CA that:The bond insures with all practicable certainty that the defendant may sustain no ultimate loss in the event that the injunction could finally be dissolved. Consequently, the bond may obligate the bondsmen to account to the defendant in the injunction suit for all: (1) such damages; (2) costs and damages; (3) costs, damages and reasonable attorney's fees as shall be incurred or sustained by the person enjoined in case it is determined that the injunction was wrongfully issued. In this case, the RTC, in view of the improvident issuance of the April 2, 2002 Writ of Preliminary Injunction, adjudged CGAC's principals, NSSC and Orimaco, liable not only for damages as against NCOD, Rolida, and Yap but also as against UMC. As may be gleaned from the dispositive portion of the RTC Decision, the amount adjudged to the former group wasP500,000.00, while it was found - this time, contained in the body of the same decision - that damages in the amountP4,199,355.00 due to loss of sales was incurred by UMC in the year 2002, or the year in which the latter was prevented from selling their products pursuant to the April 2, 2002 Writ of Preliminary Injunction. Since CGAC is answerable jointly and severally with NSSC and Orimaco for their liabilities to the above-mentioned parties for all damages caused by the improvident issuance of the said injunctive writ, and considering that the total amount of damages as above-stated evidently exhausts the full Pl,000,000.00 amount of the injunction bond, there is perforce no reason to reverse the assailed CA Decision even on this score.WHEREFORE, the petition is DENIED. The Decision dated February 25, 2009 and the Resolution dated August 14, 2009 of the Court of Appeals in CA-G.R. SP No. 02459-MIN are hereby AFFIRMED.

George Philip P. Palileo and Jose De La Cruz v. Planters Development BankG.R. 193650Oct. 8, 2014 FactsIn a June 15, 2006 Decision rendered by the RTC of General Santos City, in an action for specific performance/sum of money with damages it was held thus:Before this Court is a complaint for specific performance and/or sum of money and damages with prayer for the issuance of writs of preliminary attachment and preliminary injunction filed by Plaintiff George Philip Palileo and Jose L. Dela Cruz against Engr. Edgardo R. Torcende, Planters Development Bank (defendant Bank), Arturo R. Delos Reyes, Benjamin N. Tria, Mao Tividad, and Emmanuel Tesalonia on 22 December 1998.After summons together with the verified Complaint and its annexes were duly served upon defendants, the latter answered. During Pre-Trial conference defendant Bank manifested [its] intention of settling the case amicably and several attempts to explore the said settlement [were] made as per records of this case. In the last pre-trial hearing dated 17 November 2000, only plaintiffs[,] George Philip Palileo and Jose L. Dela Cruz[,] and their counsel appeared, thus, the latter move [sic] for the presentation of evidence ex-parte, which was granted by the Court with the reservation of verifying the return card [to determine] whether the order for the pre-trial was indeed received by defendants. Finally, [at the] 21 November 2001 hearing, x x x defendants [again] failed to appear and their failure to file pre-trial brief was noted; thus [plaintiffs were] allowed to present evidence ex-parte before the Clerk of Court.x x x xIN LIGHT OF THE FOREGOING, defendants are hereby ORDERED to jointly and severally PAY plaintiffs as follows:i) Actual Damages;a) Plaintiff George Philip Palileo[,] the amount of Two Million Six Hundred Five Thousand Nine [sic] Seventy Two Pesos and Ninety Two Centavos (P2,605,972.92), with 12% compounded interest [per annum] reckoned from the filing of this case until full settlement thereof;b) Plaintiff Jose R. Dela Cruz[,] the amount of One Million Five Hundred Twenty Nine Thousand Five Hundred Eight Thousand [sic] and Eighty Centavos (P1,529,508.80), with 12% compounded interest [per annum] reckoned from the filing of this case until full settlement thereof;ii) Moral damages in the amount of Five Hundred Thousand Pesos (P500,000.00) each;iii) Exemplary Damages in the amount of Five Hundred Thousand Pesos (P500,000.00) each;iv) Attorneys Fees in the amount of Five Hundred Thousand [Pesos] (P500,000.00) each x x x and to pay the costs.Respondent Planters Development Bank (PDB) received a copy of the RTC Decision on July 17, 2006.On July 31, 2006, PDB filed by private courier service specifically LBC an Omnibus Motion for Reconsideration and for New Trial,7arguing therein that the trial courts Decision was based on speculation and inadmissible and selfserving pieces of evidence; that it was declared in default after its counsel failed to attend the pre-trial conference on account of the distance involved and difficulty in booking a flight to General Santos City; that it had adequate and sufficient defenses to the petitioners claims; that petitioners claims are only against its codefendant, Engr. Edgardo R. Torcende [Torcende]; that the award of damages and attorneys fees had no basis; and that in the interest of justice, it should be given the opportunity to cross-examine the petitioners witnesses, and thereafter present its evidence.Petitioners copy of the Omnibus Motion for Reconsideration and for New Trial was likewise sent on July 31, 2006 by courier service through LBC, but in their address of record Tupi, South Cotabato there was no LBC service at the time.On August 2, 2006, PDB filed with the RTC another copy of the Omnibus Motion for Reconsideration and for New Trial via registered mail; another copy thereof was simultaneously sent to petitioners by registered mail as well.Meanwhile, petitioners moved for the execution of the Decision pending appeal.In an August 30, 2006 Order, the RTC denied the Omnibus Motion for Reconsideration and for New Trial, while it granted petitioners motion for execution pending appeal, which it treated as a motion for the execution of a final and executory judgment. The motion fails to impress. Section 5, Rule 159of the 1997 Rules of Civil Procedure as amended is pertinent thus:Section 5. Notice of hearing. The notice of hearing shall be addressed to all parties concerned, and shall specify the time and date of the hearing which must not be later than ten (10) days after the filing of the motion. (Underscoring and italics supplied)The aforesaid provision requires [that] every motion shall be addressed to all parties concerned, and shall specify the time and date of the hearing NOT later than ten (10) days after the filing of the motion. Being a litigated motion, the aforesaid rule should have been complied [with]. Its noncompliance renders it defective.[The] Rule is settled that a motion in violation thereof is pro forma and a mere scrap of paper. It presents no question which the court could decide [upon]. In fact, the court has NO reason to consider it[;] neither [does] the clerk of court [have] the right to receive the same. Palpably, the motion is nothing but an empty formality deserving no judicial cognizance. Hence, the motion deserves a short shrift and peremptory denial for being procedurally defective.As such, it does not toll the running of the reglementary period thus making the assailed decision final and executory. This supervening situation renders the Motion for Execution pending appeal academic but at the same time it operates and could serve [as] well as a motion for execution of the subject final and executory decision. Corollarily, it now becomes the ministerial duty of this Court to issue a writ of execution thereon.IN LIGHT OF THE FOREGOING, the Omnibus Motion for Reconsideration and New Trial is hereby DENIED, and the Motion for Execution Pending Appeal (which is treated as a motion for execution of a final and executory judgment) is also GRANTED as explained above. Accordingly, let A WRIT OF EXECUTION be issued against herein defendants to enforce the FINAL and EXECUTORY Decision dated 15 June 2006.SO ORDERED.10PDB received a copy of the above August 30, 2006 Order on September 14, 2006.11On August 31, 2006, a Writ of Execution12was issued. PDB filed an Urgent Motion to Quash Writ of Execution,13arguing that it was prematurely issued as the June 15, 2006 Decision was not yet final and executory; that its counsel has not received a copy of the writ; and that no entry of judgment has been made with respect to the trial courts Decision. Later on, it filed a Supplemental Motion to Quash Writ of Execution,14claiming that the writ was addressed to its General Santos branch, which had no authority to accept the writ.On September 7, 2006, PDB filed a Notice of Appeal.15In an October 6, 2006 Order,16the RTC denied the motion to quash the writ of execution.On October 9, 2006, the RTC issued a second Writ of Execution.17Ruling of the Court of AppealsOn October 11, 2006, PDB filed with the CA an original Petition for Certiorari, which was later amended,18assailing 1) the trial courts August 30, 2006 Order which denied the omnibus motion for reconsideration of the RTC Decision and for new trial; 2) its October 6, 2006 Order which denied the motion to quash the writ of execution; and 3) the August 31, 2006 and October 9, 2006 writs of execution.On May 31, 2007, the CA issued a Decision19dismissing PDBs Petition for lack of merit. It sustained the trial courts pronouncement, that by setting the hearing of the Omnibus Motion for Reconsideration and for New Trial on August 18, 2006 or 16 days after its filing on August 2, 2006 PDB violated Section 5, Rule 15 of the Rules of Court which categorically requires that the notice of hearing shall specify the time and date of the hearing which must not be later than 10 days after the filing of the motion. Citing this Courts ruling in Bacelonia v. Court of Appeals,20the CA declared that the 10-day period prescribed in Section 5 is mandatory, and a motion that fails to comply therewith is pro forma and presents no question which merits the attention and consideration of the court.The appellate court further characterized PDBs actions as indicative of a deliberate attempt to delay the proceedings, noting that it did not timely move to reconsider the trial courts November 17, 2000 ruling21allowing petitioners to present their evidence ex parte, nor did it move to be allowed to present evidence in support of its defense. It was only after the RTC rendered its June 15, 2006 Decision that PDB moved to be allowed to cross-examine petitioners witnesses and to present its evidence on defense.The CA likewise held that the RTC did not err in ruling that the omnibus motion for reconsideration did not toll the running of the prescriptive period, which thus rendered the June 15, 2006 Decision final and executory. It noted as well that PDBs September 7, 2006 notice of appeal was tardy.The CA found no irregularity with respect to the writs of execution, which contained the fallo of the June 15, 2006 Decision of the RTC thus itemizing the amount of the judgment obligation. Additionally, it held that the fact that the judgment debtors are held solidarily liable does not require that the writs should be served upon all of the defendants; that it is not true that the sheriffs failed to make a demand for the satisfaction of judgment upon PDB, as the mere presentation of the writ to it operated as a demand to pay; and that PDB failed to attach the Sheriffs Return to its Petition, which thus prevents the appellate court from resolving its claim that the writs were not validly served.PDB filed a Motion for Reconsideration,22arguing that Rule 15, Section 5 of the Rules of Court should be relaxed in view of the fact that judgment against it was based on a technicality and not on a trial on the merits; that there was no deliberate intention on its part to delay the proceedings; that the court acted with partiality in declaring that the Omnibus Motion for Reconsideration and for New Trial was pro forma; that its notice of appeal was timely; and that the writs of execution are null and void.On July 28, 2009, the CA made a complete turnaround and issued the assailed Amended Decision, which decreed thus:WHEREFORE, the motion for reconsideration is GRANTED. This Courts May 31, 2007 Decision is SET ASIDE and a new one is rendered GRANTING the petition for certiorari. The trial courts Order dated August 30, 2006 is SET ASIDE and the Writ of Execution issued by the trial court is QUASHED. The trial court is ORDERED to hear and rule on the merits of petitioners "Omnibus Motion for Reconsideration and New Trial."The CA reversed its original finding that the Omnibus Motion for Reconsideration and for New Trial was pro forma. This time, it held just the opposite, ruling that PDBs "tacit argument" that the "distances involved in the case at bench call for a relaxation of the application of Section 5, Rule 15 of the Rules of Court" deserved consideration. It held that Section 5 should be read together with Section 4of the same Rule, thus:When a pleading is filed and served personally, there is no question that the requirements in Sections 4 and 5 of Rule 15 of the Revised Rules of Civil Procedure pose no problem to the party pleading. Under this mode of service and filing of pleadings, the party pleading is able to ensure receipt by the other party of his pleading at least three days prior to the date of hearing while at the same time setting the hearing on a date not later than ten days from the filing of the pleading.When, as in the case at bench, the address of the trial court as well as that of the opposing counsel is too distant from the office of the counsel of the party pleading to personally effect the filing and service of the pleading, the latter counsel faces a real predicament. In a perfect world with the best postal service possible, it would be problematic enough to ensure that both requisites are fully met: that opposing counsel receives the pleading at least three days before the date of hearing and that the date of hearing is no more than ten days after the filing (mailing) of the pleading. But, as a matter of fact, given the state of the postal service today a matter the Court takes judicial notice of the party pleading often finds himself [locked] between the horns of a dilemma.The case at bench presents the Court with the novel issue of whether the same rigid application of the cited Sections-and-Rule is warranted when the filing and service of pleadings is by mail. The Court is of the opinion that when confronted between [sic] the demands of sufficient notice and due process on the one hand and the requirement that the date of hearing be set no later than ten days from filing, the stringent application of the Rules is not warranted and a liberal posture is more in keeping with Section 6, Rule 1 of the 1997 Rules of Civil Procedure which provides:SECTION 6. Construction. - These Rules shall be liberally construed in order to promote their objective of securing a just, speedy, and inexpensive disposition of every action and proceeding. The CA further sustained PDBs argument that since judgment against it was arrived at by mere default or technicality, it is correspondingly entitled to a relaxation of the Rules, in line with the principles of substantial justice. It likewise held that PDB counsels act of setting the hearing of the Omnibus Motion for Reconsideration and for New Trial 16 days after its filing was an excusable lapse; that no scheme to delay the case is evident from PDBs actions; that more telling is the trial courts "blurring in cavalier fashion" the distinction between Sections 1 and 2 of Rule 39 of the Rules of Court,26as well as its unequal treatment of the parties from its strict application of Section 5, Rule 15 against respondent, while it bent backward to accommodate petitioners by converting the latters motion for execution pending appeal into a motion for execution of a final and executor judgment.IssuesPetitioners frame the issues involved in this Petition, as follows:Being assailed herein is the refusal of the Court of Appeals, which is a patent error, for not giving credence to petitioners-appellants arguments that the respondent-appellees special civil action for certiorari before it is clearly devoid of merit as (i) the Decision dated June 15, 2006 of the RTC, Branch 37, General Santos City had become final and executory before the special civil action for Certiorari was filed before it which should have been dismissed outright, and which issue of "finality" was never ruled upon, (ii) granting arguendo that a certiorari proceeding could still be had, the same should be filed under Rule 45 instead of Rule 65 of the 1997 Rules of Civil Procedure, (iii) the alleged attendant abuse of discretion on the part of the public respondent judges, even granting arguendo that it exist [sic], were [sic] not grave but on the contrary were purely errors of judgment and, (iv) the substantial and glaring defects of the petition in the special civil action for certiorari before the Court of Appeals were consistently and clearly called to its attention but were unjustifiably ignored by it. HeldThe Court grants the Petition.The proceedings in the instant case would have been greatly abbreviated if the court a quo and the CA did not overlook the fact that PDBs Omnibus Motion for Reconsideration and for New Trial was filed one day too late. The bank received a copy of the trial courts June 15, 2006 Decision on July 17, 2006; thus, it had 15 days or up to August 1, 2006 within which to file a notice of appeal, motion for reconsideration, or a motion for new trial, pursuant to the Rules of Court.32Yet, it filed the omnibus motion for reconsideration and new trial only on August 2, 2006.Indeed, its filing or service of a copy thereof to petitioners by courier service cannot be trivialized. Service and filing of pleadings by courier service is a mode not provided in the Rules. This is not to mention that PDB sent a copy of its omnibus motion to an address or area which was not covered by LBC courier service at the time. Realizing its mistake, PDB re-filed and re-sent the omnibus motion by registered mail, which is the proper mode of service under the circumstances. By then, however, the 15-day period had expired.PDBs Notice of Appeal, which was filed only on September 7, 2006, was tardy; it had only up to August 1, 2006 within which to file the same. The trial court therefore acted regularly in denying PDBs notice of appeal.Since PDBs Omnibus Motion for Reconsideration and for New Trial was filed late and the 15-day period within which to appeal expired without PDB filing the requisite notice of appeal, it follows that its right to appeal has been foreclosed; it may no longer question the trial courts Decision in any other manner. "Settled is the rule that a party is barred from assailing the correctness of a judgment not appealed from by him."34The "presumption that a party who did not interject an appeal is satisfied with the adjudication made by the lower court"35applies to it. There being no appeal taken by PDB from the adverse judgment of the trial court, its Decision has become final and can no longer be reviewed, much less reversed, by this Court. "Finality of a judgment or order becomes a fact upon the lapse of the reglementary period to appeal if no appeal is perfected, and is conclusive as to the issues actually determined and to every matter which the parties might have litigated and have x x x decided as incident to or essentially connected with the subject matter of the litigation, and every matter coming within the legitimate purview of the original action both in respect to matters of claim and of defense."36And "[i]n this jurisdiction, the rule is that when a judgment becomes final and executory, it is the ministerial duty of the court to issue a writ of execution to enforce the judgment;"37"execution will issue as a matter of right x x x (a) when the judgment has become final and executory; (b) when the judgment debtor has renounced or waived his right of appeal; [or] (c) when the period for appeal has lapsed without an appeal having been filed x x x."38Neither can the Court lend a helping hand to extricate PDB from the effects of its mistake; indeed, PDB erred more than once during the course of the proceedings. For one, it did not attempt to set right its failure to appear during pre-trial, which prompted the court to allow petitioners to present evidence ex parte and obtain a favorable default judgment. Second, assuming for the sake of argument that it timely filed its Omnibus Motion for Reconsideration and for New Trial, it nonetheless violated the ten-day requirement on the notice of hearing under Section 5 of Rule 15. Third, even before it could be notified of the trial courts resolution of its omnibus motion on September 14, 2006 assuming it was timely filed, it filed a notice of appeal on September 7, 2006 which thus implies that it abandoned its bid for reconsideration and new trial, and instead opted to have the issues resolved by the CA through the remedy of appeal. If so, then there is no Omnibus Motion for Reconsideration and for New Trial that the trial court must rule upon; its August 30, 2006 Order thus became moot and academic and irrelevant. "[W]here [an action] or issue has become moot and academic, there is no justiciable controversy, so that a declaration thereon would be of no practical use or value." Fourth, instead of properly pursuing its appeal to free itself from the unfavorable effects of the trial courts denial of its notice of appeal, PDB chose with disastrous results to gamble on its Omnibus Motion for Reconsideration and for New Trial by filing an original Petition for Certiorari to assail the trial courts denial thereof. Time and again, it has been said that certiorari is not a substitute for a lost appeal, especially if ones own negligence or error in ones choice of remedy occasioned such loss. WHEREFORE, the Petition is GRANTED. The assailed July 28, 2009 Amended Decision and August 23, 2010 Resolution of the Court of Appeals in CA-G.R. SP No. 01317-MIN are REVERSED and SET ASIDE. The Regional Trial Court of General Santos City, Branch 37 is ORDERED to proceed with the execution ofits June 15, 2006 Decision in Civil Case No. 6474.