Cases On Rule 56 of The Rules of Court

SECOND DIVISION
[G.R. No. 159755. June 18, 2009.] GRACE GOSIENGFIAO GUILLEN, deceased EMMA GOSIENGFIAO GALAOS, represented by her daughter EMELYN GALAOS-MELARION, deceased FRANCISCO GOSIENGFIAO, JR., represented by his widow EDELWISA GOSIENGFIAO, JACINTO GOSIENGFIAO, and absentees ESTER GOSIENGFIAO BITONIO, NORMA GOSIENGFIAO, and PINKY BUENO PEDROSO, represented by their attorney-in-fact JACINTO GOSIENGFIAO, petitioners, vs. THE COURT OF APPEALS, HON. JIMMY HENRY F. LUCZON, JR., in his capacity as Presiding Judge of the Regional Trial Court, Branch I, Tuguegarao, Cagayan, LEONARDO MARIANO, AVELINA TIGUE, LAZARO MARIANO, MERCEDES SAN PEDRO, DIONISIA M. AQUINO, and JOSE N.T. AQUINO, respondents.
DECISION
BRION, J :
p
At issue in this petition is the timeliness of the exercise of the right of legal redemption that this Court has recognized in a final and executory decision.
caHASI
The petitioners, heirs of Francisco Gosiengfiao (petitioner-heirs), assail in this Rule 45 petition for review on certiorari the January 17, 2003 decision and September 9, 2003 resolution of the Court of Appeals (CA) in CA-G.R. CV No. 63093. 1(1) The assailed CA decision ruled that the thirty-day period for the exercise of the right of legal redemption should be counted, not from the notice of sale by the vendor but, from the finality of the judgment of this Court. BACKGROUND FACTS I. G.R. No. 101522 Mariano v. Court of Appeals
The previous case where we recognized the petitioner-heirs' right of legal redemption is Mariano v. CA. 2(2) To quote, by way of background, the factual antecedents that Mariano recognized:
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It appears on record that the decedent Francisco Gosiengfiao is the registered owner of a residential lot located at Ugac Sur, Tuguegarao, Cagayan, particularly described as follows, to wit: The eastern portion of Lot 1351, Tuguegarao Cadastre, and after its segregation now designated as Lot 1351-A, Plan PSD-67391, with an area of 1,346 square meters. and covered by Transfer Certificate of Title (TCT) No. T-2416 recorded in the Register of Deeds of Cagayan. The lot in question was mortgaged by the decedent to the Rural Bank of Tuguegarao (designated as mortgagee bank, for brevity) on several occasions before the last, being on March 9, 1956 and January 29, 1958. On August 15, 1958, Francisco Gosiengfiao died intestate survived by his heirs, namely: Third-Party Defendants: wife Antonia and Children Amparo, Carlos, Severino and herein plaintiffs-appellants Grace, Emma, Ester, Francisco, Jr., Norma, Lina (represented by daughter Pinky Rose), and Jacinto. The loan being unpaid, the lot in dispute was foreclosed by the mortgagee bank, and in the foreclosure sale held on December 27, 1963, the same was awarded to the mortgagee bank as the highest bidder. On February 7, 1964, third-party defendant Amparo Gosiengfiao-Ibarra redeemed the property by paying the amount of P1,347.89 and the balance of P423.35 was paid on December 28, 1964 to the mortgagee bank. On September 10, 1965, Antonia Gosiengfiao on her behalf and that of her minor children Emma, Lina, Norma, together with Carlos and Severino, executed a "Deed of Assignment of the Right of Redemption" in favor of Amparo G. Ibarra appearing in the notarial register of Pedro (Laggui) as Doc. No. 257, Page No. 6, Book No. 8, Series of 1965. On August 15, 1966, Amparo Gosiengfiao sold the entire property to defendant Leonardo Mariano who subsequently established residence on the lot subject of this controversy. It appears in the Deed of Sale dated August 15, 1966 that Amparo, Antonia, Carlos and Severino were signatories thereto. Sometime in 1982, plaintiff-appellant Grace Gosiengfiao learned of the sale of said property by the third-party defendants. She went to the Barangay Captain and asked for a confrontation with defendants Leonardo and Avelina Mariano to present her claim to the said property. On November 27, 1982, no settlement having been reached by the parties, the Barangay Captain issued a certificate to file action. On December 8, 1982, defendant Leonardo Mariano sold the same property to his children Lazaro F. Mariano and Dionicia M. Aquino as evidenced by a Deed of Sale notarized by Hilarion L. Aquino as Doc. No. 143, Page No. 19, Book No. V, Series of 1982.
On December 21, 1982, plaintiffs Grace Gosiengfiao, et al. [herein petitioner-heirs] filed a complaint for "recovery of possession and legal redemption with damages" against defendants Leonardo and Avelina Mariano [herein respondent-buyers]. Plaintiffs alleged in their complaint that as co-heirs and co-owners of the lot in question, they have the right to recover their respective shares in the said property as they did not sell the same, and the right of redemption with regard to the shares of other co-owners sold to the defendants. Defendants in their answer alleged that the plaintiffs has [sic] no cause of action against them as the money used to redeem the lot in question was solely from the personal funds of third-party defendant Amparo Gosiengfiao-Ibarra, who consequently became the sole owner of the said property and thus validly sold the entire property to the defendants, and the fact that defendants had already sold the said property to their children, Lazaro Mariano and Dionicia M. Aquino. Defendants further contend that even granting that the plaintiffs are co-owners with the third-party defendants, their right of redemption had already been barred by the Statute of Limitations under Article 1144 of the Civil Code, if not by laches.
On September 16, 1986, the trial court dismissed the complaint before it, as "only Amparo redeemed the property from the bank" using her money and solely in her behalf so that the petitioner-heirs had lost all their rights to the property. 3(3) The trial court explained that what Gosiengfiao's heirs inherited from him was only the right to redeem the property, as it was then already owned by the bank. By redeeming the property herself, Amparo became the sole owner of the property, and the lot ceased to be a part of Gosiengfiao's estate.
IHaCDE
On May 13, 1991, the CA reversed the trial court's decision, declaring the petitioner-heirs "co-owners of the property who may redeem the portions sold" to the respondent-buyers. The CA denied the respondent-buyers' motion for reconsideration; 4(4) thus, they came to this Court to question the CA's rulings. Our Decision, promulgated on May 28, 1993, affirmed the appellate court decision. stated in its penultimate paragraph and in its dispositive portion that:
5(5)
It
Premises considered, respondents have not lost their right to redeem, for in the absence of a written notification of the sale by the vendors, the 30-day period has not begun to run. WHEREFORE, the decision of the Court of Appeals is hereby AFFIRMED. Costs against petitioners.
Aside from this express declaration, the Court explained that, as the property was mortgaged by the decedent, co-ownership existed among his heirs during the period given by law to redeem the foreclosed property. Redemption of the whole property by co-owner Amparo did not vest in her the sole ownership over the property, as the redemption inured to the benefit of all co-owners; redemption will not put an end to co-ownership, as it is not a mode of terminating a co-ownership. The Court also distinguished 6(6) between Articles 1088 7(7) and 1620 8(8) of the Civil Code and ruled as inapplicable the doctrine that "the giving of a copy of the deed of sale to the co-heirs as equivalent to a notice". 9(9) On July 12, 1993, this Court denied the respondent-buyers' motion for reconsideration. The entry of judgment was made on August 2, 1993.
II.
Execution of the Mariano Decision (G.R. No. 101522) By the Lower Court a. The Incidents
On April 26, 1994, the petitioner-heirs, as winning parties, filed a motion for the execution of our Decision in G.R. No. 101522, which motion the trial court granted on May 11, 1994. 10(10) The next day, the clerk of court issued a writ of execution and a notice to vacate. 11(11) The respondent-buyers moved for a reconsideration of the May 11, 1994 order and prayed for the nullification of the notice to vacate, arguing that the dispositive portion of the decision to be executed merely declared and recognized the petitioner-heirs as co-owners of the lot and did not authorize the sheriff to remove their houses from the land. They argued they can remain in possession of the property as co-owners because the judgment did not divest them of possession. 12(12) The sheriff later informed the trial court that copies of the notice to vacate and the writ of execution were served on, but were not signed by, the respondent-buyers. After the expiration of the 45-day period to vacate, the sheriff went back to check if the respondent-buyers had complied. They had not. On March 31, 1995, the petitioner-heirs filed a notice of redemption with the court of origin, duly served on the respondent-buyers, for the shares of Amparo, Antonia, Carlos, and Severino, and tendered the redemption price of P53,760. 13(13) On April 18, 1995, the sheriff issued a certificate of redemption after the first and second buyers refused to sign the notice and accept the tender, and after the aggrieved heirs deposited the redemption money with the court. 14(14) On the same date, the sheriff issued a return of service informing the court that on March 31, 1995, the redemption money was tendered to, but was not accepted by, Engr. Jose Aquino who received, but did not sign, the notice of redemption. 15(15) From 1994 to 1995, the respondent-buyers filed four motions: a motion for reconsideration of the May 11, 1994 order granting the motion for the issuance of a writ of execution; 16(16) a motion to ascertain the redemptive shares of third-party defendants; 17(17) a motion to declare the petitioner-heirs to have lost their right of legal redemption; 18(18) and a motion to expunge from the records the petitioner-heirs' notice of redemption. 19(19) b. The Judge Beltran Rulings
On December 4, 1995, the trial court, through Judge Orlando Beltran, 20(20) issued an order (1) recalling the writ of execution for "incorrectly" quoting the dispositive portion of the CA decision and nullifying the notice to vacate; (2) denying the motion to ascertain third-party defendants' shares, as Amparo's redemption inured to the benefit of her co-heirs, thus, each of the 10 heirs has 1/10 equal share of the lot; (3) denying the third motion as no written notice of the sale has been served on the petitioner-heirs by the vendor or by the vendee; and (4) denying the last motion for lack of legal and factual basis. 21(21) The trial court thereafter denied the respondent-buyers' motion for reconsideration that followed. 22(22) On May 30, 1996, the court denied their motion to nullify the certificate of redemption and
cancellation of the certificate at the back of TCT No. T-2416; the respondent-buyers moved to reconsider this denial on July 9, 1996. 23(23) On June 11, 1996, the respondent-buyers filed an omnibus motion for reconsideration, arguing that the December 4, 1995 order is contrary to law, jurisprudence, and the decisions of the CA and this Court on this case. 24(24) On July 15, 1996, the respondent-buyers again filed a motion for reconsideration of the May 30, 1996 order denying their motion to nullify the certificate of redemption and to order its cancellation at the back of TCT No. T-2416, which move the petitioner-heirs opposed. They argued that the decision of this Court was not self-executing, and the sheriff had no power to do anything without a court sanction. They also argued that it was untrue that the basis of the April 18, 1995 certificate of redemption was the May 31, 1991 decision of the CA, as affirmed by this Court, because the certificate was "inexistent" when those decisions were promulgated. c. The Judge Luczon Rulings
On September 26, 1997, the trial court, through Judge Jimmy Henry F. Luczon, Jr., 25(25) issued an order granting the respondent-buyers' omnibus motion for reconsideration of the December 4, 1995 order, declaring the petitioner-heirs to have lost their right of redemption, and nullifying the notice and the certificate of redemption. 26(26) Noting the absence of a written notice of sale or manifestation received by the petitioner-heirs, the trial court deemed as notice of sale this Court's decision which became final and executory on August 2, 1993. The trial court considered September 1, 1993 as the last day of the redemption period, and, consequently, declared that the notice and the certificate of redemption were filed late. The trial court denied the petitioner-heirs' motion for reconsideration of the September 26, 1997 order, ruling that the introduction of the deed of sale as the parties' evidence in the trial and higher courts was sufficient to give the petitioner-heirs written notice of the sale; and that the Civil Code does not require any particular form of written notice or distinctive method for written notification of redemption. III. The Assailed Court of Appeals Decision
The petitioner-heirs thereupon went to the CA on a petition for certiorari to question the lower court's orders. (They had earlier filed an Appeal Ad Cautelam which the CA consolidated with the petition for certiorari.) 27(27) As grounds, they cited the lower court's lack of jurisdiction since the motions ruled upon were really initiatory pleadings based on causes of action independent of, although related to, Civil Case No. 3129, and that no certificate of non-forum shopping was attached, nor any docket fees paid. They also claimed that the respondent-buyers' motion was a prohibited second motion for reconsideration that the lower court could not rule upon, and one that was filed beyond the 15-day period of appeal. 28(28) Finally, they faulted the lower court for ignoring the law of the case, as established in Mariano. The respondent-buyers questioned the petition on technicalities, but focused on the issue of
whether the final and executory decision of this Court in Mariano was effectively a written notice of sale to the heirs; they continued to maintain that the redemption period should run from the finality of our Decision, and, thus, had already lapsed.
aIcCTA
The CA followed the respondent-buyers' lead and likewise focused on the effect of our Decision on the petitioner-heirs' redemption of the disputed co-owned property. To quote the appellate court:
The pivot of inquiry here is: whether or not the final and executory Decision of the Supreme Court constitutes written notice to plaintiffs-appellants [herein petitioner-heirs]. xxx xxx xxx
It is undisputed that the Highest Magistrate's Decision in G.R. 101522 had become final and executory on 02 August 1993 and that it was only on 26 April 1994 or after the lapse of more than eight (8) months from the finality of the said Decision that plaintiffs-appellants filed a Motion for Execution. The Entry of Judgment of G.R. 101522 states as follows, thus: This is to certify that on May 26, 1993 a decision rendered in the above-entitled case was filed in this Office, the dispositive portion of which reads as follows: Premises considered, respondents have not lost their right to redeem, for in the absence of a written certification of the sale by the vendors, the 30-day period has not even begun to run. WHEREFORE, the decision of the Court of Appeals is hereby AFFIRMED. Costs against the petitioners. SO ORDERED. and that the same has, on August 2, 1993 become final and executory and is hereby recorded in the book of Entries of Judgment. As it is an established procedure in court that when an entry of judgment was issued, it means that the contending parties were already properly notified of the same either through the parties themselves or through their respective counsels. Thus, the very existence of the Supreme Court's Entry of Judgment negates plaintiffs-appellants' claim that no notice of what [sic] nature was received by them insofar as G.R. 101522 was concerned. Concomitantly, the Court concurs with the argument of respondents-appellees [herein respondent-buyers] that the thirty (30) days grace period within which to redeem the contested property should be counted from 02 August 1993. As they failed to redeem the same in accordance with the instruction of the High Court, plaintiffs-appellants lost all the rights and privileges granted to them by the Supreme Court in
G.R. 101522. From the foregoing facts, it is clear that plaintiffs-appellants had slept from their rights and their failure to exercise the same within the period allowed by the High Court is deemed a waiver on their part. All told, the Court holds and so rules that the court a quo erred not in reversing itself.
To summarize, the appellate court ruled that (1) because an entry of judgment had been made, the Mariano Decision is deemed to have been served on the petitioner-heirs; (2) based on this premise, the appellate court held that the 30-day redemption period should run from August 2, 1993 (the date of the entry of judgment); and (3) for the petitioner-heirs' failure to redeem within that period, they "lost all the rights and privileges granted to them by the Supreme Court in G.R. No. 101522".
DaEATc
THE PETITION Faced with the CA's ruling and the denial of their motion for reconsideration, the petitioner-heirs filed the present petition with this Court. They argue in this petition and in their memorandum that the January 17, 2003 decision of the CA is erroneous for the reasons outlined below. First. They clarify that their theory that the Decision of this Court is not the written notice required by law was not anchored on lack of notice of that decision, but on Article 1623 of the Civil Code: the written notice should be given by the vendor, not by this Court by virtue of a final decision. The CA erred and abused its discretion in concluding that they lost their right of redemption under this Court's Decision because the start of the redemption period is not reckoned from the date of the finality of that decision; the Decision is not the source of their right to redeem. Second. They posit a redemption period is not a prescriptive period, and the lower courts erred in considering the 30-day period as an extinctive prescriptive period because legal redemption under Article 1623 does not prescribe. The period has not even begun to run. Their use of the services of the sheriff to exercise their right of redemption through a motion for execution was approved by this Court as a method of redemption. In their Comment, the respondent-buyers stress that the main issue in this petition is whether the petitioner-heirs' right of legal redemption, as recognized in G.R. No. 101522, had been lost. The "non-reviewable" findings of facts of the trial and appellate courts that plaintiffs exercised their right of redemption late, and that the decision in G.R. No. 101522 had already become final, bind this Court. In their Reply to Comment, the petitioner-heirs argue that the 30-day redemption period under Article 1623 cannot be reckoned from the date of finality of this Court's Decision in G.R. No. 101522 because it is not and cannot be a "notice" in writing by the vendor; this Court is not the vendor and a written notice by the vendor is mandatory for the 30-day redemption period to run. The Decision negates the notion that it serves as a "notice", because it clearly states that the period of redemption had not begun to run. Having previously exercised the right of redemption, the
execution was nothing more than the implementation of what had been the final ruling of this Court. In their memorandum, the respondent-buyers maintain that the petitioner-heirs' "time-barred" right to redeem the property was not cured by the notice of redemption and by their "late" tender of the redemption money; since the petitioner-heirs were exercising their right of legal redemption by virtue of the Decisions of this Court and the CA, it was incumbent upon them to effectuate the steps of redemption seasonably. The "belated" notice of redemption and tender of payment of redemption price were not bona fide, as they were not made within the required period. THE COURT'S RULING The parties' positions all focus, and rightly so, on the main issue: when did the 30-day period to redeem the subject property start? This is a question of law, not of fact, as the respondent-buyers erroneously claim; thus, the lower courts' findings cannot bind this Court. The appellate court unfortunately failed to appreciate the breadth and significance of this issue, simply ruling on the case based on the implications of an entry of judgment. Because of this myopic view, it completely missed the thrust and substance of the Mariano Decision. We grant the petition and hold pursuant to the Mariano Decision and based on the subsequent pleaded developments that the petitioner-heirs have effectively exercised their right of redemption and are now the owners of the redeemed property pursuant to the Sheriff's Certificate of Redemption. A significant aspect of Mariano that the CA failed to appreciate is our confirmation of the ruling that a written notice must be served by the vendor. 29(29) We ruled as follows:
The requirement of a written notice has long been settled as early as in the case of Castillo v. Samonte (106 Phil. 1023 [1960]) where this Court quoted the ruling in Hernaez v. Hernaez (32 Phil. 214), thus: Both the letter and spirit of the New Civil Code argue against any attempt to widen the scope of the notice specified in Article 1088 by including therein any other kind of notice, such as verbal or by registration. If the intention of the law had been to include verbal notice or any other means of information as sufficient to give the effect of this notice, then there would have been no necessity or reasons to specify in Article 1088 of the New Civil Code that the said notice be made in writing for, under the old law, a verbal notice or information was sufficient. xxx xxx xxx
The ruling in Castillo v. Samonte, supra, was reiterated in the case of Garcia v. Calaliman (G.R. No. 26855, April 17, 1989, 172 SCRA 201) where We also discussed the reason for the requirement of the written notice. We said: Consistent with aforesaid ruling, in the interpretation of a related provision (Article 1623 of the New Civil Code) this Court had stressed that written notice is
indispensable, actual knowledge of the sale acquired in some other manners by the redemptioner, notwithstanding. He or she is still entitled to written notice, as exacted by the code to remove all uncertainty as to the sale, its terms and its validity, and to quiet any doubt that the alienation is not definitive. The law not having provided for any alternative, the method of notifications remains exclusive, though the Code does not prescribe any particular form of written notice nor any distinctive method for written notification of redemption (Conejero et al. v. Court of Appeals et al., 16 SCRA 775 [1966]; Etcuban v. Court of Appeals, 148 SCRA 507 [1987]; Cabrera v. Villanueva, G.R. No. 75069, April 15, 1988).
We also made the factual finding that:

The records of the present petition, however, show no written notice of the sale being given whatsoever to private respondents [petitioner-heirs]. Although, petitioners allege that sometime on October 31, 1982 private respondent, Grace Gosiengfiao was given a copy of the questioned deed of sale and shown a copy of the document at the Office of the Barangay Captain sometime November 18, 1982, this was not supported by the evidence presented. . . .
From these premises, we ruled that "[P]etitioner-heirs have not lost their right to redeem, for in the absence of a written notification of the sale by the vendors, the 30-day period has not even begun to run." These premises and conclusion leave no doubt about the thrust of Mariano: The right of the petitioner-heirs to exercise their right of legal redemption exists, and the running of the period for its exercise has not even been triggered because they have not been notified in writing of the fact of sale. This is what our Decision held, as the penultimate paragraph and the dispositive portion clearly state. This is the law of the case that should guide all other proceedings on the case, particularly its execution. 30(30) For the Luczon ruling and the CA to miss or misinterpret the clear ruling in Mariano the Decision subject of the execution is a gross and patent legal error that cannot but lead to the reversal of their decisions. In light of this conclusion, we see no need to discuss the other presented issues. We hold that the computation of the 30-day period to exercise the legal right of redemption did not start to run from the finality of the Mariano Decision, and that the petitioner-heirs seasonably filed, via a writ of execution, their notice of redemption, although they applied for the issuance of the writ some eight (8) months after the finality of the Decision. In seeking the execution of a final and executory decision of this Court, what controls is Section 11, Rule 51, 31(31) in relation to Section 2, Rule 56, 32(32) of the Rules of Court. Before the trial court executing the decision, Section 6, Rule 39, 33(33) on the question of timeliness of the execution, governs. Eight (8) months after the finality of the judgment to be executed is still a seasonable time for execution by motion pursuant to this provision. The writ, notice of redemption, and the tender of payment were all duly served, so that it was legally in order for the Sheriff to issue a Certificate of Redemption when the respondent-buyers failed to comply with the writ and to accept the notice and the tender of payment. WHEREFORE, in light of the foregoing, we hereby GRANT the petition and, accordingly, REVERSE and SET ASIDE the January 17, 2003 decision and September 9, 2003 resolution of the Court of Appeals in CA-G.R. CV No. 63093. The petitioner-heirs' exercise of their right of redemption of co-heirs Amparo G. Ibarra, Antonio C. Gosiengfiao, Carlos Gosiengfiao, and
Severino Gosiengfiao's shares over Lot 1351-A, Plan Psd-67391, covered by Transfer Certificate of Title No. T-2416, and located in Ugac Sur, Tuguegarao, Cagayan, in view of their March 31, 1995 Notice of Redemption and the April 18, 1995 Certificate of Redemption issued by the Sheriff of the Regional Trial Court, Branch IV, Tuguegarao, Cagayan, is hereby declared VALID and LEGAL. Costs against the respondents. SO ORDERED. Quisumbing, Ynares-Santiago, *(34) Chico-Nazario **(35) and Leonardo-de Castro, ***(36) JJ., concur.
Footnotes 1. 2. CA Justice Andres B. Reyes, Jr., ponente; Justices Delilah Vidallon-Magtolis and Regalado E. Maambong, concurring. G.R. No. 101522, May 28, 1993, 222 SCRA 736; Justice Rodolfo A. Nocon, ponente; Chief Justice Andres R. Narvasa (Chairperson), and Justices Teodoro R. Padilla and Florenz D. Regalado, concurring. The decision was penned by Judge Juan P. Jimenez, RTC, Branch 1, Tuguegarao, Cagayan. Supra note 1. Supra note 2. The Court held: "According to Tolentino, the fine distinction between Article 1088 and Article 1620 is that when the sale consists of an interest in some particular property or properties of the inheritance, the right of redemption that arises in favor of the other co-heirs is that recognized in Article 1620. On the other hand, if the sale is the hereditary right itself, fully or in part, in the abstract sense, without specifying any particular object, the right recognized in Article 1088 exists." Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before the partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by reimbursing him for the price of the sale, provided they do so within the period of one month from the time they were notified in writing of the sale by the vendor. Art. 1620. A co-owner of a thing may exercise the right of redemption in case the shares of all the other co-owners or of any of them are sold to a third person. If the price of the alienation is grossly excessive, the redemptioner shall pay only a reasonable one. The Court further held: "Petitioners allege that upon the facts and circumstances of the present case, respondents failed to exercise their right of legal redemption during the period provided by law, citing as authority the case of Conejero, et al., v. Court of Appeals, et al. (16 SCRA 775) wherein the Court adopted the principle that the giving of a copy of a deed is equivalent to the notice as required by law in legal redemption. We do not dispute the principle laid down in the Conejero case. However, the facts in the said case are not four square with the facts of the present case. In Conejero, redemptioner Enrique Conejero was shown and given a copy of the deed of sale of the subject property. The Court in that case stated that the furnishing of a copy of the deed was equivalent to the giving of a written notice required by law." Records, Vol. II, p. 164. Id., pp. 161-163. Rollo, p. 429. Id., pp. 111-112.
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Id., p. 113. Id., p. 15. Id., pp. 427-431. Id., pp. 102-106. Id., pp. 107-110. Id., pp. 116-119. RTC, Branch IV, Tuguegarao, Cagayan. Rollo, pp. 120-123. Id., p. 134. Id., pp. 148-151. Id., pp. 468-479. RTC, Branch 1, Tuguegarao, Cagayan. Rollo, pp. 152-155. Per Resolution dated February 9, 2000 of the Former Fifteenth Division of the CA (see CA-G.R. SP No. 51857 rollo, pp. 245-247), CA-G.R. SP No. 51857 was ordered consolidated with CA-G.R. CV No. 63093, which involved the same issues and parties, provided that the ponencia of the civil case conformed to the consolidation pursuant to Rule 3, Section 7 (b) (3) of the Revised Internal Rules of the Court of Appeals directing that the consolidated cases shall pertain to the justice to whom the civil case is assigned. On February 23, 2000, Associate Justice Elvi John S. Asuncion of the then Seventh Division of the CA conformed to the consolidation of cases (see CA-G.R. CV No. 63093 rollo, p. 26). Rollo, pp. 71-73, supported by Annexes A to A-20. Parenthetically, Mariano is not the latest ruling on the requirement of notice from the vendor. In Perpetua vda. De Ape v. Court of Appeals, G.R. No. 133638, April 15, 2005, 456 SCRA 193, we said: Despite the plain language of the law, this Court has, over the years, been tasked to interpret the "written notice requirement" of the above-quoted provision. In the case Butte v. Manuel Uy & Sons, Inc., we declared that In considering whether or not the offer to redeem was timely, we think that the notice given by the vendee (buyer) should not be taken into account. The text of Article 1623 clearly and expressly prescribes that the thirty days for making the redemption are to be counted from notice in writing by the vendor. Under the old law (Civ. Code of 1889, Art. 1524), it was immaterial who gave the notice; so long as the redeeming co-owner learned of the alienation in favor of the stranger, the redemption period began to run. It is thus apparent that the Philippine legislature in Article 1623 deliberately selected a particular method of giving notice, and that method must be deemed exclusive. (39 Am. Jur., 237; Payne v. State, 12 S.W. 2 (d) 528). As ruled in Wampler v. Lecompte, 150 Atl. 458 (affd. in 75 Law Ed. [U.S.] 275) why these provisions were inserted in the statute we are not informed, but we may assume until the contrary is shown, that a state of facts in respect thereto existed, which warranted the legislature in so legislating. The reasons for requiring that the notice should be given by the seller, and not by the buyer, are easily divined. The seller of an undivided interest is in the best position to know who are his co-owners that under the law must be notified of the sale. Also, the notice by the seller removes all doubts as to fact of the sale, its perfection; and its validity, the notice being a reaffirmation thereof, so that the party notified need not entertain doubt that the seller may still contest the alienation. This assurance would not exist if the notice should be given by the buyer. The interpretation was somehow modified in the case of De Conejero, et al. v. Court of Appeals, et
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al., wherein it was pointed out that Article 1623 "does not prescribe a particular form of notice, nor any distinctive method for notifying the redemptioner" thus, as long as the redemptioner was notified in writing of the sale and the particulars thereof, the redemption period starts to run. This view was reiterated in Etcuban v. The Honorable Court of Appeals, et al., Cabrera v. Villanueva, Garcia, et al. v. Calaliman, et al., Distrito, et al. v. The Honorable Court of Appeals, et al., and Mariano, et al. v. Hon. Court of Appeals, et al. However, in the case of Salatandol v. Retes, wherein the plaintiffs were not furnished any written notice of sale or a copy thereof by the vendor, this Court again referred to the principle enunciated in the case of Butte. As observed by Justice Vicente Mendoza, such reversion is only sound, thus: Art. 1623 of the Civil Code is clear in requiring that the written notification should come from the vendor or prospective vendor, not from any other person. There is, therefore, no room for construction. Indeed, the principal difference between Art. 1524 of the former Civil Code and Art. 1623 of the present one is that the former did not specify who must give the notice, whereas the present one expressly says the notice must be given by the vendor. Effect must be given to this change in statutory language. In this case, the records are bereft of any indication that Fortunato was given any written notice of prospective or consummated sale of the portions of Lot No. 2319 by the vendors or would-be vendors. The thirty (30)-day redemption period under the law, therefore, has not commenced to run. In Vios v. Pantangco, Jr., G.R. 163103, February 6, 2009, we defined the law of the case as: [T]he opinion delivered on a former appeal. It is a term applied to an established rule that when an appellate court passes on a question and remands the case to the lower court for further proceedings, the question there settled becomes the law of the case upon subsequent appeal. It means that whatever is once irrevocably established as the controlling legal rule or decision between the same parties in the same case continues to be the law of the case, whether correct on general principles or not, so long as the facts on which such decision was predicated continue to be the facts of the case before the court. Rule 51, Sec. 11. Execution of judgment. Except where the judgment or final order or resolution, or a portion thereof, is ordered to be immediately executory, the motion for its execution may only be filed in the proper court after its entry. xxx xxx xxx Rule 56, Sec. 2. Rules applicable. The procedure in original cases for certiorari, prohibition, mandamus, quo warranto and habeas corpus shall be in accordance with the applicable provisions of the Constitution, laws, and Rules 46, 48, 49, 51, 52 and this Rule, subject to the following provisions: a) All references in said Rules to the Court of Appeals shall be understood to also apply to the Supreme Court; xxx xxx xxx Rule 39, Sec. 6. Execution by motion or by independent action. A final and executory judgment or order may be executed on motion within five (5) years from the date of its entry. After the lapse of such time, and before it is barred by the statute of limitations, a judgment may be enforced by action. The revived judgment may also be enforced by motion within five (5) years from the date of its entry and thereafter by action before it is barred by the statute of limitations. Designated additional Member of the Second Division per Special Order No. 645 dated May 15, 2009. Designated additional Member of the Second Division effective June 3, 2009 per Special Order No.
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658 dated June 3, 2009. Designated additional Member of the Second Division effective May 11, 2009 per Special Order No. 635 dated May 7, 2009.
SECOND DIVISION
[G.R. No. 157723. April 30, 2009.] ROMEO SAYOC y AQUINO and RICARDO SANTOS y JACOB, petitioners, vs. PEOPLE OF THE PHILIPPINES, respondent.
DECISION
TINGA, J :
p
This petition assails the Decision 1(37) dated 30 January 2002 of the Court of Appeals which affirmed the Decision 2(38) dated 25 November 1999 of the Regional Trial Court finding the accused guilty beyond reasonable doubt for violation of Presidential Decree No. 532, otherwise known as the Anti-Highway Robbery Law of 1974, and the Resolution 3(39) dated 14 October 2002 denying the motion for reconsideration. 4(40) The facts, culled from the records, are as follows: In the afternoon of 4 March 1999, Elmer Jaen (Jaen) was aboard a bus when a fellow passenger announced a hold-up. Three (3) persons then proceeded to divest the passengers of their belongings. Under knife-point, purportedly by a man later identified as Ricardo Santos (Santos), Jaen's necklace was taken by Santos' cohort Teodoro Almadin (Almadin). The third robber, Romeo Sayoc (Sayoc), meanwhile, reportedly threatened to explode the hand grenade he was carrying if anybody would move. After taking Jaen's two gold rings, bracelet and watch, the trio alighted from the bus. PO2 Remedios Terte (police officer), who was a passenger in the same bus, ran after the accused, upon hearing somebody shouting about a hold-up. Sayoc was found by the police officer
hiding in an "owner-type" jeep. The latter instructed Jaen to guard Sayoc while she pursued the two robbers. Sayoc was then brought to the police station.
TaCIDS
A few hours later, barangay officials arrived at the police station with Santos and Almadin. They reported that the two accused were found hiding inside the house of one Alfredo Bautista but were prevailed upon to surrender. The victim's bracelet was recovered from Santos while the two rings were retrieved from Almadin. On 8 March 1999, an information was filed against the accused in the Regional Trial Court of Quezon City, which reads:
Criminal Case No. Q-99-81757 That on or about the 4th day of March 1999 in Quezon City, Philippines, the above-named accused armed with [a] deadly weapon[,] conspiring, confederating with and mutually helping one another with intent to gain and by means of force and intimidation against person [sic] did then and there [willfully], unlawfully and feloniously rob one ELMER JAEN Y MAGPANTAY in the manner as follows: said accused pursuant to their conspiracy boarded a passenger bus and pretended to be passengers thereof and upon reaching EDSA Balintawak[,] a public highway, Brgy. Apolonio Samson, this city, [sic] announce the hold-up and with the use of a knife poked[,] it against herein complainant and took, robbed and carried away the following: One gold bracelet Two gold rings One Guess watch Total P20,000.00 8,000.00 4,000.00 P32,000.00 ========
Belonging to Elmer Jaen y Magpantay in the total amount of P32,000.00 Philippine Currency to the damage and prejudice of said offended party in the aforementioned amount of P32,000.00 Philippine Currency.
EAcHCI
CONTRARY TO LAW. 5(41)
When arraigned, petitioners pleaded not guilty. After arraignment however, Almadin "jumped bail". Santos denied knowing his co-accused and his complicity in the hold-up. He declared that he was engaged in a drinking session with his kumpare Alfredo Bautista when he went up to the comfort room to relieve himself. He was suddenly dragged by the barangay officials, who hit him in the head rendering him unconscious. He was later brought to a hospital for treatment. For his part, Sayoc disclaimed knowing the other accused. He claimed to be a passenger on
the said bus when the hold-up was announced. Upon seeing a person holding a gun, he immediately descended from the bus. According to Sayoc, he entered a street where vehicles were passing. As the persons who were running passed by him, he went to the side and stood up behind a wall. Soon thereafter, he was apprehended by a police officer. On 25 November 1999, the RTC rendered judgment against the petitioners and sentenced them to suffer imprisonment from twelve (12) years and one (1) day of reclusion temporal, as minimum to seventeen (17) years, four (4) months and one (1) day of reclusion temporal, as maximum. They were also ordered to pay jointly and severally the amount of P4,500.00 to the victim. 6(42) The trial court gave full credence to the testimonies of the prosecution. It noted that the defenses raised by petitioners, which were not corroborated, cannot prevail over the clear and positive identification made by the complainant. The trial court also pointed out that the prosecution's witnesses "did not have any motive to perjure against the petitioners". Petitioners appealed to the Court of Appeals, ascribing as errors, the conclusions of the trial court on the following issues, namely: (1) the positive identification of the perpetrators; (2) the accordance of evidentiary weight to the conflicting testimonies of the victim and the police officer; (3) the disregard of evidence adduced by Sayoc; and (4) the failure to declare as illegal the arrest of Santos. 7(43) On 30 January 2002, the Court of Appeals affirmed the trial court's decision. The appellate court viewed the alleged inconsistencies between the testimonies of the victim and the police officer as a minor variation which tends to strengthen the probative value of their testimonies. Anent the issue of illegal arrest, the appellate court concluded from evidence that Almadin and Santos voluntarily surrendered. 8(44) In their motion for reconsideration, 9(45) petitioners reiterated that the inconsistencies in the testimonies of the victim and the police officer refer to substantial matters, as they establish the lack of positive and convincing identification of the petitioners. On 14 October 2002, the Court of Appeals issued a Resolution denying the motion for reconsideration for lack of merit. Petitioners filed the instant petition, 10(46) relying on the same arguments presented before the lower courts. Petitioners again raise as issues the credibility of the prosecution witnesses with respect to the identification of the perpetrators, the legality of their arrest and the failure of the judgment of conviction in stating the legal basis in support thereof. 11(47) Settled is the rule that in criminal cases in which the penalty imposed is reclusion temporal or lower, all appeals to this Court may be taken by filing a petition for review on certiorari, raising only questions of law. 12(48) It is evident from this petition that no question of law is proffered by petitioners. The principal issue involved is the credibility of the prosecution witnesses. It bears stressing that in criminal cases, the assessment of the credibility of witnesses is a domain best left to the trial court judge. And when his findings have been affirmed by the Court of Appeals, these are generally binding and conclusive upon this Court. 13(49) The rationale of this rule lies on the fact that
the matter of assigning values to declarations on the witness stand is best and most commonly performed by the trial judge who is in the best position to assess the credibility of the witnesses who appeared before his sala, as he had personally heard them and observed their deportment and manner of testifying during the trial. 14(50) The findings of fact made by the trial court were substantially supported by evidence on record. Therefore, we are constrained not to disturb its factual findings.
DaECST
Petitioners contend that the identification made by the prosecution witnesses is not positive, clear and convincing. They argue that extreme fear, stress and anxiety may have contributed to the hazy recollection of the victim pertaining to the identification of the perpetrators. With respect to the police officer, on the other hand, petitioners insist that the former did not personally see the petitioners actually committing the crime charged. Petitioners' weak denial, especially when uncorroborated, cannot overcome the positive identification of them by the prosecution witnesses. As between the positive declarations of the prosecution witnesses and the negative statements of the accused, the former deserve more credence and weight. 15(51) As found by the trial court, Jaen and the police officer were able to identify the petitioners, as among those who staged the robbery inside the bus, thus:
HADTEC
Based on the testimonies of the complainant and PO1 Remedios Terte, the accused were clearly and positively identified as the three men who staged the robbery/hold-up inside the California bus. It was Ricardo Santos who announced the hold-up after which he pointed a knife at the neck of the complainant while Teodoro Almadin divested him of his jewelry. Romeo Sayoc held everyone at bay by threatening to explode a hand grenade if anyone moved.
16(52)
Petitioners also anchor their defense on the alleged inconsistencies of the testimonies of the prosecution witnesses, such as: 1. During the direct examination, the police officer testified that she was seated on the first row at the driver's side, while on cross-examination, she stated that she was actually seated on the seventh row; 17(53) On direct examination, the police officer testified that when somebody announced the hold-up, the latter was seated on the right side of the bus near her, on cross-examination however, she stated that her back was turned against the person who announced the holdup; 18(54)
TAacHE
2.
3.
On cross-examination, the police officer stated that after the holdup, one civilian together with the victim alighted from the bus. However, the victim did not mention any civilian who got off the bus with him; 19(55) The police officer averred that after the holdup, about three (3) persons proceeded towards the direction of Cubao, only to retract her statement later, to the effect that these persons turned left towards a street; 20(56)
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During the cross-examination, the police officer witnessed a civilian calling 117 while she was running after the perpetrators. This was not mentioned in her direct-examination. Jaen, on the other hand, never mentioned such call. 21(57)
TcIHDa
6.
The police officer testified during the direct examination that she saw Sayoc "inside" an "owner-type" jeep, only to change it later to "underneath" the vehicle.
22(58)
7.
The victim testified that it took the petitioners five to ten minutes to rob him while the police officer stated that it took them about five minutes. 23(59)
The variance in the testimonies of the prosecution witnesses is too trivial to affect their credibility. This Court maintains that minor inconsistencies in the narration of a witness do not detract from its essential credibility as long as it is on the whole coherent and intrinsically believable. Inaccuracies may in fact suggest that the witness is telling the truth and has not been rehearsed as it is not to be expected that he will be able to remember every single detail of an incident with perfect or total recall. The positive identification of the petitioners as perpetrators made by the victim himself and the police officer cannot be overthrown by the weak denial and alibi of petitioners. Moreover, there is no shred of evidence to show that the police officer was actuated by improper motives to testify falsely against the petitioners. Her testimony deserves great appreciation in light of the presumption that she is regularly performing her duties.
ITScAE
The contention of Santos that he was illegally arrested and searched deserves scant consideration. As held by the trial court, Santos was not arrested, instead, he voluntarily surrendered to the barangay officials, and no countervailing evidence to dispute this fact appears from the record. Finally, petitioners argue that the appellate court's decision failed to conform to the standards set forth in Section 14, 24(60) Art. VIII of the 1987 Constitution and Section 2, 25(61) Rule 120 of the Rules of Court. We are not convinced. The appellate court did not merely quote the facts presented by the trial court, it arrived at its own findings. After citing and evaluating the evidence and arguments presented by both parties, the appellate court favored the prosecution. It dealt with the issues submitted by petitioners, albeit in a concise manner. This constitutes sufficient compliance with the constitutional and statutory mandate that a decision must state clearly and distinctly the facts and law on which it is based.
ISCaDH
We disagree, however, with the penalty imposed by the lower court. The penalty for simple highway robbery is reclusion temporal in its minimum period. However, consonant with the ruling in the case of People v. Simon, 26(62) since P.D. No. 532 is a special law which adopted the penalties under the Revised Penal Code in their technical terms, with their technical signification and effects, the indeterminate sentence law is applicable in this case. Accordingly, for the crime of highway robbery, the indeterminate prison term is from seven (7) years and four (4) months of prision
mayor, as minimum, to thirteen (13) years, nine (9) months and ten (10) days of reclusion temporal, as maximum. 27(63) WHEREFORE, this Court AFFIRMS WITH MODIFICATION the findings of fact and conclusions of law in the Decision dated 30 January 2002 of the Court of Appeals in CA-G.R. CR No. 24140, finding appellants Romeo Sayoc and Ricardo Santos guilty beyond reasonable doubt of simple highway robbery. Appellants are hereby sentenced to the indeterminate penalty of seven (7) years and four (4) months of prision mayor, as minimum, to thirteen (13) years, nine (9) months and ten (10) days of reclusion temporal, as maximum, and to pay jointly and severally the amount of P4,500.00 to the private complainant, Elmer Jaen as their civil liability, with legal interest from the filing of the Information until fully paid. Since appellants are detention prisoners, they shall be credited with the period of their temporary imprisonment. SO ORDERED. Chico-Nazario, *(64) Velasco, Jr., Leonardo-de Castro **(65) and Brion, JJ., concur.
Footnotes 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. Rollo, pp. 66-71. Id. at 31-33. Id. at 83. Id. at 72-78. Id. at 29. Id. at 50-62. Id. at 59. Supra note 1. Supra note 4. Id. at 8-28. Id. at 13-14. RULES OF COURT, Rule 56, Sec. 3 provides: Mode of Appeal. An appeal to the Supreme Court may be taken only by a petition for review on certiorari, except in criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment. Duran v. Court of Appeals, G.R. Nos. 125256 and 126973, 2 May 2006, 488 SCRA 438, 447, citing Roca v. Court of Appeals, G.R. No. 114917, 29 January 2001, 350 SCRA 414. Magno v. People, G.R. No. 133896, 27 January 2006, 480 SCRA 276, 286, citing People v. Escote, 431 SCRA 345 (2004). Ferrer v. People, G.R. No. 143487, 22 February 2006, 483 SCRA 31, 52, citing People v. Macalaba, 443 Phil. 565, 578 (2003) and People v. Matore, 436 Phil. 430 (2002). Rollo, p. 33. Id. at 18. Id. Id. Id. Id. at 20. Id. at 19.
CTaIHE TADaCH
13. 14. 15. 16. 17. 18. 19. 20. 21. 22.
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Id. No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based. If the judgment is of conviction, it shall state: (1) the legal qualification of the offense constituted by the acts committed by the accused and the aggravating or mitigating circumstances which attended its commission; (2) the participation of the accused in the offense, whether as principal, accomplice or accessory after the fact; (3) the penalty imposed upon the accused; and (4) the civil liability or damages caused by his wrongful act or omission to be recovered from the accused by the offended party, if there is any, unless the enforcement of the civil liability by a separate civil action has been reserved or waived. G.R. No. 93028, 29 July 1994, 234 SCRA 555. People v. Cerbito, 381 Phil. 315, 329 (2000). In lieu of inhibition of Justice Conchita Carpio Morales, Justice Minita V. Chico-Nazario is hereby designated as additional member. Per Special Order No. 619, Justice Teresita J. Leonardo-de Castro is hereby designated as additional member of the Second Division in lieu of Justice Leonardo A. Quisumbing, who is on official leave.
SECOND DIVISION
[G.R. No. 130841. February 26, 2008.] SPOUSES VIRGINIA G. GONZAGA and ALFREDO GONZAGA, petitioners, vs. COURT OF APPEALS, BIENVENIDO AGAN, and ROWENA AGAN, respondents.
DECISION
VELASCO, JR., J :
p
The Case This Petition for Certiorari under Rule 65 seeks to reverse and set aside the Resolution dated April 10, 1997 1(66) of the Court of Appeals (CA) in CA-G.R. SP No. 43793, denying the petition for
review of petitioners-spouses Virginia and Alfredo Gonzaga of the Decision dated December 20, 1996 of the Davao City Regional Trial Court (RTC), Branch 33; and the Resolution dated August 29, 1997 2(67) of the CA, denying petitioners' Motion for Reconsideration. The Facts Petitioners are the registered owners of a residential lot covered by Transfer Certificate of Title No. T-240379, 3(68) with an area of 247 square meters, more or less, and located in Ecoland Subdivision, Phase IV, Matina, Davao City. Petitioners admitted that they do not reside at this property. 4(69) In May 1995, petitioners decided to construct a house on the said parcel of land and engaged the services of a civil engineer to prepare the corresponding construction plan. Petitioners claimed that there was no occupant on the land when construction began in June 1995. Sometime in June 1995, petitioners went to inspect the above lot and discovered that a shanty belonging to private respondents Bienvenido and Rowena Agan had been built on the land in question. A demand later made on private respondents to vacate the lot in question went unheeded. 5(70) Thus, on April 26, 1996, petitioners filed a Complaint dated April 18, 1996 6(71) against private respondents for Forcible Entry, Damages, and Attorney's Fees with Prayer for Temporary Restraining Order and Preliminary Injunction with the Municipal Trial Court in Cities (MTCC) in Davao City. The case entitled Spouses Virginia Gonzaga and Alfredo Gonzaga v. Bienvenido Agan and Rowena Agan was docketed as Civil Case No. 3001-E-96. As alleged by petitioners, private respondents put up the structure by stealth and strategy.
TaDSCA
In their Answer dated June 10, 1996, 7(72) private respondents alleged that they are the occupants of a portion of what is known as the "Sabroso Village." They further alleged that their shanty is within the land covered by a Free Patent Application dated February 9, 1992 in the name of Ponciano Sabroso, 8(73) who knew of the shanty's existence for a long time and consented to their stay in the village. The Ruling of the MTCC Thereafter, the MTCC rendered a Decision dated August 26, 1996 9(74) in favor of petitioners, the dispositive portion of which states:
WHEREFORE, judgment is hereby rendered in favor of the plaintiffs, the spouses Virginia G. Gonzaga and Alfredo Gonzaga, and against the defendants Bienvenido Agan and Rowena Agan, ordering the defendants to vacate plaintiffs' property covered by TCT No. T-240379 and to remove their improvements and structures, or shanty therefrom, and further defendants are ordered to pay plaintiffs the reasonable value of the use of the land occupied by them, at P1,000.00 a month, from June 1995, until they vacate, and the sum of P10,000.00 for attorney's fees, and pay the costs.
SO ORDERED.
In so ruling, the MTCC held that private respondents failed to rebut allegations that they entered petitioners' property by stealth. The MTCC found as untenable private respondents' counter-allegation that they gained entry to the land in 1983 that is allegedly covered by the Free Patent Application of Ponciano Sabroso. The Decision of the RTC Unconvinced, private respondents appealed the above MTCC ruling to the Davao City RTC docketed as Civil Case No. 24,772-96. Eventually, the RTC rendered a Decision dated December 20, 1996, the dispositive portion of which reads:
WHEREFORE, in view of all the foregoing, the appealed decision is REVERSED and judgment is entered dismissing the complaint for lack of cause of action for forcible entry. The counterclaim is likewise dismissed. No costs. SO ORDERED. 10(75)
HAIDcE
The RTC predicated its ruling on the premise that petitioners, although claiming to be owners of the subject property, failed to prove prior actual physical possession, a necessary element in an action for ejectment. To the RTC, petitioners should have not commenced an action for forcible entry but an accion publiciana suit. Thus, petitioners filed with the CA on March 4, 1997 a petition for review docketed as CA-G.R. SP No. 43793. The Ruling of the CA On April 10, 1997, the CA issued the first assailed Resolution, denying due course to petitioners' petition for review mainly on the strength of the following observations:
A perusal of the complaint would show that apart from claiming ownership of the lot in question, petitioners have not asserted prior possession thereof, much less the manner of their dispossession, which is essential in an action for forcible entry. As correctly pointed out by respondent Court, plaintiffs' action should be one for recovery of possession or an accion publiciana, not for forcible entry. 11(76)
From this Resolution, petitioners sought reconsideration. However, the CA, in its second assailed Resolution dated August 29, 1997, denied petitioners' Motion for Reconsideration. Hence, we have this Petition for Certiorari.
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The Issues The issues raised in the petition are set forth in the following assignment of errors:
I. The court a quo committed grave abuse of discretion in failing to give due course to the petition for review filed therewith as it committed a gross mistake in appreciating the facts of the case.
TaIHEA
II. The court a quo erred in holding that petitioners' action should not be for forcible entry but for accion publiciana. 12(77)
The Ruling of this Court The petition must be dismissed. At the outset, it must be pointed out that petitioners invoked the certiorari jurisdiction of the Court under Rule 65 when an appeal under Rule 45 is the proper remedy and should have been filed. Under the first paragraph of Section 1 of Rule 65, the remedy of certiorari may only be availed of in the absence of any other remedy in the ordinary course of law open to the petitioner. The provision states:
Section 1. Petition for certiorari. 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, nor 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. (Emphasis supplied.)
In the instant case, the CA had already finally disposed of the case with the issuance of the Resolution dated April 10, 1997 denying due course to petitioners' petition for review of the RTC's decision, and the Resolution dated August 29, 1997 denying petitioners' Motion for Reconsideration. Thus, the remedy of an appeal under Rule 45 was then already available to petitioners. Sec. 1 of Rule 45 states:
Section 1. Filing of petition with Supreme Court. A party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or other courts whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition shall raise
only questions of law which must be distinctly set forth.
Petitioners, therefore, then had 15 days from their receipt on September 10, 1997 of the Resolution dated August 29, 1997, or until September 25, 1997 within which to file a petition for review under Rule 45. Instead, they filed on September 25, 1997 the instant Petition for Certiorari dated September 18, 1997.
IcCATD
Clearly, the proper remedy in the instant case should have been the filing of a petition for review under Rule 45. This Court has repeatedly ruled that reviews under Rules 45 and 65 of the Rules of Court are mutually exclusive and the remedy of certiorari under Rule 65 cannot be made a substitute for a petitioner's failure to timely appeal under Rule 45. 13(78) Thus, under Sec. 5 (f) of Rule 56, 14(79) a petition for certiorari interposed when an appeal is proper and available may be dismissed. The foregoing notwithstanding, even if we overlook the procedural infirmity of the instant petition and treat it as an appeal under Rule 45, the recourse must still be dismissed. As it were, the issues raised by petitioners revolve around the matter of possession before private respondents allegedly entered forcibly the property. Petitioners argue that, contrary to the findings of the CA and RTC, they had prior possession of the subject property. Pursuing the point, petitioners state that absolute ownership necessarily connotes possession. Petitioners' posture is specious.
HEDSIc
Sec. 1 of Rule 70 prescribes the rules when an action for forcible entry and unlawful detainer is proper, thus:
Section 1. Who may institute proceedings, and when. Subject to the provisions of the next succeeding section, a person deprived of the possession of any land or building by force, intimidation, threat, strategy, or stealth, or a lessor, vendor or vendee or other person, against whom the possession of any land or building is unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of any contract, express or implied, or the legal representatives or assigns of any such lessor, vendor, vendee, or other person, may, at any time within one (1) year after such unlawful deprivation or withholding of possession, bring an action in the proper Municipal Trial Court against the person or person unlawfully withholding or depriving of possession, or any person or persons claiming under them, for the restitution of such possession, together with damages and costs. (Emphasis supplied.)
It is quite clear from the foregoing provision that for a forcible entry suit to prosper, the person lawfully entitled to the possession of the property must allege and prove that he was deprived of such possession by means of force, intimidation, threat, strategy, or stealth. And when the law speaks of possession, the reference is to prior physical possession or possession de facto, as contra-distinguished from possession de jure. To borrow from Justice Edgardo Paras, for a complaint for forcible entry to prosper, the plaintiff must allege in his complaint that he had prior physical possession of the land and that the
defendant unlawfully deprived him of such possession through any of the grounds provided in Rule 70, Sec. 1. 15(80) The requirement of prior physical possession in ejectment cases was explained by this Court in Mediran v. Villanueva, to wit:
Juridically speaking, possession is distinct from ownership, and from this distinction are derived legal consequences of much importance. In giving recognition to the action of forcible entry and detainer the purpose of the law is to protect the person who in fact has actual possession; and in case of controverted right, it requires the parties to preserve the status quo until one or the other of them sees fit to invoke the decision of a court of competent jurisdiction upon the question of ownership. It is obviously just that the person who has first acquired possession should remain in possession pending this decision; and the parties cannot be permitted meanwhile to engage in a petty warfare over the possession of the property which is the subject of dispute. To permit this would be highly dangerous to individual security and disturbing to social order. Therefore, where a person supposes himself to be the owner of a piece of property and desires to vindicate his ownership against the party actually in possession, it is incumbent upon him to institute an action to this end in a court of competent jurisdiction; and he can not be permitted, by invading the property and excluding the actual possessor, to place upon the latter the burden of instituting an action to try the property right. 16(81) (Emphasis supplied.)
aSIHcT
In Heirs of Pedro Laurora v. Sterling Technopark III, the Court stressed the basic inquiry in forcible entry cases:
The only issue in forcible entry cases is the physical or material possession of real property possession de facto, not possession de jure. Only prior physical possession, not title, is the issue. If ownership is raised in the pleadings, the court may pass upon such question, but only to determine the question of possession. 17(82)
Of the same tenor, but formulated a bit differently, is what the Court wrote in Bejar v. Caluag:
To make out a suit for illegal detainer or forcible entry, the complaint must contain two mandatory allegations: (1) prior physical possession of the property by the plaintiff; and (2) deprivation of said possession by another by means of force, intimidation, threat, strategy or stealth. This latter requirement implies that the possession of the disputed property by the intruder has been unlawful from the very start. Then, the action must be brought within one year from the date of actual entry to the property or, in cases where stealth was employed, from the date the plaintiff learned about it. 18(83) (Emphasis supplied.)
Clearly then, complainants in forcible entry cases must allege and eventually prove prior physical possession. Else, their cases fail, as here. Petitioners' claim that they have prior physical possession by virtue of their absolute ownership of the subject land is untenable. Obviously, they equate possession as an attribute of ownership to the fact of actual possession. They are of course wrong, possession de facto and
possession flowing from ownership are different legal concepts. We agree with the CA and RTC that the proper remedy in the instant case is to file an accion publiciana case, a plenary action for recovery of possession in ordinary civil proceedings in order to determine the better and legal right to possess, independently of title. 19(84) It differs from a forcible entry action in that it does not require prior physical possession in order to prosper. Additionally, considering that more than one (1) year has already elapsed from the time that possession of the subject land was allegedly taken from petitioners, and that an action for forcible entry may only be filed within one (1) year from the plaintiff's deprivation of possession of the land, an accion publiciana is the only remedy available to petitioners now to determine who has the better right to possession of the land.
ESHAIC
WHEREFORE, we DISMISS the petition, and AFFIRM the CA's Resolutions dated April 10, 1997 and August 29, 1997 in CA-G.R. SP No. 43793. Costs against petitioners. SO ORDERED. Quisumbing, Carpio, Carpio-Morales and Tinga, JJ., concur.
Footnotes 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. Rollo, pp. 189-192. Penned by Associate Justice Artemio G. Tuquero and concurred in by Associate Justices Artemon D. Luna (Chairperson) and Hector L. Hofilena. Id. at 220-221. Id. at 112. Id. Id. Id. at 64-77. Id. at 78-88. Id. at 58 & 78. Id. at 145-147. Id. at 60. Supra note 1, at 192. Rollo, p. 15. Chua v. Santos, G.R. No. 132467, October 18, 2004, 440 SCRA 365, 372-373. Rule 56, Sec. 5 (f) states: Section 5. Grounds for dismissal of appeal. The appeal may be dismissed motu proprio or on motion of the respondent on the following grounds: xxx xxx xxx (f) Error in the choice or mode of appeal. 2 RULES OF COURT ANNOTATED 163 (1st ed., 1990). 37 Phil. 752, 761 (1918). G.R. No. 146815, April 9, 2003, 401 SCRA 181, 184-185. G.R. No. 171277, February 15, 2007, 516 SCRA 84, 91. Id. at 90.
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15. 16. 17. 18. 19.
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Endnotes 1 (Popup - Popup) 1. CA Justice Andres B. Reyes, Jr., ponente; Justices Delilah Vidallon-Magtolis and Regalado E. Maambong, concurring.
2 (Popup - Popup) 2. G.R. No. 101522, May 28, 1993, 222 SCRA 736; Justice Rodolfo A. Nocon, ponente; Chief Justice Andres R. Narvasa (Chairperson), and Justices Teodoro R. Padilla and Florenz D. Regalado, concurring.
3 (Popup - Popup) 3. The decision was penned by Judge Juan P. Jimenez, RTC, Branch 1, Tuguegarao, Cagayan.
4 (Popup - Popup) 4. Supra note 1.
6 (Popup - Popup) 6. The Court held: "According to Tolentino, the fine distinction between Article 1088 and Article 1620 is that when the sale consists of an interest in some particular property or properties of the inheritance, the right of redemption that arises in favor of the other co-heirs is that recognized in Article 1620. On the other hand, if the sale is the hereditary right itself, fully or in part, in the abstract sense, without specifying any particular object, the right recognized in Article 1088 exists."
7 (Popup - Popup) 7. Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before the partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by reimbursing him for the price of the sale, provided they do so within the period of one month from the time they were notified in writing of the sale by the vendor.
8 (Popup - Popup) 8. Art. 1620. A co-owner of a thing may exercise the right of redemption in case the shares of all the
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other co-owners or of any of them are sold to a third person. If the price of the alienation is grossly excessive, the redemptioner shall pay only a reasonable one.
9 (Popup - Popup) 9. The Court further held: "Petitioners allege that upon the facts and circumstances of the present case, respondents failed to exercise their right of legal redemption during the period provided by law, citing as authority the case of Conejero, et al., v. Court of Appeals, et al. (16 SCRA 775) wherein the Court adopted the principle that the giving of a copy of a deed is equivalent to the notice as required by law in legal redemption. We do not dispute the principle laid down in the Conejero case. However, the facts in the said case are not four square with the facts of the present case. In Conejero, redemptioner Enrique Conejero was shown and given a copy of the deed of sale of the subject property. The Court in that case stated that the furnishing of a copy of the deed was equivalent to the giving of a written notice required by law."
10 (Popup - Popup) 10. Records, Vol. II, p. 164.
11 (Popup - Popup) 11. Id., pp. 161-163.
12 (Popup - Popup) 12. Rollo, p. 429.
13 (Popup - Popup) 13. Id., pp. 111-112.
14 (Popup - Popup) 14. Id., p. 113.
15 (Popup - Popup) 15. Id., p. 15.
16 (Popup - Popup) 16. Id., pp. 427-431.

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17 (Popup - Popup) 17. Id., pp. 102-106.
18 (Popup - Popup) 18. Id., pp. 107-110.
19 (Popup - Popup) 19. Id., pp. 116-119.
20 (Popup - Popup) 20. RTC, Branch IV, Tuguegarao, Cagayan.
21 (Popup - Popup) 21. Rollo, pp. 120-123.
22 (Popup - Popup) 22. Id., p. 134.
23 (Popup - Popup) 23. Id., pp. 148-151.
24 (Popup - Popup) 24. Id., pp. 468-479.
25 (Popup - Popup) 25. RTC, Branch 1, Tuguegarao, Cagayan.

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27 (Popup - Popup) 27. Per Resolution dated February 9, 2000 of the Former Fifteenth Division of the CA (see CA-G.R. SP No. 51857 rollo, pp. 245-247), CA-G.R. SP No. 51857 was ordered consolidated with CA-G.R. CV No. 63093, which involved the same issues and parties, provided that the ponencia of the civil case conformed to the consolidation pursuant to Rule 3, Section 7 (b) (3) of the Revised Internal Rules of the Court of Appeals directing that the consolidated cases shall pertain to the justice to whom the civil case is assigned. On February 23, 2000, Associate Justice Elvi John S. Asuncion of the then Seventh Division of the CA conformed to the consolidation of cases (see CA-G.R. CV No. 63093 rollo, p. 26).
28 (Popup - Popup) 28. Rollo, pp. 71-73, supported by Annexes A to A-20.
29 (Popup - Popup) 29. Parenthetically, Mariano is not the latest ruling on the requirement of notice from the vendor. In Perpetua vda. De Ape v. Court of Appeals, G.R. No. 133638, April 15, 2005, 456 SCRA 193, we said: Despite the plain language of the law, this Court has, over the years, been tasked to interpret the "written notice requirement" of the above-quoted provision. In the case Butte v. Manuel Uy & Sons, Inc., we declared that In considering whether or not the offer to redeem was timely, we think that the notice given by the vendee (buyer) should not be taken into account. The text of Article 1623 clearly and expressly prescribes that the thirty days for making the redemption are to be counted from notice in writing by the vendor. Under the old law (Civ. Code of 1889, Art. 1524), it was immaterial who gave the notice; so long as the redeeming co-owner learned of the alienation in favor of the stranger, the redemption period began to run. It is thus apparent that the Philippine legislature in Article 1623 deliberately selected a particular method of giving notice, and that method must be deemed exclusive. (39 Am. Jur., 237; Payne v. State, 12 S.W. 2 (d) 528). As ruled in Wampler v. Lecompte, 150 Atl. 458 (affd. in 75 Law Ed. [U.S.] 275) why these provisions were inserted in the statute we are not informed, but we may assume until the contrary is shown, that a state of facts in respect thereto existed, which warranted the legislature in so legislating. The reasons for requiring that the notice should be given by the seller, and not by the buyer, are easily divined. The seller of an undivided interest is in the best position to know who are his co-owners that under the law must be notified of the sale. Also, the notice by the seller removes all doubts as to fact of the sale, its perfection; and its validity, the notice being a reaffirmation thereof, so that the party notified need not entertain doubt that the seller may still contest the alienation. This assurance would not exist if the notice should be given by the buyer. The interpretation was somehow modified in the case of De Conejero, et al. v. Court of Appeals, et al., wherein it was pointed out that Article 1623 "does not prescribe a particular form of notice, nor any distinctive method for notifying the redemptioner" thus, as long as the redemptioner was notified
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in writing of the sale and the particulars thereof, the redemption period starts to run. This view was reiterated in Etcuban v. The Honorable Court of Appeals, et al., Cabrera v. Villanueva, Garcia, et al. v. Calaliman, et al., Distrito, et al. v. The Honorable Court of Appeals, et al., and Mariano, et al. v. Hon. Court of Appeals, et al. However, in the case of Salatandol v. Retes, wherein the plaintiffs were not furnished any written notice of sale or a copy thereof by the vendor, this Court again referred to the principle enunciated in the case of Butte. As observed by Justice Vicente Mendoza, such reversion is only sound, thus: Art. 1623 of the Civil Code is clear in requiring that the written notification should come from the vendor or prospective vendor, not from any other person. There is, therefore, no room for construction. Indeed, the principal difference between Art. 1524 of the former Civil Code and Art. 1623 of the present one is that the former did not specify who must give the notice, whereas the present one expressly says the notice must be given by the vendor. Effect must be given to this change in statutory language. In this case, the records are bereft of any indication that Fortunato was given any written notice of prospective or consummated sale of the portions of Lot No. 2319 by the vendors or would-be vendors. The thirty (30)-day redemption period under the law, therefore, has not commenced to run.
30 (Popup - Popup) 30. In Vios v. Pantangco, Jr., G.R. 163103, February 6, 2009, we defined the law of the case as: [T]he opinion delivered on a former appeal. It is a term applied to an established rule that when an appellate court passes on a question and remands the case to the lower court for further proceedings, the question there settled becomes the law of the case upon subsequent appeal. It means that whatever is once irrevocably established as the controlling legal rule or decision between the same parties in the same case continues to be the law of the case, whether correct on general principles or not, so long as the facts on which such decision was predicated continue to be the facts of the case before the court.
31 (Popup - Popup) 31. Rule 51, Sec. 11. Execution of judgment. Except where the judgment or final order or resolution, or a portion thereof, is ordered to be immediately executory, the motion for its execution may only be filed in the proper court after its entry. xxx xxx
xxx
32 (Popup - Popup) 32. Rule 56, Sec. 2. Rules applicable. The procedure in original cases for certiorari, prohibition, mandamus, quo warranto and habeas corpus shall be in accordance with the applicable provisions of the Constitution, laws, and Rules 46, 48, 49, 51, 52 and this Rule, subject to the following provisions: a) All references in said Rules to the Court of Appeals shall be understood to also apply to the Supreme Court; xxx xxx
xxx
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33 (Popup - Popup) 33. Rule 39, Sec. 6. Execution by motion or by independent action. A final and executory judgment or order may be executed on motion within five (5) years from the date of its entry. After the lapse of such time, and before it is barred by the statute of limitations, a judgment may be enforced by action. The revived judgment may also be enforced by motion within five (5) years from the date of its entry and thereafter by action before it is barred by the statute of limitations.
34 (Popup - Popup) * Designated additional Member of the Second Division per Special Order No. 645 dated May 15, 2009.
35 (Popup - Popup) ** Designated additional Member of the Second Division effective June 3, 2009 per Special Order No. 658 dated June 3, 2009.
36 (Popup - Popup) *** Designated additional Member of the Second Division effective May 11, 2009 per Special Order No. 635 dated May 7, 2009.
38 (Popup - Popup) 2. Id. at 31-33.
39 (Popup - Popup) 3. Id. at 83.

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47 (Popup - Popup) 11. Id. at 13-14.
48 (Popup - Popup) 12. RULES OF COURT, Rule 56, Sec. 3 provides: Mode of Appeal. An appeal to the Supreme Court may be taken only by a petition for review on certiorari, except in criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment.
TADaCH
49 (Popup - Popup) 13. Duran v. Court of Appeals, G.R. Nos. 125256 and 126973, 2 May 2006, 488 SCRA 438, 447, citing Roca v. Court of Appeals, G.R. No. 114917, 29 January 2001, 350 SCRA 414.
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50 (Popup - Popup) 14. Magno v. People, G.R. No. 133896, 27 January 2006, 480 SCRA 276, 286, citing People v. Escote, 431 SCRA 345 (2004).
51 (Popup - Popup) 15. Ferrer v. People, G.R. No. 143487, 22 February 2006, 483 SCRA 31, 52, citing People v. Macalaba, 443 Phil. 565, 578 (2003) and People v. Matore, 436 Phil. 430 (2002).
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54 (Popup - Popup) 18. Id.
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60 (Popup - Popup) 24. No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based.
aAHSEC
61 (Popup - Popup) 25. If the judgment is of conviction, it shall state: (1) the legal qualification of the offense constituted by the acts committed by the accused and the aggravating or mitigating circumstances which attended its commission; (2) the participation of the accused in the offense, whether as principal, accomplice or accessory after the fact; (3) the penalty imposed upon the accused; and (4) the civil liability or damages caused by his wrongful act or omission to be recovered from the accused by the offended party, if there is any, unless the enforcement of the civil liability by a separate civil action has been reserved or waived.
HTCSDE
62 (Popup - Popup) 26. G.R. No. 93028, 29 July 1994, 234 SCRA 555.
63 (Popup - Popup) 27. People v. Cerbito, 381 Phil. 315, 329 (2000).
64 (Popup - Popup) * In lieu of inhibition of Justice Conchita Carpio-Morales, Justice Minita V. Chico-Nazario is hereby designated as additional member.
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65 (Popup - Popup) ** Per Special Order No. 619, Justice Teresita J. Leonardo-de Castro is hereby designated as additional member of the Second Division in lieu of Justice Leonardo A. Quisumbing, who is on official leave.
66 (Popup - Popup) 1. Rollo, pp. 189-192. Penned by Associate Justice Artemio G. Tuquero and concurred in by Associate Justices Artemon D. Luna (Chairperson) and Hector L. Hofilena.
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67 (Popup - Popup) 2. Id. at 220-221.
73 (Popup - Popup) 8. Id. at 58 & 78.
74 (Popup - Popup) 9. Id. at 145-147.
76 (Popup - Popup) 11. Supra note 1, at 192.
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78 (Popup - Popup) 13. Chua v. Santos, G.R. No. 132467, October 18, 2004, 440 SCRA 365, 372-373.
79 (Popup - Popup) 14. Rule 56, Sec. 5 (f) states: Section 5. Grounds for dismissal of appeal. The appeal may be dismissed motu proprio or on motion of the respondent on the following grounds: xxx xxx (f) Error in the choice or mode of appeal.
xxx
80 (Popup - Popup) 15. 2 RULES OF COURT ANNOTATED 163 (1st ed., 1990).
81 (Popup - Popup) 16. 37 Phil. 752, 761 (1918).
82 (Popup - Popup) 17. G.R. No. 146815, April 9, 2003, 401 SCRA 181, 184-185.
83 (Popup - Popup) 18. G.R. No. 171277, February 15, 2007, 516 SCRA 84, 91.
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SECOND DIVISION

We also made the factual finding that:

10. 11. 12. 13.

CONTRARY TO LAW. 5(41)

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23. 24. 25.

CD Technologies Asia, Inc.

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only questions of law which must be distinctly set forth.

15. 16. 17. 18. 19.

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CD Technologies Asia, Inc.

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4 (Popup - Popup) 4. Supra note 1.

5 (Popup - Popup) 5. Supra note 2.

10 (Popup - Popup) 10. Records, Vol. II, p. 164.

11 (Popup - Popup) 11. Id., pp. 161-163.

12 (Popup - Popup) 12. Rollo, p. 429.

13 (Popup - Popup) 13. Id., pp. 111-112.

14 (Popup - Popup) 14. Id., p. 113.

15 (Popup - Popup) 15. Id., p. 15.

16 (Popup - Popup) 16. Id., pp. 427-431.

17 (Popup - Popup) 17. Id., pp. 102-106.

18 (Popup - Popup) 18. Id., pp. 107-110.

19 (Popup - Popup) 19. Id., pp. 116-119.

20 (Popup - Popup) 20. RTC, Branch IV, Tuguegarao, Cagayan.

21 (Popup - Popup) 21. Rollo, pp. 120-123.

22 (Popup - Popup) 22. Id., p. 134.

23 (Popup - Popup) 23. Id., pp. 148-151.

24 (Popup - Popup) 24. Id., pp. 468-479.

25 (Popup - Popup) 25. RTC, Branch 1, Tuguegarao, Cagayan.

26 (Popup - Popup) 26. Rollo, pp. 152-155.

28 (Popup - Popup) 28. Rollo, pp. 71-73, supported by Annexes A to A-20.

37 (Popup - Popup) 1. Rollo, pp. 66-71.

38 (Popup - Popup) 2. Id. at 31-33.

39 (Popup - Popup) 3. Id. at 83.

40 (Popup - Popup) 4. Id. at 72-78.

41 (Popup - Popup) 5. Id. at 29.

42 (Popup - Popup) 6. Id. at 50-62.

43 (Popup - Popup) 7. Id. at 59.

44 (Popup - Popup) 8. Supra note 1.

45 (Popup - Popup) 9. Supra note 4.

46 (Popup - Popup) 10. Id. at 8-28.

47 (Popup - Popup) 11. Id. at 13-14.

52 (Popup - Popup) 16. Rollo, p. 33.

53 (Popup - Popup) 17. Id. at 18.

54 (Popup - Popup) 18. Id.

55 (Popup - Popup) 19. Id.

56 (Popup - Popup) 20. Id.

57 (Popup - Popup) 21. Id. at 20.

58 (Popup - Popup) 22. Id. at 19.

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59 (Popup - Popup) 23. Id.

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