In the matter of the charges of plagiarism, etc., against Associate Justice Mariano C. Del Castillo. [A.M. No. 10-7-17-SC]

FACTS:

On April 28, 2010, the Supreme Court issued a decision which dismissed a petition filed by the Malaya Lolas Organization in the case of Vinuya vs Romulo. Atty. Herminio Harry Roque Jr., counsel for Vinuya et al, questioned the said decision. He raised, among others, that the ponente in said case, Justice Mariano del Castillo, plagiarized three books when the honorable Justice “twisted the true intents” of these books to support the assailed decision. These books were: a. A Fiduciary Theory of Jus Cogens by Evan J. Criddle and Evan Fox-Descent, Yale Journal of International Law (2009); b. Breaking the Silence: Rape as an International Crime by Mark Ellis, Case Western Reserve Journal of International Law (2006); and c. Enforcing Erga Omnes Obligations by Christian J. Tams, Cambridge University Press (2005).

As such, Justice del Castillo is guilty of plagiarism, misconduct, and at least inexcusable negligence. Interestingly, even the three foreign authors mentioned above, stated that their works were used inappropriately by Justice Del Castillo and that the assailed decision is different from what their works advocated.

ISSUE: Whether or not there is plagiarism in the case at bar.

HELD: No. There is no plagiarism. Even if there is (as emphasized by the Supreme Court in its ruling on the Motion for Reconsideration filed by Vinuya et al in 2011), the rule on plagiarism cannot be applied to judicial bodies.

No Plagiarism

At its most basic, plagiarism means the theft of another persons language, thoughts, or ideas. To plagiarize, as it is commonly understood according to Webster, is to take (ideas, writings, etc.) from (another) and pass them off as ones own.The passing off of the work of another as ones own is thus an indispensable element of plagiarism.

According to Black’s Law Dictionary: Plagiarism is the “deliberate and knowing presentation of another person’s original ideas or creative expressions as one’s own.”

This cannot be the case here because as proved by evidence, in the original drafts of the assailed decision, there was attribution to the three authors but due to errors made by Justice del Castillo’s researcher, the attributions were inadvertently deleted. There is therefore no intent by Justice del Castillo to take these foreign works as his own.

But in plagiarism, intent is immaterial.

On this note, the Supreme Court stated that in its past decisions, (i.e. U.P Board of Regents vs CA, 313 SCRA 404), the Supreme Court never indicated that intent is not material in plagiarism. To adopt a strict rule in applying plagiarism in all cases leaves no room for errors. This would be very disadvantageous in cases, like this, where there are reasonable and logical explanations.

On the foreign authors’ claim that their works were used inappropriately

According to the Supreme Court, the passages lifted from their works were merely used as background facts in establishing the state on international law at various stages of its development. The Supreme Court went on to state that the foreign authors’ works can support conflicting theories. The Supreme Court also stated that since the attributions to said authors were accidentally deleted, it is impossible to conclude that Justice del Castillo twisted the advocacies that the works espouse.

No Misconduct

Justice del Castillo is not guilty of misconduct. The error here is in good faith. There was no malice, fraud or corruption.

No Inexcusable Negligence (explanation of Justice Del Castillo)

The error of Justice del Castillo’s researcher is not reflective of his gross negligence. The researcher is a highly competent one. The researcher earned scholarly degrees here and abroad from reputable educational institutions. The researcher finished third in her class and 4th in the bar examinations. Her error was merely due to the fact that the software she used, Microsoft Word, lacked features to apprise her that certain important portions of her drafts are being deleted inadvertently. Such error on her part cannot be said to be constitutive of gross negligence nor can it be said that Justice del Castillo was grossly negligent when he assigned the case to her. Further, assigning cases to researchers has been a long standing practice to assist justices in drafting decisions. It must be emphasized though that prior to assignment, the justice has already spelled out his position to the researcher and in every sense, the justice is in control in the writing of the draft.

With the advent of computers, however, as Justice Del Castillos researcher also explained, most legal references, including the collection of decisions of the Court, are found in electronic diskettes or in internet websites that offer virtual libraries of books and articles. Here, as the researcher found items that were relevant to her assignment, she downloaded or copied them into her main manuscript, a smorgasbord plate of materials that she thought she might need.

She electronically cut relevant materials from books and journals in the Westlaw website and pasted these to a main manuscript in her computer that contained the issues for discussion in her proposed report to the Justice. She used the Microsoft Word program. Later, after she decided on the general shape that her report would take, she began pruning from that manuscript those materials that did not fit, changing the positions in the general scheme of those that remained, and adding and deleting paragraphs, sentences, and words as her continuing discussions with Justice Del Castillo, her chief editor, demanded. Parenthetically, this is the standard scheme that computer-literate court researchers use everyday in their work.

Francisco A.G. De Liano, Alberto O. Villa-Abrille Jr., and San Miguel Corporation v. Court of Appeals and Benjamin A. Tango, 370 SCRA 349 (2001)

FACTS:

RTC of Quezon City, Branch 227:  issued a Decision ordering San Miguel Corporation to release to the plaintiff the owner's duplicate copy of TCT No. 299551 in the same of Benjamin A. Tango; to release to plaintiff the originals of the REM contracts and to cause the cancellation of the annotation of the same on plaintiffs TCT No. 299551; and to pay the plaintiff the following sums: P100,000.00 as and by way of moral damages; P50,000.00 as and by way of attorney's fees; costs of suit.

In brief, the case involved the cancellation of two (2) real estate mortgages in favor of petitioner San Miguel Corporation (SMC) executed by private respondent Benjamin A. Tango over his house and lot in Quezon City.

The mortgages were third party or accommodation mortgages on behalf of the spouses Bernardino and Carmelita Ibarra who were dealers of SMC products in Aparri, Cagayan. Other defendants in the case were Francisco A.G. De Liano and Alberto O. Villa-Abrille, Jr., who are senior executives of petitioner SMC.

Petitioners SMC, De Liano and Abrille appealed the aforesaid decision to the Court of Appeals.

In due time, their counsel, Atty. Edgar B. Afable, filed an Appellants' Brief  which failed to comply with Section 13, Rule 44 of the Rules of Court.

Private Respondent Tango was quick to notice these deficiencies, and accordingly filed a "Motion to Dismiss Appeal".

Required to comment, the Petitioners averred that their brief had substantially complied with the contents as set forth in the rules. They proffered the excuse that the omissions were only the result of oversight or inadvertence and as such could be considered "harmless" errors. They prayed for liberality in the application of technical rules, adding that they have a meritorious defense.

CA:  issued the first assailed resolution dismissing the appeal.

Petitioners sought to have the foregoing resolution reconsidered. Simultaneously, through the same counsel, they filed a "Motion to Admit Amended Defendants-Appellants' Brief.”

CA: denied the consolidated motions in its Resolution.

Hence, this petition for review certiorari.

ISSUES:

Whether or not the Court of Appeals erred in dismissing San Miguel Corporation’s Appeal on the basis of pure technicalities and even after SMC has corrected the technical defect of its appeal

Whether or not the Court of Appeals erred in dismissing SMC’s appeal without considering its merits

HELD: [1] No. [2] No. The petition has no merit.

RATIO:

[1] The premise that underlies all appeals is that they are merely rights which arise from statute; therefore, they must be exercised in the manner prescribed by law. It is to this end that rules governing pleadings and practice before appellate courts were imposed. These rules were designed to assist the appellate court in the accomplishment of its tasks, and overall, to enhance the orderly administration of justice.

Relative thereto, Section 13, Rule 44 of the Revised Rules of Court governs the format to be followed by the appellant in drafting his brief. This particular rule was instituted with reason, and most certainly, it was not intended to become “a custom more honored in the breach than in the observance." It has its logic, which is to present to the appellate court in the most helpful light, the factual and legal antecedents of a case on appeal.

The first requirement of an appellant's brief is a subject index. The index is intended to facilitate the review of appeals by providing ready reference, functioning much like a table of contents.

Next, when the appellant has given an account of the case and of the facts, he is required to state the issues to be considered by the appellate court. The statement of issues is not to be confused with the assignment of errors: they are not one and the same, for otherwise, the rules would not require a separate statement for each.

Thereafter, the appellant is required to present his arguments on each assigned error. The petitioner’s arguments go hand in hand with his assignment of errors, for the former provide the justification supporting his contentions, and in so doing resolve the issues.

Lastly, the appellant is required to state, under the appropriate heading, the reliefs prayed for. In so doing, the appellate court is left in no doubt as to the result desired by the appellant, and act as the circumstances may warrant.

The Court reminds members of the bar that their first duty is to comply with the rules, not to seek exceptions.

[2] The Rules of Court prescribe two (2) modes of appeal from decisions of the Regional Trial Courts to the Court of Appeals. When the trial court decides a case in the exercise of its original jurisdiction, the mode of review is by an ordinary appeal in accordance with Section 2(a) of Rule 41. In contrast, where the assailed decision was rendered by the trial court in the exercise of its appellate jurisdiction, the mode of appeal is via a petition for review pursuant to Rule 42.

The Court is more concerned here about the first mode since the case at bar involves a decision rendered by the Regional Trial Court exercising its original jurisdiction.

Boaz International Trading Corporation and F.R. Cement Corporation v. Woodward Japan, Inc. and North Front Shipping Services Inc. ,418 SCRA 287 (2003)

FACTS:

Respondent Woodward Japan, Inc. filed a complaint for a ‘Sum of Money and Damages’ against petitioners Boaz International Trading Corp. and F. R. Cement Corp.

Petitioners Boaz and F. R. Cement filed their answer to the complaint as well as a third party complaint against North Front Shipping Services, Inc.

Respondent North Front filed its answer to the third-party complaint with a counterclaim against the third-party plaintiffs.

COURT a quo: scheduled a pre-trial conference for 04 November 1997. This initial pre-trial conference was however postponed to give the parties time to settle their respective claims amicably. Succeeding schedules of pre-trial conference were likewise cancelled for the same reason. Finally, when it became apparent that the parties would not be able to arrive at an amicable settlement, the trial court scheduled a pre-trial conference anew.

On the scheduled day of the pre-trial conference, both Woodward and its counsel failed to appear.

Consequently, counsel for Boaz and F. R. Cement moved that Woodward be declared non-suited, that the complaint against them be dismissed and that they be allowed to present evidence on their counterclaim.

COURT a quo: granted the motion of Boaz and F. R. Cement to dismiss the complaint of Woodward and the motion of North Front to dismiss the third-party complaint of Boaz and F. R. Cement.

Petitioner Boaz and F. R. Cement presented their evidence consisting of the testimony of one Jose Ernesto Rodriguez and reserved the right to present the original of certain documents. No formal offer of evidence has yet been made by Boaz and F. R. Cement.

Respondent Woodward filed a ‘Motion to Reinstate Plaintiff’s (Woodward’s) Complaint and Allow Them to Present Evidence Ex-Parte.

TC: granted Woodward’s ‘Motion to Reinstate Plaintiff’s (Woodward’s) Complaint and Allow Them to Present Evidence Ex-Parte

Petitioner Boaz and F. R. Cement moved for reconsideration but the trial court denied the same.

Imputing grave abuse of discretion on the part of the trial court, Petitioners Boaz and F. R. Cement elevated the case to the CA under Rule 65.

CA: in prosecuting the claim of Woodward against petitioners, its lawyers acted negligently. It found that the trial court did not act without or in excess of jurisdiction or with grave abuse of discretion when it reinstated Woodward’s Complaint.

Hence, this petition for review.

ISSUE: Whether or not the CA erred in sustaining the RTC’s Order reinstating the Complaint of Woodward.

HELD: Yes. The CA erred in affirming the Order of the RTC and in ordering the reinstatement of the third-party Complaint of petitioners against North Front Shipping Services, Inc.

First, the rules on pretrial were designed precisely to secure the just, speedy and inexpensive disposition of an action. The parties themselves -- not only their counsels -- are required to be present, so that they can discuss and possibly agree on a settlement and thus end the case justly, speedily and inexpensively right there and then. The Rules explicitly impose upon the former the duty to appear at the pretrial conference. The representative of Woodward, as well as its counsel, failed to do so on the date set for the purpose -- not just on October 20, 1998, but also earlier, on September 17, 1998. By its unexplained nonappearance, it inexcusably delayed the case and even caused added expense to the opposing party who had come to court in obedience to the Rules. Evidently, the RTC’s October 20, 1998 Order dismissing the case was proper and in accord with Section 5 of Rule 18, which provides that "[t]he failure of the plaintiff to appear [for pretrial] shall be cause for dismissal of the action."

Second, after violating the rules on pretrial, Woodward had the temerity to file a Motion for Reconsideration beyond the 15-day reglementary period, again in violation of the Rules. Then, upon denial of that Motion, instead of properly elevating the denial to the appellate court for review, it filed a Motion to Reinstate Complaint. As previously explained, the latter Motion amounted to a second motion for reconsideration, which is prohibited by the Rules. By its acts, Woodward unnecessarily delayed the disposition of the case and caused additional expenses to all involved. Furthermore, such acts indicate a propensity to violate the Rules or a gross ignorance thereof, either of which deserves nothing less than opprobrium.

Third, the CA did not err in finding negligence on the part of the counsel of Woodward, which is nonetheless bound by such negligence. "Settled [is the] rule that the negligence of counsel binds the client." We find no cogent reason to depart from this settled rule, especially because the counsel’s negligence in the present case has not been sufficiently explained.

Fourth, Respondent Woodward has failed to demonstrate that it has a meritorious case. It filed a collection case against Petitioner Boaz International Trading Corporation for demurrage charges in the total sum of US$75,065.96. Yet it has failed to show prima facie any agreement on the payment of demurrages. The April 18, 1995 Letter, which Woodward unilaterally made and which Petitioner Boaz did not sign, does not show that the latter agreed to pay demurrages of "US$6,500/half despatch" in case the discharge rate fell below 2,500MT.

Contrary to Woodward’s contention, Boaz has not admitted the April 18, 1995 Letter-Agreement. Paragraph 1.8 of the Answer is not a "negative pregnant." Woodward itself states that a "negative pregnant is that form of denial which at the same time involves an affirmative implication favorable to the opposing party." Since the aforementioned paragraph is explicitly an admission, not a denial, it follows that it cannot be taken as a denial pregnant with an admission of substantial facts.

Permanent Savings and Loan Bank v. Velarde, 439 SCRA 1 (2004)

FACTS:

In a complaint for sum of money filed before the RTC, petitioner Permanent Savings and Loan Bank sought to recover from respondent Mariano Velarde, the sum of P1,000,000.00 plus accrued interests and penalties, based on a loan obtained by respondent from petitioner bank as evidence by promissory notes. Petitioner bank sent a letter of demand to respondent on July 27, 1988, demanding full payment of the loan. Despite receipt of said demand letter, respondent failed to settle his account.

Velarde contends that he caused the preparation of the complaint and that all the allegations thereat are true and correct; that the promissory note sued upon, assuming that it exists and bears the genuine signature of herein defendant, the same does not bind him and that it did not truly express the real intention of the parties as stated in the defenses

The Bank claims, that there is no need to prove the loan and its supporting papers as Velarde has already admitted these. Velarde had in fact denied these in his responsive pleading.

ISSUE: Whether or not the defendant has really executed the Promissory Note considering the doubt as to the genuineness of the signature and as well as the non-receipt of the said amount

RULING: No. The mere presentation of supposed documents regarding the loan, but absent the testimony of a competent witness to the transaction and the documentary evidence, coupled with the denial of liability by the defendant does not suffice to meet the requisite preponderance of evidence in civil cases.

The documents, standing alone, unsupported by independent evidence of their existence, have no legal basis to stand on. They are not competent evidence. Such failure leaves this Court without ample basis to sustain the plaintiff’s cause of action and other reliefs prayed for. The loan document being challenged. Plaintiff did not exert additional effort to strengthen its case by the required preponderance of evidence. On this score, the suit must be dismissed.

The bank should have presented at least a single witness qualified to testify on the existence and execution of the documents it relied upon to prove the disputed loan obligations of Velarde. This falls short of the requirement that (B)efore any private writing may be received in evidence, its due execution and authenticity must be proved either: (a) By anyone who saw the writing executed; (b) By evidence of the genuineness of the handwriting of the maker; or (c) By a subscribing witness. (Rule 132, Sec. 21, Rules of Court)

De Jesus v. Dilag 471 SCRA 176 (2005)

FACTS:

A complaint was filed with the Office of the Court Administrator by Maria Teresa H. De Jesus charging respondent Judge Renato J. Dilag of the RTCOlongapo City, with gross ignorance of the law, rendering unjust orders, abuse of authority and misuse of court processes.

Complainant alleged inter alia that her husband Wolfgang Heinrich Konrad Harlinghausen filed a petition for declaration of nullity of their marriage with the Regional Trial Court of Olongapo City

Harlinghausen, through counsel, filed an Urgent Ex-Parte Motion to Preserve Properties to be Collated. On the same day, respondent judge issued an Order setting the hearing of the motion

Complainant received summons. Forthwith, she filed a motion to dismiss the complaint on the ground of improper venue. This was denied by respondent judge.

Then, respondent judge considered the Urgent Ex-Parte Motion to Preserve Properties to be Collated submitted for resolution after hearing the testimonies of Harlinghausens attorney-in-fact, Harry E. Joost, and his counsel of record, Atty. Edmundo S. Carian.

Respondent judge issued an Order granting the urgent ex-parte motion and placing under legal custody the properties enumerated therein. The Register of Deeds of Tarlac was directed to annotate the Order on the 62 land titles allegedly purchased by Harlinghausens wife using his money without his consent.

Harlinghausen, through counsel, filed another Ex-Parte Motion praying for the issuance of an Order directing the Bureau of Immigration and Deportation (BID) to allow him to enter this country in order to prosecute his petition for declaration of nullity of marriage.

Respondent judge issued an Order granting Harlinghausens Ex-Parte Motion.

Eventually, complainant filed with the Court of Appeals a petition for certiorari assailing respondent judge’s Order granting Harlinghausens Urgent Ex-Parte Motion to Preserve Properties to be Collated; Order granting his Urgent Ex-Parte Motion to enter this country; and Order denying her (complainants) motion to dismiss the complaint for improper venue. Complainant averred that in issuing the challenged Orders, respondent judge acted with grave abuse of discretion tantamount to lack or excess of jurisdiction. The petition was docketed as CA-G.R. SP No. 74167.

ISSUE: Whether or not Respondent Judge Dilag committed abuse of authority and gross ignorance of the law. Yes.

RULING: Yes. Rule 15 of the 1997 Rules of Civil Procedure, as amended, are:

SECTION 4. Hearing of motion. Except for motions which the court may act upon without prejudicing the rights of the adverse party, every written motion shall be set for hearing by the applicant.

Every written motion required to be heard and the notice of the hearing thereof shall be served in such a manner as to ensure its receipt by the other party at least three (3) days before the date of hearing, unless the court for good cause sets the hearing on shorter notice.

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.

SECTION 6. Proof of service necessary. No written motion set for hearing shall be acted upon by the court without proof of service thereof.

Respondent judge blatantly disregarded the provisions. Instead of denying the motion outright for being manifestly defective, he granted the same. While he set the motion for hearing, still the three-day notice was not observed, thus complainant failed to attend the hearing. Clearly, she was deprived of her right to due process.

When a judge fails to consider so basic and elemental a rule, a law, or a principle in the discharge of his duties, he is either too incompetent and undeserving of his position, or is too vicious that the oversight or omission was deliberately done in bad faith and in grave abuse of judicial authority. In both instances, the judge’s dismissal is in order.

Likewise, respondents failure to afford complainant the opportunity to be heard as a matter of due process of law deserves administrative sanction.

Relative to the challenged Order, respondent judge shows his ignorance of the Philippine Immigration Act of 1940, as amended. This law confers upon the Commissioner of the BID, to the exclusion of the courts of justice, the power and authority to enforce its provisions, specifically the admission of foreigners to this country.

We sustain the observation of the Court of Appeals that the Order of respondent judge directing the BID to allow the entry of Harlinghausen to this country would effectively countermand the order of detention issued by the BID and constitutes an intrusion into its prerogatives as regards the entry, admission, exclusion, registration, repatriation, monitoring and deportation of foreigners within our national territory.

In his desperate attempt to evade administrative sanction, respondent judge maintains that since complainant has already resorted to a proper remedy, i.e., by filing a petition for certiorari with the Court of Appeals questioning his twin Orders, she is barred from filing the instant administrative complaint involving the same Orders. He cited our ruling in Hilario vs. Ocampo III, 371 SCRA 260 (2001) that where some judicial means is available, an administrative complaint is not the appropriate remedy for an act of a judge deemed aberrant or irregular.

While it is true that the Court of Appeals has set aside the questioned twin Orders, the fact remains that respondent judge has shown his ignorance of both substantive and procedural laws which warrants an administrative sanction.

The Court recognizes that not every judicial error bespeaks ignorance of the law and that, if committed in good faith, does not warrant administrative sanction, but only in cases within the parameters of tolerable misjudgment. Where, however, the procedure is so simple and the facts so evident as to be beyond permissible margins of error, as in this case, to still err thereon amounts to ignorance of the law.

In this case, respondent judge displayed a deplorable deficiency in his grasp of the basic principles governing motions, specifically, the three-day notice rule and the requisite proof of service. Also, he showed his utter lack of knowledge and understanding of our immigration laws.

Boiser v Judge Aguirre, Jr A.M. No. RTJ-04-1886; May 16, 2005

FACTS:

The case stems from an ejectment case filed by Petitioner Boiser against one Julleza, which was decided in favor of Boiser by the MTC. When the case reached the RTC on appeal by Julleza, Julleza filed a motion to release bond which was granted by Respondent Judge. Boiser then filed the instant administrative case against Respondent Judge for ignorance of the law, alleging that the motion did not state that he was furnished a copy of the motion thereby depriving him of his right to due process.

After it was found out by Boiser that Respondent Judge held in his favor in the decision of his ejectment case, Boiser withdrew his administrative complaint. The administrative complaint was still placed under investigation with the CA which held to dismiss the case; the case was raised to the Supreme Court for instant review.

ISSUE: Whether or not the administrative case is moot, the petitioner having withdrawn the case

RULING: No, mere desistance on the part of the complainant does not warrant the dismissal of an administrative complaint against any member of the bench

The withdrawal of complaints cannot divest the Court of its jurisdiction nor strip it of its power to determine the veracity of the charges made and to discipline, such as the results of its investigation may warrant, an erring respondent. Even the retirement of respondent does not oust the Court of its jurisdiction over an administrative case by the mere fact that the respondent public official ceases to hold office during the pendency of respondent’s case.

On deciding the main issue, the Court held that the Motion to Release Bond was defective, not having a proper notice of hearing. Not to mention the fact that the date and time of the hearing were not specified, and that neither complainant nor his counsel was furnished a copy thereof. These were never controverted by respondent judge. A motion without notice of hearing is pro forma, a mere scrap of paper. It presents no question which the court could decide. The court has no reason to consider it and the clerk has no right to receive it.

Neri v. De La Peña A.M. No. RTJ-05-1896; April 29, 2005

FACTS:

The case stems from a motion for reconsideration from a civil case of damages filed by one Aznar, the plaintiff in the original case, against Citibank. The motion for reconsideration was re-raffled to the sala of Respondent Judge De La Peña. Judge De La Peña granted the motion for reconsideration which prompted the filing of Atty. Neri of the administrative case now in dispute, charging Respondent Judge of dishonesty and gross ignorance of the law. Respondent Judge, in his defense, contended that he based his decision from an ex parte manifestation made by Aznar. Petitioner assailed the Respondent’s appreciation of the ex parte manifestation as Citibank was not served a copy of such.

The Office of the Court Administrator (OCA) found Respondent Judge liable for violating for violating Section 4, Rule 13 which requires that adverse parties be served copies of all pleadings and similar papers; in relation to Section 5, Rule 15 which requires a movant to set his motion for hearing, unless it is one of those which a court can act upon without prejudicing the rights of the other party; both provisions of the Revised Rules of Civil Procedure.

According to the OCA, the fact that plaintiff Aznar had failed to serve a copy of his ex parte manifestation upon Citibank should have been reason enough for respondent to disregard the same. The OCA found Respondent only liable for simple misconduct. 

ISSUE: Whether or not Respondent Judge is liable for violating the aforesaid provisions of the Rules of Civil Procedure

RULING: No, Respondent Judge did not violate the stated provisions of the Rules of Civil Procedure. The prevailing doctrine in our jurisdiction is that a motion without a notice of hearing addressed to the parties is a mere scrap of paper. However, the same cannot be said for manifestations which, unless otherwise indicated, are usually made merely for the information of the court.

Nevertheless, Judge must still be found guilty for knowingly rendering an unjust judgment, for having based his decision on an ex parte manifestation while Citibank was never made aware of such. Said action violates the principle of fair play, proof that there is something amiss Respondent Judge’s sense of fairness and righteousness.

Igmedio Azajar vs. Court Of Appeals And Cham Samco & Sons, Inc. G.R. No. L-40945 (1986)

FACTS:

This case originated from a complaint filed by petitioner Igmedio Azajar against respondent Cham Samco and Sons, Inc. in the Regional Trial Court of Camarines Sur. Azajar's claim is that he had purchased from defendant Cham Samco nails of various sizesand had given P18,000.00 as payment thereof; but in breach of contract, Cham Samco had offered to deliver only a part of the quantity ordered.

Cham Samco filed a motion to dismiss on two grounds: (1) failure of the complaint to state a cause of action-the complaint's language indicating not a perfected sale but merely an "offer to buy by plaintiff that was partly accepted by defendant," and failing to show that as explicitly required by the order form prices had been confirmed by Cham Samco's "Manila Office," and (2) that venue was improperly laid-Cham Samco's invariable conditions in transactions of this nature, as Azajar well knew from many such transactions in the past, being that "any legal action thereon must be instituted in the City of Manila.

Contending that such a notice was fatally defective and rendered the Motion to Dismiss incapable of to the period to answer, Azajar filed a motion dated February 20, 1974 to declare Cham Samco in default, which the Court granted. By Order dated February 22, 1974 the Court pronounced Cham Samco in default and allowed Azajar to present evidence ex parte.

Then on March 30, 1974, the Trial Court rendered judgment by default against defendant Cham Samco.

The Court of Appeals set aside the judgment by default rendered against Cham Samco by the Regional Trial Court, and directed that Cham Samco be allowed to file its answer to the complaint and after joinder of issues, trial be had and judgment rendered on the merits.

Cham Samco quite frankly admits its error. It pleads however that under the circumstances the error be not regarded as irremediable or that it be deemed as constituting excusable negligence, warranting relief. It argues that legal and logical considerations, which it took to be tenable, caused it to theorize that a hearing on the motion was dispensable.

ISSUE: Whether or not it is necessary that the motion to dismiss be set for hearing?

RULING: Yes, the uniform holding of this Court has been that a failure to comply with the hearing requirement is a fatal flaw.  However, in this case, the Court brushes aside technicality and affords the petitioner its day in court so that the ends of justice would be better served.

It was wrong, of course, for Cham Samco to have failed to set its motion to dismiss for hearing on a specified date and time. The law explicitly requires that notice of a motion shall be served by the appellant to all parties concerned at least three days before the hearing thereof, together with a copy of the motion, and of any affidavits and other papers accompanying it; and that the notice shag be directed to the parties concerned, stating the time and place for the hearing of the motion. The uniform holding of this Court has been that a failure to comply with the requirement is a fatal flaw. Such notice is required to avoid surprises upon the opposite party and give the latter time to study and meet the arguments of the motion, as well as to determine or make determinable the time of submission of the motion for resolution.

The purpose of said notice being not only to give the latter time to oppose the motion if so minded, but also to determine the time of its submission for resolution. Without such notice, the occasion would not arise to determine with reasonable certitude whether and within what time the adverse party would respond to the motion, and when the motion might already be resolved by the Court. The duty to give that notice is imposed on the movant, not on the Court.

Withal the reasons for Cham Samco's erroneous notion of the dispensability of a hearing on its motion to dismiss are not utterly without plausibility. This circumstance, taken together with the fact, found by the Intermediate Appellate Court and not disputed by petitioner Azajar, that Cham Samco has meritorious defenses which if proven would defeat Azajar's claim against it, and the eminent desirability more than once stressed by this Court that cases should be determined on the merits after full opportunity to all parties for ventilation of their causes and defenses, rather than on technicality or some procedural imperfections, all conduce to concurrence with the Court of Appeals that "the ends of justice would be better served in this case if we brush aside technicality and afford the petitioner its day in court.

Heirs of Dicman v. Cariño 490 SCRA 240 (2006)

FACTS:

The subject land had been part of the land claim of Mateo Cariño. Within this site, buildings were constructed which were bought by Sioco Cariño, son of Mateo Cariño and grandfather of private respondent Jose Cariño. Sioco Cariño then took possession of the buildings and the land.

Ting-el Dicman, predecessor-in-interest of the petitioners, had been employed by Sioco Cariño as his cattle herder.

On the advice of his lawyers, and because there were already many parcels of land recorded in his name, Sioco Cariño caused the survey of the land in controversy in the name of Ting-el Dicman.

Ting-el Dicman executed a public instrument entitled "Deed of Conveyance of Part Rights and Interests in Agricultural Land" with Sioco Cariño, which reads: That Mr. Sioco Cariño has advanced all expenses for said survey xxx, and also all other expenses for the improvement of said land, to date; That for and in consideration of said advance expenses, I hereby pledge and promise to convey, deliver and transfer unto said Sioco Cariño, his heirs and assigns, one half (1/2) of my title, rights, and interest to and in the aforesaid parcel of land; same to be delivered, conveyed and transferred to him, his heirs and assigns, by me, my heirs, and assigns, xxx.

After the execution of the foregoing deed, Sioco Cariño, who had been in possession of the land in controversy since 1916, continued to stay thereon.

On January 10, 1938, Sioco Cariño executed, as seller, a public instrument entitled "Deed of Absolute Sale" covering the subject land and its improvements with his son, Guzman Cariño, as buyer. Consequently, Guzman Cariño took possession of the property publicly, peacefully, and in the concept of owner.

Guzman Cariño had the entire Lot resurveyed so as to indicate the half portion that belonged to him and the other half that belonged to the petitioners. The resurvey evenly divided the lot into Lot 76-A and 76-B

A petition was later filed by the heirs of Ting-el Dicman which sought to establish ownership over Lot 76-A and Lot 76-B. Guzman Cariño opposed the petition insofar as he insisted ownership over Lot 76-B, the land in controversy.

While the foregoing petition was pending in the trial court, President Carlos P. Garcia issued Proclamation No. 628 excluding from the operation of the Baguio Townsite Reservation certain parcels of public land known as ‘Igorot Claims’. One such claim pertained to the "Heirs of Dicman,"

As a consequence, the trial court dismissed the petition insofar as Lot 76-B was concerned, and the certificate of title issued pursuant to the partial decision involving Lot 76-A was invalidated.

After the dismissal of the case, Guzman Cariño was left undisturbed in his possession of the subject property until his death. His remains are buried on the land in question

On April 20, 1983, petitioners, suing as compulsory heirs of Ting-el Dicman, revived the foregoing case by filing a complaint for recovery of possession with damages involving the subject property

Private respondent Jose Cariño filed his answer and prayed for dismissal. RTC ruled in favor of respondents Carino

CA affirmed RTC. CA based its ruling on the following reasons: that the petitioners raised for the first time on appeal the issue on whether the "Deed of Conveyance of Part Rights and Interests in Agricultural Land" is void ab initio under Sections 145 and 146 of the Administrative Code of Mindanao and Sulu

ISSUE: W/N the Deed of Conveyance was invalid, hence, would not make Carino the lawful owner and possessor of the subject lot

RULING: NO. SC ruled in favor of Carino.

RATIO: The foregoing issue and the incidents thereunder were never raised by the petitioners during the proceedings before the RTC. Suffice it to say that issues raised for the first time on appeal and not raised timely in the proceedings in the lower court are barred by estoppel. Matters, theories or arguments not brought out in the original proceedings cannot be considered on review or appeal where they are raised for the first time. To consider the alleged facts and arguments raised belatedly would amount to trampling on the basic principles of fair play, justice and due process.

Even if this Court should declare the sale null and void or the agreement merely a contract to sell subject to a suspensive condition that has yet to occur, private respondent nonetheless acquired ownership over the land in question through acquisitive prescription.

The records show that as early as 1938, the land in controversy had been in the possession of Guzman Cariño, predecessor-in-interest of private respondent, continuously, publicly, peacefully, in concept of owner, and in good faith with just title, to the exclusion of the petitioners and their predecessors-in-interest, well beyond the period required under law to acquire title by acquisitive prescription which, in this case, is 10 years.

As correctly held by the RTC, there is no evidence to the effect that Ting-el Dicman or his successors-in-interest ever filed any action to question the validity of the "Deed of Conveyance of Part Rights and Interests in Agricultural Land" after its execution on October 22, 1928 despite having every opportunity to do so. Nor was any action to recover possession of the property from Guzman Cariño instituted anytime prior to April 24, 1959, a time when the period for acquisitive prescription, reckoned from Guzman’s occupation of the property in 1938, had already transpired in his favor. No evidence likewise appears on the record that Sioco Cariño or his Estate ever filed any action to contest the validity of the "Deed of Absolute Sale" dated January 10, 1938. Though counsel for the Estate of Sioco Cariño tried to assail the deed as a forgery in the trial court, the attempt failed and no appeal was lodged therefrom.

For over 30 years reckoned from the "Deed of Conveyance of Part Rights and Interests in Agricultural Land" dated October 22, 1928, or 20 years reckoned from the "Deed of Absolute Sale" dated January 10, 1938, they neglected to take positive steps to assert their dominical claim over the property. With the exception of forgery, all other issues concerning the validity of the two instruments abovementioned, as well as the averment that the former was in the nature of a contract to sell, were issues raised only for the first time on appeal and cannot therefore be taken up at this late a stage.

Gamido vs. New Bilibid Prisons G.R. No. 114829 (1995)

FACTS:

In the Resolution of 7 September 1994, The Court required Atty. Icasiano M. dela Rea, to show cause why no disciplinary action should be taken against him for making it appear in the jurat of the petition in this case that the petitioner subscribed the verification and swore to before him, as notary public, on 19 April 1994, when in truth and in fact the petitioner did not. In his Explanation, Atty. Icasiano M. dela Rea admitted having executed the jurat without the presence of petitioner Gamido. The explanation states: “xxx  I did it in the honest belief that since it is jurat and not an acknowledgement. xxx” Then he apologizes to the Court and assures it that henceforth he would be more careful and circumspect.

ISSUE:  WON Atty. Rea’s explanation is satisfactory that he honestly confused Jurat and Acknowledgement.

RULING: No, a jurat which is, normally in this form:

Subscribed and sworn to before me in _______________, this ____ day of ____________, affiant having exhibited to me his Community (before, Residence) Tax Certificate No. ____________ issued at ______________ on ____________.

It is that part of an affidavit in which the officer certifies that the instrument was sworn to before him. It is not a part of a pleading but merely evidences the fact that the affidavit was properly made. The jurat in the petition in the case also begins with the words "subscribed and sworn to me."

To subscribe literally means to write underneath, as one's name; to sign at the end of a document. To swear means to put on oath; to declare on oath the truth of a pleading, etc. Accordingly, in a jurat, the affiant must sign the document in the presence of and take his oath before a notary public or any other person authorized to administer oaths.

As to acknowledgment, Section 1 of Public Act No. 2103 provides:

(a) The acknowledgement shall be made before a notary public or an officer duly authorized by law of the country to take acknowledgments of instruments or documents in the place where the act is done. The notary public or the officer taking the acknowledgment shall certify that the person acknowledging the instrument or document is known to him and that he is the same person who executed it, and acknowledged that the same is his free act and deed. The certificate shall be made under his official seal, if he is by law required to keep a seal, and if not, his certificate shall so state. (See Lorenzo M. Tañada and Francisco A. Rodrigo, Modern Philippine Legal Forms, vol. II, 1964 Fifth ed., 735).

It is obvious that the party acknowledging must likewise appear before the notary public or any other person authorized to take acknowledgments of instruments or documents.

The claim or belief of Atty. dela Rea that the presence of petitioner Gamido was not necessary for the jurat because it is not an acknowledgment is patently baseless. If this had been his belief since he was first commissioned as a notary public, then he has been making a mockery of the legal solemnity of an oath in a jurat. Notaries public and others authorized by law to administer oaths or to take acknowledgments should not take for granted the solemn duties appertaining to their offices. Such duties are dictated by public policy and are impressed with public interest.

Solar Team Entertainment v. Ricafort 293 SCRA 661 (1998)

FACTS:

1.      This is a case for the recovery of possession and damages with a prayer for a writ of replevin.  Private respondents filed their Answer and a copy was furnished to the counsel of petitioner by registered mail but the pleading did not contain and written explanation why personal service was not made upon petitioner-plaintiff as required by the Rules of Court.

2.      On 11 August 1997, petitioner filed a motion to expunge the "Answer (with Counterclaims)" and to declare herein private respondents in default, 5 alleging therein that the latter did not observe the mandate of the aforementioned Section 11, and that there was: [A]bsolutely no valid reason why defendant[s] should not have personally served plaintiff's . . . counsel with [a] copy of their answer [as] (t)he office of defendant's (sic) counsel, Atty. Froilan Cabaltera, is just a stone [sic] throw away from the office of [petitioner's] counsel, with an estimate (sic) distance of about 200 meters more or less.

3.      Petitioner further alleged that the post office was "about ten (10) times farther from the office of Atty. Cabaltera,"

ISSUE: Whether or not  respondent judge committed grave abuse of discretion amounting to lack or excess of jurisdiction in denying petitioner's motion to expunge private respondents' answer with counterclaims on the ground that said pleading was not served personally

RULING: We thus take this opportunity to clarify that under Section 11, Rule 13 of the 1997 Rules of Civil Procedure, personal service and filing is the general rule, and resort to other modes of service and filing, the exception. Henceforth, whenever personal service or filing is practicable, in light of the circumstances of time, place and person, personal service or filing is mandatory. Only when personal service or filing is not practicable may resort to other modes be had, which must then be accompanied by a written explanation as to why personal service or filing was not practicable to begin with. In adjudging the plausibility of an explanation, a court shall likewise consider the importance of the subject matter of the case or the issues involved therein, and the prima facie merit of the pleading sought to be expunged for violation of Section 11. This Court cannot rule otherwise, lest we allow circumvention of the innovation introduced by the 1997 Rules in order to obviate delay in the administration of justice.

Returning, however, to the merits of this case, in view of the proximity between the offices of opposing counsel and the absence of any attendant explanation as to why personal service of the answer was not effected, indubitably, private respondents' counsel violated Section 11 of Rule 13 and the motion to expunge was prima facie meritorious. However, the grant or denial of said motion nevertheless remained within the sound exercise of the trial court's discretion. Thus, as guided by Section 6, Rule 1 of the 1997 Rules of Civil Procedure, which ordains that the Rules shall be liberally construed in order to promote their objective of securing a just, speedy and inexpensive disposition of every action or proceeding, as well as by the dictum laid down in Alonso v. Villamor, 16 Phil. 315 [1910], the trial court opted to exercise its discretion in favor of admitting the "Answer (with Counterclaims)," instead of expunging it from the record.

The 1997 Rules of Civil Procedure took effect only on 1 July 1997, while the questioned "Answer (with Counterclaims)" was filed only on 8 August 1997, or on the 39th day following the effectivity of the 1997 Rules. Hence, private respondents' counsel may not have been fully aware of the requirements and ramifications of Section 11, Rule 13. In fact, as pointed out by petitioner's counsel, in another case where private respondents' counsel was likewise opposing counsel, the latter similarly failed to comply with Section 11

Heirs of Dicman v. Cariño 490 SCRA 240 (2006)

FACTS:

1.      Sioco Carino bought a parcel of land together with its improvements from HC Heald and took possession of it.

2.      On the advice of his lawyers, and because there were already many parcels of land recorded in his name, Sioco Cariño caused the survey of the land in controversy in the name of Ting-el Dicman.

3.      Ting-el Dicman executed a public instrument entitled "Deed of Conveyance of Part Rights and Interests in Agricultural Land" wherein it stated that Mr. Sioco Cariño has advanced all expenses for said survey for him that for and in consideration of said advance expenses, made to him, he promises to convey, deliver and transfer one half (1/2) of his title, rights, and interest to and in the aforesaid parcel of land as soon as title for the same is issued to me by proper authorities.

4.      After the execution of the foregoing deed, Sioco Cariño, who had been in possession of the land in controversy since 1916, continued to stay thereon.

5.      On January 10, 1938, Sioco Cariño executed, as seller, a public instrument entitled "Deed of Absolute Sale" covering the subject land and its improvements with his son, Guzman Cariño, as buyer.

6.      On July 27, 1954, Guzman Cariño had the entire Lot 46 resurveyed so as to indicate the half portion that belonged to him and the other half that belonged to the petitioners. The resurvey evenly divided the lot into Lot 76-A and 76-B, and purportedly indicated that Lot 76-A, consisting of 50,953 square meters, belonged to the petitioners, while Lot 76-B, also consisting of 50,953 square meters, formerly pertained to Sioco Cariño and, later, to Guzman Cariño.

7.      Before the trial court could dispose of the case, the Supreme Court promulgated Republic v. Marcos9 which held that Courts of First Instance of Baguio have no jurisdiction to reopen judicial proceedings on the basis of Republic Act No. 931. As a consequence, on July 28, 1978, the trial court dismissed the petition to reopen Civil Reservation Case No. 1, G.L.R.O. 211 insofar as Lot 76-B was concerned, and the certificate of title issued pursuant to the partial decision involving Lot 76-A was invalidated.

8.      After the dismissal of the case, Guzman Cariño was left undisturbed in his possession of the subject property until his death on August 19, 1982. Guzman’s widow and son, private respondent Jose Sioco C. Cariño, continued possession of the subject property.

9.      On April 20, 1983, petitioners, suing as compulsory heirs of Ting-el Dicman, revived the foregoing case by filing a complaint for recovery of possession with damages involving the subject property with the RTC.

1.  Respondent Carino, however, alleged that he has been in possession of the subject property for 55 years peacefully, in good faith, and in concept of owner and therefore perfected title over the same through acquisitive prescription.

1.  RTC declared that Carino he lawful possessor and as the party who has the better right over the land subject matter.

1.  CA dismissed the petition and affirmed in toto the ruling of the RTC.

ISSUE: Whether or not Respondent have better title over the disputed land.

RULING: Yes. The records show that as early as 1938, the land in controversy had been in the possession of Guzman Cariño, predecessor-in-interest of private respondent, continuously, publicly, peacefully, in concept of owner, and in good faith with just title, to the exclusion of the petitioners and their predecessors-in-interest, well beyond the period required under law to acquire title by acquisitive prescription which, in this case, is 10 years.

Although arguably Sioco Cariño may not have been the owner of the subject property when he executed the "Deed of Absolute Sale" in 1938 in favor of his son, the requirement of just title is nonetheless satisfied, which means that the mode of transferring ownership should ordinarily have been valid and true, had the grantor been the owner.

By the time the successors-in-interest of Ting-el Dicman sought to establish ownership over the land in controversy by filing their "Petition of the Heirs of Dicman to Reopen Civil Reservation Case No. 1, G.L.R.O. 211" on April 24, 1959 with the trial court, and which Guzman timely opposed, more than 20 years had already elapsed. Thus, the 10-year period for acquisitive prescription is deemed satisfied well before Guzman’s possession can be said to be civilly interrupted by the filing of the foregoing petition to reopen

Prescinding from the issue on prescription, the petitioners and their predecessors-in-interest are nonetheless guilty of laches.

As correctly held by the RTC, there is no evidence to the effect that Ting-el Dicman or his successors-in-interest ever filed any action to question the validity of the "Deed of Conveyance of Part Rights and Interests in Agricultural Land" after its execution on October 22, 1928 despite having every opportunity to do so. Nor was any action to recover possession of the property from Guzman Cariño instituted anytime prior to April 24, 1959, a time when the period for acquisitive prescription, reckoned from Guzman’s occupation of the property in 1938, had already transpired in his favor. No evidence likewise appears on the record that Sioco Cariño or his Estate ever filed any action to contest the validity of the "Deed of Absolute Sale" dated January 10, 1938.

Private respondent and his predecessors-in-interest were made to feel secure in the belief that no action would be filedagainst them by such passivity. There is no justifiable reason for petitioners’ delay in asserting their rights—the facts in their entirety show that they have slept on them. For over 30 years reckoned from the "Deed of Conveyance of Part Rights and Interests in Agricultural Land" dated October 22, 1928, or 20 years reckoned from the "Deed of Absolute Sale" dated January 10, 1938, they neglected to take positive steps to assert their dominical claim over the property. With the exception of forgery, all other issues concerning the validity of the two instruments abovementioned, as well as the averment that the former was in the nature of a contract to sell, were issues raised only for the first time on appeal and cannot therefore be taken up at this late a stage.

Clavecilla v. Quitain 482 SCRA 623 (2006)

FACTS:

1.      Teresito and Rico Quitain filed a complaint against Rolando Clavecilla for the enforcement of the amicable settlement entered into by them before the Lupon Tagapamayapa.

2.      Pertinent portions of said settlement reads: That the respondent (Clavecilla) agreed to purchase the property on October 15, 1996; Failure to pay the property on the said date the respondent will voluntarily vacate the place with the assistance of five thousand (P5,000.00) pesos only.

3.      The complainant (Rico Quitain) agreed to the demand of the respondent.

4.      The Quitains alleged that Clavecilla failed to pay the amount agreed upon and six months had already passed since the agreement was entered into and yet Clavecilla has still not left the premises.

5.      When the trial ensued it was shown that the Verification and Certification of non-forum shopping, which accompanied the petition at bench, was executed and signed by petitioner’s counsel Atty. Oswaldo A. Macadangdang, without the proper authority from petitioner, in violation of Sec. 5, Rule 7 and Sec. 2, Rule 42 of the 1997 Rules of Civil Procedure. The duty to certify under oath is strictly addressed to petitioner, Rolando Clavecilla. To allow delegation of said duty to anyone would render Revised Circular No. 28-91 inutile.

6.      Petitioner moves for the reconsideration of our Resolution dated 05 October 2000 dismissing the petition for the reason that the certificate of non-forum shopping was signed by petitioner’s counsel and not by the petitioner.

7.      Admitting that the duty to sign under oath the certificate is addressed to the petitioner, petitioner attached to his motion a Special Power of Attorney dated 09 August 2000 authorizing his counsel to sign the certificate. The court believes that this authorization was made after the petition had been filed, in a vain attempt to cure the fatal defect, for if Atty. Macadangdang had such authority, he would have indicated that in the Verification and Certification he signed on 25 August 2000 attached to the petition.

8.      Petitioner avers that: his lawyer had the authority to sign the certification against forum shopping; the CA was hasty in concluding that the authorization of petitioner’s lawyer was made after the petition had been filed; the CA should have granted petitioner the benefit of the doubt that he gave such authorization to his lawyer at the time that his lawyer signed the verification and certification against forum shopping; petitioner’s failure to have a properly executed certification against forum shopping attached to his petition for review is not fatal; the rules of procedure are used only to help secure and not override substantial justice, and the CA departed from the established liberal interpretation of the rules despite petitioner’s substantial compliance with the rule on non-forum shopping.

ISSUE: W/N the CA erred in their Judgment with regards the SPA given by the petitioner to his counsel?

RULING: The SC disagrees with the CA. The rule is that any suspicion on the authenticity and due execution of the special power of attorney which is a notarized document, thus a public document, cannot stand against the presumption of regularity in their favor absent evidence that is clear, convincing and more than merely preponderant.

In this case, the petition before the CA was filed on September 13, 2000. The special power of attorney meanwhile was dated August 9, 2000. Absent any proof that the special power of attorney was not actually in existence before the petition was filed, this Court has no recourse but to believe that it was indeed in existence at such time.

The next matter to be determined is whether the CA was correct in dismissing Clavecilla’s petition and motion for reconsideration, notwithstanding the authority given by Clavecilla in favor of his lawyer to sign the verification and certification in his behalf.

The Court answers in the affirmative.

Obedience to the requirements of procedural rules is needed if we are to expect fair results therefrom, and utter disregard of the rules cannot justly be rationalized by harking on the policy of liberal construction. Time and again, this Court has strictly enforced the requirement of verification and certification of non-forum shopping under the Rules of Court. This case is no exception.

Verification is required to secure an assurance that the allegations of the petition have been made in good faith, or are true and correct and not merely speculative.

In this case, petitioner’s counsel signed the verification alleging that he had read the petition and the contents thereof are true and correct of his own "knowledge and belief."

On this ground alone, the petition should already be dismissed for as provided for in Section 4 Rule 7 of the Rules of Court

While the Court has exercised leniency in cases where the lapse in observing the rules was committed when the rules have just recently taken effect, the attendant circumstances in this case however do not warrant such leniency.

The certification against forum shopping in this case was signed by petitioner’s counsel despite the clear requirement of the law that petitioners themselves must sign the certification. The certification must be made by petitioner himself and not by counsel, since it is petitioner who is in the best position to know whether he has previously commenced any similar action involving the same issues in any other tribunal or agency. And the lack of a certification against forum shopping, unlike that of verification, is generally not cured by its submission after the filing of the petition.Clavecilla v. Quitain 482 SCRA 623 (2006)

FACTS:

1.      Teresito and Rico Quitain filed a complaint against Rolando Clavecilla for the enforcement of the amicable settlement entered into by them before the Lupon Tagapamayapa.

2.      Pertinent portions of said settlement reads: That the respondent (Clavecilla) agreed to purchase the property on October 15, 1996; Failure to pay the property on the said date the respondent will voluntarily vacate the place with the assistance of five thousand (P5,000.00) pesos only.

3.      The complainant (Rico Quitain) agreed to the demand of the respondent.

4.      The Quitains alleged that Clavecilla failed to pay the amount agreed upon and six months had already passed since the agreement was entered into and yet Clavecilla has still not left the premises.

5.      When the trial ensued it was shown that the Verification and Certification of non-forum shopping, which accompanied the petition at bench, was executed and signed by petitioner’s counsel Atty. Oswaldo A. Macadangdang, without the proper authority from petitioner, in violation of Sec. 5, Rule 7 and Sec. 2, Rule 42 of the 1997 Rules of Civil Procedure. The duty to certify under oath is strictly addressed to petitioner, Rolando Clavecilla. To allow delegation of said duty to anyone would render Revised Circular No. 28-91 inutile.

6.      Petitioner moves for the reconsideration of our Resolution dated 05 October 2000 dismissing the petition for the reason that the certificate of non-forum shopping was signed by petitioner’s counsel and not by the petitioner.

7.      Admitting that the duty to sign under oath the certificate is addressed to the petitioner, petitioner attached to his motion a Special Power of Attorney dated 09 August 2000 authorizing his counsel to sign the certificate. The court believes that this authorization was made after the petition had been filed, in a vain attempt to cure the fatal defect, for if Atty. Macadangdang had such authority, he would have indicated that in the Verification and Certification he signed on 25 August 2000 attached to the petition.

8.      Petitioner avers that: his lawyer had the authority to sign the certification against forum shopping; the CA was hasty in concluding that the authorization of petitioner’s lawyer was made after the petition had been filed; the CA should have granted petitioner the benefit of the doubt that he gave such authorization to his lawyer at the time that his lawyer signed the verification and certification against forum shopping; petitioner’s failure to have a properly executed certification against forum shopping attached to his petition for review is not fatal; the rules of procedure are used only to help secure and not override substantial justice, and the CA departed from the established liberal interpretation of the rules despite petitioner’s substantial compliance with the rule on non-forum shopping.

ISSUE: W/N the CA erred in their Judgment with regards the SPA given by the petitioner to his counsel?

RULING: The SC disagrees with the CA. The rule is that any suspicion on the authenticity and due execution of the special power of attorney which is a notarized document, thus a public document, cannot stand against the presumption of regularity in their favor absent evidence that is clear, convincing and more than merely preponderant.

In this case, the petition before the CA was filed on September 13, 2000. The special power of attorney meanwhile was dated August 9, 2000. Absent any proof that the special power of attorney was not actually in existence before the petition was filed, this Court has no recourse but to believe that it was indeed in existence at such time.

The next matter to be determined is whether the CA was correct in dismissing Clavecilla’s petition and motion for reconsideration, notwithstanding the authority given by Clavecilla in favor of his lawyer to sign the verification and certification in his behalf.

The Court answers in the affirmative.

Obedience to the requirements of procedural rules is needed if we are to expect fair results therefrom, and utter disregard of the rules cannot justly be rationalized by harking on the policy of liberal construction. Time and again, this Court has strictly enforced the requirement of verification and certification of non-forum shopping under the Rules of Court. This case is no exception.

Verification is required to secure an assurance that the allegations of the petition have been made in good faith, or are true and correct and not merely speculative.

In this case, petitioner’s counsel signed the verification alleging that he had read the petition and the contents thereof are true and correct of his own "knowledge and belief."

On this ground alone, the petition should already be dismissed for as provided for in Section 4 Rule 7 of the Rules of Court

While the Court has exercised leniency in cases where the lapse in observing the rules was committed when the rules have just recently taken effect, the attendant circumstances in this case however do not warrant such leniency.

The certification against forum shopping in this case was signed by petitioner’s counsel despite the clear requirement of the law that petitioners themselves must sign the certification. The certification must be made by petitioner himself and not by counsel, since it is petitioner who is in the best position to know whether he has previously commenced any similar action involving the same issues in any other tribunal or agency. And the lack of a certification against forum shopping, unlike that of verification, is generally not cured by its submission after the filing of the petition.