Civil Pro Cases-Jurisdiction

[G.R. No. 139561. June 10, 2003.]

SPOUSES FEDERICO ATUEL and SARAH ATUEL and SPOUSES GEORGE GALDIANO and ELIADA GALDIANO, Petitioners, v. SPOUSES BERNABE VALDEZ and CONCHITA VALDEZ,

Respondents.

The Case

Before us is a petition for review on certiorari 1 seeking to reverse the Decision 2 of the Court of Appeals dated 20 May 1999 in CA-G.R. SP No. 48682 as well as the Resolution dated 14 July 1999 denying the Motion for Reconsideration. The Court of Appeals in its assailed decision affirmed the Decision of the Department of Agrarian Reform Adjudication Board 3 ("DARAB") which reversed the Decision 4 of the Municipal Agrarian Reform Office ("MARO") in Malaybalay, Bukidnon. The MARO of Bukidnon ordered the Department of Agrarian Reform ("DAR"), Agusan del Sur, to segregate 2,000 square meters from the land of the Spouses Bernabe and Conchita Valdez. The MARO of Bukidnon also awarded the same segregated land to the Spouses Federico and Sarah Atuel and the Spouses George and Eliada Galdiano.

The Facts

The present controversy springs from a battle of possession over a portion of a property in Poblacion (formerly Sibagat Nuevo), Sibagat, Agusan del Sur.chanrob1es virtua1 1aw 1ibrary

Atty. Manuel D. Cab ("Cab") is the registered owner of two parcels of land in Poblacion, Sibagat, Agusan del Sur with an area of 125,804 square meters ("Cab Property"). The Cab Property is covered by OCT No. P-5638 issued pursuant to Free Patent No. 1318. The Cab Property is traversed by the Butuan to Davao Road and adjacent to the municipal building of Sibagat. From the Cab Property, Cab donated the lot occupied by the municipal building. 5

In 1964, Cab appointed Federico Atuel ("Atuel") as administrator of the Cab Property.

Sometime in 1977, Bernabe Valdez ("Valdez") arrived in Sibagat from Baogo Bontoc, Southern Leyte. Valdez is the nephew of Atuel, who recommended to Cab to lease a portion of the Cab Property to Valdez. 6 On 9 October 1978, Cab and Valdez entered into a "Lease of Improved Agricultural Land" under which Valdez leased a 1.25-hectare portion of the Cab Property for P300.00 per year for two years.

In 1982, Cab allowed the Spouses Federico and Sarah Atuel ("Spouses Atuel") and the Spouses George and Eliada Galdiano ("Spouses Galdiano") to occupy a 2,000-square meter portion of the Cab Property. The Spouses Atuel and the Spouses Galdiano constructed their respective houses on this 2,000-square meter lot ("Subject Lot").

On 27 September 1985, the Sangguniang Bayan of Sibagat, Agusan del Sur, approved the town plan of the Municipality of Sibagat which classified the Cab Property as residential, subject to the approval of the Ministry of Human Settlements Regulatory Commission.

On 25 June 1988, Cab informed Valdez that their lease contract had already expired, and demanded that Valdez stop cultivating the 1.25-hectare portion of the Cab Property and vacate the same.

On 2 October 1988, responding to Cab’s letter, the MARO of Sibagat, Agusan del Sur informed Cab that Valdez was properly identified as a tenant, and thus deemed to be the owner of the land he cultivated. The MARO added that on 14 September 1988, pursuant to Presidential Decree No. 27, Emancipation Patent No. A-159969 was issued to Valdez for a 2.3231-hectare portion ("PD 27 Land") of the Cab Property. The PD 27 Land included the 2,000-square meter Subject Lot occupied by the houses of the Spouses Atuel and the Spouses Galdiano.

On 11 May 1989, Cab filed with the DAR in Manila a petition for cancellation of Valdez’s emancipation patent. Cab claimed that his property is not planted to rice and corn and that Valdez is a civil law lessee, not a tenant. 7 Consequently, the DAR ordered the Regional Director of Cagayan de Oro City to conduct an investigation regarding the petition. 8

On 17 September 1989, the Housing and Land Use Regulatory Board ("HLURB") approved the Town Plan and Zoning Ordinance of fifty-eight municipalities, including that of Sibagat. The HLURB classified the Cab Property as 90 percent residential, and the remaining portion as institutional and park or open space.

On 27 September 1991, the Spouses Bernabe and Conchita Valdez ("Spouses Valdez") filed a complaint 9 for "Recovery of Possession with Damages" with the DARAB in Malaybalay, Bukidnon against the Spouses Atuel and the Spouses Galdiano. In their complaint, the Spouses Valdez alleged that the Spouses Atuel and the Spouses Galdiano "stealthily and through fraud entered and occupied a portion of

the above-described property with an area of 2,000 sq. m. more or less." The Spouses Valdez claimed that the Spouses Atuel and the Spouses Galdiano, despite repeated demands, refused "to restore possession of the said portion of land" to the Spouses Valdez. The Spouses Valdez prayed that the Spouses Atuel and the Spouses Galdiano be ordered to vacate and restore to the Spouses Valdez possession of the Subject Lot. The Spouses Valdez also prayed for payment of litigation expenses, as well as unearned income from the Subject Lot and moral damages.

In their answer, the Spouses Atuel and the Spouses Galdiano asserted that the Spouses Valdez had no cause of action against them because Cab is the owner of the Subject Lot while Atuel is the administrator of the Cab Property. The Spouses Atuel and the Spouses Galdiano claimed that upon Cab’s instruction and consent, they had been occupying the Cab Property since 1964, long before the Spouses Valdez leased a portion of the Cab Property in 1978. The Spouses Atuel and the Spouses Galdiano also pointed out that the Spouses Valdez never set foot on the Subject Lot nor cultivated the same, thus, there is no dispossession to speak of.

Moreover, the Spouses Atuel and the Spouses Galdiano alleged that the emancipation patent issued to Valdez is null and void. The Spouses Atuel and the Spouses Galdiano maintained that the entire Cab Property, which is covered by the Free Patent issued to Cab, has already been classified as residential, hence, no longer covered by PD No. 27. 10

On 4 March 1993, the DARAB Provincial Adjudicator, after hearing the case, issued a decision which disposed of as follows:chanrob1es virtual 1aw library

WHEREFORE, premises above considered, the DAR Agusan del Sur is hereby ordered to segregate the TWO THOUSAND (2,000) SQ. METERS, more or less, from the land of the complainants, Transfer Certificate of Title No. 1261 covered by Emancipation Patent No. A-159969, and award the same to the respondents; and hereby ordered this case dismissed.

SO ORDERED. 11

Dissatisfied with the decision, the Spouses Atuel and the Spouses Galdiano appealed to the DARAB Central Office. The DARAB Central Office reversed the decision of the DARAB Provincial Adjudicator, thus:chanrob1es virtual 1aw library

WHEREFORE, premises considered, the appealed decision is hereby REVERSED. Judgment is hereby rendered as follows:chanrob1es virtual 1aw library

(1) Enjoining the respondents-appellants from committing acts of intrusion and maintain the possessory rights of the complainants over the EP (Emancipation Patent) covered land; and

(2) Ordering the MARO (Municipal Agrarian Reform Officer) or PARO (Provincial Agrarian Reform Officer) concerned to assist the parties in determining the amount to be reimbursed in favor of the respondents for whatever improvements made on the 2,000 square meter portion to be paid by the complainants.

SO ORDERED. 12

Aggrieved by the decision, the Spouses Atuel and the Spouses Galdiano filed a petition for review 13 with the Court of Appeals. On 20 May 1999, the Court of Appeals affirmed the decision of the DARAB Central Office and dismissed the petition for lack of merit. The Spouses Atuel and the Spouses Galdiano filed a Motion for Reconsideration which the Court of Appeals denied. On 14 January 1998, while the case was pending in the Court of Appeals, the Spouses Valdez sold 5,000 square meters out of the PD 27 Land to the Municipality of Sibagat. 14

Hence, the instant petition.chanrob1es virtua1 1aw 1ibrary

The Ruling of the Court of Appeals

In affirming the decision of the DARAB, the Court of Appeals ruled that the DARAB has primary and exclusive jurisdiction over cases involving the issuance, correction and cancellation of emancipation patents. The Court of Appeals held that the DARAB’s decision should be respected because it enjoys the presumption of regularity.

The Court of Appeals also ruled that the DARAB correctly relied on Pagtalunan v. Tamayo 15 where this Court held that upon issuance of an emancipation patent, a holder acquires a vested right of absolute ownership in the land.

The Court of Appeals further held that the doctrine laid down in Teodoro v. Macaraeg 16 is applicable. In Teodoro, this Court ruled that a landowner has full liberty to enter into a civil lease contract covering his property. However, "once a landowner enters into a contract of lease whereby his land is to be devoted to agricultural production and said landholding is susceptible of personal cultivation by the lessee, solely or with the help of labor coming from his immediate farm household, then such contract is of the very essence of a leasehold agreement." Otherwise, the Court added, "it would be easy to subvert, under the guise of the liberty to contract, the intendment of the law of protecting the underprivileged and ordinarily credulous farmer from the unscrupulous schemes and pernicious practices of the landed gentry." 17 The Issue

After a review of the issues raised, 18 the question boils down to whether the Spouses Valdez are entitled to seek redress from the DARAB in recovering possession of the 2,000-square meter Subject Lot from the Spouses Atuel and the Spouses Galdiano.

The Court’s Ruling

We grant the petition based not on the arguments of the Spouses Atuel and the Spouses Galdiano but on an entirely different ground. We reverse the decision of the Court of Appeals because of the DARAB’s lack of jurisdiction to take cognizance of the present controversy.chanrob1es virtua1 1aw 1ibrary

The DARAB has no jurisdiction to take cognizance of the Spouses Valdez’s complaint for recovery of possession of the Subject Lot. Though the parties do not challenge the jurisdiction of the DARAB, the Court may motu proprio consider the issue of jurisdiction. 19 The Court has discretion to determine whether the DARAB validly acquired jurisdiction over the case. Jurisdiction over the subject matter is conferred only by law. It may not be conferred on the court by consent or waiver of the parties where the court otherwise would have no jurisdiction over the subject matter of the action. 20

In their complaint for recovery of possession, the Spouses Valdez alleged, among others, that they are farmers and beneficiaries of an emancipation patent. The Spouses Valdez also alleged that the Spouses Atuel and the Spouses Galdiano stealthily and fraudulently occupied the 2,000-square meter Subject Lot. The Spouses Valdez claimed that despite repeated demands, 21 the Spouses Atuel and the Spouses Galdiano refused to vacate and restore possession of the Subject Lot to the Spouses Valdez. 22 The Spouses Valdez prayed that the Spouses Atuel and the Spouses Galdiano be ordered to vacate and restore possession of the Subject Lot to the Spouses Valdez.

The Spouses Valdez did not allege the existence of tenancy relations, if any, between them and the Spouses Atuel and the Spouses Galdiano. In Morta, Sr. v. Occidental, 23 this Court ruled:chanrob1es virtual 1aw library

It is axiomatic that what determines the nature of an action as well as which court has jurisdiction over it, are the allegations in the complaint and the character of the relief sought. Jurisdiction over the subject matter is determined upon the allegations made in the complaint.

In the instant case, the allegations in the complaint, which are contained in the decision of the MARO, 24 indicate that the nature and subject matter of the instant case is for recovery of possession or accion publiciana. The issue to be resolved is who between the Spouses Valdez on one hand, and the Spouses Atuel and the Spouses Galdiano on the other, have a better right to possession of the 2,000-square meter Subject Lot forming part of the PD 27 Land. The Spouses Atuel and the Spouses Galdiano likewise raise the issue of ownership by insisting that Cab is the real and lawful owner of the Subject Lot. In Cruz v. Torres, 25 this Court had occasion to discuss the nature of an action to recover possession or accion publiciana, thus:chanrob1es virtual 1aw library

. . . This is an action for recovery of the right to posses and is a plenary action in an ordinary civil proceeding in a regional trial court to determine the better right of possession of realty independently of the title. Accion publiciana or plenaria de posesion is also used to refer to an ejectment suit filed after the expiration of one year from the accrual of the cause of action or from the unlawful withholding of possession of the realty. In such case, the regional trial court has jurisdiction. . . . 26

For the DARAB to acquire jurisdiction over the case, there must exist a tenancy relations between the parties. 27 This Court held in Morta, 28 that in order for a tenancy agreement to take hold over a dispute, it is essential to establish all its indispensable elements, to wit:chanrob1es virtual 1aw library

. . . 1) that the parties are the landowner and the tenant or agricultural lessee; 2) that the subject matter of the relationship is an agricultural land; 3) that there is consent between the parties to the relationship; 4) that the purpose of the relationship is to bring about agricultural production; 5) that there is personal cultivation on the part of the tenant or agricultural lessee; and 6) that the harvest is shared between the landowner and the tenant or agricultural lessee.

. . . 29 (Emphasis supplied)

Emphasizing the DARAB’s jurisdiction, this Court held in Hon. Antonio M. Nuesa, Et. Al. v. Hon. Court of Appeals, Et Al., 30 that:chanrob1es virtual 1aw library

. . . the DAR is vested with the primary jurisdiction to determine and adjudicate agrarian reform matters and shall have the exclusive jurisdiction over all matters involving the implementation of the agrarian reform program." The DARAB has primary, original and appellate jurisdiction "to determine and adjudicate all agrarian disputes, cases, controversies, and matters or incidents involving the implementation of the Comprehensive Agrarian Reform Program under R.A. 6657, E.O. Nos. 229, 228 and 129-A, R.A. 3844 as amended by R.A. 6389, P.D. No. 27 and other agrarian laws and their implementing rules and regulations. (Emphasis supplied)

Under Section 3(d) of Republic Act No. 6657, otherwise known as the CARP Law, an agrarian dispute is defined as follows:chanrob1es virtual 1aw library

(d) . . . any controversy relating to tenurial arrangements, whether leasehold, tenancy, stewardship or otherwise, over lands devoted to agriculture, including disputes concerning farmworkers’ associations or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of such tenurial arrangements.

It includes any controversy relating to compensation of lands acquired under this Act and other terms and conditions of transfer of ownership from landowners to farmworkers, tenants and other agrarian reform beneficiaries, whether the disputants stand in the proximate relation of farm operator and beneficiary, landowner and tenant, or lessor and lessee.

In the instant case, the Spouses Atuel and the Spouses Galdiano are not and do not claim to be the owners of the 2,000-square meter Subject Lot where their houses are constructed. They also do not claim ownership to any other portion of the PD 27 Land. They and the Spouses Valdez have no tenurial, leasehold, or any agrarian relations whatsoever that will bring this controversy within Section 3(d) of RA No. 6657. 31 The instant case is similar to Chico v. CA, 32 where this Court ruled that the DARAB had no jurisdiction over a case which did not involve any tenurial or agrarian relations between the parties. Since the DARAB has no jurisdiction over the present controversy, it should not have taken cognizance of the Spouses Valdez’s complaint for recovery of possession. Jurisdiction over an accion publiciana is vested in a court of general jurisdiction. 33 Specifically, the regional trial court exercises exclusive original jurisdiction "in all civil actions which involve . . . possession of real property." 34 However, if the assessed value of the real property involved does not exceed P50,000.00 in Metro Manila, and P20,000.00 outside of Metro Manila, the municipal trial court exercises jurisdiction over actions to recover possession of real property. 35 Moreover, the municipal trial court exercises jurisdiction over all cases of forcible entry and unlawful detainer.

The Court of Appeals correctly stated that the DARAB has exclusive original jurisdiction over cases involving the issuance, correction and cancellation of registered emancipation patents. However, the Spouses Valdez’s complaint for recovery of possession does not involve or seek the cancellation of any emancipation patent. It was the Spouses Atuel and the Spouses Galdiano who attacked the validity of the emancipation patent as part of their affirmative defenses in their answer to the complaint. The rule is well settled that the jurisdiction of the court (or agency in this case) cannot be made to depend on the defenses made by the defendant in his answer or motion to dismiss. If such were the rule, the question of jurisdiction would depend almost entirely on the defendant. 36

Jurisdiction over the subject matter cannot be acquired through, or waived by, any act or omission of the parties. 37 The active participation of the parties in the proceedings before the DARAB does not vest jurisdiction on the DARAB, as jurisdiction is conferred only by law. The courts or the parties cannot disregard the rule of non-waiver of jurisdiction. Likewise, estoppel does not apply to confer jurisdiction to a tribunal that has none over a cause of action. 38 The failure of the parties to challenge the jurisdiction of the DARAB does not prevent this Court from addressing the issue, as the DARAB’s lack of jurisdiction is apparent on the face of the complaint. Issues of jurisdiction are not subject to the whims of the parties. 39

In a long line of decisions, this Court has consistently held that an order or decision rendered by a tribunal or agency without jurisdiction is a total nullity. 40 Accordingly, we rule that the decision of the DARAB in the instant case is null and void. Consequently, the decision of the Court of Appeals affirming the decision of the DARAB is likewise invalid. This Court finds no compelling reason to rule on the other issues raised by the Spouses Atuel and the Spouses Galdiano.chanrob1es virtua1 1aw 1ibrary

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals dated 20 May 1999 and the Resolution dated 14 July 1999 in CA-G.R. SP No. 48682 are REVERSED and SET ASIDE. The MARO’s Decision dated 4 March 1993, and the DARAB’s Decision dated 17 June 1998, are declared NULL and VOID for lack of jurisdiction. No costs.

SO ORDERED.

Davide, Jr., C.J., Vitug, Ynares-Santiago and Azcuna, JJ., concur.

[G.R. No. 133365. September 16, 2003.]

PLATINUM TOURS AND TRAVEL, INCORPORATED, Petitioner, v. JOSE M. PANLILIO, Respondent.

D E C I S I O N

Before us is a petition for review on certiorari under Rule 45 of the Rules of Court assailing the January 15, 1998 decision 1 of the Court of Appeals which ruled that:chanrob1es virtual 1aw library

Consequently, the respondent judge committed grave abuse of discretion in allowing the consolidation of Civil Case No. 96-635 with Civil Case No. 94-1634.chanrob1es virtua1 1aw 1ibrary

. . . We also leave it to the respondent Judge to decide whether he will return Civil Case No. 96-635 to Branch 146 or keep it in his docket but should he opt for the latter, he should act on it as a separate case from Civil Case No. 94-1634.

WHEREFORE; the petition is partially granted and the assailed Orders dated July 23, 1996 and September 17, 1996, allowing the consolidation of Civil Case No. 96-635 with Civil Case No. 94-1634 and denying petitioner’s motion for reconsideration, respectively, are ANNULLED and SET ASIDE, with the consequent complete severance of the two (2) cases. 2

The facts follow:chanrob1es virtual 1aw library

On April 27, 1994, petitioner Platinum Tours and Travel Inc. (Platinum) filed a complaint for a sum of money with damages against Pan Asiatic Travel Corporation (PATC) and its president Nelida G. Galvez. Platinum sought to collect payment for the airline tickets which PATC bought from it. The case was docketed as Civil Case No. 94-1634.

On October 24, 1994, the Regional Trial Court of Makati City, Branch 62, rendered a judgment 3 by default in favor of Platinum and ordered PATC and Nelida G. Galvez to solidarily pay Platinum actual damages of P359,621.03 with legal interest, P50,000 attorney’s fees and cost of suit.

On February 10, 1995, a writ of execution was issued on motion of Platinum. Pursuant to the writ, Manila Polo Club Proprietary Membership Certificate No. 2133 in the name of Nelida G. Galvez was levied upon and sold for P479,888.48 to a certain Ma. Rosario Khoo.

On June 2, 1995, private respondent Jose M. Panlilio filed a motion to intervene in Civil Case No. 94-1634. Panlilio claimed that, in October 1992, Galvez had executed in his favor a chattel mortgage over her shares of stock in the Manila Polo Club to secure her P1 million loan and that Galvez had already delivered to him the stock certificates valued at P5 million.

On June 9, 1995, the trial court denied Panlilio’s motion for intervention:chanrob1es virtual 1aw library

Submitted for resolution is Jose M. Panlilio’s Motion for Intervention dated May 31, 1995.

This Court has to deny the motion because (1) a decision had already been rendered in this case and that the only matters at issue is the propriety of the execution; (2) it will only delay or prejudice the adjudication of the rights of the original parties; and, (3) the Intervenor’s rights may be fully protected in a separate action. 4

On January 29, 1996, the trial court declared the execution sale null and void due to irregularities in the conduct thereof.

On May 3, 1996, Panlilio filed against Galvez a collection case with application for a writ of preliminary attachment of the disputed Manila Polo Club shares, docketed as Civil Case No. 96-365. The case was raffled to Branch 146 of the Regional Trial Court of Makati City. 5 In the meantime, Panlilio again attempted to intervene in Civil Case No. 94-1634, this time by incorporating in his complaint a motion to consolidate Civil Case No. 96-365 and Civil Case No. 94-1634.

On June 13, 1996, Judge Salvador Tensuan of Branch 146 granted the motion for consolidation on condition that Judge Roberto Diokno of Branch 62, who was trying Civil Case No. 94-1634, would not object thereto. Judge Diokno later issued an order, dated July 23, 1996, allowing the consolidation of the two cases and setting for hearing Panlilio’s application for a writ of preliminary attachment.

Platinum, as plaintiff in Civil Case No. 94-1634, moved to reconsider the July 23, 1996 order of Judge Diokno but its motion was denied.

On January 31, 1997, Platinum filed a petition for certiorari at the Court of Appeals assailing, among others, the July 23, 1996 order of Judge Diokno allowing the consolidation of Civil Case No. 96-365 and Civil Case No. 94-1634.

In a decision dated January 15, 1998, the Court of Appeals annulled the assailed order but left it to Judge Diokno to decide whether to return Civil Case No. 96-365 to Judge Tensuan in Branch 146, or to keep it in his docket and decide it as a separate case.chanrob1es virtua1 1aw 1ibrary

Platinum filed a motion for partial reconsideration of the decision of the Court of Appeals, praying that Civil Case No. 96-365 be returned to Branch 146 or re-raffled to another RTC Branch of Makati. However, the motion was denied by the Court of Appeals on April 2, 1998.

In the instant petition, Platinum insists that the Makati RTC, Branch 62, has no jurisdiction to try Civil Case No. 96-365. It argues that, when Judge Diokno’s July 23, 1996 order allowing the consolidation of the two cases was annulled and set aside, RTC Branch 62’s basis for acquiring jurisdiction over Civil Case No. 96-365 was likewise extinguished.

We disagreee.

Jurisdiction is the power and authority of the court to hear, try and decide a case. 6 In general, jurisdiction may either be over the nature of the action, over the subject matter, over the person of the defendants or over the issues framed in the pleadings.

Jurisdiction over the nature of the action and subject matter is conferred by law. It is determined by the allegations of the complaint, irrespective of whether or not the plaintiff is entitled to recover upon all or some of the claims asserted therein. 7 Jurisdiction over the person of the plaintiff is acquired from the time he files his complaint; while jurisdiction over the person of the defendant is acquired by his voluntary appearance in court and his submission to its authority, or by the coercive power of legal processes exerted over his person.

Since jurisdiction is the power to hear and determine a particular case, it does not depend upon the regularity of the exercise by the court of that power or on the correctness of its decisions.

In the case at bar, there is no doubt that Panlilio’s collection case docketed as Civil Case No. 96-365 falls within the jurisdiction of the RTC of Makati, Branch 62. The fact that the Court of Appeals subsequently annulled Judge Diokno’s order granting the consolidation of Civil Case No. 96-365 and Civil Case No. 94-1634, did not affect the jurisdiction of the court which issued the said order.

"Jurisdiction" should be distinguished from the "exercise of jurisdiction." Jurisdiction refers to the authority to decide a case, not the orders or the decision rendered therein. Accordingly, where a court has jurisdiction over the person and the subject matter, as in the instant case, the decision on all questions arising from the case is but an exercise of such jurisdiction. Any error that the court may commit in the exercise of its jurisdiction is merely an error of judgment which does not affect its authority to decide the case, much less divest the court of the jurisdiction over the case.

We find no reversible error on the part of the Court of Appeals when it left to Judge Diokno of Branch 62 the discretion on whether to return Civil Case No. 96-365 to Branch 146 or to decide the same as a separate case in his own sala.

Moreover, we find the instant petition premature and speculative. Had Platinum waited until Judge Diokno decided on what to do with Civil Case No. 96-365, the parties would have been spared the trouble and the expense of seeking recourse from this Court, which in turn would have had one petition less in its docket.chanrob1es virtua1 1aw 1ibrary

The unfounded fear that Civil Case No. 96-365 would unduly delay the final resolution of Civil Case No. 94-1634, if the former were retained by Branch 62, made Platinum act with haste. In so doing, it wasted the precious time not only of the parties but also of this Court.

All told, nothing legally prevents the RTC of Makati, Branch 62, from proceeding with Civil Case No. 96-365. Should it decide to retain the case, it is hereby directed to resolve the same with dispatch.

WHEREFORE, petition is hereby DENIED.

SO ORDERED.

Puno, Panganiban, Sandoval-Gutierrez and Carpio Morales, JJ., concur.

[G.R. No. 142595. October 15, 2003.]

RACHEL C. CELESTIAL, Petitioner, v. JESSE CACHOPERO, Respondent.

In the instant appeal by petition for review on certiorari, 1 petitioner Rachel Cachopero Celestial assails the February 15, 1999 Decision of the Court of Appeals in CA-G.R. SP No. 45927, "Jesse C. Cachopero v. Regional Executive Director of DENR, Region XII and Rachel C. Celestial," which reversed and set aside the Order of the Regional Trial Court (RTC) of Midsayap, Cotabato, Branch 18 dismissing respondent’s petition for certiorari, prohibition and mandamus, and mandated the Regional Executive Director of the Department of Environment and Natural Resources (DENR), Region XII to process the Miscellaneous Sales Application (MSA) of respondent Jesse Cachopero in DENR Claim No. XII-050-90 to which petitioner filed a protest.chanrob1es virtua1 1aw 1ibrary

Respondent, brother of petitioner, filed an MSA (Plan No. (XII-6)-1669) with the Bureau of Lands covering a 415 square meter parcel of land located at Barrio 8, Midsayap, Cotabato and formerly part of the Salunayan Creek in Katingawan, Midsayap.

In his MSA, respondent alleged that he had, since 1968, been occupying the land whereon he built a residential house and introduced other improvements.

Petitioner filed a protest against respondent’s MSA, claiming preferential right over the land subject thereof since it is adjacent to, and is the only outlet from, her residential house situated at Lot No. 2586-G-28 (LRC) Psd-105462, Poblacion 8, Midsayap.

Following an ocular inspection, the Bureau of Lands, finding the land subject of respondent’s MSA to be outside the commerce of man, dismissed petitioner’s protest and denied respondent’s MSA, to wit:chanrob1es virtual 1aw library

In the ocular inspection, it was verified that the land in dispute with an area of 415 square meters was formerly a part of the Salunayan Creek that became dry as a result of the construction of an irrigation canal by the National Irrigation Administration. However, it was certified by Project Engineer Reynaldo Abeto of the said office in his certification dated May 19, 1982, that only a portion of the same containing an area of 59.40 square meters more or less was taken as part of the National Irrigation Administration service road. It was also ascertained that the P20,000.00 residential house wherein Jesse Cachopero and his family are living is not within the 69-meters width of the national highway. However, per the certification of the local office of the District Engineer for Public Works and Highways, the government may need the area where the house stands for expansion in the future. Moreover, it was also certified by the Office of Municipal Mayor that the whole area covered by the miscellaneous sales application of Jesse Cachopero is needed by the municipal government for future public improvements.

From the foregoing facts, it is clear that the subject land is outside the commerce of man and therefore, not susceptible of private acquisition under the provision of the Public Land Act. However, in keeping with the policy of our compassionate society in tilting the balance of social forces by favoring the disadvantaged in life, we may allow Jesse Cachopero to temporarily occupy the land in dispute, after excluding therefrom the portion needed for the existing right of way being claimed by Rachel Celestial to be [the] only adequate outlet to the public highway until such time that the land is needed by the government for expansion of the road.

WHEREFORE, it is ordered that this case, be, as hereby it is, dismissed and this case (sic), dropped from the records. The Miscellaneous Sales Application (New) of Jesse Cachopero is hereby rejected and in lieu thereof, he shall file a revocable permit application for the land in question after excluding from the southern part of the land the area of five (5) meters for right of way purposes as shown in the sketch drawn at the back of this order. The segregation survey of the area shall be at the pro-rata expense of the parties.

SO ORDERED. 2 (Emphasis and Italics supplied)

Petitioner thereafter instituted an action for ejectment against respondent and his wife before the Municipal Trial Court of Midsayap, Cotabato, docketed as Civil Case No. 711. A judgment based on a compromise was rendered in said case under the following terms and conditions:chanrob1es virtual 1aw library

That Spouses Jesse Cachopero and Bema Cachopero, defendants in this case, are going to vacate the premises in question and transfer the old house subject of this ejectment case at the back of Lot No. 2586-G-28 (LRC) Psd-105462, located at 8, Midsayap, Cotabato, within eight (8) months from today, but not later than April 30, 1990;

That plaintiff is willing to give a two (2)-meter wide exit alley on the eastern portion of said lot as road-right-of-way up to the point of the NIA road on the west of Lot No. 2586-G-28, (LRC) Psd-105462;

That defendants hereby promise to remove all their improvements introduced fronting the residence of the plaintiff before August 31, 1989; and the plaintiff shall likewise remove all her existing improvements on

the same area; (Emphasis supplied)

Subsequently or on May 21, 1991, respondent filed another MSA with the DENR Regional Office of Cotabato involving a portion of the same lot subject of his first MSA, covering an area of 334 square meters, more or less (the subject land), and docketed as DENR-XII-Claim No. 050-90. This time, the MSA was supported by a certification 4 dated January 9, 1989 issued by the Office of the Mayor of Midsayap and an Indorsement 5 dated January 16, 1989 by the District Engineer of the Department of Public Works and Highways stating that the subject land is suitable for residential purposes and no longer needed by the municipal government.

Petitioner likewise filed a protest against her brother-respondent’s second MSA, alleging a preferential right over the subject land, she being the adjacent and riparian owner, and maintaining that it is her only access to the national highway. She thus reiterated her demand for a five (5)-meter road right of way through the land.chanrob1es virtua1 1aw 1ibrary

After another investigation of the subject land, DENR Regional Executive Director Macorro Macumbal issued an Order dated February 17, 1994 stating that it was suitable for residential purposes but that, in light of the conflicting interest of the parties, it be sold at public auction. Respondent’s second MSA was accordingly dismissed, viz:chanrob1es virtual 1aw library

In the ocular investigation of the premises, it was established that the said property is a dried bed of Salunayan Creek resulting from the construction of the irrigation canal by the National Irrigation Administration; that it is suitable for residential purpose . . .

It is evident that under the law, property of the public domain situated within the first (1st) to fourth class municipalities are disposable by sales only. Since municipality of Midsayap, Cotabato is classified as third (3rd) class municipality and the property in dispute, Lot no. (MSA-XII-6)-1669, is situated in the poblacion of Midsayap, Cotabato, and considering the conflicting interest of the herein parties, it is therefore equitable to dispose the same by sale at a public auction pursuant to Section 67, C.A. No. 141, as amended, pertinent clause of which provides:chanrob1es virtual 1aw library

. . . sale shall be made through oral bidding; and adjudication shall be made to the highest bidder, . . .

WHEREFORE, in view of all the foregoing, it is ordered as hereby is ordered that the instant protest is dismissed and dropped from the records, and the Miscellaneous Sales Application (New) of Jesse C. Cachopero is rejected and returned unrecorded. Accordingly, the CENR Officer of CENRO XII-4B shall cause the segregation survey of a portion of five (5) meters in width running parallel to line point C-1 of the approved survey plan (MSA-XII-6)-1669, sketch is shown at the dorsal side hereof, as a permanent easement and access road for the occupants of Lot No. 2386-G-28, (LRC) Psd-105462 to the national highway. Thereafter, and pursuant to paragraph G.2.3 of Department Administrative Order No. 38, Series of 1990, the CENRO XII 4B shall dispose the remaining area of the lot in question through oral bidding.

SO ORDERED." 6 (Emphasis and Italics supplied)

Respondent filed a Motion for Reconsideration of the above-said order of the DENR Regional Executive Director, but it was denied by Order of February 27, 1995 by the OIC Regional Executive Director of Region XII, Cotabato City in this wise:chanrob1es virtual 1aw library

A meticulous scrutiny of the records disclosed that Civil Case No. 711 for ejectment, decided on the basis of compromise agreement of the parties dated August 10, 1989, involved "transfer of the house from Lot No. MSA XII-6-1669 to the litigant’s parents’ property situated at the back of protestant property, Lot No. 2586-G-28 (LRC), Psd-105462." Whereas the issue in DENR XII Claim No. 050-90 involved the disposition of lot no. (MSA II-6)-1669 a residential public land being exclusively vested with the Director of Lands (Sec. 4, C.A. 141).

The two (2) meters wide exit alley provided in the compromise agreement was established by the protestant from her private property (Lot No. 2586-G-28 (LRC), Psd-105462) for the benefit of her brother, herein respondent, upon his transfer to their parents property at the back of Lot No. 2586-G-28 (LRC), Psd-105462. Whereas the five (5) meters wide easement imposed on Lot No. (MSA-XII-6)-1669, a public land, provided in the decision in DENR Claim No. 050-90 is in accordance with Article 670 of the New Civil Code . . .

With all the above foregoing, we find no reversible error to reconsider our Order of February 17, 1994.

WHEREFORE, the instant motion for reconsideration is DENIED. 7

Respondent thereupon filed on April 3, 1995 with the RTC of Midsayap, Cotabato a petition for certiorari, prohibition and mandamus with preliminary mandatory injunction and temporary restraining order assailing the Orders dated February 17, 1994 and February 27, 1995 of the DENR Regional Executive Director and OIC Regional Executive Director of Region XII, Cotabato, attributing grave abuse of discretion in the issuance thereof.

Petitioner moved for the dismissal of the petition, alleging lack of jurisdiction and non-exhaustion of administrative remedies.

By Order of March 26, 1997, the RTC denied respondent’s petition for certiorari for lack of merit and non-exhaustion of administrative remedies, as it did deny his motion for reconsideration.

The Court of Appeals, before which respondent assailed the RTC orders by petition for certiorari, prohibition and mandamus, granted said petition, and accordingly reversed and set aside the assailed orders of the RTC and ordered the DENR to process the MSA of Respondent. 8

Petitioner’s Motion for Reconsideration 9 of the appellate court’s decision having been denied by Resolution of March 2, 2000, 10 she lodged the present petition, alleging that the Court of Appeals acted contrary to law and jurisprudence 1) in holding that the RTC of Midsayap had jurisdiction over respondent’s petition, the doctrine of exhaustion of administrative remedies was not applicable to the instant case, and the contested land is public land; and 2) in ordering the processing of respondent’s MSA pursuant to R.A. 730. 11

Petitioner contends that the RTC of Midsayap had no jurisdiction over respondent’s petition for certiorari as (a) it "is in the nature of an appeal" 12 falling within the jurisdiction of the Court of Appeals under Section 9(3) 13 of Batas Pambansa Blg. 129 (B.P. 129), as amended; and (b) respondent failed to exhaust administrative remedies when he failed to appeal the questioned Orders to the Secretary of Environment and Natural Resources. 14

Petitioner’s petition fails.chanrob1es virtua1 1aw 1ibrary

Petitioner has apparently confused the separate and distinct remedies of an appeal (i.e. through a petition for review of a decision of a quasi judicial agency under Rule 43 of the Rules of Court) and a special civil action for certiorari (i.e. through a petition for review under Rule 65 of the Rules of Court). In Silverio v. Court of Appeals, 15 this Court, speaking through then Chief Justice Claudio Teehankee, distinguished between these two modes of judicial review as follows:chanrob1es virtual 1aw library

The provisions of the Rules of Court permit an aggrieved party, in the general types of cases, to take a cause and apply for relief to the appellate courts by way of either of two distinctly different and dissimilar modes — through the broad process of appeal or the limited special civil action of certiorari. An appeal brings up for review errors of judgment committed by a court with jurisdiction over the subject of the suit and the persons of the parties or any such error committed by the court in the exercise of its jurisdiction amounting to nothing more than an error of judgment. On the other hand, the writ of certiorari issues for the correction of errors of jurisdiction only or grave abuse of discretion amounting to lack or excess of jurisdiction. The writ of certiorari "cannot legally be used for any other purpose." In terms of its function, the writ of certiorari serves "to keep an inferior court within the bounds of its jurisdiction or to prevent it from committing such a grave abuse of discretion amounting to excess of jurisdiction" or to relieve parties from arbitrary acts of courts — acts which courts have no power or authority in law to perform. 16 (Italics, emphasis and underscoring supplied)

Concomitantly, appellate jurisdiction is separate and distinct from the jurisdiction to issue the prerogative writ of certiorari. An appellate jurisdiction refers to a process which is a continuation of the original suit and not a commencement of a new action. In contrast, to invoke a court’s jurisdiction to issue the writ of certiorari requires the commencement of a new and original action therefor, independent of the proceedings which gave rise to the questioned decision or order. 17 As correctly held by the Court of Appeals, 18 the RTCs have concurrent jurisdiction with the Court of Appeals and the Supreme Court over original petitions for certiorari, prohibition and mandamus 19 under Section 21 20 of B.P. 129.

A perusal of respondent’s Petition dated April 3, 1995 filed before the RTC clearly shows that it alleged that the DENR Regional Executive Director and OIC Regional Executive Director acted with "grave abuse of discretion and without or in excess of jurisdiction amounting to lack of jurisdiction" when they issued the questioned Orders dated February 17, 1994 and February 27, 1995. Evidently, respondent sought a judicial review of the questioned Orders through a special civil action for certiorari which, as aforementioned, was within the jurisdiction of the RTC of Midsayap, Cotabato. 21

Additionally, this Court finds no reason to disturb the Court of Appeals’ conclusion that the instant case falls under the recognized exceptions to the rule on exhaustion of administrative remedies, to wit:chanrob1es virtual 1aw library

The rule of exhaustion of administrative remedies is inapplicable if it should appear that an irreparable injury or damage will be suffered by a party if he should await, before taking court action, the final action of the administrative official concerned on the matter as a result of a patently illegal order (Vivo v. Cloribel, 18 SCRA 713; De Lara v. Cloribel, 14 SCRA 269); or where appeal would not prove to be speedy and adequate remedy. 22

True, the doctrine of exhaustion of administrative remedies calls for resort first to the appropriate administrative authorities in the resolution of a controversy falling under their jurisdiction before the same may be elevated to the courts of justice for review, and non-observance thereof is a ground for the dismissal of the complaint, 23 the rationale being:chanrob1es virtual 1aw library

The thrust of the rule on exhaustion of administrative remedies is that the courts must allow the administrative agencies to carry out their functions and discharge their responsibilities within the specialized areas of their respective competence. It is presumed that an administrative agency, if afforded

an opportunity to pass upon a matter, will decide the same correctly, or correct any previous error committed in its forum. Furthermore, reasons of law, comity and convenience prevent the courts from entertaining cases proper for determination by administrative agencies. Hence, premature resort to the courts necessarily becomes fatal to the cause of action of the petitioner. 24

However, this requirement of prior exhaustion of administrative remedies is not absolute, there being instances when it may be dispensed with and judicial action may be validly resorted to immediately, among which are: 1) when the question raised is purely legal; 2) when the administrative body is in estoppel; 3) when the act complained of is patently illegal; 4) when there is urgent need for judicial intervention; 5) when the claim involved is small; 6) when irreparable damage will be suffered; 7) when there is no other plain, speedy and adequate remedy; 8) when strong public interest is involved; and 9) in quo warranto proceedings.25cralaw:red

Hence, where the act complained of is patently illegal since the administrative body acted without or in excess of jurisdiction or with such grave abuse of discretion as to be tantamount to lack of jurisdiction, as was alleged in respondent’s petition before the RTC, prior exhaustion of administrative remedies is not required and resort to the courts through a special civil action for certiorari under Rule 65 is permitted:chanrob1es virtual 1aw library

We hold that it was an error for the court a quo to rule that the petitioners should have exhausted its remedy of appeal from the orders denying their application for waiver/suspension to the Board of Trustees and thereafter to the Court of Appeals pursuant to the Rules. Certiorari is an appropriate remedy to question the validity of the challenged issuances of the HDMF which are alleged to have been issued with grave abuse of discretion amounting to lack of jurisdiction.

Moreover, among the accepted exceptions to the rule on exhaustion of administrative remedies are: (1) where the question in dispute is purely a legal one; and (2) where the controverted act is patently illegal or was performed without jurisdiction or in excess of jurisdiction. Moreover, while certiorari as a remedy may not be used as a substitute for an appeal, especially for a lost appeal, this rule should not be strictly enforced if the petition is genuinely meritorious. It has been said that where the rigid application of the rules would frustrate substantial justice, or bar the vindication of a legitimate grievance, the courts are justified in exempting a particular case from the operation of the rules. 26 (Emphasis supplied)

To justify the issuance of the writ of certiorari, however, it must be clearly shown that there is a patent and grave abuse of discretion amounting to an evasion of a positive duty or to a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or personal hostility. 27

The crux of the case at bar is, therefore, whether the DENR Regional Executive Director and OIC Regional Director acted with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the questioned Orders dated February 17, 1994 and February 27, 1995, respectively.chanrob1es virtua1 1aw 1ibrary

In resolving respondent’s second MSA and petitioner’s protest thereto, the DENR Regional Executive Director, after considering the conflicting interest of the parties, found it equitable to resolve the same by directing the sale of the subject land at public auction pursuant to Section 67, C.A. No. 141, as amended.

Section 67 of Commonwealth Act No. 141, otherwise known as "The Public Land Act," provides the procedure for the disposition of lands of the public domain which are open to disposition or concession and intended to be used for residential, commercial, industrial or other productive purposes other than agricultural, to wit:chanrob1es virtual 1aw library

SEC. 67. The lease or sale shall be made through oral bidding; and adjudication shall be made to the highest bidder. However, where an applicant has made improvements on the land by virtue of a permit issued to him by competent authority, the sale or lease shall be made by sealed bidding as prescribed in Section twenty-six of this Act, the provisions of which shall be applied wherever applicable. If all or part of the lots remain unleased or unsold, the Director of Lands shall from time to time announce in the Official Gazette or in any other newspapers of general circulation, the lease or sale of those lots, if necessary. (Emphasis supplied)

With the enactment of Republic Act No. 730 28 on June 18, 1952, however, an exception to the foregoing procedure was created by authorizing disposition of lands of the public domain by private sale, instead of bidding, provided that: (1) the applicant has in his favor the conditions specified therein and (2) the area applied for is not more than 1,000 square meters. 29 The pertinent provision of R.A. 730 thus provides:chanrob1es virtual 1aw library

SEC. 1. Notwithstanding the provisions of Sections 61 and 67 of Commonwealth Act No. 141, as amended by Republic Act No. 293, any Filipino citizen of legal age who is not the owner of a home lot in the municipality or city in which he resides and who has in good faith established his residence on a parcel of the public land of the Republic of the Philippines which is not needed for the public service, shall be given preference to purchase at a private sale of which reasonable notice shall be given to him not more than one thousand square meters at a price to be fixed by the Director of Lands with the approval of the Secretary of Agriculture and Natural Resources. It shall be an essential condition of this sale that the occupant has constructed his house on the land and actually resided therein. Ten percent of the purchase price shall be paid upon the approval of the sale and the balance may be paid in full, or in ten equal

annual installments.

SEC. 2. Land acquired under the provisions of this Act shall not be subject to any restrictions against encumbrance or alienation before and after the issuance of the patents thereon. 30

SEC. 3. The provisions of the Public Land Act with respect to the sale of lands for residential purposes which are not inconsistent herewith shall be applicable.

SEC. 4. This Act shall take effect upon its approval.

Approved, June 18, 1952. (Emphasis supplied)

Given the foregoing provisions of R.A. 730 which took effect on June 18, 1952, and the DENR Regional Executive Director’s February 17, 1994 finding that the subject land was "suitable for residential purposes," it was incumbent upon him to determine whether the provisions of R.A. 730 were applicable to respondent’s MSA. As held by the Court of Appeals:chanrob1es virtual 1aw library

Finally, petitioner contends that the DENR Regional Executive Director and OIC Regional Executive Director gravely erred in ordering the sale of the subject lot through oral bidding applying Section 67, Commonwealth Act No. 141 and not Republic Act 730 authorizing the sale of public land without bidding.

We agree with the petitioner.

Apropos is the case of Reyes v. Court of Appeals, 125 SCRA 785, ruling that:jgc:chanrobles.com.ph

"When public land lots of not more than 1,000 sq. ms. are used, or to be used as a residence . . . they can be sold on private sales under the provisions of Republic Act No. 730."cralaw virtua1aw library

In Agura v. Serfino, Sr., (204 SCRA 569), the Supreme Court held that:jgc:chanrobles.com.ph

"R.A. 730 authorizes a sale by private sale, as an exception to the general rule that it should be by bidding, if the area applied for does not exceed 1,000 square meters, . . ."cralaw virtua1aw library

We see no reason why these ruling should not be applied in this case which involves 415 [should have been 334] square meters only. 31

The Regional Director, however, summarily chose to apply Section 67 of the Public Land Act upon a finding that it was more "equitable" in light of the "conflicting interest" of the parties. In his "Answer" to respondent’s petition before the RTC, the Director justified his non-application of R.A. 730 in this wise:chanrob1es virtual 1aw library

. . . Republic Act No. 730 is not applicable to the case at bar, the land being disputed, Republic Act No. 730 requisite (sic) vas not meet (sic) that for this law to apply to a particular case, the land must be in the first place not a land in conflict. There being a pending protest for final adjudication, the said conflict continues to exist thus an impediment to the application of Republic Act 730 32 (Emphasis supplied)

which justification he reiterated in his Opposition 33 to respondent’s Motion for Reconsideration of the RTC decision.

The Director’s reliance on equity as basis for his action was misplaced, however. It is well-settled that "equity follows the law." 34 Described as "justice outside legality," it is applied only in the absence of, and never against, statutory law or legal pronouncements. 35 Where pertinent positive rules are present, they should pre-empt and prevail over all abstract arguments based only on equity. 36

A reading of R.A. 730 (or of the Public Land Act for that matter) shows nothing therein to support the Director’s contention that the pendency of a protest is a bar to the application of R.A. 730 to an MSA. Indeed, that Section 1 of R.A. 730 gives a qualified applicant preference to purchase alienable public land suitable for residential purposes implies that there may be more than one party interested in purchasing it.chanrob1es virtua1 1aw library

What is more, under Section 91 of the Public Land Act, it is the duty of the Director of the Lands Management Bureau (formerly the Director of Lands) to determine whether the material facts set forth in an MSA are true:chanrob1es virtual 1aw library

SEC. 91. The statements made in the application shall be considered as essential conditions and parts of any concession, title, or permit issued on the basis of such application, and any false statement therein or omission of facts altering, changing, or modifying the consideration of the facts set forth in such statements, and any subsequent modification, alteration, or change of the material facts set forth in the application shall ipso facto produce the cancellation of the concession, title, or permit granted. It shall be the duty of the Director of Lands, from time to time and whenever he may deem it advisable, to make the necessary investigations for the purpose of ascertaining whether the material facts set out in the application are true, or whether they continue to exist and are maintained and preserved in good faith, and for the purposes of such investigation, the Director of Lands is hereby empowered to issue subpoenas and subpoenas duces tecum and, if necessary, to obtain compulsory process from the courts. In every investigation made in accordance with this section, the existence of bad faith, fraud,

concealment, or fraudulent and illegal modification of essential facts shall be presumed if the grantee or possessor of the land shall refuse or fail to obey a subpoena or subpoena duces tecum lawfully issued by the Director of Lands or his authorized delegates or agents, or shall refuse or fail to give direct and specific answers to pertinent questions, and on the basis of such presumption, an order of cancellation may issue without further proceedings. (Emphasis supplied)

Likewise, under Section 102 of the same Public Land Act, it is the duty of the Director of the Lands Management Bureau to, after due hearing, verify whether the grounds of a protest or objection to an MSA are well founded, and, if so, to cancel the MSA:chanrob1es virtual 1aw library

SEC. 102. Any person, corporation, or association may file an objection under oath to any application or concession under this Act, grounded on any reason sufficient under this Act for the denial or cancellation of the application or the denial of the patent or grant. If, after the applicant or grantee has been given suitable opportunity to be duly heard, the objection is found to be well founded, the Director of Lands shall deny or cancel the application or deny patent or grant, and the person objecting shall, if qualified, be granted a prior right of entry for a term of sixty days from the date of the notice. (Emphasis supplied)

There was thus clearly a positive duty on the part of the DENR Director to process respondent’s MSA, and to ascertain, particularly in light of petitioner’s protest, whether respondent was qualified to purchase the subject land at a private sale pursuant to R.A. 730. This, he did not do.

In fine, by abdicating his duty to process respondent’s MSA and summarily ordering, without factual or legal basis, that the subject land be disposed of via oral bidding pursuant to Section 67 of the Public Land Act, the Director acted with patent grave abuse of discretion amounting to lack or excess of jurisdiction. As the Court of Appeals held:chanrob1es virtual 1aw library

Considering that the assailed Orders of public respondent DENR Regional Executive Director applying Section 67 of Commonwealth Act No. 141 and ordering the sale of the subject lot by oral bidding are patently erroneous, the authority of the court to issue writs of certiorari, prohibition and mandamus is warranted. 37

The Director’s commission of grave abuse of discretion does not, however, mean that respondent automatically has the better right to the subject land. As mandated by law, the Director must process respondent’s MSA, conduct an investigation, and determine whether the material facts set forth therein are true to bring it within the coverage of R.A. 730.

A thorough investigation is all the more imperative considering that petitioner’s protest raises serious factual issues regarding respondent’s qualification to purchase the subject land — in particular, whether he already owns a home lot in Midsayap and whether he has, in good faith, constructed his house on the subject land and actually resided therein. These factual issues are properly within the authority of the DENR and the Land Management Bureau, which are tasked with carrying out the provisions of the Public Land Act and R.A. 730, 38 do determine, after both parties have been given an opportunity to fully present their evidence.

As for petitioner’s claim of ownership over the subject land, admittedly a dried-up bed of the Salunayan Creek, based on (1) her alleged long term adverse possession and that of her predecessor-in-interest, Marcelina Basadre, even prior to October 22, 1966, when she purchased the adjoining property from the latter, and (2) the right of accession under Art. 370 of the Spanish Civil Code of 1889 and/or Article 461 of the Civil Code, the same must fail.

Since property of public dominion is outside the commerce of man 39 and not susceptible to private appropriation and acquisitive prescription, 40 the adverse possession which may be the basis of a grant of title in the confirmation of an imperfect title refers only to alienable or disposable portions of the public domain. 41 It is only after the Government has declared the land to be alienable and disposable agricultural land that the year of entry, cultivation and exclusive and adverse possession can be counted for purposes of an imperfect title. 42

A creek, like the Salunayan Creek, is a recess or arm extending from a river and participating in the ebb and flow of the sea. 43 As such, under Articles 420(1) 44 and 502(1) 45 of the Civil Code, the Salunayan Creek, including its natural bed, is property of the public domain which is not susceptible to private appropriation and acquisitive prescription. 46 And, absent any declaration by the government, that a portion of the creek has dried-up does not, by itself, alter its inalienable character.chanrob1es virtua1 1aw 1ibrary

This, in fact, was the very reason behind the denial of respondent’s first MSA, the District Engineer having certified that the government may need the subject land for future expansion, and the office of the Municipal Mayor having certified that it was needed by t he municipal government for future public improvements. 47 Consequently, it was only after the same offices subsequently certified 48 that the subject land was suitable for residential purposes and no longer needed by the municipal government that it became alienable and disposable. Confronted with similar factual circumstances, this Court in Bracewell v. Court of Appeals 49 held:chanrob1es virtual 1aw library

Clear from the above is the requirement that the applicant must prove that the land is alienable public land. On this score, we agree with respondents that petitioner failed to show that the parcels of land subject of his application are alienable or disposable. On the contrary, it was conclusively shown by the

government that the same were only classified as alienable or disposable on March 27, 1972. Thus, even granting that petitioner and his predecessors-in-interest had occupied the same since 1908, he still cannot claim title thereto by virtue of such possession since the subject parcels of land were not yet alienable land at that time nor capable of private appropriation. The adverse possession which may be the basis of a grant of title or confirmation of an imperfect title refers only to alienable or disposable portions of the public domain. 50 (Emphasis supplied)

With respect to petitioner’s invocation of the principle of accession under either Article 370 of the Spanish Civil Code of 1889 or Article 461 of the Civil Code, the same does not apply to vest her with ownership over subject land.

Under Article 370 51 of the Spanish Civil Code of 1889 which took effect in the Philippines on December 7, 1889, 52 the beds of rivers which remain abandoned because the course of the water has naturally changed belong to the owners of the riparian lands throughout their respective lengths. If the abandoned bed divided estates belonging to different owners, the new dividing line shall run at equal distance therefrom. 53

When the present Civil Code took effect on August 30, 1950, 54 the foregoing rule was abandoned in favor of the present Article 461, which provides:chanrob1es virtual 1aw library

ART. 461. River beds which are abandoned through the natural change in the course of the waters ipso facto belong to the owners whose lands are occupied by the new course in proportion to the area lost. However, the owners of the lands adjoining the old bed shall have the right to acquire the same by paying the value thereof, which value shall not exceed the value of the area occupied by the new bed. (Emphasis supplied)

Article 461 provides for compensation for the loss of the land occupied by the new bed since it is believed more equitable to compensate the actual losers than to add land to those who have lost nothing. 55 Thus, the abandoned river bed is given to the owner(s) of the land(s) onto which the river changed its course instead of the riparian owner(s). 56

Petitioner claims that on October 22, 1966, when she purchased the property adjoining the subject land from Marcelina Basadre, the said subject land was already a dried-up river bed such that "almost one-half portion of the residential house . . . was so already built and is still now situated at the said dried-up portion of the Salunayan Creek bed . . ." 57 She failed to allege, however, when the subject portion of the Salunayan Creek dried up, a fact essential to determining whether the applicable law is Article 370 of the Spanish Civil Code of 1889 or Article 461 of the Civil Code.chanrob1es virtua1 1aw 1ibrary

Had the disputed portion of the Salunayan Creek dried up after the present Civil Code took effect, the subject land would clearly not belong to petitioner or her predecessor-in-interest since under the aforementioned provision of Article 461, "river beds which are abandoned through the natural change in the course of the waters ipso facto belong to the owners of the land occupied by the new course," and the owners of the adjoining lots have the right to acquire them only after paying their value. 58

And both Article 370 of the Old Code and Article 461 of the present Civil Code are applicable only when" [r]iver beds are abandoned through the natural change in the course of the waters." It is uncontroverted, however, that, as found by both the Bureau of Lands and the DENR Regional Executive Director, the subject land became dry as a result of the construction of an irrigation canal by the National Irrigation Administration. Thus, in Ronquillo v. Court of Appeals, 59 this Court held:chanrob1es virtual 1aw library

The law is clear and unambiguous. It leaves no room for interpretation. Article 370 applies only if there is a natural change in the course of the waters. The rules on alluvion do not apply to man-made or artificial accretions nor to accretions to lands that adjoin canals or esteros or artificial drainage systems. Considering our earlier finding that the dried-up portion of Estero Calubcub was actually caused by the active intervention of man, it follows that Article 370 does not apply to the case at bar and, hence, the Del Rosarios cannot be entitled thereto supposedly as riparian owners.

The dried-up portion of Estero Calubcub should thus be considered as forming part of the land of the public domain which cannot be subject to acquisition by private ownership. . . 60 (Emphasis supplied)

Furthermore, both provisions pertain to situations where there has been a change in the course of a river, not where the river simply dries up. In the instant Petition, it is not even alleged that the Salunayan Creek changed its course. In such a situation, commentators are of the opinion that the dry river bed remains property of public dominion. 61

Finally, while this Court notes that petitioner offered to purchase the subject land from the government, 62 she did so through an informal letter dated August 9, 1989 63 instead of the prescribed form. By such move, she is deemed to have acknowledged that the subject land is public land, for it would be absurd for her to have applied for its purchase if she believed it was hers. She is thus stopped from claiming otherwise. 64

WHEREFORE, the petition is hereby DENIED for lack of merit.

SO ORDERED.chanrob1es virtua1 1aw 1ibrary

[G.R. NO. 132477 : August 31, 2005]

JOSE LUIS ROS, ANDONI F. ABOITIZ, XAVIER ABOITIZ, ROBERTO E. ABOITIZ, ENRIQUE ABOITIZ, MATTHIAS G. MENDEZONA, CEBU INDUSTRIAL PARK DEVELOPERS, INC. and FBM ABOITIZ MARINE, INC., Petitioners, v. DEPARTMENT OF AGRARIAN REFORM, HON. ERNESTO

GARILAO, in his capacity as DAR Secretary, and DIR. JOSE LLAMES, in his capacity as Director of DAR-Regional 7, Respondent.

D E C I S I O N

Petitioners are the owners/developers of several parcels of land located in Arpili, Balamban, Cebu. By virtue of Municipal Ordinance No. 101 passed by the Municipal Council of Balamban, Cebu, these lands were reclassified as industrial lands.1 On 03 April 1995, the Provincial Board of Cebu approved Balamban's land use plan and adopted en toto Balamban's Municipal Ordinance No. 101 with the passage of Resolution No. 836-95 and Provincial Ordinance No. 95-8, respectively.2 As part of their preparation for the development of the subject lands as an industrial park, petitioners secured all the necessary permits and appropriate government certifications.3

Despite these permits and certifications, petitioner Matthias Mendezona received a letter from Mr. Jose Llames, Director of the Department of Agrarian Reform (DAR) Regional Office for Region 7, informing him that the DAR was disallowing the conversion of the subject lands for industrial use and directed him to cease and desist from further developments on the land to avoid the incurrence of civil and criminal liabilities.4

Petitioners were thus constrained to file with the Regional Trial Court (RTC) of Toledo City a Complaint dated 29 July 1996 for Injunction with Application for Temporary Restraining Order and a Writ of Preliminary Injunction, docketed as Civil Case No. T-590.5 In an order6 dated 12 August 1996, the RTC, ruling that it is the DAR which has jurisdiction, dismissed the Complaint for lack of jurisdiction.7 It justified the dismissal in this wise:

A perusal of Section 20 of the Local Government Code expressly provides that the Municipalities through an Ordinance by the Sanggunian may authorize the reclassification of the agricultural land within their area into non-agricultural. Paragraph (e) of the aforesaid Section, provides further: that nothing in this Section shall be construed as repealing or modifying in any manner the provision of Republic Act 6657. In an opinion of the Secretary of Justice, quoted: With respect of (sic) conversion of agricultural land to non-agricultural uses the authority of the DAR to approve the same may be exercise (sic) only from the date of the effectivity of the Agrarian Reform Law on June 15, 1988. It appears that the petitioners had applied for conversion on June 13, 1995 and therefore the petitioner (sic) are estopped from questioning the authority and jurisdiction of the Department of Agrarian Reform. The application having been filed after June 15, 1988, the reclassification by the Municipal Council of Balamban was just a step in the conversion of the aforestated lands according to its purpose. Executive Order No. 129-A, Section 5, "The Department shall be responsible for implementing Comprehensive Agrarian Reform and for such purpose it is authorized to (J) approve or disapprove the conversion, restructuring or readjustment of agricultural land into non-agricultural uses." Said Executive Order amended Section 36 of Republic Act No. 3644 which clearly mandates that the DAR Secretary (sic) approve or disapprove conversion are not impliedly repealed. In fact, under Section 75 of Republic Act 6657 the above laws and other laws not inconsistent of (sic) this act shall have suppletory effect. Further, Section 68 of Republic Act 6657 provides: No injunction, restraining order, prohibition or mandamus shall be issued by the lower court against the Department of Agrarian Reform, DENR and Department of Justice in their implementation of the program. With this provision, it is therefore clear (sic) when there is conflict of laws determining whether the Department of Agrarian Reform has been exclusively empowered by law to approve land conversion after June 15, 1988 and (sic) the final ruling falls only with the Supreme Court or Office of the President.

WHEREFORE, in view of the foregoing, the Application for Restraining Order is hereby ordered DENIED and the main case is DISMISSED, this Court having no jurisdiction over the same.8

In an order dated 18 September 1996, the trial court denied the motion for reconsideration filed by the petitioners.9 Petitioners filed before this Court a Petition for Review on Certiorari with application for Temporary Restraining Order and Writ of Preliminary Injunction.10 In a resolution11 dated 11 November 1996, this Court referred the petition to the Court of Appeals.12 Petitioners moved for a reconsideration of the said resolution but the same was denied in a resolution dated 27 January 1997.13

At the Court of Appeals, the public respondents were ordered14 to file their Comments on the petition. Two sets of comments from the public respondents, one from the Department of Agrarian Reform Provincial Office15 and another from the Office of the Solicitor General,16 were submitted, to which petitioners filed their Consolidated Reply.17

On 02 December 1997, the Court of Appeals rendered a decision18 affirming the Order of Dismissal issued by the RTC.19 A motion for reconsideration filed by the petitioners was denied in a resolution dated 30 January 1998.20

Hence, this petition.

The following issues21 are raised by the petitioners for resolution:

(a) Whether or not the reclassification of the subject lands to industrial use by the Municipality of Balamban, Cebu pursuant to its authority under Section 20(a) of Republic Act No. 7160 or the Local Government Code of 1991 (the "LGC") has the effect of taking such lands out of the coverage of the CARL and beyond the jurisdiction of the DAR;

(b) Whether or not the Complaint for Injunction may be dismissed under the doctrine of primary jurisdiction;

(c) Whether or not the Complaint for Injunction is an appropriate remedy against the order of the DAR enjoining development works on the subject lands;

(d) Whether or not the Regional Trial Court of Toledo City had authority to issue a writ of injunction against the DAR.

In sum, petitioners are of the view that local governments have the power to reclassify portions of their agricultural lands, subject to the conditions set forth in Section 2022 23 of the Local Government Code. According to them, if the agricultural land sought to be reclassified by the local government is one which has already been brought under the coverage of the Comprehensive Agrarian Reform Law (CARL) and/or which has been distributed to agrarian reform beneficiaries, then such reclassification must be confirmed by the DAR pursuant to its authority under Section 6522 of the CARL, in order for the reclassification to become effective. If, however, the land sought to be reclassified is not covered by the CARL and not distributed to agrarian reform beneficiaries, then no confirmation from the DAR is necessary in order for the reclassification to become effective as such case would not fall within the DAR's conversion authority. Stated otherwise, Section 65 of the CARL does not, in all cases, grant the DAR absolute, sweeping and all-encompassing power to approve or disapprove reclassifications or conversions of all agricultural lands. Said section only grants the DAR exclusive authority to approve or disapprove conversions of agricultural lands which have already been brought under the coverage of the CARL and which have already been distributed to farmer beneficiaries.

The petition lacks merit.

After the passage of Republic Act No. 6657, otherwise known as Comprehensive Agrarian Reform Program, agricultural lands, though reclassified, have to go through the process of conversion, jurisdiction over which is vested in the DAR. However, agricultural lands already reclassified before the effectivity of Rep. Act No. 6657 are exempted from conversion.

Department of Justice Opinion No. 44, Series of 1990, provides:

". . . True, the DAR's express power over land use conversion is limited to cases in which agricultural lands already awarded have, after five years, ceased to be economically feasible and sound for agricultural purposes, or the locality has become urbanized and the land will have a greater economic value for residential, commercial or industrial purposes. But to suggest that these are the only instances when the DAR can require conversion clearances would open a loophole in R.A. No. 6657, which every landowner may use to evade compliance with the agrarian reform program. Hence, it should logically follow from the said department's express duty and function to execute and enforce the said statute that any reclassification of a private land as a residential, commercial or industrial property should first be cleared by the DAR."

The requirement that agricultural lands must go through the process of conversion despite having undergone reclassification was underscored in the case of Alarcon v. Court of Appeals,24 where it was held that reclassification of land does not suffice:

In the case at bar, there is no final order of conversion. The subject landholding was merely reclassified. Conversion is different from reclassification. Conversion is the act of changing the current use of a piece of agricultural land into some other use as approved by the Department of Agrarian Reform. Reclassification, on the other hand, is the act of specifying how agricultural lands shall be utilized for non-agricultural uses such as residential, industrial, commercial, as embodied in the land use plan, subject to the requirements and procedure for land use conversion. Accordingly, a mere reclassification of agricultural land does not automatically allow a landowner to change its use and thus cause the ejectment of the tenants. He has to undergo the process of conversion before he is permitted to use the agricultural land for other purposes.

Rep. Act No. 6657 took effect on 15 June 1988. Municipal Ordinance No. 101 of Balamban, Cebu, which reclassified the subject lands, was passed on 25 March 1992, and Provincial Ordinance No. 95-8 of the

Provincial Board of Cebu, which adopted Municipal Ordinance No. 101, was passed on 03 April 1995, long after Rep. Act No. 6657 has taken effect. Section 4 of Rep. Act No. 6657 provides:

SEC. 4. Scope. - The Comprehensive Agrarian Reform Law of 1988 shall cover, regardless of tenurial arrangement and commodity produced, all public and private agricultural lands as provided in Proclamation No. 131 and Executive Order No. 229, including other lands of the public domain suitable for agriculture.

(d) All private lands devoted to or suitable for agriculture regardless of the agricultural products raised or that can be raised thereon.

To further clarify any doubt on its authority, the DAR issued Administrative Order No. 12 dated October 1994 which reads:

Administrative Order No. 12

Series of 1994

SUBJECT: CONSOLIDATED AND REVISED RULES AND PROCEDURES GOVERNING CONVERSION OF ARICULTURAL LANDS TO NON-AGRICULTURAL USES

I. PREFATORY STATEMENT

The guiding principles on land use conversion is to preserve prime agricultural lands. On the other hand, conversion of agricultural lands, when coinciding with the objectives of the Comprehensive Agrarian Reform Law to promote social justice, industrialization, and the optimum use of land as a national resource for public welfare, shall be pursued in a speedy and judicious manner.

To rationalize these principles, and by virtue of Republic Act (R.A.) No. 3844, as amended, Presidential Decree (P.D.) No. 27, P.D. No. 946, Executive Order (E.O.) No. 129-A and R.A. No. 6657, the Department of Agrarian Reform (DAR) has issued several policy guidelines to regulate land use conversion. This Administrative Order consolidates and revises all existing implementing guidelines issued by the DAR, taking into consideration, other Presidential issuances and national policies related to land use conversion.

II. LEGAL MANDATE

A. The Department of Agrarian Reform (DAR) is mandated to "approve or disapprove applications for conversion, restructuring or readjustment of agricultural lands into non-agricultural uses," pursuant to Section 4(i) of Executive Order No. 129-A, Series of 1987.

B. Section 5(i) of E.O. No. 129-A, Series of 1987, vests in the DAR, exclusive authority to approve or disapprove applications for conversion of agricultural lands for residential, commercial, industrial, and other land uses.

C. Section 65 of R.A. No. 6657, otherwise known as the Comprehensive Agrarian Reform Law of 1988, likewise empowers the DAR to authorize under certain conditions, the reclassification or conversion of agricultural lands.

D. Section 4 of Memorandum Circular No. 54, Series of 1993 of the Office of the President, provides that "action on applications for land use conversion on individual landholdings shall remain as the responsibility of the DAR, which shall utilize as its primary reference, documents on the comprehensive land use plans and accompanying ordinances passed upon and approved by the local government units concerned, together with the National Land Use Policy, pursuant to R.A. No. 6657 and E.O. No. 129-A."

III. DEFINITION OF TERMS

A. Agricultural land refers to land devoted to agricultural activity and not classified as mineral, forest, residential, commercial or industrial land (Section 3[c], R.A. No. 6657).

B. Conversion is the act of changing the current use of a piece of agricultural land into some other use.

C. Reclassification of agricultural lands is the act of specifying how agricultural lands shall be utilized for non-agricultural uses such as residential, industrial, commercial, as embodied in the land use plan. It also includes the reversion of non-agricultural lands to agricultural use.

V. COVERAGE

These rules shall cover all private agricultural lands as defined herein regardless of tenurial arrangement and commodity produced. It shall also include agricultural lands reclassified by LGUs into non-agricultural

uses, after June 15, 1988, pursuant to Memorandum Circular (M.C.) No. 54, Series of 1993 of the Office of the President and those proposed to be used for livestock, poultry and swine raising as provided in DAR Administrative Order No. 9, Series of 1993.

In the case of Advincula-Velasquez v. Court of Appeals,25 we held:

Our ruling in the Natalia case was reiterated in National Housing Authority v. Allarde (318 SCRA 22 [1999]).

The Court of Appeals' reliance on DOJ Opinion No. 44, Series of 1990, is in order. In the said opinion, the Secretary of Justice declared, viz:

Based on the foregoing premises, we reiterate the view that with respect to conversions of agricultural lands covered by R.A. No. 6657 to non-agricultural uses, the authority of DAR to approve such conversions may be exercised from the date of the law's effectivity on June 15, 1988. This conclusion is based on a liberal interpretation of R.A. No. 6657 in the light of DAR's mandate and extensive coverage of the agrarian reform program.

Following the DOJ opinion, the DAR issued Administrative Order No. 6, Series of 1994, stating that lands already classified as non-agricultural before the enactment of Rep. Act No. 6657 no longer needed any conversion clearance:

I. Prefatory Statement

In order to streamline the issuance of exemption clearances, based on DOJ Opinion No. 44, the following guidelines are being issued for the guidance of the DAR and the public in general.

II. Legal Basis

Sec. 3(c) of RA 6657 states that agricultural lands refers to the land devoted to agricultural activity as defined in this act and not classified as mineral, forest, residential, commercial or industrial land.

Department of Justice Opinion No. 44, series of 1990 has ruled that, with respect to the conversion of agricultural lands covered by RA No. 6657 to non-agricultural uses, the authority of DAR to approve such conversion may be exercised from the date of its effectivity, on June 15, 1988. Thus, all lands that are already classified as commercial, industrial, or residential before 15 June 1988 no longer need any conversion clearance.

The authority of the DAR to approve conversions of agricultural lands covered by Rep. Act No. 6657 to non-agricultural uses has not been pierced by the passage of the Local Government Code. The Code explicitly provides26 that "nothing in this section shall be construed as repealing or modifying in any manner the provisions of Rep. Act No. 6657."

It being settled that jurisdiction over conversion of land is vested in the DAR, the complaint for injunction was correctly dismissed by the trial and appellate courts under the doctrine of primary jurisdiction. This Court, in Bautista v. Mag-isa Vda. De Villena,27 found occasion to reiterate the doctrine of primary jurisdiction'

The doctrine of primary jurisdiction precludes the courts from resolving a controversy over which jurisdiction has initially been lodged with an administrative body of special competence. For agrarian reform cases, jurisdiction is vested in the Department of Agrarian Reform (DAR); more specifically, in the Department of Agrarian Reform Adjudication Board (DARAB).

Executive Order 229 vested the DAR with (1) quasi-judicial powers to determine and adjudicate agrarian reform matters; and (2) jurisdiction over all matters involving the implementation of agrarian reform, except those falling under the exclusive original jurisdiction of the Department of Agriculture and the Department of Environment and Natural Resources. This law divested the regional trial courts of their general jurisdiction to try agrarian reform matters.

Under Republic Act 6657, the DAR retains jurisdiction over all agrarian reform matters. The pertinent provision reads:

"Section 50. Quasi-Judicial Powers of the DAR. - The DAR is hereby vested with the primary jurisdiction to determine and adjudicate agrarian reform matters and shall have exclusive original jurisdiction over all matters involving the implementation of agrarian reform, except those falling under the exclusive jurisdiction of the Department of Agriculture and the Department of Environment and Natural Resources.

"It shall not be bound by technical rules of procedure and evidence but shall proceed to hear and decide all cases, disputes or controversies in a most expeditious manner, employing all reasonable means to ascertain the facts of every case in accordance with justice and equity and the merits of the case. Toward

this end, it shall adopt a uniform rule of procedure to achieve a just, expeditious and inexpensive determination of every action or proceeding before it. . . ."

Finally, the third and fourth issues which may be summed up into whether or not an injunction is the appropriate remedy against the order of the DAR enjoining petitioners in developing the subject land, we rule in the negative. Section 68 of Rep. Act No. 6657 provides:

SEC. 68. Immunity of Government Agencies from Undue Interference. - No injunction, restraining order, prohibition or mandamus shall be issued by the lower courts against the Department of Agrarian Reform (DAR), the Department of Agriculture (DA), the Department of Environment and Natural Resources (DENR), and the Department of Justice (DOJ) in their implementation of the program.

Wherefore, premises considered, the instant petition is Denied for lack of merit. The decision of the Court of Appeals in CA-G.R. SP No. 42666 dated 02 December 1997 affirming the order dated 12 August 1996 of the Regional Trial Court of Toledo City, Branch 29, in Civil Case No. T-590 is AFFIRMED. Costs against petitioners.

SO ORDERED.

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

[G.R. No. 144025. December 27, 2002.]

SPS. RENE GONZAGA and LERIO GONZAGA, Petitioners, v. HON. COURT OF APPEALS, Second Division, Manila, HON. QUIRICO G. DEFENSOR, Judge, RTC, Branch 36, Sixth Judicial Region,

Iloilo City, and LUCKY HOMES, INC., represented by WILSON JESENA, JR., as Manager, Respondents.

D E C I S I O N

Before this Court is a petition for review on certiorari seeking the reversal of the decision 1 of the Court of Appeals dated December 29, 1999 and its resolution dated June 1, 2000 in CA-G.R. SP No. 54587.chanrob1es virtua1 1aw 1ibrary

The records disclose that, sometime in 1970, petitioner-spouses purchased a parcel of land from private respondent Lucky Homes, Inc., situated in Iloilo and containing an area of 240 square meters. Said lot was specifically denominated as Lot No. 19 under Transfer Certificate of Title (TCT) No. 28254 and was mortgaged to the Social Security System (SSS) as security for their housing loan. Petitioners then started the construction of their house, not on Lot No. 19 but on Lot No. 18, as private respondent mistakenly identified Lot No. 18 as Lot No. 19. Upon realizing its error, private respondent, through its general manager, informed petitioners of such mistake but the latter offered to buy Lot No. 18 in order to widen their premises. Thus, petitioners continued with the construction of their house. However, petitioners defaulted in the payment of their housing loan from SSS. Consequently, Lot No. 19 was foreclosed by SSS and petitioners’ certificate of title was cancelled and a new one was issued in the name of SSS. After Lot No. 19 was foreclosed, petitioners offered to swap Lot Nos. 18 and 19 and demanded from private respondent that their contract of sale be reformed and another deed of sale be executed with respect to Lot No. 18, considering that their house was built therein. However, private respondent refused. This prompted petitioners to file, on June 13, 1996, an action for reformation of contract and damages with the Regional Trial Court of Iloilo City, Branch 36, which was docketed as Civil Case No. 17115.

On January 15, 1998, the trial court 2 rendered its decision dismissing the complaint for lack of merit and ordering herein petitioners to pay private respondent the amount of P10,000 as moral damages and another P10,000 as attorney’s fees. The pertinent conclusion of the trial court reads as follows:jgc:chanrobles.com.ph

"Aware of such fact, the plaintiff nonetheless continued to stay in the premises of Lot 18 on the proposal that he would also buy the same. Plaintiff however failed to buy Lot 18 and likewise defaulted in the payment of his loan with the SSS involving Lot 19. Consequently Lot 19 was foreclosed and sold at public auction. Thereafter TCT No. T-29950 was cancelled and in lieu thereof TCT No. T-86612 (Exh.’9’) was issued in favor of SSS. This being the situation obtaining, the reformation of instruments, even if allowed, or the swapping of Lot 18 and Lot 19 as earlier proposed by the plaintiff, is no longer feasible considering that plaintiff is no longer the owner of Lot 19, otherwise, defendant will be losing Lot 18 without any substitute therefore (sic). Upon the other hand, plaintiff will be unjustly enriching himself having in its favor both Lot 19 which was earlier mortgaged by him and subsequently foreclosed by SSS, as well as Lot 18 where his house is presently standing.

"The logic and common sense of the situation lean heavily in favor of the defendant. It is evident that what plaintiff had bought from the defendant is Lot 19 covered by TCT No. 28254 which parcel of land has been properly indicated in the instruments and not Lot 18 as claimed by the plaintiff. The contracts being clear and unmistakable, they reflect the true intention of the parties, besides the plaintiff failed to assail the contracts on mutual mistake, hence the same need no longer be reformed." 3

On June 22, 1998, a writ of execution was issued by the trial court. Thus, on September 17, 1998, petitioners filed an urgent motion to recall writ of execution, alleging that the court a quo had no jurisdiction to try the case as it was vested in the Housing and Land Use Regulatory Board (HLURB) pursuant to PD 957 (The Subdivision and Condominium Buyers Protective Decree). Conformably, petitioners filed a new complaint against private respondent with the HLURB. Likewise, on June 30, 1999, petitioner-spouses filed before the Court of Appeals a petition for annulment of judgment, premised on the ground that the trial court had no jurisdiction to try and decide Civil Case No. 17115.chanrob1es virtua1 1aw 1ibrary

In a decision rendered on December 29, 1999, the Court of Appeals denied the petition for annulment of judgment, relying mainly on the jurisprudential doctrine of estoppel as laid down in the case of Tijam v. Sibonghanoy. 4

Their subsequent motion for reconsideration having been denied, petitioners filed this instant petition, contending that the Court of Appeals erred in dismissing the petition by applying the principle of estoppel, even if the Regional Trial Court, Branch 36 of Iloilo City had no jurisdiction to decide Civil Case No. 17115.

At the outset, it should be stressed that petitioners are seeking from us the annulment of a trial court judgment based on lack of jurisdiction. Because it is not an appeal, the correctness of the judgment is not in issue here. Accordingly, there is no need to delve into the propriety of the decision rendered by the trial court.

Petitioners claim that the recent decisions of this Court have already abandoned the doctrine laid down in Tijam v. Sibonghanoy. 5 We do not agree. In countless decisions, this Court has consistently held that, while an order or decision rendered without jurisdiction is a total nullity and may be assailed at any stage, active participation in the proceedings in the court which rendered the order or decision will bar such party from attacking its jurisdiction. As we held in the leading case of Tijam v. Sibonghanoy: 6

"A party may be estopped or barred from raising a question in different ways and for different reasons. Thus we speak of estoppel in pais, or estoppel by deed or by record, and of estoppel by laches.

x       x       x

"It has been held that a party cannot invoke the jurisdiction of a court to secure affirmative relief against his opponent and, after obtaining or failing to obtain such relief, repudiate, or question that same jurisdiction . . . [T]he question whether the court had jurisdiction either of the subject matter of the action or of the parties was not important in such cases because the party is barred from such conduct not because the judgment or order of the court is valid and conclusive as an adjudication, but for the reason that such a practice can not be tolerated — obviously for reasons of public policy."cralaw virtua1aw library

Tijam has been reiterated in many succeeding cases. Thus, in Orosa v. Court of Appeals; 7 Ang Ping v. Court of Appeals; 8 Salva v. Court of Appeals; 9 National Steel Corporation v. Court of Appeals; 10 Province of Bulacan v. Court of Appeals; 11 PNOC Shipping and Transport Corporation v. Court of Appeals, 12 this Court affirmed the rule that a party’s active participation in all stages of the case before the trial court, which includes invoking the court’s authority to grant affirmative relief, effectively estops such party from later challenging that same court’s jurisdiction.chanrob1es virtua1 1aw 1ibrary

In the case at bar, it was petitioners themselves who invoked the jurisdiction of the court a quo by instituting an action for reformation of contract against private respondents. It appears that, in the proceedings before the trial court, petitioners vigorously asserted their cause from start to finish. Not even once did petitioners ever raise the issue of the court’s jurisdiction during the entire proceedings which lasted for two years. It was only after the trial court rendered its decision and issued a writ of execution against them in 1998 did petitioners first raise the issue of jurisdiction — and it was only because said decision was unfavorable to them. Petitioners thus effectively waived their right to question the court’s jurisdiction over the case they themselves filed.

Petitioners should bear the consequence of their act. They cannot be allowed to profit from their omission to the damage and prejudice of the private Respondent. This Court frowns upon the undesirable practice of a party submitting his case for decision and then accepting the judgment but only if favorable, and attacking it for lack of jurisdiction if not. 13

Public policy dictates that this Court must strongly condemn any double-dealing by parties who are disposed to trifle with the courts by deliberately taking inconsistent positions, in utter disregard of the elementary principles of justice and good faith. 14 There is no denying that, in this case, petitioners never raised the issue of jurisdiction throughout the entire proceedings in the trial court. Instead, they voluntarily and willingly submitted themselves to the jurisdiction of said court. It is now too late in the day for them to repudiate the jurisdiction they were invoking all along.chanrob1es virtua1 1aw 1ibrary

WHEREFORE, the petition for review is hereby DENIED.

SO ORDERED.

Puno, Panganiban, Sandoval-Gutierrez and Carpio-Morales, JJ., concur.

G.R. No. 149754. September 17, 2002.]

MORTIMER F. CORDERO, Petitioner, v. ALAN G. GO, FELIPE LANDICHO, and VINCENT TECSON, Respondents.

D E C I S I O N

This is a petition for review of the decision 1 of the Court of Appeals setting aside an order of execution pending appeal issued by the Regional Trial Court, Branch 85, Quezon City.chanrob1es virtua1 1aw 1ibrary

The facts are as follows:chanrob1es virtual 1aw library

On May 31, 2000, the Regional Trial Court, Branch 85, Quezon City, rendered judgment by default in Civil Case No. Q-98-35332, entitled "Mortimer F. Cordero v. Alan C. Go, 2 doing business under the name and style of ACG Express Liner, Tony Robinson, Felipe Landicho, and Vincent Tecson" (for breach of contract with damages), ordering the defendants, herein respondents Alan Go, Felipe Landicho, and Vincent Tecson, together with Tony Robinson, jointly and solidarily to pay to petitioner Mortimer F. Cordero damages in the total amount of P19,291,352.043.

Petitioner received a copy of the decision on June 19, 2000, while respondents received their copy on June 29, 2000. Prior to his receipt of the decision, petitioner had filed on June 14, 2000 a motion for execution pending appeal of the judgment. This was opposed by respondents, who moved for a new trial on the ground that their failure to attend the pre-trial conference of the case, on the basis of which they were declared in default, was due to the negligence of their counsel.

In its order of July 28, 2000, the trial court granted petitioner’s motion for execution pending appeal and denied respondents’ motion for new trial. In its order, the trial court stated:chanrob1es virtual 1aw library

Plaintiff’s motion for execution pending appeal is well taken there being written proof/admission before this Court by the counsel for defendants that there is an impending bankruptcy proceeding [against defendant Tony Robinson] hence possibly rendering nugatory whatever judgment that has been rendered in this case (Astraquillo v. Javier, No. L-20034, 30 January 1965, 13 SCRA 125).

x       x       x

Moreover, the dire need for financial resources arising out of a plainly valid, just, and binding obligation, justifies execution pending appeal (Ma-ao Sugar central Co., Inc. v. Canete, 19 SCRA 646). Lastly, it appears from the evidence presented during the hearing that defendants are seeking to evade judgment in this case by disposing of or encumbering their properties to defeat execution. 3

Respondents received a copy of this order on July 31, 2000. On August 1, 2000, they moved for a reconsideration but their motion was denied by the trial court on August 18, 2000. On August 21, 2000, the trial court ordered the issuance of the writ of execution, to implement which the sheriffs garnished the bank accounts of respondents and levied six parcels of land belonging to respondent Go. On November 8, 2000, the sheriffs issued a notice of sale of the levied real properties on December 14, 2000. But execution was stayed on September 29, 2000 in view of a temporary restraining order (TRO) issued by the Court of Appeals at the instance of respondents (CA-G.R. SP No. 60354). On August 8, 2000, respondents also filed a notice of appeal of the trial court’s decision of May 31, 2000. Initially, in its order of August 21, 2000, the trial court denied due course to the appeal for failure of respondents to pay the appellate docket fees on time. But, on November 29, 2000, it reconsidered its order and gave due course to respondents’ appeal (CA-G.R. CV No. 69113).

Petitioner filed two motions, one entitled "Ex-Parte Motion for Break Open Order" and another one entitled "Ex-Parte Motion for Encashment of Check," to implement the writ of execution earlier issued by the trial court. However, in view of the TRO issued by the Court of Appeals, which it received on October 4, 2000, the trial court, on November 27, 2000, denied the aforesaid motions of petitioner, set aside its earlier order for the release of garnished funds, and canceled the sheriff’s notice of sale of November 8, 2000.

Petitioner sought a reconsideration of the order of November 29, 2000 giving due course to respondents’ appeal and, after the expiration of the 60-day TRO, again moved for the issuance of a "break open" order and the encashment of checks. In addition, he filed two other motions entitled "Ex-Parte Motion to Proceed" and "Ex-Parte Motion to Appoint Cebu City Sheriff Jessie A. Belarmino as Special Sheriff." Respondents opposed the motion for the appointment of a special sheriff.

In an order dated December 18, 2000, the trial court denied petitioner’s motion for reconsideration of the order giving due course to respondents’ appeal. As to petitioner’s motions for the implementation of the order of execution and respondents’ opposition to the motion for the appointment of a special sheriff, it

directed the parties to reiterate the same before the Court of Appeals in CA-G.R. No. 69113 on the ground that the trial court had lost jurisdiction over the case by reason of the perfection of respondents’ appeal.

On January 29, 2001, the Court of Appeals rendered judgment in CA-G.R. SP. 60354, granting respondents’ petition for certiorari and setting aside the trial court’s orders of execution pending appeal. The appeals court subsequently denied petitioner’s motion for reconsideration in its resolution of August 31, 2001. The Court of Appeals held in its decision:chanrob1es virtual 1aw library

True, at the time that the Motion for Execution Pending Appeal was filed, the court a quo had the jurisdiction to exercise its good discretion to direct discretionary execution. However, at the time it recalled its earlier Order dated August, 21, 2000 (denying due recourse to the appeal), and gave due course to the appeal, the TRO issued by the former Fifth Division of this Court was still in force and effect, the same to expire on 04 December 2000 [per] the Resolution dated 29 September 2000 declaring the TRO in full force and effect. Such recall gives due course to the appeal retroactive to the time of the actual filing of the Notice of Appeal on 08 August 2000.

However, what militates against the discretionary execution long prayed for by private respondent is the fact that the court a quo has no more discretion to order the same as it was already relinquished of jurisdiction over Civil Case Q-98-35332. Under paragraph 3, Section 9, Rule 41 of the [1997] Rules [of Civil Procedure]" (i)n appeals by notice of appeal, the court loses jurisdiction over the case upon the perfection of the appeals filed in due time and the expiration of the time of appeal of the other parties." As to private respondent, [the] time to appeal expired on 05 July 2000, or on the sixteenth day after he was served a copy of the Decision of 31 May 2000 on 19 June 2000, he not having filed a motion for new trial or reconsideration which tolls the reglementary period to appeal. Discretionary execution was temporarily but effectively enjoined by the TRO issued by the former Fifth Division of this Court which expired on 04 December 2000. However, before the expiration of the TRO, the Court a quo issued the Omnibus Order dated 27 November 2000, canceling the Sheriff’s Notice of Sale, the same being null and void, which consequently cancelled the public auction sale to be held on 14 December 2000. From such order, we could infer that on the motion for discretionary execution, action is deferred, if it is not altogether denied. This observation may be confirmed from the fact that on 29 November 2000, it issued an Order giving due course to petitioner’s Notice of Appeal, and directing the Branch Clerk of Court to forward the entire records of Civil case No. Q-98-35332 to this Court for proper action and disposition, without reserving its right to act upon the Motion for Execution Pending Appeal because technically, prior to transmittal of the original record, it may order execution pending appeal in accordance with Section 2, Rule 39 (Ultimate paragraph, Section 9, Rule 41).

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It may be observed that the Order dated 28 July 2000 granting execution pending appeal as well as the Writ of Execution Pending Appeal issued on 21 August 2000 remained outstanding, for which an inquiry as to whether the same w[as] issued with grave abuse of discretion amounting to lack or excess of jurisdiction would have been ripe. However, the original records of Civil Case No. Q-98-35332 ha[ve] already been received by this Court on 19 December 2000, and the appeal docketed as CA-G.R. CV. No. 69113. Thus, granting that Sheriff Belarmino had the authority to issue the Sheriff’s Notice of Sale of Real Properties, its implementation has been rendered moot by the loss of jurisdiction of the court which appointed him, coupled by the transmittal of the original records of Civil Case No. Q-98-35332. Whether execution pending appeal is warranted by the circumstances of the case is a matter for the better consideration of this Court, not in this petition but in the appeal of the case. 4

Petitioner, therefore, brought this appeal. He alleges —

I. THE COURT OF APPEALS ERRED IN HOLDING THAT THE TRIAL COURT HAD LOST ITS JURISDICTION TO ISSUE THE ORDER FOR EXECUTION PENDING APPEAL, AND ORDERS IN FURTHERANCE THEREOF, SINCE THE TRIAL COURT RETAINED ITS RESIDUAL JURISDICTION INASMUCH AS PETITIONER’S MOTION FOR EXECUTION PENDING APPEAL WAS FILED WITHIN THE FIFTEEN (15) DAY PERIOD FOR APPEAL AND THE RECORDS WERE STILL IN THE POSSESSION OF THE TRIAL COURT AT THE TIME IT WAS ISSUED.

II. THE COURT OF APPEALS HAD NO JURISDICTION TO EXTEND THE EFFECTIVITY OF THE TEMPORARY RESTRAINING ORDER ISSUED IN THIS CASE.

III. THE COURT OF APPEALS ERRED IN GIVING DUE COURSE TO THE RESPONDENTS’ PETITION SINCE THE PETITION HAD THE FOLLOWING FORMAL DEFECTS;

A. THE PETITION WAS NOT PROPERLY SERVED TO THE RESPONDENT;

B. THE PETITION FAILED TO COMPLY WITH RULE 13 OF THE RULES OF COURT IN THAT IT DID NOT STATE A WRITTEN EXPLANATION AS TO WHY PERSONAL SERVICE WAS NOT RESORTED TO IN THIS CASE;

C. THE PETITION WAS, IN TRUTH, NOT VERIFIED;

IV. THE COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION IN REFUSING TO RESOLVE

PETITIONER’S NUMEROUS PENDING MOTION[S]. 5

The petition has no merit. Rule 39, §2 (a) of the 1997 Rules of Civil Procedure provides:chanrob1es virtua1 1aw 1ibrary

On motion of the prevailing party with notice to the adverse party filed in the trial court while it has jurisdiction over the case and is in possession of either the original record or the record on appeal, as the case may be, at the time of the filing of such motion said court may, in its discretion, order execution of a judgment or final order even before the expiration of the period to appeal.

After the trial court had lost jurisdiction, the motion for execution pending appeal may be filed in the appellate court.

Discretionary execution may only issue upon good reasons to be stated in a special order after due hearing.

On the other hand, Rule 41, §9 pertinently states:chanrob1es virtual 1aw library

In appeals by notice of appeal, the court loses jurisdiction over the case upon the perfection of the appeals filed in due time and the expiration of the time to appeal of the other parties.

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[P]rior to the transmittal of the original record . . ., the court may issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal, approve compromises, permit appeals of indigent litigants, order execution pending appeal in accordance with Section 2 of Rule 39, and allow withdrawal of the appeal.

Petitioner contends that, since at the time he filed his motion for execution pending appeal on June 14, 2000, the trial court still had jurisdiction over the case (as respondents’ appeal was perfected only on August 8, 2000) and still had the records of the case (as the same were ordered elevated to the Court of Appeals only on December 18, 2000), it can validly implement its order of execution notwithstanding the perfection of respondents’ appeal.

To be sure, the trial court still had jurisdiction of the case when it ordered the execution of its judgment pending appeal. However, the fact is that the enforcement of its order was restrained by the Court of Appeals in CA-G.R. SP No. 60354. On the other hand, the subsequent perfection of respondents’ appeal forced the elevation of the records of the case to the Court of Appeals. The twin moves of respondents rendered execution pending appeal impossible not only while the TRO was effective but even after its expiration, in view of the elevation of the records to the Court of Appeals. Eventually, on January 29, 2001, the Court of Appeals set aside the trial court’s order of execution pending appeal. Petitioner cannot take advantage of the expiration of the TRO to seek an implementation of the trial court’s order of execution, as this was the very issue in CA-G.R. SP No. 60354 (for certiorari).

The trial court properly held itself to have no jurisdiction to act further on the case. Instead, in its order of December 18, 2001, it referred petitioner to the Court of Appeals in CA-G.R. CV No. 69113 with regard to his efforts to seek implementation of the order of execution. Petitioner did not appeal from this ruling.

Anent petitioner’s claim that respondents’ petition in the Court of Appeals was deficient because it lacked verification and an explanation for lack of personal service of the petition on him; that the same was improperly served on petitioner instead of his counsel; and that the Court of Appeals failed to resolve the motions filed by him for the dismissal of the petition, lifting of the TRO, and setting of the case for oral arguments, suffice it to say that these matters have been raised before, and were found to be without merit by, the Court of Appeals in its decision of January 29, 2001 and resolution of August 31, 2001, and this Court finds no reason to modify its rulings.

WHEREFORE, the petition is DENIED. The decision of the Court of Appeals, dated January 29, 2001 and its resolution, dated August 31, 2001, are AFFIRMED.chanrob1es virtua1 1aw library

SO ORDERED.

Bellosillo, Quisumbing, Austria-Martinez, and Callejo, Sr., JJ., concur.