J.A.B. Bulao & Associates

PEOPLE OF THE PHILIPPINES VS. RODOLFO CAPITLE AND ARTURO NAGARES (G.R. NO. 175330, 12 JANUARY  2010, CARPIO, J.) SUBJECTS: EXTRA JUDICIAL CONFESSION, WHEN ADMISSIBLE; ALIBI AND DENIAL; CIRCUMSTANTIAL EVIDENCE, WHEN SUFFICIENT; DAMAGES WHEN DEATH OCCURS. (BRIEF TITLE: PEOPLE VS. CAPITLE ET AL.

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R E S O L U T I O N

CARPIO, J.:

The Case

This is an appeal from the 27 January 2006 Decision¹ of the Court of Appeals in CA-G.R. CR-HC No. 01479. The Court of Appeals affirmed the 28 April 2000 Decision² of the Regional Trial Court, National Capital Judicial Region, Pasig, Branch 267, in Criminal Case No. 105733, convicting appellants Rodolfo Capitle and Arturo Nagares for the crime of murder.

The Facts

The Court of Appeals summarized the facts of the case as follows:

The historical backdrop shows that at around 7:40 a.m. of August 6, 1993, at Orambo Drive, Orambo, Pasig City, Barangay Chairman Avelino Pagalunan was gunned down by four (4) men who thereafter ran towards Shaw Blvd. The incident was witnessed by Ruiz Constantino and Solomon Molino who were seated six (6) arms length away and conversing on the flower pots planted with bougainvilla lined along Orambo Drive corner St. Jude Street, Orambo, Pasig City. Barangay Chairman Avelino Pagalunan was thereafter brought to Medical City Hospital where he expired due to multiple gunshot wounds in the body, in the neck and in the head. The most fatal wound was the one sustained in the head.

On that same day, at around 10:30 a.m., Solomon Molino, a Barangay Kagawad, gave his statement to the District Central Investigation Branch, Eastern Police District Command relating the incident he saw but failed to identify the assailants.

On September 29, 1993, Arturo Nagares was apprehended by the Pasig Police on account of his conviction in another case for Frustrated Homicide. He was later to be taken custody by the National Bureau of Investigation at its detention center along Taft Avenue where the next day, on September 30, 1993, Ruiz Constantino gave his statement identifying Arturo Nagares y De Leon from the four (4) pictures presented to him as one of the three (3) armed assailants of Barangay Captain Pagalunan on August 6, 1993.

Arturo Nagares was likewise identified from the four (4) pictures shown to another witness, Rodolfo Paat, who claims to be at Orambo Drive corner Shaw Blvd., Pasig City, when he heard several gun shots with people shouting “nagbabarilan, nagbabarilan.” Moments later, from the corner of St. Jude St. and Orambo Drive, he saw four (4) men each carrying guns running from Orambo Drive towards Shaw Blvd. and boarded a jeep going to Mandaluyong, Metro Manila.

The third witness to give a statement to the NBI on same day was Solomon Molino who likewise identified Arturo Nagares from the four (4) pictures laid before him.

On October 19, 1993, while under detention at the NBI, Arturo Nagares executed an extrajudicial confession to the killing of Barangay Chairman Avelino Pagalunan before Atty. Orlando V. Dizon, Chief, SOG, NBI. Assisting him in the confession was practicing lawyer, Atty. Esmeralda E. Galang, who was at the NBI following up the implementation of a warrant of arrest in one of the cases she was handling. In Nagares’ extrajudicial confession, he implicated Vice Mayor Anching De Guzman as the mastermind, and Rodolfo Capitle a.k.a. Putol, Elymar Santos and a John Doe as his cohorts in the killing of the Barangay Chairman.

On January 21, 1994, witness Solomon Molino executed his third affidavit before the NBI and identified Ramil Marquina in a police line-up as one of those who fired at Pagalunan.

Then again, on March 21, 1994, the same Solomon Molino gave a written statement before the Pasig Police identifying Rodolfo Capitle, who was earlier arrested by the police by virtue of a warrant of arrest issued by Judge Milagros V. Caguioa of the Pasig Court for Frustrated Homicide.

On March 26, 1994, witness Rodolfo Paat executed another statement before the NBI identifying Rodolfo Capitle from the 20 pictures shown him as one of those armed men he saw on August 6, 1993 running from Orambo Drive to Shaw Blvd.

On April 4, 1994, a criminal charge sheet for Murder was filed against Rodolfo Capitle and Arturo Nagares.

On September 29, 1994, the Information was amended to include Ramil Marquina as one of the accused, together with Rodolfo Capitle and Arturo Nagares. The Amended Information reads:

The undersigned 2^nd Asst. Provincial Prosecutor accuses RODOLFO CAPITLE, ARTURO NAGARES and RAMIL MARQUINA of the crime of MURDER, committed as follows:

That on or about the 6^th day of August 1993 in the Municipality of Pasig, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together, with intent to kill, evident premeditation, treachery, and with abuse of superior strength, did then and there willfully, unlawfully and feloniously attack, assault and shot Brgy. Chairman Avelino Pagalunan on the vital parts of his body, thereby inflicting upon the latter mortal and fatal gunshot wounds which caused his death.

CONTRARY TO LAW.

On April 17, 1997, all three (3) accused were properly arraigned. Assisted by their respective counsels, they entered a “not guilty” plea. After the case was set for pre-trial conference, trial on the merits followed.

During the trial, prosecution witness Ruiz Constantino testified and identified accused Arturo Nagares as one of those he saw shooting the victim, Barangay Chairman Avelino Pagalunan, but could not identify the rest of the assailants. Another witness for the People, Solomon Molino, with whom Constantino was conversing at the time, claimed to have witnessed the shooting incident and even prepared a sketch as to the respective positions of the victim, the assailants and where they were seated. Nevertheless, he found it hard to identify the gun wielders.

The third eyewitness, Rodofo Paat, who claims that during the incident he was at the end of the tricycle line along Orambo Drive between Shaw Blvd. and St. Peter St. when he heard gunshots coming from Orambo Drive corner St. Jude St. about 80 meters away from where he was. Upon hearing the gunshots, people in the vicinity scampered for cover but he stayed put and saw four (4) persons with guns emerged from the smoke running towards Shaw Blvd. He later on identified two (2) of them in open court as accused Arturo Nagares and Rodolfo Capitle.

Accused Arturo Nagares offered alibi as a defense. He was sleeping at the house of his sister Gaudelia Mercado at 92 F. Asedillo St., Bagong Katipunan, Pasig City, as he was suffering from fever due to boil (“pigsa”) at the right leg, he said. This testimony found corroboration from his sister, Gaudelia, and even narrated she accompanied Arturo to the Rizal Medical Center where he was treated and given medication by a certain Dr. Ong. As to the extrajudicial confession, Nagares claimed that he was violated, forced, coerced and tortured into admitting the crime, and to sign the already prepared extrajudicial confession.

For his part, accused Rodolfo Capitle as well put forth the defense of alibi insisting that on the day of the shooting, he was at their house at Bambang, Pasig, with his wife and children cleaning and feeding the hogs. Afterwards, he continued, he took a bath and rested for the rest of the day. His wife substantiated his testimony. Rodolfo went on saying that on March 18, 1994, he was arrested and detained at the Pasig Police Headquarters for another crime. On March 23, 1994, the NBI took custody of him at the NBI Headquarters along Taft Avenue. While at the NBI Headquarters, he complained of having been tortured by placing a plastic bag on his face, boxed on the chest and abdomen, electrocuted and was forced to admit to the killing of the Barangay Captain but was able to refuse, nonetheless.

x x x x³

The Ruling of the Trial Court

After trial, the trial court rendered a Decision dated 28 April 2000 finding appellants guilty as charged, while acquitting Ramil Marquina. The dispositive portion of the decision reads:

WHEREFORE, premises considered, the Court finds accused ARTURO NAGARES and RODOLFO CAPITLE GUILTY beyond reasonable doubt of the felony of MURDER defined and penalized under Article 248 of the Revised Penal Code as amended and each accused is hereby sentenced to suffer the penalty of reclusion perpetua. Upon the other hand, considering that the Court failed to prove the guilt of the accused RAMIL MARQUINA beyond reasonable doubt, the aforesaid accused is hereby ACQUITTED of the crime charged.

Accordingly, the Court orders accused Nagares and Capitle to pay jointly in solidum the widow of the victim, Merlie Pagalunan, the following amounts, to wit:

1.      PhP50,000.00 as indemnity;

2.      PhP 100,000.00 as moral damages;

3.      PhP 50,000.00 as exemplary damages;

4.      PhP 50,000.00 representing actual and compensatory damages;

5.      PhP 30,000.00 as attorney’s fees;

6.      And costs.

The Jail Warden of the Pasig City Jail where accused Rodolfo Capitle is presently detained during the pendency of this case, is accordingly ordered to immediately transfer the person of the aforesaid accused to the National Bilibid Prisons (NBP) of the Bureau of Corrections in Muntinlupa City, Metro Manila, as he is now considered an insular prisoner. Let therefore the corresponding Order/s of Commitment (Mittimus) be issued pursuant to Circular No. 4-92-A, dated April 20, 1992 and Circular No. 66-97 dated October 14, 1997 of the Office of the Court Administrator of the Supreme Court.

In the meantime, the Director of the National Bilibid Prisons (NBP) where accused Arturo Nagares is already serving sentence for another crime, is hereby informed of the latter’s conviction in the present case for his appropriate action and guidance.

Costs de oficio.

SO ORDERED.⁴

In convicting appellants, the trial court found that two out of three eyewitnesses, in the persons of Ruiz Constantino and Rodolfo Paat, positively identified appellants as among the perpetrators of the crime. The trial court discarded appellants’ alibis and denial as such cannot prevail over the positive identification made by the prosecution witnesses. The trial court likewise rejected appellants’ claims of “frame-up” and torture as unsubstantiated.

The trial court found no violation of appellant Nagares’ constitutional rights insofar as his confession is concerned. Nagares’ Sinumpaang Salaysay is presumed to be voluntary and Nagares failed to overthrow such presumption. Further, there was sufficient evidence that Nagares was assisted by an independent and effective counsel during the custodial investigation, belying Nagares’ allegations.

The Ruling of the Court of Appeals

On appeal, the Court of Appeals affirmed the trial court’s decision, disposing of the case as follows:

IN VIEW OF ALL THE FOREGOING, finding no reversible error in the appealed judgment, the same is hereby AFFIRMED in toto. Costs de officio.

SO ORDERED.⁵

In affirming the conviction of appellants, the Court of Appeals found the extrajudicial confession executed by Nagares admissible since it was (1) voluntary; (2) made with the assistance of a competent and independent counsel; (3) express; and (4) in writing. The Court of Appeals pointed out that the specific information stated in the impugned confession “not only categorically detailed [Nagares’] participation in the crime, it likewise show[ed] badges and traits of voluntariness of the confession.”

The Court of Appeals concurred with the trial court that Nagares was duly assisted by an independent counsel during the custodial investigation. According to the Court of Appeals, “the photographs during the custodial investigation, and execution of the 6-page 70 questions and answers extrajudicial confession are at war against the presence of uncivilized practice of extracting confession by coercion.”

As regards Capitle, the Court of Appeals held that “an extrajudicial confession is binding only on the person making it (Nagares) and is not admissible against his co-accused (Capitle).” Hence, there was no direct evidence linking Capitle to the crime. Nevertheless, the Court of Appeals found sufficient circumstantial evidence warranting Capitle’s conviction for the crime charged.

The Issues

Appellants raise the following issues:

1. WHETHER THE CONSTITUTIONAL RIGHTS OF APPELLANTS WERE VIOLATED THEREBY RENDERING THE EVIDENCE PURPORTEDLY OBTAINED THROUGH SAID VIOLATION AS NULL AND VOID.

2.      WHETHER THE PROSECUTION WAS ABLE TO ESTABLISH THE GUILT OF APPELLANTS BEYOND REASONABLE DOUBT.⁶

The Ruling of this Court

We sustain the appellants’ conviction.

Nagares’ extrajudicial confession is admissible in evidence

Nagares challenges the admissibility of his extrajudicial confession, claiming that it was made under duress and that he was not assisted by an independent counsel during the custodial investigation. Nagares maintains such flaws in the investigation violated his right guaranteed under Section 12, Article III of the Constitution. This provision reads:

Section 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.

(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited.

(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him.

(4) The law shall provide for penal and civil sanctions for violations of this section as well as compensation to the rehabilitation of victims of torture or similar practices, and their families.

Based on the records, Nagares’ extrajudicial confession was voluntarily given, and thus admissible. As found by the Court of Appeals, (1) there is no evidence of compulsion or duress or violence on the person of Nagares; (2) Nagares did not complain to the officers administering the oath during the taking of his sworn statement; (3) he did not file any criminal or administrative complaint against his alleged malefactors for maltreatment; (4) no marks of violence were observed on his body; and (5) he did not have himself examined by a physician to support his claim. Moreover, appellant’s confession is replete with details, which makes it highly improbable that it was not voluntarily given.

Likewise negating Nagares’ claim of a coerced confession are the photographs taken during the signing, thumbmarking, and swearing of the extrajudicial confession. All the pictures depicted a “cordial and pleasant atmosphere” devoid of any sign of torture, threat, duress or tension on Nagares’ person. In fact, the photographs showed Nagares smiling.

Further, the records show that Nagares was duly assisted by an effective and independent counsel during the custodial investigation in the NBI. As found by the Court of Appeals, after Nagares was informed of his constitutional rights, he was asked by Atty. Esmeralda E. Galang whether he accepts her as counsel.⁷ During the trial, Atty. Galang testified on the extent of her assistance. According to her, she thoroughly explained to Nagares his constitutional rights, advised him not to answer matters he did not know, and if he did not want to answer any question, he may inform Atty. Galang who would be the one to relay his refusal to the NBI agents. She was also present during the entire investigation.

Moreover, Nagares’ extrajudicial confession was corroborated by evidence of corpus delicti.⁸ Corpus delicti has been defined as the body, foundation, or substance of a crime.⁹ Here, the fact of death and the criminal
agency had been sufficiently established by the death certificate (Exhibit “F”) and the medico-legal report (Exhibit “C”) the veracity of which had been affirmed on the witness stand by the examining physician.¹⁰

Based on the foregoing, there is clearly no basis for Nagares’ plea that his extrajudicial confession should have been excluded from the evidence because it was obtained in violation of his rights under Section 12 of Article III of the Constitution.

Nagares was positively identified as one of the victim’s assailants

Apart from Nagares’ valid extrajudicial confession, the positive identification made by Ruiz Constantino strengthened the prosecution’s case. During the trial, Constantino identified Nagares as one of the victims’ assailants, to wit:

ATTY. BLANES:

Q You said you will be able to remember the face of those who shot Avelino Pagalunan, now, if you see them again, will you be able to identify them?

A Yes, sir.

Q If they are inside the courtroom, will you be able to identify them?

A Yes, sir.

Q Will you please point those who shot Avelino Pagalunan.

INTERPRETER

(witness pointing to a man in the first row wearing orange polo shirt and when asked he answered by the name of Arturo Nagares)¹¹

x x x x

COURT:

You said that you saw the three (3) person who were shooting the victim and you have identified one of the assailants a certain Arturo Nagares are the two (2) others inside the Courtroom?

A I cannot exactly say because my attention at that time was only with Arturo Nagares.¹²

Appellants’ attempt to discredit Constantino must fail since there was no showing of any improper motive on Constantino’s part that would induce him to testify falsely against Nagares.¹³ Further, settled is the rule that the trial court’s evaluation of the credibility of witnesses is generally accorded great weight and will not be disturbed on appeal since the trial court was in a better position to decide thereon, having personally heard the witnesses and observed their deportment and manner of testifying during the trial.¹⁴

Nagares’ alibi and denial deserve scant consideration. Well-entrenched is the rule that alibi, which is inherently weak, cannot prevail over the positive identification made by the eyewitnesses at the crime scene.¹⁵ Here, Constantino positively identified Nagares as one of the perpetrators of the crime overthrowing the latter’s alibi and denial. More importantly, Nagares miserably failed to establish the physical impossibility for him to be at the crime scene at the time of the commission of the felony. Nagares testified that on that fateful day, he was sleeping in his sister’s house on F. Asedillo Street, Katipunan, Pasig City. He also claimed that on that day he was treated at Rizal Medical Center. It was not shown that it was impossible for Nagares to reach and be at the crime scene whether he was coming from his sister’s residence or from the hospital. Further, the defense failed to present any hospital record substantiating Nagares’ claim.

Capitle is guilty beyond reasonable doubt of murder

based on circumstantial evidence

To further establish appellants’ guilt, prosecution witness Paat testified, thus:

Q: What was that incident that took place?

A: I heard successive gun shots.

Q: Now in relation to where you were from what direction did you hear this successive gun shots?

A: At the corner of St. Jude and Oranbo Drive, sir.

Q: What did you notice, if any at the corner of Oranbo Drive and St. Jude?

A: I saw 4 men coming from the smoke.

Q: More or less, Mr. Witness, could you estimate the distance from where you were to the corner of Oranbo Drive & St. Jude?

A: More or less 80 meters.

Q: Now, you said, you saw men coming from the corner of Oranbo Drive and St. Jude where there was smoke, how many men more or less?

A: 4 men, sir.

Q: Where, where they headed to and when you had seen these 4 men coming from that direction?

A: On their way going to Shaw Blvd.

Q: Did you notice if they were holding something?

x x x x

A: I saw each one of them holding a gun.¹⁶

x x x x

Q: Now of these 4 men running and holding caliber 45 did you recognize any of them?

A: Yes, sir.

Q: If those whom you recognized is or are inside this court room, will you be able to point to them?

A: Yes, sir.

Q: Will you please point to them, Mr. Witness?

INTERPRETER: Witness pointing to two (2) male persons, one (1) the right wearing an orange polo who when asked his name answered Arturo Nagares and a man beside him wearing yellow t-shirt who when asked his name answered Rodolfo Capitle.¹⁷

x x x x

Q: How at that time, you take a look at the alleged persons, four (4) persons whom you allegedly saw holding a gun?

A: More or less one (1) minute.

Q: Could you make an estimate if it is less than one (1) minute.

ATTY. BLANES:

He said more or less your Honor, from the corner of Oranbo Drive and he said more or less.

Q: Is it less than one (1) minute?

A: More or less one (1) minute.

Q: And that they were running?

A: Yes sir. Almost on the jogging phase.¹⁸

As correctly observed by the Court of Appeals, there was no direct evidence linking Capitle to the crime charged, only circumstantial evidence.

Section 4, Rule 133 of the Revised Rules on Evidence provides:

Section 4. Circumstantial evidence, when sufficient. — Circumstantial evidence is sufficient for conviction if:

(a) There is more than one circumstance;

(b) The facts from which the inferences are derived are proven; and

(c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.

Hence, to justify a conviction based on circumstantial evidence, the combination of circumstances must be interwoven in such a way as to leave no reasonable doubt as to the guilt of the accused.¹⁹

Based on Paat’s testimony, there is sufficient circumstantial evidence justifying Capitle’s conviction. There is more than one circumstance: (1) the victim was gunned down at the corner of Orambo Drive and St. Jude St., Mandaluyong City; (2) Paat heard several gunshots coming from that area; (3) Paat saw four men, including Nagares and Capitle, coming from the corner of Orambo Drive and St. Jude St. and running away towards Shaw Blvd.; (4) the four men, including Nagares and Capitle, were all carrying guns; and (5) prosecution witness Constantino saw Nagares, together with several other men, shot the victim. To the unprejudiced mind, the foregoing circumstances, when analyzed and taken together, leads to no other conclusion except that of appellants’ culpability for the victim’s death.²⁰

Modification in the award of damages

When death occurs due to a crime, the following damages may be awarded: (1) civil indemnity ex delicto for the victim’s death; (2) actual or compensatory damages; (3) moral damages; (4) exemplary damages; and (5) temperate damages.²¹
We sustain the award of P50,000 civil indemnity, which is mandatory and granted to the victim’s heirs without need of proof other than the commission of the crime.²²

For lack of factual basis, we delete the award of actual or compensatory damages. The party seeking actual damages must produce competent proof or the best evidence obtainable, such as receipts, to justify an award therefor.²³ No such documents were offered as evidence in this case. Nevertheless, we award P25,000 as temperate damages when no evidence of burial or funeral expenses is presented in the trial court. Under Article 2224 of the Civil Code, temperate damages may be recovered, as it cannot be denied that the victim’s heirs suffered pecuniary loss although the exact amount was not proved.²⁴

While we sustain the award of moral damages, which does not require allegation and proof other than the victim’s death, we reduce the amount from P100,000 to P50,000 pursuant to prevailing jurisprudence.²⁵

Since the qualifying circumstance of treachery was proved in this case, the award of exemplary damages is proper. However, we reduce the amount of exemplary damages from P50,000 to P30,000 consistent with prevailing jurisprudence.²⁶

The award of P30,000 attorney’s fees lacks factual and legal basis and thus must be deleted.

WHEREFORE, we DISMISS the appeal and AFFIRM with MODIFICATION the 27 January 2006 Decision of the Court of Appeals in CA-G.R. CR-HC No. 01479. We award temperate damages in the amount of P25,000. The amounts of moral damages and exemplary damages are reduced to P50,000 and P30,000, respectively. The award of actual damages and attorney’s fees is deleted.

SO ORDERED.

ANTONIO T. CARPIO

Associate Justice

WE CONCUR:

DIOSDADO M. PERALTA

Associate Justice

LUCAS P. BERSAMIN ROBERTO A. ABAD

Associate Justice Associate Justice

JOSE C. MENDOZA

Associate Justice

ATTESTATION

I attest that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

ANTONIO T. CARPIO

Associate Justice

Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, I certify that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

RENATO C. CORONA

Chief Justice

* Designated additional member per Raffle dated 15 June 2009.

1 Rollo, pp. 3-19. Penned by Associate Justice Conrado M. Vasquez, Jr., with Associate Justices Mariano C. Del Castillo (now a member of this Court) and Magdangal M. De Leon concurring.

2 CA rollo, pp. 36-57. Penned by Judge Florito S. Macalino.

3 Rollo, pp. 3-8.

4 CA rollo, pp. 56-57.

5 Rollo, p. 18.

6 CA rollo, p. 95.

7 See Records, p. 572. Nagares’ sworn statement, dated 19 October 1993, given to the police investigators pertinently reads:

02 T: Nais naming ipaalam sa iyo na ikaw ay may karapatang hindi kumibo at ang lahat ng iyong sasabihin ay maaaring gamitin laban sa iyo sa isang kriminal, sibil o administratibong pag-uusig. Naiintindihan mo ba ito?

S: Opo.

03 T: Nais din naming ipaalam sa iyo na ikaw ay may karapatang kumuha ng isang abogado na iyong mapipili. At kung hindi mo kayang kumuha ng iyong sariling abogado, kami ay hihirang ng isa para sa iyo na tutulong sa iyo sa pagsisiyasat na ito. Naiintindihan mo ba ito?

S: Opo.

04 T: Ngayon, matapos mo malaman ang iyong mga karapatan sa ilalim ng ating Saligang Batas, ikaw ba ay nakahandang magbigay ng isang malaya at kusang-loob na salaysay sa tulong ni ATTY. ESMERALDA GALANG na narito ngayon upang ipaliwanag sa iyo ang iyong mga karapatan sa ilalim ng ating Saligang Batas at tulungan ka sa iyong mga sagot dito sa iyong salaysay?

S: Opo.

8 Section 3, Rule 133 of the Rules of Court.

9 People v. Tuniaco, G.R. No. 185710, 19 January 2010, 610 SCRA 350, 355.

10 See People v. Bacor, 366 Phil. 197, 220 (1999).

11 TSN, 5 June 1995, p. 7.

12 Id. at 32-33.

13 People v. Caraang, 463 Phil. 715, 749 (2003).

14 People v. Jadap, G.R. No. 177983, 30 March 2010, 617 SCRA 179, 187; People v. Garcia, G.R. No. 177740, 5 April 2010, 617 SCRA 318, 331.

15 Arceno v. People, 326 Phil. 576, 594 (1996); People v. Torrefiel, 326 Phil. 388, 396 (1996); People v. Caritativo, 326 Phil. 1, 8 (1996).

16 TSN, 24 July 1995, pp. 6-9.

17 Id. at 10-11.

18 TSN, 31 July1995, p. 44.

19 Bastian v. Court of Appeals, G.R. No. 160811, 18 April 2008, 552 SCRA 43, 55.

20 People v. Nanas, 415 Phil. 683, 699 (2001).

21 People v. Domingo, G.R. No. 184343, 2 March 2009, 580 SCRA 436, 456.

22 Id.

23 Id.

24 Id. at 456-457.

25 Id. at 457.

26 People v. Gutierrez, G.R. No. 188602, 4 February 2010, 611 SCRA 633, 647.

REPUBLIC OF THE PHILIPPINES VS. RESINS INC. (G.R. NO. 175891, 12 JANUARY 2010, CARPIO, J.) (SUBJECTS: SERVICE OF JUDGMENT; BURDEN OF PROVING SERVICE; CERTIFICATE OF MAILING NOT SUFFICIENT).

x  – – – – – – – – – – – – – – – – – – – – – – – – – – – x

D E C I S I O N

CARPIO, J.:

The Case

G.R. No. 175891 is a petition for review¹ assailing the Decision² promulgated on 25 May 2006 by the Court of Appeals (CA) in CA-G.R. SP No. 78516. The appellate court denied the petition filed by the Republic of the Philippines (Republic) through the Office of the Solicitor General (OSG). The appellate court found no grave abuse of discretion on the part of the Regional Trial Court of Misamis Oriental, Branch 20, Cagayan de Oro City (RTC) in rendering its 17 March 1993³ Judgment and 17 January 1994⁴ Amended Judgment, as well as in issuing its 7 July 1999⁵ and 28 May 2003⁶ Orders in Land Registration Case No. N-91-012, LRA Record No. N-62407. The RTC allowed the Land Registration Authority (LRA) to issue a Decree of Registration in favor of Resins, Incorporated (Resins, Inc.) over eight lots in Jasaan, Misamis Oriental after the RTC’s Judgment⁷ dated 17 March 1993 became final and executory.

The Facts

The appellate court narrated the facts as follows:

On 17 October 1991, [Resins, Inc.] filed x x x Land Registration Case [No. N-91-012] before the [RTC] for judicial confirmation of title over eight (8) parcels of land situated in the Municipality of Jasaan, Misamis Oriental. The initial hearing for said case was originally set on 4 February 1992. Prior to said date of hearing, the [LRA] filed with the [RTC] a report recommending that an Order be issued to [Resins, Inc.] directing it to submit the names and complete postal addresses of the adjoining lot owners, and that after complying with the said Order, the initial hearing be reset “on a date consistent with LRC Circular No. 353.”

Pursuant to the LRA recommendation, the application for original registration of titles was amended. Thereupon, the [RTC] issued an Order dated 17 January 1992 setting the initial hearing on 30 April 1992.

On 10 February 1992, the OSG entered its appearance as counsel of the Republic x x x. In its notice of appearance, the [OSG] manifested thus:

The City Prosecutor of Cagayan de Oro City has been authorized to appear in this case and, therefore, should also be furnished notices of hearings, orders, resolutions, decisions, processes. However, as the Solicitor General retains supervision and control of the representation in this case and has to approve withdrawal of the case, non-appeal or other actions which appear to compromise the interests of the Government, only notices of orders, resolutions, and decisions served on him will bind the party represented.

On 27 February 1992, the OSG received the notice of initial hearing of the application. The notice of the initial hearing was also served on the Regional Executive Director of the Department of Environment and Natural Resources, the Secretary of the Department of Public Works and Highways, the Director of the Bureau of Mines, the Director of the Bureau of Fisheries and Aquatic Resources, the Secretary of the Department of Agrarian Reform, the Director of the Forest Management Bureau, the Provincial Governor, the Provincial Fiscal, the Provincial Treasurer, the Provincial Engineer, the Public Works and Highways District Engineer, the Community Environment and Natural Resources Officer, Land Management Sector, the Municipal Mayor, the Municipal Council of Jasaan, Misamis Oriental, the adjoining lot owners, and to all whom it may concern.

The notice of initial hearing was published in the 16 March 1992 issue of the Official Gazette and the 11 March 1992 issue of the Golden Chronicle pursuant to Section 23 of Presidential Decree No. 1529. On 19 March 1992, the City Sheriff posted the notice on the parcels of land sought to be registered, at the municipality building, and in conspicuous places in the Municipality of Jasaan, Misamis Oriental.

During the initial hearing on 30 April 1992, the [RTC] issued an Order of general default against the whole world except against [the Republic] who had filed its opposition to the application and one RENATO BAUTISTA who intimated to the [RTC] that he would file his opposition.

Subsequent hearings were conducted on the following dates: 16 July 1992, 23 July 1992, 15 September 1992, and 16 December 1992.

On 08 January 1993, [Resins, Inc.] filed Applicant’s Formal Offer of Documentary Evidence.

On 04 February 1993, the [RTC] issued an Order which states:

Considering the fact that all the exhibits of the applicant Resins, Incorporated were duly identified and attested to by the witnesses for the applicant and considering the fact that no opposition was filed by the government to the said exhibits, all the exhibits of the applicant from Exhibits “A” to “N,” inclusive, are hereby admitted as part of the testimonies of the witnesses for the applicant.

SO ORDERED.⁸

The Regional Trial Court’s Ruling

On 17 March 1993, the RTC rendered its Judgment⁹ in favor of Resins, Inc. The dispositive portion reads:

In [v]iew of the [f]oregoing, judgment is hereby rendered finding applicant Resins Incorporated, as owner in fee simple of all the lots sought to be registered – Lot 980, Cad-367, Lot 1371, Cad-367, Lot 1372, Cad-367, Lot 1373, Cad-367, Lot 1417, Cad-367, Lot 3462, Cad-267, Lot 3463, Cad-367, and Lot 3465, Cad-367, all of Jasaan Cadastre and having registerable [sic] titles thereto, hereby decreeing that Lot Nos. 980, 1371, 1372, 1373, 1417, 3462, 3463, and 3465 be registered in the name of Resins Incorporated, a corporation organized pursuant to the laws of the Philippines with its main office located at Jasaan, Misamis Oriental, in accordance with the technical descriptions correspondingly marked as Exhibits A-2, B-2, C-2, D-2, E-2, F-2, G-2, and H-2.

SO ORDERED.¹⁰

Despite the favorable judgment, Resins, Inc., was unable to have the lots registered in its name because of typographical errors in the RTC’s 17 March 1993 Judgment. On 6 January 1994, Resins, Inc. moved to correct the typographical errors and alleged:

1. That on March 17, 1993, the [RTC] rendered judgment approving the above-captioned application;

2. That up to the present no decree of registration has been issued and upon inquiry from the [LRA] [Resins, Inc.] learned that the reason is because [sic] there are two (2) typographical errors in the judgment, to wit:

a. Lot No. 3464 appearing on page 2, subpar[.] (g), line 1 should be Lot 3463 because par. 1 on the application shows that the 7^th lot applied for is Lot 3463;

b. That material omissions were made on page 4, line 31 as follow[s]:

ORIGINAL WORDINGS:

“poses per Tax Dec. Nos. 858391 and 09352 marked Cad-367, Jasaan”

which should read as follows after supplying the omissions:

“poses per Tax Dec. Nos. 858391 and 09352 marked Exhs. E-3 and E-6, that Lot 3463, Cad-367, Jasaan”¹¹

The RTC issued an Amended Judgment¹² on 17 January 1994. However, only the error on page 2 was corrected and the error on page 4 remained. Upon yet another motion of Resins, Inc., the RTC issued another Amended Judgment on 16 March 1994 which corrected both errors. The OSG received a copy of the Amended Judgment on 2 May 1994, and filed a notice of appeal on 12 May 1994. Resins, Inc. filed a second motion to order the LRA to issue a decree of registration in its favor.

On 7 July 1999, the RTC issued an Order¹³ granting Resins, Inc.’s motion. The Order reads, thus:

Submitted before this court is the “Second Motion to Order the LRA to Issue a Decree of Registration, etc.” dated May 10, 1999 and filed on June 14, 1999 praying that

“1. The appeal filed by the [OSG] on May 12, 1994 or more than one (1) year from receipt of the original judgment, be ordered dismissed;

“2. Another order be issued directing the LRA to issue a decree of registration for the eight (8) lots enumerated in par. 1 hereof, based on the Amended Judgment dated March 16, 1994 and for other reliefs due under the premises.”

Despite notice to the Solicitor General[,] he or his representative did not appear in the hearing of June 18, 1999, nor did he file an opposition to the motion.

The Court finds the motion meritorious. The motion is granted. Hence, the [OSG]’s appeal of May 12, 1999 is dismissed. The Land Registration Authority (LRA) is hereby directed to issue a decree of registration in favor of [Resins, Inc.] for Lots 986, 1371, 1372, 1373, 1417, 3462, 3463, and 3465, CAD-367 of the Jasaan Cadastre after the judgment dated March 17, 1993 became final and executory.

SO ORDERED.

The Republic filed a Motion for Reconsideration¹⁴ of the 7 July 1999 Order. The Republic alleged that the OSG was never furnished a copy of the alleged original decision. The Republic cited Resins, Inc.’s Motion to Dismiss Appeal,¹⁵ which stated “[t]hat the original judgment of this case was issued on March 19, 1993, copy of which was furnished to the Office of the Solicitor General c/o the City Prosecutor who was delegated to represent the former during the proceedings.” Therefore, the 17 March 1993 Judgment never acquired finality with respect to the Republic.

Resins, Inc. filed an Opposition to the Motion for Reconsideration¹⁶ on 19 August 1999. Resins, Inc. stated that the OSG was furnished a copy of the 17 March 1993 decision. The OSG received the decision on 6 April 1993, as certified by the RTC Clerk of Court,¹⁷ and as evidenced by post office return slips.¹⁸

On 28 May 2003, the RTC issued yet another Order.¹⁹ Said Order reads, thus:

For resolution is the motion for reconsideration filed by the oppositor Republic of the Philippines represented by the Office of the Solicitor General of the order dismissing the notice of appeal filed by the said oppositor alleging that the Republic was never furnished copy of the judgment dated March 17, 1993 and that an amended order of the decision is entirely new which supersedes the original decision.

The motion was vehemently opposed by the applicant alleging that the Cagayan de Oro City Prosecutor received copy of the said judgment on March 29, 1993 while the Office of the Solicitor General, the Land Registration Authority, and the Bureau of Lands received copy of the judgment on April 6, 1993.

The records of the case shows [sic] that indeed these offices received the copy of the judgment as mentioned in the opposition per return slips attached to the records. Since there is no appeal filed within 30 days from receipt of the judgment, the judgment of this Court therefore has already become final and executory.

Anent the issue that the amended judgment supersedes the original judgment and as correctly pointed out by the applicant, the amendment pertains to harmless clerical errors in pages 2 and 4 of the original judgment but the dispositive portion confirming applicant’s ownership over the lots was not changed.

The Republic then filed a Petition for Certiorari and Prohibition²⁰ with prayer for temporary restraining order and/or writ of preliminary injunction. The Republic sought to nullify, set aside, and prevent the implementation of the RTC’s Orders dated 7 July 1999 and 28 May 2003; as well as to nullify and set aside the Judgment dated 17 March 1993 and the Amended Judgment dated 17 January 1994. The Republic claimed that the entries in the logbook of the OSG’s Docket Division do not indicate that the 17 March 1993 Judgment was ever received by the OSG and actually transmitted to the lawyers assigned to represent the Republic in the present case.

The Ruling of the Court of Appeals

On 25 May 2006, the CA rendered its Decision²¹ and denied the Republic’s petition. The CA saw no grave abuse of discretion in the RTC’s dismissal of the Republic’s appeal, which appeal was based on the OSG’s alleged non-receipt of its copy of the original Judgment.

The CA found that the records of the case show that the OSG indeed received its copy of the original Judgment on 6 April 1993 as the return slip clearly indicated the date of service on the OSG. The OSG did not file an appeal within the reglementary period; hence, the RTC ruled that the Judgment is already final and executory. The CA also rejected the OSG’s desire for examination of entries in the OSG’s logbook as well as the affidavit of its bookbinder. The CA ruled that evaluation of evidentiary matters is beyond the province of a writ of certiorari. Moreover, even if the evidence were considered, the same should still be rejected because the OSG failed to show that the bookbinder had authority to record and keep legal custody of the logbook. Finally, the CA ruled that the only issue in a petition for certiorari is lack or excess or grave abuse of discretion. Thus, the OSG’s contention that the State cannot be put in estoppel by the mistakes of its agents is misplaced.

The Issues

The Republic enumerated the following grounds to support its Petition:

I. The Court of Appeals gravely erred in not holding that the RTC of Misamis Oriental, Branch 20 acted with grave abuse of discretion amounting to lack or excess of jurisdiction when it dismissed [the Republic’s] notice of appeal (in its Order dated July 7, 1999) and subsequently denied [the Republic’s] motion for reconsideration of such dismissal (in its Order dated May 28, 2003) because of the clear showing that the OSG, as [the Republic’s] statutory counsel, was not actually notified of and/or had not received a copy of the original Judgment dated March 17, 2003 in Land Registration Case No. N-91-912.

II. The Court of Appeals has gravely erred in not holding that the RTC of Misamis Oriental, Branch 20 acted with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the July 7, 1999 and May 28, 2003 Orders which unduly deprived petitioner of its opportunity to interpose an appeal from the original Judgment dated March 17, 1993 and/or Amended Judgment dated January 17, 1994 in the subject land registration case which found respondent-applicant Resins Incorporated to have registrable title to all the eight (8) lots applied for despite lack of clear factual and legal basis to support the conclusion that “applicant and his predecessor-in-interest had openly, continuosly [sic], adversely and uninterruptedly been in possession of the lots as owned for about 40 years prior to filing of the application.²²

The Court’s Ruling

The petition is meritorious. We rule that Resins, Inc. failed to prove that the Republic, via the OSG, indeed received the 17 March 1993 Judgment.

At the time of the promulgation of the trial court’s judgment, the applicable rules were those of the Revised Rules of Court. Pertinent portions of these sections are quoted below:

Sec. 5. Service by registered or ordinary mail. ‒ If service is not made personally, service by registered mail shall be required if registry service exists in the locality; otherwise service may be made by depositing the copy in the post office, in a sealed envelope, plainly addressed to the party or his attorney at his office, if known, otherwise at his residence, if known, with postage fully prepaid, and with instructions to the postmaster to return the mail to the sender after ten (10) days if undelivered.²³

Sec. 7. Service of judgments, final orders or resolutions. ‒ Judgments, final orders or resolutions shall be served either personally or registered mail. x x x²⁴

Sec. 8. Completeness of service. ‒ x x x Service by registered mail is complete upon actual receipt by the addressee, but if he fails to claim his mail from the post office within five (5) days from the date of first notice of the postmaster, service shall take effect at the expiration of such time.²⁵

Sec. 10. Proof of service. ‒ x x x If the service is by ordinary mail, proof thereof shall consist of an affidavit of the person mailing of facts showing compliance with section 5 of this rule. If service is made by registered mail, proof shall be made by such affidavit and the registry receipt issued by the mailing office. The registry return card shall be filed immediately upon its receipt by the sender, or in lieu thereof the letter unclaimed together with the certified or sworn copy of the notice given by the postmaster to the addressee.²⁶

When service of notice is an issue, the rule is that the person alleging that the notice was served must prove the fact of service. The burden of proving notice rests upon the party asserting its existence.²⁷ In civil cases, service made through registered mail is proved by the registry receipt issued by the mailing office and an affidavit of the person mailing of facts showing compliance with Section 13, Rule 13 of the 1997 Rules on Civil Procedure.²⁸

The OSG insists that it did not actually receive a copy of the 17 March 1993 Judgment. The OSG received a certified copy of the 17 March 1993 Judgment only after its 24 June 2003 written request to the Assistant City Prosecutor of Cagayan de Oro. The OSG presented a certified photocopy of the page of the OSG’s Docket Division Log Book listing the orders, pleadings, and other papers received by the OSG pertaining to the present case. The last document on the case received by the OSG before the receipt of the Amended Judgment on 2 May 1994 was an Order dated 26 December 1992 and received on 13 January 1993. There was no record of the Judgment dated 17 March 1993. Because of this non-receipt, the Republic was deprived of the opportunity to appeal or to ask for reconsideration of the judgment. The OSG filed a notice of appeal on 12 May 1994, only after its receipt of the Amended Judgment.

Resins, Inc., on the other hand, asserts that the certification of the RTC Clerk of Court and photocopies of the return slips from the post office are sufficient to prove that the OSG indeed received the 17 March 1993 Judgment.

Resins, Inc.’s argument must fail.

OSG’s denial of receipt of the 17 March 1993 Judgment required Resins, Inc. to show proof that the Judgment was sent through registered mail and that it was received by the Republic. While the certification from the RTC Clerk of Court and photocopies of the return slips prove that the Republic was served the judgment, it does not follow that the Republic, via the OSG, actually received the judgment. Receipts for registered letters and return receipts do not prove themselves, they must be properly authenticated in order to serve as proof of receipt of the letters.²⁹ Resins, Inc. also did not show a certification from the postmaster that notice was duly issued and delivered to the OSG such that service by registered mail may be deemed completed. It cannot be stressed enough that “it is the registry receipt issued by the mailing office and the affidavit of the person mailing, which proves service made through registered mail.”³⁰ Absent one or the other, or worse both, there is no proof of service.³¹

Mere certification of the RTC Clerk of Court is insufficient because the Clerk of Court may not be the person who did the mailing. The certification in this case is also not under oath. There must be an affidavit of the person who actually did the mailing. In the present case, the certification of the Clerk of Court states:

C E R T I F I C A T I O N

This certifies that the original carbon copy of the Judgment of the above-entitled case appearing on pages 484-488 dated March 17, 1993 was received by the Office of the Solicitor-General on April 6, 1993 as per return slip. A copy of which is attached herewith.

Posted on this 13^th day of August, 1999 in the city of Cagayan de Oro.

TAUMATURGO U. MACABINLAR

Clerk of Court V³²

It is clear that the certification does not state that the Clerk of Court did the mailing. Mere photocopies of the return slips are also insufficient. The original copies of the registry receipt or, in lieu thereof, the unclaimed notice and a certification from the postmaster of the issuance of notice, should be presented. Indeed, we declared in Delgado v. Hon. P.C. Ceniza, et al. that:

We find that the service of the judgment rendered in the case suffers from two defects, namely, there is no affidavit of the clerk of court, the person mailing, and there is no registry return card, or a certified or sworn copy of the notice given by the postmaster to the addressee.³³ (Emphasis supplied)

While we concede that there may be a presumption of regularity, in the ordinary course of events, that the RTC Clerk of Court sent the 17 March 1993 Judgment to the OSG, such presumption should fail when the OSG itself denies receipt. When the service of the judgment is questioned, such as in the present case, there is a need to present both the registry receipt issued by the mailing office and the affidavit of the person mailing. Since the OSG presented proof of non-receipt, it became incumbent upon Resins, Inc. to prove receipt, which Resins, Inc. failed to do.

WHEREFORE, we GRANT the petition. The Decision of the Court of Appeals in CA-G.R. SP No. 78516 promulgated on 25 May 2006 is REVERSED and SET ASIDE. The Regional Trial Court of Misamis Oriental, Branch 20, Cagayan de Oro City is directed to hear the appeal of the Republic of the Philippines in Land Registration Case No. N-91-012, LRA Record No. N-62407.

SO ORDERED.

ANTONIO T. CARPIO

Associate Justice

WE CONCUR:

DIOSDADO M. PERALTA

Associate Justice

ROBERTO A. ABAD JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

JOSE C. MENDOZA

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

ANTONIO T. CARPIO

Associate Justice

Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

RENATO C. CORONA

Chief Justice

* Designated additional member per Raffle dated 21 June 2010.

1 Under Rule 45 of the 1997 Rules of Civil Procedure.

2 Rollo, pp. 82-99. Penned by Associate Justice Myrna Dimaranan Vidal, with Associate Justices Romulo V. Borja and Ramon R. Garcia, concurring.

3 Id. at 124-128. Penned by Judge Alejandro M. Velez.

4 Id. at 129-133. Penned by Judge Alejandro M. Velez.

5 Id. at 143. Penned by Judge Anthony E. Santos.

6 Id. at 157-158. Penned by Judge Gregorio D. Pantanosas, Jr.

7 Id. at 124-128.

8 Id. at 83-86.

9 Id. at 124-128.

10 Id. at 128.

11 Id. at 87.

12 Id. at 129-133.

13 Id. at 143.

14 Id. at 144-149.

15 Id. at 137-138.

16 Id. at 150.

17 Id. at 151.

18 Id. at 152.

19 Id. at 157-158.

20 Under Rule 65 of the 1997 Rules of Civil Procedure.

21 Rollo, pp. 82-99.

22 Id. at 36-37.

23 Now Section 7, Rule 13 of the 1997 Rules of Civil Procedure.

24 Now Section 9, Rule 13 of the 1997 Rules of Civil Procedure.

25 Now Section 10, Rule 13 of the 1997 Rules of Civil Procedure.

26 Now Section 13, Rule 13 of the 1997 Rules of Civil Procedure.

27 Government of the Philippines v. Aballe, G.R. No. 147212, 24 March 2006, 485 SCRA 308, 317.

28 Petition for Habeas Corpus of Benjamin Vergara v. Judge Gedorio, Jr., 450 Phil. 623, 634 (2003). See also note 26.

29 Ting v. Court of Appeals, 398 Phil. 481, 493 (2000) citing Central Trust Co. v. City of Des Moines, 218 NW 580 (1928).

30 Supra note 27, at 318. Emphasis in the original.

31 Cruz v. Court of Appeals, 436 Phil. 641, 652 (2002).

32 Rollo, p. 151.

33 101 Phil. 740, 743 (1957).

BPI FAMILY SAVINGS BANK INC. VS. GOLDEN POWER DIESEL SALES CENTER, INC. and RENATO C. TAN, G.R. NO. 176019, 12 JANUARY 2011, CARPIO, J.) SUBJECTS: MORTGAGES, WRIT OF POSSESSION. (BRIEF TITLE: BPI FAMILY SAVINGS BANK VS. GOLDEN POWER DIESEL SALES CENTER, INC. ET AL.)

x –  – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – -x

D E C I S I O N

CARPIO, J.:

The Case

This is a petition for review¹ of the 13 March 2006 Decision² and 19 December 2006 Resolution³ of the Court of Appeals in CA-G.R. SP No. 78626. In its 13 March 2006 Decision, the Court of Appeals denied petitioner BPI Family Savings Bank, Inc.ʼs (BPI Family) petition for mandamus and certiorari. In its 19 December 2006 Resolution, the Court of Appeals denied BPI Familyʼs motion for reconsideration.

The Facts

On 26 October 1994, CEDEC Transport, Inc. (CEDEC) mortgaged two parcels of land covered by Transfer Certificate of Title (TCT) Nos. 134327 and 134328 situated in Malibay, Pasay City, including all the improvements thereon (properties), in favor of BPI Family to secure a loan of P6,570,000. On the same day, the mortgage was duly annotated on the titles under Entry No. 94-2878. On 5 April and 27 November 1995, CEDEC obtained from BPI Family additional loans of P2,160,000 and P1,140,000, respectively, and again mortgaged the same properties. These latter mortgages were duly annotated on the titles under Entry Nos. 95-6861 and 95-11041, respectively, on the same day the loans were obtained.

Despite demand, CEDEC defaulted in its mortgage obligations. On 12 October 1998, BPI Family filed with the ex-officio sheriff of the Regional Trial Court of Pasay City (RTC) a verified petition for extrajudicial foreclosure of real estate mortgage over the properties under Act No. 3135, as amended.⁴

On 10 December 1998, after due notice and publication, the sheriff sold the properties at public auction. BPI Family, as the highest bidder, acquired the properties for P13,793,705.31. On 14 May 1999, the Certificate of Sheriffʼs Sale, dated 24 February 1999, was duly annotated on the titles covering the properties.

On 15 May 1999, the one-year redemption period expired without CEDEC redeeming the properties. Thus, the titles to the properties were consolidated in the name of BPI Family. On 13 September 2000, the Registry of Deeds of Pasay City issued new titles, TCT Nos. 142935 and 142936, in the name of BPI Family.

However, despite several demand letters, CEDEC refused to vacate the properties and to surrender possession to BPI Family. On 31 January 2002, BPI Family filed an Ex-Parte Petition for Writ of Possession over the properties with Branch 114 of the Regional Trial Court of Pasay City (trial court). In its 27 June 2002 Decision, the trial court granted BPI Familyʼs petition.⁵ On 12 July 2002, the trial court issued the Writ of Possession.

On 29 July 2002, respondents Golden Power Diesel Sales Center, Inc. and Renato C. Tan⁶ (respondents) filed a Motion to Hold Implementation of the Writ of Possession.⁷ Respondents alleged that they are in possession of the properties which they acquired from CEDEC on 10 September 1998 pursuant to the Deed of Absolute Sale with Assumption of Mortgage (Deed of Sale).⁸ Respondents argued that they are third persons claiming rights adverse to CEDEC, the judgment obligor and they cannot be deprived of possession over the properties. Respondents also disclosed that they filed a complaint before Branch 111 of the Regional Trial Court of Pasay City, docketed as Civil Case No. 99-0360, for the cancellation of the Sheriffʼs Certificate of Sale and an order to direct BPI Family to honor and accept the Deed of Absolute Sale between CEDEC and respondents.⁹

On 12 September 2002, the trial court denied respondents’ motion.¹⁰ Thereafter, the trial court issued an alias writ of possession which was served upon CEDEC and all other persons claiming rights under them.

However, the writ of possession expired without being implemented. On 22 January 2003, BPI Family filed an Urgent Ex-Parte Motion to Order the Honorable Branch Clerk of Court to Issue Alias Writ of Possession. In an Order dated 27 January 2003, the trial court granted BPI Familyʼs motion.

Before the alias writ could be implemented, respondent Renato C. Tan filed with the trial court an Affidavit of Third Party Claim¹¹ on the properties. Instead of implementing the writ, the sheriff referred the matter to the trial court for resolution.

On 11 February 2003, BPI Family filed an Urgent Motion to Compel Honorable Sheriff and/or his Deputy to Enforce Writ of Possession and to Break Open the properties. In its 7 March 2003 Resolution, the trial court denied BPI Familyʼs motion and ordered the sheriff to suspend the implementation of the alias writ of possession.¹² According to the trial court, “the order granting the alias writ of possession should not affect third persons holding adverse rights to the judgment obligor.” The trial court admitted that in issuing the first writ of possession it failed to take into consideration respondents’ complaint before Branch 111 claiming ownership of the property. The trial court also noted that respondents were in actual possession of the properties and had been updating the payment of CEDECʼs loan balances with BPI Family. Thus, the trial court found it necessary to amend its 12 September 2002 Order and suspend the implementation of the writ of possession until Civil Case No. 99-0360 is resolved.

BPI Family filed a motion for reconsideration. In its 20 June 2003 Resolution, the trial court denied the motion.¹³

BPI Family then filed a petition for mandamus and certiorari with application for a temporary restraining order or preliminary injunction before the Court of Appeals. BPI Family argued that the trial court acted with grave abuse of discretion amounting to lack or excess of jurisdiction when it ordered the suspension of the implementation of the alias writ of possession. According to BPI Family, it was the ministerial duty of the trial court to grant the writ of possession in its favor considering that it was now the owner of the properties and that once issued, the writ should be implemented without delay.

The Court of Appeals dismissed BPI Familyʼs petition. The dispositive portion of the 13 March 2006 Decision reads:

WHEREFORE, the instant Petition for Writ of Mandamus and Writ of Certiorari with Application for a TRO and/or Preliminary Injunction is hereby DENIED. The twin Resolutions dated March 7, 2003 and June 20, 2003, both issued by the public respondent in LRC Case No. 02-0003, ordering the sheriff to suspend the implementation of the Alias Writ of Possession issued in favor of the petitioner, and denying its Urgent Omnibus Motion thereof, respectively, are hereby AFFIRMED.

SO ORDERED.¹⁴

BPI Family filed a motion for reconsideration. In its 19 December 2006 Resolution, the Court of Appeals denied the motion.

The Ruling of the Court of Appeals

The Court of Appeals ruled that the trial court did not commit grave abuse of discretion in suspending the implementation of the alias writ of possession because respondents were in actual possession of the properties and are claiming rights adverse to CEDEC, the judgment obligor. According to the Court of Appeals, the principle that the implementation of the writ of possession is a mere ministerial function of the trial court is not without exception. The Court of Appeals held that the obligation of the court to issue an ex parte writ of possession in favor of the purchaser in an extrajudicial foreclosure sale ceases to be ministerial once it appears that there is a third party in possession of the property who is claiming a right adverse to that of the debtor or mortgagor.

The Issues

BPI Family raises the following issues:

A.

The Honorable Court of Appeals seriously erred in upholding the finding of the Honorable Regional Trial Court that despite the fact that private respondents merely stepped into the shoes of mortgagor CEDEC, being the vendee of the properties in question, they are categorized as third persons in possession thereof who are claiming a right adverse to that of the debtor/mortgagor CEDEC.

B.

The Honorable Court of Appeals gravely erred in sustaining the aforementioned twin orders suspending the implementation of the writ of possession on the ground that the annulment case filed by private respondents is still pending despite the established ruling that pendency of a case questioning the legality of a mortgage or auction sale cannot be a ground for the non-issuance and/or non-implementation of a writ of possession.¹⁵

The Ruling of the Court

The petition is meritorious.

BPI Family argues that respondents cannot be considered “a third party who is claiming a right adverse to that of the debtor or mortgagor” because respondents, as vendee, merely stepped into the shoes of CEDEC, the vendor and judgment obligor. According to BPI Family, respondents are mere extensions or successors-in-interest of CEDEC. BPI Family also argues that the pendency of an action questioning the validity of a mortgage or auction sale cannot be a ground to oppose the implementation of a writ of possession.

On the other hand, respondents insist that they are third persons who claim rights over the properties adverse to CEDEC. Respondents argue that the obligation of the court to issue an ex parte writ of possession in favor of the purchaser in an extrajudicial foreclosure sale ceases to be ministerial once it appears that there is a third party in possession of the property who is claiming a right adverse to that of the judgment obligor.

In extrajudicial foreclosures of real estate mortgages, the issuance of a writ of possession is governed by Section 7 of Act No. 3135, as amended, which provides:

SECTION 7. In any sale made under the provisions of this Act, the purchaser may petition the Court of First Instance (Regional Trial Court) of the province or place where the property or any part thereof is situated, to give him possession thereof during the redemption period, furnishing bond in an amount equivalent to the use of the property for a period of twelve months, to indemnify the debtor in case it be shown that the sale was made without violating the mortgage or without complying with the requirements of this Act. Such petition shall be made under oath and filed in form of an ex parte motion in the registration or cadastral proceedings if the property is registered, or in special proceedings in the case of property registered under the Mortgage Law or under section one hundred and ninety-four of the Administrative Code, or of any other real property encumbered with a mortgage duly registered in the office of any register of deeds in accordance with any existing law, and in each case the clerk of the court shall, upon the filing of such petition, collect the fees specified in paragraph eleven of section one hundred and fourteen of Act Numbered Four hundred and ninety-six, as amended by Act Numbered Twenty-eight hundred and sixty-six, and the court shall, upon approval of the bond, order that a writ of possession issue, addressed to the sheriff of the province in which the property is situated, who shall execute said order immediately.

This procedure may also be availed of by the purchaser seeking possession of the foreclosed property bought at the public auction sale after the redemption period has expired without redemption having been made.¹⁶

In China Banking Corporation v. Lozada,¹⁷ we ruled:

It is thus settled that the buyer in a foreclosure sale becomes the absolute owner of the property purchased if it is not redeemed during the period of one year after the registration of the sale. As such, he is entitled to the possession of the said property and can demand it at any time following the consolidation of ownership in his name and the issuance to him of a new transfer certificate of title. The buyer can in fact demand possession of the land even during the redemption period except that he has to post a bond in accordance with Section 7 of Act No. 3135, as amended. No such bond is required after the redemption period if the property is not redeemed. Possession of the land then becomes an absolute right of the purchaser as confirmed owner. Upon proper application and proof of title, the issuance of the writ of possession becomes a ministerial duty of the court.¹⁸ (Emphasis supplied)

Thus, the general rule is that a purchaser in a public auction sale of a foreclosed property is entitled to a writ of possession and, upon an ex parte petition of the purchaser, it is ministerial upon the trial court to issue the writ of possession in favor of the purchaser.

There is, however, an exception. Section 33, Rule 39 of the Rules of Court provides:

Section 33. Deed and possession to be given at expiration of redemption period; by whom executed or given. – x x x

\
Upon the expiration of the right of redemption, the purchaser or redemptioner shall be substituted to and acquire all the rights, title, interest and claim of the judgment obligor to the property as of the time of the levy. The possession of the property shall be given to the purchaser or last redemptioner by the same officer unless a third party is actually holding the property adversely to the judgment obligor. (Emphasis supplied)

Therefore, in an extrajudicial foreclosure of real property, when the foreclosed property is in the possession of a third party holding the same adversely to the judgment obligor, the issuance by the trial court of a writ of possession in favor of the purchaser of said real property ceases to be ministerial and may no longer be done ex parte.¹⁹ The procedure is for the trial court to order a hearing to determine the nature of the adverse possession.²⁰ For the exception to apply, however, the property need not only be possessed by a third party, but also held by the third party adversely to the judgment obligor.

In this case, BPI Family invokes the general rule that they are entitled to a writ of possession because respondents are mere successors-in-interest of CEDEC and do not possess the properties adversely to CEDEC. Respondents, on the other hand, assert the exception and insist that they hold the properties adversely to CEDEC and that their possession is a sufficient obstacle to the ex parte issuance of a writ of possession in favor of BPI Family.

Respondentsʼ argument fails to persuade the Court. It is clear that respondents acquired possession over the properties pursuant to the Deed of Sale which provides that for P15,000,000 CEDEC will “sell, transfer and convey” to respondents the properties “free from all liens and encumbrances excepting the mortgage as may be subsisting in favor of the BPI FAMILY SAVINGS BANK.”²¹ Moreover, the Deed of Sale provides that respondents bind themselves to assume “the payment of the unpaid balance of the mortgage indebtedness of the VENDOR (CEDEC) amounting to P7,889,472.48, as of July 31, 1998, in favor of the aforementioned mortgagee (BPI Family) by the mortgage instruments and does hereby further agree to be bound by the precise terms and conditions therein contained.”²²

In Roxas v. Buan,²³ we ruled:

It will be recalled that Roxasʼ possession of the property was premised on its alleged sale to him by Valentin for the amount of P100,000.00. Assuming this to be true, it is readily apparent that Roxas holds title to and possesses the property as Valentinʼs transferee. Any right he has to the property is necessarily derived from that of Valentin. As transferee, he steps into the latterʼs shoes. Thus, in the instant case, considering that the property had already been sold at public auction pursuant to an extrajudicial foreclosure, the only interest that may be transferred by Valentin to Roxas is the right to redeem it within the period prescribed by law. Roxas is therefore the successor-in-interest of Valentin, to whom the latter had conveyed his interest in the property for the purpose of redemption. Consequently, Roxasʼ occupancy of the property cannot be considered adverse to Valentin.²⁴

In this case, respondentsʼ possession of the properties was premised on the sale to them by CEDEC for the amount of P15,000,000. Therefore, respondents hold title to and possess the properties as CEDECʼs transferees and any right they have over the properties is derived from CEDEC. As transferees of CEDEC, respondents merely stepped into CEDEC’s shoes and are necessarily bound to acknowledge and respect the mortgage CEDEC had earlier executed in favor of BPI Family.²⁵ Respondents are the successors-in-interest of CEDEC and thus, respondentsʼ occupancy over the properties cannot be considered adverse to CEDEC.

Moreover, in China Bank v. Lozada,²⁶ we discussed the meaning of “a third party who is actually holding the property adversely to the judgment obligor.” We stated:

The exception provided under Section 33 of Rule 39 of the Revised Rules of Court contemplates a situation in which a third party holds the property by adverse title or right, such as that of a co-owner, tenant or usufructuary. The co-owner, agricultural tenant, and usufructuary possess the property in their own right, and they are not merely the successor or transferee of the right of possession of another co-owner or the owner of the property.²⁷

In this case, respondents cannot claim that their right to possession over the properties is analogous to any of these. Respondents cannot assert that their right of possession is adverse to that of CEDEC when they have no independent right of possession other than what they acquired from CEDEC. Since respondents are not holding the properties adversely to CEDEC, being the latterʼs successors-in-interest, there was no reason for the trial court to order the suspension of the implementation of the writ of possession.

Furthermore, it is settled that a pending action for annulment of mortgage or foreclosure sale does not stay the issuance of the writ of possession.²⁸ The trial court, where the application for a writ of possession is filed, does not need to look into the validity of the mortgage or the manner of its foreclosure.²⁹ The purchaser is entitled to a writ of possession without prejudice to the outcome of the pending annulment case.³⁰

In this case, the trial court erred in issuing its 7 March 2003 Order suspending the implementation of the alias writ of possession. Despite the pendency of Civil Case No. 99-0360, the trial court should not have ordered the sheriff to suspend the implementation of the writ of possession. BPI Family, as purchaser in the foreclosure sale, is entitled to a writ of possession without prejudice to the outcome of Civil Case No. 99-0360.

WHEREFORE, we GRANT the petition. We SET ASIDE the 13 March 2006 Decision and the 19 December 2006 Resolution of the Court of Appeals in CA-G.R. SP No. 78626. We SET ASIDE the 7 March and 20 June 2003 Resolutions of the Regional Trial Court, Branch 114, Pasay City. We ORDER the sheriff to proceed with the implementation of the writ of possession without prejudice to the outcome of Civil Case No. 99-0360.

SO ORDERED.

ANTONIO T. CARPIO

Associate Justice

WE CONCUR:

ANTONIO EDUARDO B. NACHURA

Associate Justice

DIOSDADO M. PERALTA ROBERTO A. ABAD

Associate Justice Associate Justice

JOSE C. MENDOZA

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

ANTONIO T. CARPIO

Associate Justice

Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

RENATO C. CORONA

Chief Justice

1 Under Rule 45 of the 1997 Rules of Civil Procedure.

2 Rollo, pp. 8-17. Penned by Associate Justice Noel G. Tijam, with Associate Justices Elvi John S. Asuncion and Mariflor P. Punzalan Castillo concurring.

3 Id. at 19.

4 An Act To Regulate The Sale Of Property Under Special Powers Inserted In Or Annexed To The Real Estate Mortgages. Approved on 6 March 1924.

5 Rollo, pp. 58-61.

6 Respondent Renato C. Tan is the President and Chief Executive Officer of Golden Power.

7 Rollo, pp. 62-64.

8 Id. at 133-135.

9 Id. at 65-77. Entitled “Golden Power Diesel Sales Center, Inc. and Renato C. Tan v. BPI Family Savings Bank, Inc., Elvira A. Lim, CEDEC Transport Corporation, Pepito S. Celestino as Clerk of Court of the Regional Trial Court of Pasay City and as Ex-officio Sheriff, and Deputy Sheriff Severino DC Balubar, Jr.”

10 Id. at 80-83.

11 Id. at 85-88.

12 Id. at 89-93.

13 Id. at 94-98.

14 Id. at 17.

15 Id. at 32.

16 China Banking Corporation v. Lozada, G.R. No. 164919, 4 July 2008, 557 SCRA 177, citing IFC Service Leasing and Acceptance Corporation v. Nera, 125 Phil. 595 (1967).

17 Id.

18 Id. at 196.

19 Philippine National Bank v. Court of Appeals, 424 Phil. 757 (2002), citing Barican v. Intermediate Appellate Court, 245 Phil. 316 (1988).

20 Unchuan v. Court of Appeals, 244 Phil. 733 (1988).

21 Rollo, p. 135.

22 Id.

23 249 Phil. 41 (1988).

24 Id. at 47-48. Citations omitted.

25 Spouses Paderes v. Court of Appeals, 502 Phil. 76 (2005).

26 Supra note 16.

27 Id. at 202-204. Citations omitted.

28 Fernandez v. Espinoza, G.R. No. 156421, 14 April 2008, 551 SCRA 136; Idolor v. Court of Appeals, 490 Phil. 808 (2005); Samson v. Rivera, G.R. No. 154355, 20 May 2004, 428 SCRA 759.

29 Idolor v. Court of Appeals, supra.

30 Spouses Ong v. Court of Appeals, 388 Phil. 857 (2000).