J.A.B. Bulao & Associates

CASE 2011-0241: ESPINA & MADARANG CO. & MAKAR AGRICULTURAL COMMERCIAL & DEVELOPMENT CORP. (MAKAR), REPRESENTED BY RODRIGO A. ADTOON VS. HON. CADER P. INDAR AL HAJ, JUDGE, REGIONAL TRIAL COURT, BRANCH 14, REGION 12, COTABATO CITY AND ITS OIC, BRANCH CLERK OF COURT, ABIE M. AMILIL (A.M. NO. RTJ-07-2069, 14 DECEMBER 2011,  LEONARDO-DE CASTRO, J.) SUBJECT: ISSUING AN ORDER WITHOUT READING PLEADINGS; NEGLIGENCE IN RECORD MANAGEMENT. (BRIEF TITLE: ESPINA VS. INDAR)

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DISPOSITIVE:

WHEREFORE, the Court finds respondent Judge Cader P. Indar Al Haj GUILTY of gross misconduct for committing violations of the Code of Judicial Conduct, and is FINED the amount of Twenty-Five Thousand (P25,000.00) Pesos.  He is likewise WARNED that a repetition of the foregoing or similar transgressions shall be dealt with more severely. 

Respondent OIC Branch Clerk of Court Abie M. Amilil is also found GUILTY of neglect of duty and is SUSPENDED for two (2) months without pay with a stern warning that repetition of the same shall be dealt with more severely.

SO ORDERED.

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Republic of the Philippines

Supreme Court

Manila

FIRST DIVISION

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

D E C I S I O N

LEONARDO-DE CASTRO, J.:

          Before the Court is an administrative case against respondents Judge Cader P. Indar Al Haj (Judge Indar) and Officer-in-Charge (OIC) Clerk of Court Abie M. Amilil (Amilil), both of the Regional Trial Court (RTC), Branch 14, CotabatoCity, filed by complainants Espina & Madarang Company and Makar Agricultural Commercial & Development Corporation, represented by Rodrigo A. Adtoon (complainants).  In a verified complaint^[1][1] dated April 12, 2005, complainants charged respondents Judge Indar and Amilil with serious misconduct, grave abuse of discretion, oppression, evident bad faith, manifest partiality and gross ignorance of the law in connection with the issuance of an Order^[2][2] dated February 14, 2005 in Special Proceeding No. 2004-074, entitled In the Matter of Insolvencia Voluntaria de Olarte Hermanos y Cia, Heirs of the Late Alberto P. Olarte, etc., Petitioners.

          As gathered from the complaint and the subsequent documents filed, the antecedent facts of the case, originally docketed as OCA-I.P.I. No. 05-2257-RTJ, are as follows:

          On August 23, 1929, Olarte Hermanos y Cia (Olarte Hermanos) entered into a contract of loan and mortgage with El Hogar Filipino whereby the former mortgaged to the latter a parcel of land in Makar, Cotabato City and covered by Original Certificate of Title (OCT) No. 12 to secure a loan of P160,000.00.  When Olarte Hermanos defaulted in its payments on the loan, El Hogar Filipino filed an action for judicial foreclosure of the mortgage.  On August 17, 1932, the mortgage was ordered foreclosed and the decision became final on January 6, 1933. 

          On August 21, 1933, Olarte Hermanos filed a petition for voluntary insolvency, Insolvency Case No. 90, entitled In the Matter of Insolvencia Voluntaria de Olarte Hermanos y Cia.  On August 28, 1933, Olarte Hermanos was declared insolvent and the sheriff was ordered to take possession of all properties, books of accounts, and furniture of the insolvent corporation. 

          On October 14, 1933, the mortgaged property of Olarte Hermanos was sold at public auction with El Hogar Filipino as the highest bidder.  The sale was confirmed by the court on December 24, 1933.  Thereafter, El Hogar Filipino sold the land to Salud,Soledad, Mercedes andAsuncion, all surnamed Espina (the Espina sisters).  Sometime in 1958, the Espina sisters sold the same to Makar Agricultural Corporation, which in turn sold a portion to Espina and Madarang Company. 

          The insolvency case was archived without having been terminated with the onset of World War II. 

On November 18, 1983, Alberto Olarte, Sr. (Olarte) filed a motion for the appointment as receiver of the insolvent corporation.  Judge Eduardo P. Singayao (Judge Singayao), then the Presiding Judge of RTC, Branch 14, CotabatoCity, granted said appointment of Olarte and re-docketed the case as Spl. Proceeding No. 2004-074.  Subsequently, Rodolfo Pascual (Pascual) also petitioned the court to be a co-receiver of Olarte Hermanos.  As receivers, Olarte and Pascual took possession of the assets of the corporation, among which was the piece of land covered by OCT No. 12.  A portion of this land was, however, already registered in the name of herein complainants after the sale from the Espina sisters. 

On December 7, 1983, Judge Singayao issued an order^[3][3] to the Provincial Sheriffs of Maguindanao and Cotabato City to place the receivers in possession of the property covered by OCT No. 12, as well as all subdivisions and portions thereof, its fruits and all proceeds of the sale of any portion of the property, and to submit to the court an inventory of any assets of the insolvent corporation.  

Herein complainants then filed a petition for certiorari before the Intermediate Appellate Court, docketed as CA-G.R. SP No. 02613 and entitled Espina & Madarang Co. v. Judge Eduardo Singayao.  On November 21, 1985, the Court of Appeals nullified and set aside the said orders of Judge Singayao and declared as permanent the writ of preliminary injunction it issued against Judge Singayao from implementing its orders.^[4][4]  It held thus:

We are of the opinion that the order of 7 December 1983 was issued with grave abuse of discretion as it was issued without affording petitioners and other interested parties a chance to be heard thereon despite the fact that the circumstances demanded such a hearing.  The order in effect nullified a mortgage contract entered into more than fifty (50) years ago and which had not been challenged all that time.  The order set aside judicial foreclosure proceedings terminated more than fifty (50) years ago which has in its favor at least the presumption of regularity, especially when the proceedings were had in the very same court where the insolvency proceeding was pending.  The order nullified the mortgage contract entered into fifty (50) years earlier on the sole representation of private respondent Alberto Olarte that his brother, Jose Olarte, was not authorized to enter into the mortgage contract, and that his (Alberto Olarte’s) signature in the Board Resolution authorizing the mortgage was forged, without receiving evidence, or hearing petitioners, on the truth of such representation considering the rather belated accusation of Alberto Olarte.  The order dispossessed present owners and possessors of the property in question who have held title thereto prior to said order and had been in peaceful and unquestioned possession of their respective holdings all that time, some of whom have not even been made parties to the insolvency case.  The order does not only transfer possession of the property to private respondents, but directs that the proceeds of the sales thereof through the years be turned over to private respondents.  By this, private respondents would have their cake and eat it too.  The respondent Court correctly assessed the prejudicial effects of the questioned order when it set said order aside on 3 January 1984, for the reasons “that the right(s) of third parties are affected and considering further that the enforcement of the Order of (the) Court dated December 7, 1983 might cause deprivation of property without due process of law of third parties who are not impleaded in this case, and for the court to be given an opportune time to review the entire records of the case and hear the parties and their respective counsels.”

x x x x

WHEREFORE, the orders of 7 December 1983 and 12 January 1984 and the first order of 30 January 1984 advising Branch XXII of the RTC of General Santos City to stay all proceedings in Civil Case No. 2866 are declared null and void and are set aside. 

The portion of the second order of 30 January 1984 denying Makar’s motion to transfer the insolvency proceedings to the RTC in General Santos City is declared as valid, but the portion lifting the order of 3 January 1984 and directing the Register of Deeds of General Santos City to comply with the order of 7 December 1983, is declared null and void and is set aside. 

The writ of preliminary injunction issued by this Court is hereby made permanent.^[5][5]

This decision of the Court of Appeals was appealed to the Supreme Court via a petition for review on certiorari, which was docketed as G.R. No. 73457.  On August 13, 1986, said petition was dismissed for lack of merit.  Thereafter, the decision of this Court became final and executory on September 22, 1986.

After almost twenty years, in February 2005, new incidents transpired in connection with the case. 

In the Order dated February 14, 2005, respondent Judge Indar, now the Presiding Judge of RTC, Branch 14 of Cotabato City, granted an ex parte petition for the issuance of a writ of possession filed by the heirs of Olarte to revive the December 7, 1983 Order of Judge Singayao.  In full, said order reads:

This is an action for Execution of the Order dated December 7, 1983, directing the registration thereof with the Registry of Deeds of General Santos City, the dispositive portion [of] which is hereunder quoted:

WHEREFORE, in pursuance of the Civil Code and the Insolvency Law, order is hereby issued, to the Register of Deeds of General Santos City, to annotate the deletion on the registry of book and on the face of Certificate of Title No. 12 and all subsequent titles derived therefrom, the annotation of the cancellation thereof by Transfer Certificate of Title No. 886 and annotation of the mortgage by virtue of this order.

Further, order is hereby issued to the Provincial Sheriffs of Maguindanao and Cotabato City, to place the receiver appointed by the Court in possession of the property covered by Certificate of Title No. 12 and/or covered by titles derived therefrom and all proceeds of the sale thereof of portions of the same and all its fruits[.]

Finally, order is issued to the receiver to register this Order with Register of Deeds of General Santos City, and to take possession of the property covered by Certificate of Title No. 12, all subdivisions and portions thereof, its fruits and all proceeds of the sale thereof or any portion of the same to submit to the Court an inventory of any assets of the insolvent that comes to this possession.

SO ORDERED.

Given at Cotabato City, Philippines, this 7^th day of December 1983.

SGD. EDUARDO P. SINGAYAO

Regional Trial Court Judge

The issue in the instant case is whether or not the final and executory order can be implemented after the lapse of the 5-year and/or 10-year prescriptive period provided for under Rule 39 –

Section 6. Execution by motion or by independent action.

A final and executory judgment or order may be executed on motion within Five (5) years from the date of its entry.  After the lapse of such time and before it is barred by the statute of limitations, a judgment may be enforced by action.  The revived judgment may also be enforced by motion within Five (5) years from the date of its entry and thereafter by action before it is barred by the statute of limitations. 

The former Presiding Judge of this Court denied this action and the petitioners filed a Motion for Reconsideration of the order of denial on October 7, 2004, which issue was left unresolved that prompted the petitioners to file a Supplemental Motion now submitted for the consideration by this Court;

The petitioner posited that Section 6 of Rule 39 of the Rules on Civil Procedure is not applicable to Special Proceedings in land registration and cited are jurisprudence of the Honorable Supreme Court hereunder quoted:

“Neither this section is applicable to Special Proceedings such as land registration cases, hence, the right to ask for a writ of possession therein never prescribes (CF Heirs of Marcos vs. De Banwar, L-22110, September 28, 1968, Sta. Ana vs. Menia, L-15564, April 23, 1961).”

The Five-year limitation rule for the execution on motion of judgment does not apply to special proceedings, like Cadastral proceedings (Rodil vs. Benedicto 95 SCRA, January 22, 1980);

Further the petitioners in the Supplemental Motion for Execution argued that while the statute of limitations may constitute a bar to its execution, however, this is thoroughly explained and amplified by petitioners in their petition and in the motion for execution.

Consequently, this Court resolves to GRANT the petition.  The Order sought to be implemented has become final and executory, and therefore, a ministerial duty of this Court to order its execution directing the Provincial Sheriff to execute the Order dated December 7, 1983.^[6][6]

On March 4, 2005, respondent Amilil issued a Certificate of Finality^[7][7] of the Order dated February 14, 2005, stating therein that neither a motion for reconsideration nor an appeal had been filed within the fifteen (15)-day reglementary period.

It appears, however, that on February 28, 2005, complainants as intervenors in the case below, filed by registered mail a Motion for Reconsideration and To Set Aside Order of February 14, 2005.^[8][8]  Said pleading was received by the lower court on March 7, 2005.^[9][9]  Complainants stated that “[t]he order dated December 7, 1983 issued by Judge Eduardo P. Singayao in Sp. Case No. 90 was declared NULL AND VOID and set aside by the Court of Appeals in CA-GR No. 02613 entitled, Espina and Madarang Company v. Judge Eduardo Singayao in its decision dated November 21, 1985.”^[10][10]  Complainants explained further that the said decision of the Court of Appeals, when appealed to the Supreme Court in G.R. No. 73457, was dismissed for lack of merit on August 13, 1986.

Complainants also filed a Motion to Withdraw or Revoke Certificate of Finality^[11][11] dated March 5, 2005, alleging that:

The intervenors, Makar Agricultural Corporation and Espina and Madarang Company by counsel respectfully move the Honorable Court to order the Withdrawal or Revocation of the “Certificate of Finality” of the Order of this Honorable Court dated February 14, 2005 and in support of this motion respectfully allege:  THAT –

1.       The Intervenors were not served a copy of the order of this Honorable Court dated February 14, 2005 granting petitioner’s [the Olarte heirs’] motion for “enforcement” of the VOID order of Judge Eduardo Singayao dated December 7, 1983 declared NULL and VOID by the Court of Appeals in CA-GR No. 02613.

2.      The Intervenors whose appearance in the case was approved by the Honorable Court filed a motion for reconsideration on February 28, 2005 by Registered Mail per Registry Receipt No. 3180 of the Gen. Santos City Post Office.  Hence, said order has not become final and executory and the Sheriff should not yet comply with the said order which was declared by the Court of Appeals and affirmed by the Supreme Court NULL and VOID and permanently enjoined from execution.

3.      The Clerk of Court, Abie M. Amilil, should be advised to immediately withdraw his certification.

4.      Further, the insolvency case was ordered terminated and closed by Judge Japal Guiani on March 4, 1987 and affirmed by the Supreme Court in G.R. No. 80784 promulgated on August 2, 1984, copy of which is hereto attached as Annex “A”.

Thus, in an Order^[12][12] dated April 12, 2005, respondent Judge Indar reconsidered and set aside his Order dated February 14, 2005 for the execution of the Order dated December 7, 1983 by Judge Singayao.  Respondent Judge Indar also ordered the recall of the Certificate of Finality issued by respondent Amilil.

Not satisfied with the recall of the said orders, complainants filed the instant administrative case charging respondents Judge Indar and Amilil with serious misconduct, grave abuse of discretion, oppression, evident bad faith, manifest partiality and gross ignorance of the law.  Complainants allege that respondents Judge Indar and Amilil are “guilty of violating the permanent writ of injunction which the Intermediate Appellate Court issued in CA-G.R. SP No. 02613 and affirmed by the Honorable Supreme Court in G.R. No. 73457, (which voided the December 7, 1983 order of Judge Singayao), by resurrecting the same in an order issued ex parte on February 14, 2005, and directed the implementation thereof, despite knowledge of its nullity.”^[13][13]

In their undated Comment,^[14][14] respondents Judge Indar and Amilil deny the allegations in the complaint.  Respondent Judge Indar claims that since the filing of the petition to revive the case was made on May 3, 2004, neither party made any reference to the fact that the Order dated December 7, 1983 of Judge Singayao had been nullified and set aside by the Court of Appeals and the Supreme Court.  He also asserts that he issued the Order dated February 14, 2005 on the ground that he found the party’s motion for execution meritorious.  It was only when complainants filed a motion for reconsideration to set aside the said order did he come to know of the said Court of Appeals and Supreme Court decisions.  Respondent Judge Indar intimated that he even had to go through six volumes of rollo in the bodega and verify with the Court of Appeals the authenticity of its decision dated November 21, 1986 since what he found attached to the records was an unreadable and uncertified copy of the said decision.

Respondents Judge Indar and Amilil contend that the administrative case filed against them is designed to harass and malign them.  They allege that two other complaints have been filed against them by the complainants – for indirect contempt before the Court of Appeals, and for graft and corruption before the Ombudsman forMindanao.  Thus, respondents Judge Indar and Amilil also seek the disbarment of complainants’ counsels for allegedly being dishonest and in bad faith when they filed the instant administrative case. 

In the Resolution^[15][15] dated July 25, 2007, this Court resolved, among others, to re-docket the administrative complaint as a regular administrative matter and to refer the case to the Executive Justice of the Court of Appeals, Cagayan de Oro Station, for raffle among the Justices for investigation, report and recommendation within sixty (60) days from receipt of records thereof.

Immediately thereafter, Associate Justice Elihu A. Ybañez of the Court of Appeals, to whom the instant case was raffled, sent notices to the parties for the setting of the hearings on October 17, 18 and 19, 2007.^[16][16]

Respondents Judge Indar and Amilil filed a Manifestation for the Dismissal of Complaint for Being Moot and Academic and Charging complainants’ Counsel for Forum Shopping,^[17][17] stating that respondent Judge Indar would be attending the Philippine Judges Association 2007 Convention in Manila and would then be unavailable for hearing on the said dates. 

Thus, on October 17, 2007, only counsel for complainants appeared and submitted a Motion to Withdraw Complaint^[18][18] dated October 9, 2007.  In the meantime, the scheduled settings on October 18 and 19, 2007 were also cancelled. 

Respondents Judge Indar and Amilil also filed a Manifestation for Withdrawal of Counter-Complaint Against Atty. Nilo J. Flaviano^[19][19] dated October 16, 2007, seeking the withdrawal of their counter-complaint against the complainants’ counsel “[a]s a matter of goodwill reciprocity to complainant’s (sic) counsel’s good faith.”^[20][20]

In the Resolution^[21][21] dated November 7, 2007, Investigating Justice Ybañez denied complainants’ motion to withdraw complaint, arguing that the court’s disciplinary authority over its officials and employees cannot be dependent on or frustrated by private arrangements between the parties, and that an administrative complaint cannot be simply withdrawn at any time by the complainants because there is a need to maintain the faith and confidence of the people in the government and its agencies and instrumentalities. 

Consequently, schedule for the hearings was again set for November 14 and 15, 2007.  Parties were also warned that failure to appear at the hearings and to present their evidence on the said dates shall be construed as a waiver of their right to present evidence, in which event the case will be determined on the basis of available records. 

On November 14, 2007, only Rodrigo A. Adtoon, complainants’ representative, appeared.  He informed the Investigating Justice that their counsel was indisposed and reiterated the withdrawal of the complaint but presented no authority to the effect that complainants were no longer interested in pursuing their complaint.  Thus, the Investigating Justice considered the case submitted for resolution.^[22][22] 

Thereafter, in a Report^[23][23] dated December 10, 2007, Investigating Justice Ybañez made the following recommendation:

Recommendation

The facts established from the records of the case and the pleadings filed before the Investigating Justice are insufficient to support a finding of gross ignorance of the law on the part of the respondent Judge.  To be held liable therefore, “the judge must be shown to have committed an error that was gross or patent, deliberate and malicious.”  Respondent Judge may have erred in the issuance of the February 14, 2005 Order, but such error has not been shown to be gross or patent.  Neither is there any clear and sufficient basis for finding respondent Judge liable for gross negligence and issuance of an unjust interlocutory order.  He cannot, however, be completely absolved of administrative liability. 

The respondent Judge displayed conduct that fell short of the standards expected of a magistrate of the law.  A judge should be industriously devoted to the study of the law, for having accepted his position, he owes it to the dignity of the court he sits in.  It is indeed demanded that a judge should strive for excellence.  To keep the idealism alive and the passion burning, a judge need not only remind himself of this stirring message on who is fit to be a judge:  “A man of learning who spends tirelessly the weary hours after midnight acquainting himself with the great body of traditions and the learning of the law.”

In the present case, respondent Judge was remiss in his duty to be attentive, patient, studious and careful to diligently ascertain the facts.  He should thus be CENSURED because the Code of Judicial Ethics requires him to observe due care in the performance of his official functions and to be the embodiment of, among other desirable characteristics, judicial competence.  His Order dated April 12, 2005 setting aside the Order dated February 14, 2005 and recalling the Certificate of Finality dated March 4, 2005 notwithstanding.

As regards the respondent OIC Branch Clerk of Court, the records and the pleadings filed before the Investigating Judge have established his administrative liability.  From his failure to inform the Judge of the existence of the IAC and SC Decisions nullifying the December 7, 1983 Order of the Court despite knowledge thereof, failure to make sure that parties were furnished a copy of the court orders as OIC Branch Clerk of Court, particularly the February 14, 2005 Order which complainants were not furnished a copy thereof, and questionable haste in the issuance of Certificate of Finality, respondent OIC Branch Clerk of Court should thus be SUSPENDED FOR TWO (2) MONTHS WITHOUT PAY with a stern warning that repetition of the same shall be dealt with more severely.^[24][24]

          The findings of Investigating Justice Ybanez are well taken.  We, however, modify the penalties imposed upon respondents Judge Indar and Amilil, consistent with Rule 140 of the Rules of Court. 

          In Judge Salvador v. Serrano,^[25][25] we ruled, thus:

This Court stresses once more that the administration of justice is a sacred task; by the very nature of their duties and responsibilities, all those involved in it must faithfully adhere to, hold inviolate, and invigorate the principle solemnly enshrined in the 1987 Constitution that a public office is a public trust and all public officers must at all times be accountable to the people and serve them with utmost responsibility, integrity, loyalty and efficiency.  It condemns and would never countenance any conduct, act or omission on the part of all those involved in the administration of justice which would violate the norm of public accountability and would diminish or even just tend to diminish the faith of the people in the Judiciary.  Thus, every employee or officer involved in this task should be circumscribed with the heavy burden of responsibility and their conduct must, at all times, be above suspicion.^[26][26]

          Here, respondent Judge Indar failed to conform with the high standards of competence and diligence required of judges under Canon 3 of the Code of Judicial Conduct, particularly the following Rules:

Rule 3.01.  A judge shall be faithful to the law and maintain professional competence.

Rule 3.02.  In every case, a judge shall endeavor diligently to ascertain the facts and the applicable law unswayed by partisan interest, public opinion or fear or criticism.

Rule 3.08.  A judge should diligently discharge administrative responsibilities, maintain professional competence in court management, and facilitate the performance of the administrative functions of other judges and court personnel.

Rule 3.09.  A judge should organize and supervise the court personnel to ensure the prompt and efficient dispatch of business, and require at all times the observance of high standards of public service and fidelity.

          In the instant case, respondent Judge Indar failed to exert due diligence required of him to ascertain the facts of the case before he came out with the Order dated February 14, 2005.  Had he taken time and effort to read and examine the pleadings and the records of the case, he could have known that the Order dated December 7, 1983 was already nullified and set aside by the Court of Appeals. 

          We likewise find unsatisfactory the excuses given by respondent Judge Indar that neither the previous judges handling the case nor the parties themselves made any reference to the fact that the Order of December 7, 1983 had already been nullified and set aside, and that there were voluminous records to read and study.  Respondent Judge Indar should be reminded of his personal responsibility in the making of his decisions and orders.  He should not rely on anybody else for the examination and study of the records to properly ascertain the facts of each case that he handles.  He cannot simply pass the blame on his staff and hide behind the incompetence of his subordinates.  Moreover, respondent Judge Indar should have been more cautious since the case involved was an old inherited case with voluminous records and what was sought to be executed was an order issued almost twenty (20) years ago.  It is incumbent upon him to devise an efficient court management system since he is the one directly responsible for the proper discharge of his functions. 

          While respondent Judge Indar had already issued an Order dated April 12, 2005 which set aside and recalled the Order dated February 14, 2005 and the Certificate of Finality dated March 4, 2005, he was still remiss of his duties to be circumspect, diligent and careful in the performance of his official functions and be the embodiment of judicial competence.

          We emphasized in Mactan Cebu International Airport Authority v. Judge Hontanosas, Jr.^[27][27] that:

Admittedly, judges cannot be held to account for erroneous judgments rendered in good faith.  However, this defense has been all too frequently cited to the point of staleness.  In truth, good faith in situations of infallible discretion inheres only within the parameters of tolerable judgment and does not apply where the issues are so simple and the applicable legal principle evident and basic as to be beyond permissible margins of error.  Indeed, while a judge may not always be subjected to disciplinary action for every erroneous order or decision he renders, that relative immunity is not a license to be negligent or abusive and arbitrary in performing his adjudicatory prerogatives.^[28][28]

          Thus, this Court is in agreement with the findings of Investigating Justice Ybanez that respondent Judge Indar displayed conduct that fell short of the standards of competence, integrity and diligence expected of a magistrate of law.    

          With regard to respondent Amilil, this Court agrees with the Investigating Justice that the records and pleadings filed have established his administrative liability.  First, respondent Amilil failed to inform respondent Judge Indar of the existence of the Court of Appeals and Supreme Court decisions which have nullified and set aside the Order dated December 7, 1983 which was sought to be enforced.  Second, he failed to inform and send the parties their respective notices and court orders particularly the Order dated February 14, 2005.  Third, respondent Amilil issued the Certificate of Finality dated March 4, 2005 without verifying if indeed a motion for reconsideration was filed in connection with the case. 

          To reiterate, complainants filed by registered mail a Motion for Reconsideration and To Set Aside Order of February 14, 2005.  It was therefore incorrect for respondent Amilil to certify that the Order dated February 14, 2005 had become final and executory because no appeal had been taken from it nor a motion for its reconsideration filed.  The issuance by respondent Amilil of a false certification creates confusion since the facts were neither verified nor confirmed.     

          In Atty. Legaspi, Jr. v. Atty. Montero III,^[29][29] this Court expounded on the responsibility of the Clerks of Court, thus:

Under the 2002 Revised Manual for Clerks of Court, the branch clerk of court as the administrative officer of the court, among others, controls and supervises the safekeeping of court records.  Moreover, Section 7, Rule 136 of the Rules of Court specifically mandates the clerk of court to “safely keep all records, papers, files, exhibits and public property committed to his charge.”  As custodian of the records of the court, it is the duty of the clerk of court to ensure not only that the same are safely kept in his or her possession, but also those [that] will be readily available upon the request of the parties or order of the court.

Indeed, the clerk of court is an essential officer of our judicial system.  As a ranking officer of the court, he performs delicate administrative functions vital to the prompt and proper administration of justice.  As custodian of judicial records, it is incumbent upon the clerk of court to ensure an orderly and efficient court management system in the court, and to supervise the personnel under his office to function effectively.  A clerk of court plays a key role in the complement of the court and cannot be permitted to slacken his job under one pretext or another.  In fact, it has been held that branch clerks of court are chiefly responsible for the shortcomings of subordinates to whom administrative functions normally pertaining to the branch clerk of court were delegated.  Hence, clerks of court must be assiduous in performing official duty and in supervising and managing court dockets and records.^[30][30]

          Clearly, it is respondent Amilil’s duty as OIC Clerk of Court to safely keep all files, pleadings and files committed to his charge.  As custodian of these records, it is incumbent upon him to see to it that court orders were sent with dispatch to the parties concerned.  Respondent Amilil should ensure an orderly and efficient record management system to assist all personnel, including respondent Judge Indar, in the performance of their respective duties.  Unfortunately, respondent Amilil failed to live up to these standards.

          As to the penalties to be imposed upon respondent Judge Indar, this Court finds the same too light for the infractions he committed.  Rule 140 of the Rules of Court provides:

SEC. 8. Serious charges. – Serious charges include:

x x x x

3. Gross misconduct constituting violations of the Code of Judicial Conduct.

SEC. 11. Sanctions. – A.  If the respondent is guilty of a serious charge, any of the following sanctions may be imposed:

1. Dismissal from the service, forfeiture of all or part of the benefits as the Court may determine, and disqualification from reinstatement or appointment to any public office, including government-owned or controlled corporations. Provided, however, That the forfeiture of benefits shall in no case include accrued leave credits;

2. Suspension from office without salary and other benefits for more than three (3) but not exceeding six (6) months; or

3. A fine of more than P20,000.00 but not exceeding P40,000.00.

          To our mind, the gravity of the infractions committed by respondent Judge Indar merits a higher penalty than the censure recommended by the Investigating Justice.  We likewise note that this is not respondent Judge Indar’s first offense.  In A.M. No. RTJ-05-1953, we imposed upon him a fine of Ten Thousand (P10,000.00) Pesos for violating Section 5, Rule 58 of the Rules of Court, when he issued a preliminary injunction without any hearing and prior notice to the parties.  Thus, this Court finds respondent Judge Indar guilty of gross misconduct for committing violations of the Code of Judicial Conduct, for which we shall impose a fine of Twenty-Five Thousand (P25,000.00) Pesos.

          However, with regard to the penalty imposed on respondent Amilil, we find the same commensurate with his infractions.  Section 22, Rule XIV of the Omnibus Rules Implementing Book V of Executive Order 292, as amended by CSC Memorandum Circular No. 19, provides that:

SEC. 22. Administrative Offenses with its corresponding penalties are classified into grave, less grave, and light, depending on the gravity of its nature and effect on said acts on the government service. 

x x x x

The following are less grave offenses with their corresponding penalties:

(a)    Simple Neglect of Duty

1st Offense – Suspension for one (1) month and (1) day to six (6) months

2^nd Offense – Dismissal

          Clearly, the acts of respondent Amilil constitute simple neglect of duty for which he must be made administratively liable.  Under the Civil Service Rules and the Omnibus Rules implementing it, simple neglect of duty is a less grave offense penalized with suspension of one (1) month and one (1)  day to six (6) months for the first offense; and dismissal for the second offense. 

Respondents Judge Indar and Amilil are reminded that as public officers, they are recipients of public trust, and are thus under obligation to perform the duties of their offices honestly, faithfully, and to the best of their ability.  As held in Office of the Court Administrator v. Judge Liwanag^[31][31]:

Time and again, the Court has emphasized the heavy burden and responsibility which court officials and employees are mandated to observe, in view of their exalted position as keepers of the public faith. They are constantly reminded that any impression of impropriety, misdeed or negligence in the performance of official functions must be avoided.  The Court will never countenance any conduct, act or omission on the part of all those involved in the administration of justice which would violate the norm of public accountability and diminish the people’s faith in the judiciary.^[32][32]

WHEREFORE, the Court finds respondent Judge Cader P. Indar Al Haj GUILTY of gross misconduct for committing violations of the Code of Judicial Conduct, and is FINED the amount of Twenty-Five Thousand (P25,000.00) Pesos.  He is likewise WARNED that a repetition of the foregoing or similar transgressions shall be dealt with more severely. 

Respondent OIC Branch Clerk of Court Abie M. Amilil is also found GUILTY of neglect of duty and is SUSPENDED for two (2) months without pay with a stern warning that repetition of the same shall be dealt with more severely.

SO ORDERED.

                                                 TERESITA J. LEONARDO-DE CASTRO

                                       Associate Justice

WE CONCUR:

RENATO C. CORONA

Chief Justice

Chairperson

CASE 2011-0240: JAIME ABALOS AND SPOUSES FELIX SALAZAR AND CONSUELO SALAZAR, GLICERIO ABALOS, HEIRS OF AQUILINO ABALOS, NAMELY: SEGUNDA BAUTISTA, ROGELIO ABALOS, DOLORES A. ROSARIO, FELICIDAD ABALOS, ROBERTO ABALOS, JUANITO ABALOS, TITA ABALOS, LITA A. DELA CRUZ AND HEIRS OF AQUILINA ABALOS, NAMELY: ARTURO BRAVO, PURITA B. MENDOZA, LOURDES B. AGANON, CONSUELO B. SALAZAR, PRIMA B. DELOS SANTOS, THELMA APOSTOL AND GLECERIO ABALOS VS. HEIRS OF VICENTE TORIO, NAMELY: PUBLIO TORIO, LIBORIO TORIO, VICTORINA TORIO, ANGEL TORIO, LADISLAO TORIO, PRIMO TORIO AND NORBERTO TORIO (G.R. NO. 175444, 14 DECEMBER 2011, PERALTA, J.) SUBJECT/S: ORDINARY AND EXTRAORDINARY ACQUISITIVE PRESCRIPTION; EFFECT OF NOTARIZATION; WHEN SC CAN REVIEW FINDINGS OF FACT. (BRIEF TITLE: ABALOS VS. HEIRS OF TORIO).

========================

DISPOSITIVE:

WHEREFORE, the petition is DENIED. The assailed Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 91887 are AFFIRMED.

SO ORDERED.

========================

SUBJECT/DOCTRINE/DIGEST:

WHAT ARE THE 2 KINDS OF ACQUISITIVE PRESCRIPTION?

ORDINARY AND EXTRAORDINARY.

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WHAT IS ORDINARY ACQUISITIVE PRESCRIPTION?

ORDINARY  ACQUISITIVE PRESCRIPTION REQUIRES;

1. 1.     POSSESSION IN GOOD FAITH AND

1. 2.     WITH JUST TITLE FOR TEN (10) YEARS.¹⁷

XXXXXXXXXXXXXXXXXXX

WHAT IS EXTRAORDINARY ACQUISITIVE PRESCRIPTION?

IT REQUIRES:

1. 1.               WITHOUT GOOD FAITH;

1. 2.               WITHOUT JUST TITLE;

1. 3.               UNINTERRUPTED ADVERSE POSSESSION FOR 30 YEARS.

Acquisitive prescription of dominion and other real rights may be ordinary or extraordinary.¹⁶ Ordinary acquisitive prescription requires possession in good faith and with just title for ten (10) years.¹⁷ Without good faith and just title, acquisitive prescription can only be extraordinary in character which requires uninterrupted adverse possession for thirty (30) years.¹⁸

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WHAT IS POSSESSION IN GOOD FAITH?

IT CONSISTS IN THE REASONABLE BELIEF THAT THE PERSON FROM WHOM THE THING IS RECEIVED HAS BEEN THE OWNER THEREOF, AND COULD TRANSMIT HIS OWNERSHIP.¹⁹

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WHEN IS THERE JUST TITLE?

WHEN AN ADVERSE CLAIMANT CAME INTO POSSESSION OF THE PROPERTY THROUGH ONE OF THE MODES RECOGNIZED BY LAW FOR THE ACQUISITION OF OWNERSHIP OR OTHER REAL RIGHTS, BUT THE GRANTOR WAS NOT THE OWNER OR COULD NOT TRANSMIT ANY RIGHT.²⁰

Possession “in good faith” consists in the reasonable belief that the person from whom the thing is received has been the owner thereof, and could transmit his ownership.¹⁹ There is “just title” when the adverse claimant came into possession of the property through one of the modes recognized by law for the acquisition of ownership or other real rights, but the grantor was not the owner or could not transmit any right.²⁰

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IS PETITIONER THE OWNER OF SUBJECT LAND BY ORDINARY ACQUISITIVE PRESCRIPTION?

NO, BECAUSE HE ACKNOWLEDGED THAT THE OWNER WAS ANOTHER PERSON WHO MERELY TOLERATED HIS OCCUPATION OF THE THE PROPERTY.

ACTS OF POSSESSORY CHARACTER EXECUTED DUE TO LICENSE OR BY MERE TOLERANCE OF THE OWNER ARE INADEQUATE FOR PURPOSES OF ACQUISITIVE PRESCRIPTION.²²

POSSESSION, TO CONSTITUTE THE FOUNDATION OF A PRESCRIPTIVE RIGHT, MUST BE EN CONCEPTO DE DUEÑO, OR, TO USE THE COMMON LAW EQUIVALENT OF THE TERM, THAT POSSESSION SHOULD BE ADVERSE, IF NOT, SUCH POSSESSORY ACTS, NO MATTER HOW LONG, DO NOT START THE RUNNING OF THE PERIOD OF PRESCRIPTION.²³

In the instant case, it is clear that during their possession of the property in question, petitioners acknowledged ownership thereof by the immediate predecessor-in-interest of respondents. This is clearly shown by the Tax Declaration in the name of Jaime for the year 1984 wherein it contains a statement admitting that Jaime’s house was built on the landof Vicente, respondents’ immediate predecessor-in-interest.²¹ Petitioners never disputed such an acknowledgment. Thus, having knowledge that they nor their predecessors-in-interest are not the owners of the disputed lot, petitioners’ possession could not be deemed as possession in good faith as to enable them to acquire the subject land by ordinary prescription. In this respect, the Court agrees with the CA that petitioners’ possession of the lot in question was by mere tolerance of respondents and their predecessors-in-interest. Acts of possessory character executed due to license or by mere tolerance of the owner are inadequate for purposes of acquisitive prescription.²² Possession, to constitute the foundation of a prescriptive right, must be en concepto de dueño, or, to use the common law equivalent of the term, that possession should be adverse, if not, such possessory acts, no matter how long, do not start the running of the period of prescription.²³

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CAN PETITIONERS’ POSSESSION OF  SUBJECT PROPERTY BE CONSIDERED EXTRAORDINARY ACQUISITIVE PRESCRIPTION?

NO. BECAUSE THEIR EARLIEST TAX DECLARATION WAS IN 1974. FROM SUCH DATE THE 30 YEAR PERIOD ENDS IN 2004. BUT THE CASE WAS FILED IN 1996.

Moreover, the CA correctly held that even if the character of petitioners’ possession of the subject property had become adverse, as evidenced by their declaration of the same for tax purposes under the names of their predecessors-in-interest, their possession still falls short of the required period of thirty (30) years in cases of extraordinary acquisitive prescription. Records show that the earliest Tax Declaration in the name of petitioners was in 1974. Reckoned from such date, the thirty-year period was completed in 2004. However, herein respondents’ complaint was filed in 1996, effectively interrupting petitioners’ possession upon service of summons on them.²⁴ Thus, petitioners’ possession also did not ripen into ownership, because they failed to meet the required statutory period of extraordinary prescription.

XXXXXXXXXXX

WHAT EVIDENCE IS REQUIRED IN ESTABLISHING PRESCRIPTION?

CLEAR, COMPLETE AND CONCLUSIVE.

This Court has held that the evidence relative to the possession upon which the alleged prescription is based, must be clear, complete and conclusive in order to establish the prescription.²⁵ In the present case, the Court finds no error on the part of the CA in holding that petitioners failed to present competent evidence to prove their alleged good faith in neither possessing the subject lot nor their adverse claim thereon. Instead, the records would show that petitioners’ possession was by mere tolerance of respondents and their predecessors-in-interest.

XXXXXXXXXXXXXXX

PETITIONERS ATTACKED THE DUE EXECUTION AND AUTHENTICITY OF THE DEED OF SALE OF RESPONDENTS IN THEIR COMMENT TO RESPONDENTS’ PETITION FOR REVIEW FILED AT CA. IS THIS PROPER.

NO. POINTS OF LAW, THEORIES, ISSUES, AND ARGUMENTS NOT ADEQUATELY BROUGHT TO THE ATTENTION OF THE TRIAL COURT NEED NOT BE, AND ORDINARILY WILL NOT BE, CONSIDERED BY A REVIEWING COURT.²⁶ THEY CANNOT BE RAISED FOR THE FIRST TIME ON APPEAL.

Finally, as to the issue of whether the due execution and authenticity of the deed of sale upon which respondents anchor their ownership were not proven, the Court notes that petitioners did not raise this matter in their Answer as well as in their Pre-Trial Brief. It was only in their Comment to respondents’ Petition for Review filed with the CA that they raised this issue. Settled is the rule that points of law, theories, issues, and arguments not adequately brought to the attention of the trial court need not be, and ordinarily will not be, considered by a reviewing court.²⁶ They cannot be raised for the first time on appeal. To allow this would be offensive to the basic rules of fair play, justice and due process.²⁷

XXXXXXXXXXXXX

SUPPOSE THE ISSUE OF DUE EXECUTION AND AUTHENTICITY OF THE SUBJECT DEED OF SALE WAS PROPERLY RAISED, WILL THE FINDINGS OF THE C.A. BE REVERSED?

NO. BECAUSE THE DEED OF SALE WAS NOTARIZED.

XXXXXXXXXXXXXXX

WHAT IS THE EFFECT OF THE NOTARIZATION OF THE DEED OF SALE?

A NOTARIZED DOCUMENT HAS IN ITS FAVOR THE PRESUMPTION OF REGULARITY, AND TO OVERCOME THE SAME, THERE MUST BE EVIDENCE THAT IS CLEAR, CONVINCING AND MORE THAN MERELY PREPONDERANT; OTHERWISE, THE DOCUMENT SHOULD BE UPHELD.²⁹

Even granting that the issue of due execution and authenticity was properly raised, the Court finds no cogent reason to depart from the findings of the CA, to wit:

x x x x

Based on the foregoing, respondents [Jaime Abalos and the Spouses Felix and Consuelo Salazar] have not inherited the disputed land because the same was shown to have already been validly sold to Marcos Torio, who, thereupon, assigned the same to his son Vicente, the father of petitioners [herein respondents]. A valid sale was amply established and the said validity subsists because the deed evidencing the same was duly notarized.

There is no doubt that the deed of sale was duly acknowledged before a notary public. As a notarized document, it has in its favor the presumption of regularity and it carries the evidentiary weight conferred upon it with respect to its due execution. It is admissible in evidence without further proof of its authenticity and is entitled to full faith and credit upon its face.²⁸

Indeed, settled is the rule in our jurisdiction that a notarized document has in its favor the presumption of regularity, and to overcome the same, there must be evidence that is clear, convincing and more than merely preponderant; otherwise, the document should be upheld.²⁹ In the instant case, petitioners’ bare denials will not suffice to overcome the presumption of regularity of the assailed deed of sale.

XXXXXXXXXXXXXXXXXXX

THE  THE ISSUE OF WHETHER PETITIONERS POSSESS THE SUBJECT PROPERTY AS OWNERS, OR WHETHER THEY OCCUPY THE SAME BY MERE TOLERANCE OF RESPONDENTS, IS A QUESTION OF FACT. IS CA RULING ON THIS REVIEWABLE BY THE SUPREME COURT?

ORDINARILY NO. BUT THERE ARE EXCEPTIONS AS FOLLOWS:

(a) When the findings are grounded entirely on speculation, surmises, or conjectures;

(b) When the inference made is manifestly mistaken, absurd, or impossible;

(c) When there is grave abuse of discretion;

(d) When the judgment is based on a misapprehension of facts;

(e) When the findings of facts are conflicting;

(f) When in making its findings the CA went beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and the appellee;

(g) When the CA’s findings are contrary to those by the trial court;

(h) When the findings are conclusions without citation of specific evidence on which they are based;

(i) When the facts set forth in the petition as well as in the petitioner’s main and reply briefs are not disputed by the respondent;

(j) When the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record; or

(k) When the CA manifestly overlooked certain relevant facts not disputed by the parties, which, if properly considered, would justify a different conclusion.¹⁵

========================

Republic of thePhilippines

Supreme Court

Manila

THIRD DIVISION

x—————————————————————————————–x

D E C I S I O N

PERALTA, J.:

Before the Court is a petition for review on certiorari seeking to set aside the Decision¹ dated June 30, 2006 and Resolution² dated November 13, 2006 by the Court of Appeals (CA) in CA-G.R. SP No. 91887. The assailed Decision reversed and set aside the Decision³ dated June 14, 2005 of the Regional Trial Court (RTC) of Lingayen, Pangasinan, Branch 69, while the questioned Resolution denied petitioners’ Motion for Reconsideration.

The factual and procedural antecedents of the case are as follows:

On July 24, 1996, herein respondents filed a Complaint for Recovery of Possession and Damages with the Municipal Trial Court (MTC) of Binmaley, Pangasinan against Jaime Abalos (Jaime) and the spouses Felix and Consuelo Salazar. Respondents contended that: they are the children and heirs of one Vicente Torio (Vicente) who died intestate on September 11, 1973; at the time of the death of Vicente, he left behind a parcel of land measuring 2,950 square meters, more or less, which is located at San Isidro Norte, Binmaley, Pangasinan; during the lifetime of Vicente and through his tolerance, Jaime and the Spouses Salazar were allowed to stay and build their respective houses on the subject parcel of land; even after the death of Vicente, herein respondents allowed Jaime and the Spouses Salazar to remain on the disputed lot; however, in 1985, respondents asked Jaime and the Spouses Salazar to vacate the subject lot, but they refused to heed the demand of respondents forcing respondents to file the complaint.⁴

Jaime and the Spouses Salazar filed their Answer with Counterclaim, denying the material allegations in the Complaint and asserting in their Special and Affirmative Defenses that: respondents’ cause of action is barred by acquisitive prescription; the court a quo has no jurisdiction over the nature of the action and the persons of the defendants; the absolute and exclusive owners and possessors of the disputed lot are the deceased predecessors of defendants; defendants and their predecessors-in-interest had been in actual, continuous and peaceful possession of the subject lot as owners since time immemorial; defendants are faithfully and religiously paying real property taxes on the disputed lot as evidenced by Real Property Tax Receipts; they have continuously introduced improvements on the said land, such as houses, trees and other kinds of ornamental plants which are in existence up to the time of the filing of their Answer.⁵

On the same date as the filing of defendants’ Answer with Counterclaim, herein petitioners filed their Answer in Intervention with Counterclaim. Like the defendants, herein petitioners claimed that their predecessors-in-interest were the absolute and exclusive owners of the land in question; that petitioners and their predecessors had been in possession of the subject lot since time immemorial up to the present; they have paid real property taxes and introduced improvements thereon.⁶

After the issues were joined, trial ensued.

On December 10, 2003, the MTC issued a Decision, the dispositive portion of which reads as follows:

WHEREFORE, in view of the foregoing consideration[s], the Court adjudged the case in favor of the plaintiffs and against the defendants and defendants-intervenors are ordered to turn over the land in question to the plaintiffs (Lot Nos. 869 and 870, Cad. 467-D. Binmaley Cadastre located in Brgy. San Isidro Norte, Binmaley, Pangasinan with an area of 2,950 sq. m., more or less, bounded and described in paragraph 3 of the Complaint[)]; ordering the defendants and defendants-intervenors to remove their respective houses standing on the land in dispute; further ordering the defendants and defendants-intervenors, either singly or jointly to pay the plaintiffs land rent in the amount of P12,000.00 per year to be reckoned starting the year 1996 until defendants and defendants-intervenors will finally vacate the premises; furthermore, defendants and defendants-intervenors are also ordered to pay, either singly or jointly, the amount of P10,000.00 as and by way of attorney’s fees and costs of suit.

SO ORDERED.⁷

Jaime and the Spouses Salazar appealed the Decision of the MTC with the RTC of Lingayen, Pangasinan.⁸ Herein petitioners, who were intervenors, did not file an appeal.

In its Decision dated June 14, 2005, the RTC ruled in favor of Jaime and the Spouses Salazar, holding that they have acquired the subject property through prescription. Accordingly, the RTC dismissed herein respondents’ complaint.

Aggrieved, herein respondents filed a petition for review with the CA assailing the Decision of the RTC.

On June 30, 2006, the CA promulgated its questioned Decision, the dispositive portion of which reads, thus:

WHEREFORE, the petition is GRANTED. The Decision dated June 14, 2005 of the Regional Trial Court, Branch 69, Lingayen, Pangasinan is hereby REVERSED and SET ASIDE. In its stead, a new one is entered reinstating the Decision dated December 10, 2003 of the Municipal Trial Court of Binmaley, Pangasinan.

SO ORDERED.⁹

Jaime and the Spouses Salazar filed a Motion for Reconsideration, but the same was denied by the CA in its Resolution dated November 13, 2006.

Hence, the instant petition based on a sole assignment of error, to wit:

THE COURT OF APPEALS ERRED IN NOT APPRECIATING THAT THE PETITIONERS HEREIN ARE NOW THE ABSOLUTE AND EXCLUSIVE OWNERS OF THE LAND IN QUESTION BY VIRTUE OF ACQUISITIVE PRESCRIPTION.¹⁰

The main issue raised by petitioners is whether they and their predecessors-in-interest possessed the disputed lot in the concept of an owner, or whether their possession is by mere tolerance of respondents and their predecessors-in-interest. Corollarily, petitioners claim that the due execution and authenticity of the deed of sale upon which respondents’ predecessors-in-interest derived their ownership were not proven during trial.

The petition lacks merit.

Preliminarily, the Court agrees with the observation of respondents that some of the petitioners in the instant petition were the intervenors¹¹ when the case was filed with the MTC. Records would show that they did not appeal the Decision of the MTC.¹² The settled rule is that failure to perfect an appeal renders the judgment final and executory.¹³ Hence, insofar as the intervenors in the MTC are concerned, the judgment of the MTC had already become final and executory.

It also bears to point out that the main issue raised in the instant petition, which is the character or nature of petitioners’ possession of the subject parcel of land, is factual in nature.

Settled is the rule that questions of fact are not reviewable in petitions for review on certiorari under Rule 45 of the Rules of Court.¹⁴ Section 1 of Rule 45 states that petitions for review on certiorari “shall raise only questions of law which must be distinctly set forth.”

Doubtless, the issue of whether petitioners possess the subject property as owners, or whether they occupy the same by mere tolerance of respondents, is a question of fact. Thus, it is not reviewable.

Nonetheless, the Court has, at times, allowed exceptions from the abovementioned restriction. Among the recognized exceptions are the following:

(a) When the findings are grounded entirely on speculation, surmises, or conjectures;

(b) When the inference made is manifestly mistaken, absurd, or impossible;

(c) When there is grave abuse of discretion;

(d) When the judgment is based on a misapprehension of facts;

(e) When the findings of facts are conflicting;

(f) When in making its findings the CA went beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and the appellee;

(g) When the CA’s findings are contrary to those by the trial court;

(h) When the findings are conclusions without citation of specific evidence on which they are based;

(i) When the facts set forth in the petition as well as in the petitioner’s main and reply briefs are not disputed by the respondent;

(j) When the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record; or

(k) When the CA manifestly overlooked certain relevant facts not disputed by the parties, which, if properly considered, would justify a different conclusion.¹⁵

In the present case, the findings of fact of the MTC and the CA are in conflict with those of the RTC.

After a review of the records, however, the Court finds that the petition must fail as it finds no error in the findings of fact and conclusions of law of the CA and the MTC.

Petitioners claim that they have acquired ownership over the disputed lot through ordinary acquisitive prescription.

Acquisitive prescription of dominion and other real rights may be ordinary or extraordinary.¹⁶ Ordinary acquisitive prescription requires possession in good faith and with just title for ten (10) years.¹⁷ Without good faith and just title, acquisitive prescription can only be extraordinary in character which requires uninterrupted adverse possession for thirty (30) years.¹⁸

Possession “in good faith” consists in the reasonable belief that the person from whom the thing is received has been the owner thereof, and could transmit his ownership.¹⁹ There is “just title” when the adverse claimant came into possession of the property through one of the modes recognized by law for the acquisition of ownership or other real rights, but the grantor was not the owner or could not transmit any right.²⁰

In the instant case, it is clear that during their possession of the property in question, petitioners acknowledged ownership thereof by the immediate predecessor-in-interest of respondents. This is clearly shown by the Tax Declaration in the name of Jaime for the year 1984 wherein it contains a statement admitting that Jaime’s house was built on the landof Vicente, respondents’ immediate predecessor-in-interest.²¹ Petitioners never disputed such an acknowledgment. Thus, having knowledge that they nor their predecessors-in-interest are not the owners of the disputed lot, petitioners’ possession could not be deemed as possession in good faith as to enable them to acquire the subject land by ordinary prescription. In this respect, the Court agrees with the CA that petitioners’ possession of the lot in question was by mere tolerance of respondents and their predecessors-in-interest. Acts of possessory character executed due to license or by mere tolerance of the owner are inadequate for purposes of acquisitive prescription.²² Possession, to constitute the foundation of a prescriptive right, must be en concepto de dueño, or, to use the common law equivalent of the term, that possession should be adverse, if not, such possessory acts, no matter how long, do not start the running of the period of prescription.²³

Moreover, the CA correctly held that even if the character of petitioners’ possession of the subject property had become adverse, as evidenced by their declaration of the same for tax purposes under the names of their predecessors-in-interest, their possession still falls short of the required period of thirty (30) years in cases of extraordinary acquisitive prescription. Records show that the earliest Tax Declaration in the name of petitioners was in 1974. Reckoned from such date, the thirty-year period was completed in 2004. However, herein respondents’ complaint was filed in 1996, effectively interrupting petitioners’ possession upon service of summons on them.²⁴ Thus, petitioners’ possession also did not ripen into ownership, because they failed to meet the required statutory period of extraordinary prescription.

This Court has held that the evidence relative to the possession upon which the alleged prescription is based, must be clear, complete and conclusive in order to establish the prescription.²⁵ In the present case, the Court finds no error on the part of the CA in holding that petitioners failed to present competent evidence to prove their alleged good faith in neither possessing the subject lot nor their adverse claim thereon. Instead, the records would show that petitioners’ possession was by mere tolerance of respondents and their predecessors-in-interest.

Finally, as to the issue of whether the due execution and authenticity of the deed of sale upon which respondents anchor their ownership were not proven, the Court notes that petitioners did not raise this matter in their Answer as well as in their Pre-Trial Brief. It was only in their Comment to respondents’ Petition for Review filed with the CA that they raised this issue. Settled is the rule that points of law, theories, issues, and arguments not adequately brought to the attention of the trial court need not be, and ordinarily will not be, considered by a reviewing court.²⁶ They cannot be raised for the first time on appeal. To allow this would be offensive to the basic rules of fair play, justice and due process.²⁷

Even granting that the issue of due execution and authenticity was properly raised, the Court finds no cogent reason to depart from the findings of the CA, to wit:

x x x x

Based on the foregoing, respondents [Jaime Abalos and the Spouses Felix and Consuelo Salazar] have not inherited the disputed land because the same was shown to have already been validly sold to Marcos Torio, who, thereupon, assigned the same to his son Vicente, the father of petitioners [herein respondents]. A valid sale was amply established and the said validity subsists because the deed evidencing the same was duly notarized.

There is no doubt that the deed of sale was duly acknowledged before a notary public. As a notarized document, it has in its favor the presumption of regularity and it carries the evidentiary weight conferred upon it with respect to its due execution. It is admissible in evidence without further proof of its authenticity and is entitled to full faith and credit upon its face.²⁸

Indeed, settled is the rule in our jurisdiction that a notarized document has in its favor the presumption of regularity, and to overcome the same, there must be evidence that is clear, convincing and more than merely preponderant; otherwise, the document should be upheld.²⁹ In the instant case, petitioners’ bare denials will not suffice to overcome the presumption of regularity of the assailed deed of sale.

WHEREFORE, the petition is DENIED. The assailed Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 91887 are AFFIRMED.

SO ORDERED.

DIOSDADO M. PERALTA

Associate Justice

WE CONCUR:

PRESBITERO J. VELASCO, JR.

Associate Justice

Chairperson

ROBERTO A. ABAD JOSE CATRAL MENDOZA

Associate Justice Associate Justice

ESTELA M. PERLAS-BERNABE

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.

PRESBITERO J. VELASCO, JR.

Associate Justice

Third Division, 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

1Penned by Associate Justice Magdangal M. de Leon, with Associate Justices Godardo A. Jacinto and Rosalinda Asuncion-Vicente, concurring ; Annex “J” to Petition, rollo, pp. 87-98.

2Penned by Associate Justice Magdangal M. de Leon, with Associate Justices Asuncion-Vicente and Vicente S.E. Veloso, concurring; Annex “L” to Petition, id. at 107-109.

3Records, pp. 316-324.

4Id. at 1-3.

5Id. at 34-39.

6Id. at 10-16.

7Id. at 273.

8See Notice of Appeal, id. at 274.

9CA rollo, p. 94

10Rollo, p. 8.

11Except for Jaime Abalos and the spouses Felix and Consuelo Salazar, all petitioners in the instant petition were intervenors in the case filed with the MTC.

12See Notice of Appeal, records, p. 274.

13Province of Camarines Sur v. Heirs of Agustin Pato, G.R. No. 151084, July 2, 2010, 622 SCRA 644, 652, citing M.A. Santander Construction, Inc. v. Villanueva, G.R. No. 136477, November 10, 2004, 441 SCRA 525, 530.

14Heirs of Felicidad Vda. de Dela Cruz v. Heirs of Pedro T. Fajardo, G.R. No. 184966, May 30, 2011, 649 SCRA 463, 470.

15Spouses. Andrada v. Pilhino Sales Corporation, G.R. No. 156448, February 23, 2011, 644 SCRA 1, 10.

16Civil Code, Art. 1117.

17Civil Code, Art. 1134.

18Civil Code, Art. 1137; Tan v. Ramirez, G.R. No. 158929, August 3, 2010, 626 SCRA 327, 336; Aguirre v. Heirs of Lucas Villanueva, G.R. No. 169898, October 27, 2006, 505 SCRA 855, 860.

19Villanueva v. Branoco, G.R. No. 172804, January 24, 2011, 640 SCRA 308, 320; Imuan v. Cereno, G.R. No. 167995, September 11, 2009, 599 SCRA 423, 433.

20Id.

21Exhibit “K,” records, p. 264.

22Lamsis v. Donge-e, G.R. No. 173021, October 20, 2010, 634 SCRA 154, 172.

23Esguerra v. Manantan, G.R. No. 158328, February 23, 2007, 516 SCRA 561, 573; Marcelo v. Court of Appeals, G.R. No. 131803, April 14, 1999, 305 SCRA 800, 807-808.

24Article 1120 of the Civil Code provides that “[p]ossession is interrupted for the purposes of prescription, naturally or civilly.” Article 1123 of the same Code further provides that “[c]ivil interruption is produced by judicial summons to the possessor.”

25Heirs of Juanita Padilla v. Magdua, G.R. No. 176858, September 15, 2010, 630 SCRA 573, 584.

26American Home Insurance Co. of New York v. F.F. Cruz & Co., Inc., G.R. No. 174926, August 10, 2011.

27Id.

28CA rollo, pp. 91-92.

29Spouses Palada v. Solidbank Corporation, G.R. No. 172227, June 29, 2011; Emilio v. Rapal, G.R. No. 181855, March 30, 2010, 617 SCRA 199, 202-203; Heirs of the Deceased Spouses Vicente S. Arcilla and Josefa Asuncion Arcilla v. Teodoro, G.R. No. 162886, August 11, 2008, 561 SCRA 545, 564.

CASE 2011-0239:  JEBSENS MARITIME INC., represented by MS. ARLENE ASUNCION and/or ALLIANCE MARINE SERVICES, LTD. VS. ENRIQUE UNDAG (G.R. NO. 191491, 14 DECEMBER 2011, MENDOZA, J.) SUBJECT: DISABILITY BENEFITS TO SEAMEN. (BRIEF TITLE: JEBSENS VS. UNDAG).

==================

DISPOSITIVE:

WHEREFORE, the petition is GRANTED. The September 16, 2009 Decision of the Court of Appeals and its March 3, 2010 Resolution are hereby REVERSED and SET ASIDE, and the October 17, 2005 and January 24, 2006 Resolutions of the National Labor Relations Commission are REINSTATED.

SO ORDERED.

==================

Republic of thePhilippines

Supreme Court

Manila

THIRD DIVISION

x —————————————————————————————————–x

D E C I S I O N

MENDOZA, J.:

This petition for review assails the September 16, 2009 Decision^[1][1] and the March 3, 2010 Resolution^[2][2] of the Court of Appeals (CA), which set aside the October 17, 2005 and January 24, 2006 Resolutions of the National Labor Relations Commission (NLRC), dismissing the complaint of respondent Enrique Undag (respondent) for disability benefits.

Records bear out that respondent was hired as Lead Operator on board the vessel FPSO Jamestown owned by Alliance Marine Services, Ltd. and managed by its local agent, Jebsens Maritime, Inc. (petitioners). Respondent’s contract with petitioners was for a period of four (4) months with a basic salary of US$806.00 a month. He was deployed on March 24, 2003 and eventually repatriated to thePhilippines on July 18, 2003 after his contract with the petitioners had expired.

On September 24, 2003, about two months after repatriation, he went to see a physician, Dr. Efren Vicaldo (Dr. Vicaldo), for a physical check-up and was diagnosed to have “Hypertensive cardiovascular disease, Atrial Fibrillation, Diabetes Mellitus II, Impediment Grade X (20.15%).” According to Dr. Vicaldo, respondent had a history of hypertension and diabetes and was at risk of developing a stroke, coronary artery disease and congestive heart failure. He likewise stated that respondent’s ailment was aggravated by his work as a seaman and that he was no longer fit for work. For said reason, respondent requested for financial assistance from petitioners but the latter denied his request.

Constrained, he filed a complaint for sickness benefits against petitioners before the NLRC, alleging that he had been suffering from chest pains and difficulty of breathing since July 2003 when he was on board petitioners’ vessel. Despite knowing his bad physical condition upon repatriation, the petitioners did not give him any financial assistance. Thus,  he prayed that petitioners be ordered to reimburse him for his medical expenses and pay him sickness allowance amounting to US$3,224.00, including damages and attorney’s fees.

Petitioners countered that respondent was not entitled to disability benefits because his repatriation was not due to medical reasons but due to the expiration of his employment contract. Petitioners basically argued that, under the POEA Standard Employment Contract (POEA-SEC), a seafarer was entitled to disability benefits only if he had suffered a work-related illness during the term of his contract.

On June 30, 2005, after due hearing, the Labor Arbiter (LA) rendered a decision ordering petitioners to pay, jointly and severally, respondent the Philippine peso equivalent of US$60,000.00 representing total permanent disability compensation benefits for US$3,224.00 sickness allowance, and 10% attorney’s fees.

On appeal, however, the NLRC reversed the LA decision and denied respondent’s claim for disability benefits. The NLRC reasoned out that respondent failed to present substantial evidence proving that he had suffered any illness while on board or after disembarking from petitioners’ vessel. Respondent’s motion for reconsideration was later denied.

Not satisfied with the NLRC decision, respondent appealed before the CA. On September 16, 2009, the CA rendered a decision setting aside the ruling of the NLRC. The appellate court stated that respondent was able to prove by substantial evidence that his work as a seafarer caused his hypertensive cardiovascular disease or, at least, was a relevant factor in contracting his illness. The CA explained that as Lead Operator, respondent performed multi-tasking functions which required excessive physical and mental effort.  Moreover, he was also exposed to the perils of the sea and was made to endure unpredictable and extreme climate changes in the daily performance of his job. The CA also took judicial notice of the fact that overseas workers suffer a great degree of emotional strain while on duty on board vessels because of their being separated from their families for the duration of their contract. The CA was of the strong view that the inherent difficulties in respondent’s job definitely caused his illness. The CA added that because of the nature of his work, the illness suffered by respondent contributed to the aggravation of his injury which was pre-existing at the time of his employment. Finally, the CA ruled that respondent is entitled to claim total and permanent disability benefits because of the undisputed doctor’s findings that he “is now unfit to resume work as a seaman in any capacity,” which clearly constitutes a permanent and total disability as defined by law.

Not in conformity with the CA decision, petitioners filed this petition for review praying for its reversal raising this lone

ISSUE

WHETHER OR NOT THE COURT OF APPEALS ERRED IN AWARDING FULL DISABILITY BENEFITS TO THE PRIVATE RESPONDENT.

In advocacy of their position, petitioners argue that the CA committed a reversible error in awarding respondent disability benefits on the principal ground that there are numerous substantial and competent evidence on record which clearly establish the fact that respondent was guilty of fraudulent misrepresentation, hence, forfeiting his right to any benefits under the POEA contract. For one, respondent intentionally lied when he declared that he was not suffering from a previous medical condition in his pre-employment medical examination (PEME). Specifically, he failed to disclose the fact that he was suffering from diabetes and heart problem, which is a clear case of concealment.

Secondly, respondent’s illnesses were not acquired during the term of his contract with petitioners. He had no evidence showing that he acquired the heart problem and hypertension while he was on board the vessel. The fact that respondent passed his PEME does not automatically mean that he suffered his illness on board the vessel or that the same was not pre-existing.

Third, the Labor Code provision on permanent disability is not applicable in a claim for disability benefits under the POEA contract.

Respondent’s Position

          Respondent counters that petitioners never raised the issue of fraudulent misrepresentation before the labor tribunals despite being given the opportunity to do so. Hence, they are estopped from raising it for the first time on appeal. At any rate, he claims that he did not commit any fraud or misrepresentation because he underwent a stringent PEME, which included a blood and urine examination, conducted by the company-designated physician. His illness, therefore, was not pre-existing.  In any case, the pre-existence of an illness is not a bar for the compensability of a seafarer’s illness. His non-compliance with the mandatory 3-day reporting upon signoff is irrelevant because it only applies to a seafarer who has signed off from the vessel for medical reasons.

          Moreover, respondent argues that a repatriation due to a finished contract does not preclude a seafarer from recovery of benefits, as the only requirement is that the disease must be a consequence or a result of the work performed.  He has shown by substantial evidence that his cardiovascular disease was work-related. The strenuous work conditions that he experienced while on sea duty coupled with his usual encounter with the unfriendly forces of nature increased the risk of contracting his heart ailment.

          Lastly, he asserts that his disability is permanent and total because he has been declared to be unfit for sea duty for which he is entitled to recover attorney’s fees and litigation costs under Article 2208. 

THE COURT’S RULING

No substantial evidence that illness was work-related

Entitlement of seamen on overseas work to disability benefits is a matter governed, not only by medical findings, but by law and by contract. The material statutory provisions are Articles 191 to 193 under Chapter VI (Disability Benefits) of the Labor Code, in relation with Rule X of the Rules and Regulations Implementing Book IV of the Labor Code.  By contract, the POEA-SEC, as provided under Department Order No. 4, series of 2000 of the Department of Labor and Employment, and the parties’ Collective Bargaining Agreement (CBA) bind the seaman and his employer to each other.^[3][3]

Deemed incorporated in every Filipino seafarer’s contract of employment, denominated as POEA-SEC or the Philippine Overseas Employment Administration-Standard Employment Contract, is a set of standard provisions established and implemented by the POEA, called the Amended Standard Terms and Conditions Governing the Employment of Filipino Seafarers on Board Ocean-Going Vessels, which contain the minimum requirements prescribed by the government for the employment of Filipino seafarers. Section 20(B), paragraph 6, of the 2000 Amended Standard Terms and Conditions provides:

SECTION 20. COMPENSATION AND BENEFITS

x x x

B.         COMPENSATION AND BENEFITS FOR INJURY OR ILLNESS

The liabilities of the employer when the seafarer suffers work-related injury or illness during the term of his contract are as follows: 

X x x

6.         In case of permanent total or partial disability of the seafarer caused by either injury or illness the seafarer shall be compensated in accordance with the schedule of benefits enumerated in Section 32 of this Contract. Computation of his benefits arising from an illness or disease shall be governed by the rates and the rules of compensation applicable at the time the illness or disease was contracted. 

Pursuant to the aforequoted provision, two elements must concur for an injury or illness to be compensable.  First, that the injury or illness must be work-related; and second, that the work-related injury or illness must have existed during the term of the seafarer’s employment contract.

The 2000 POEA Amended Standard Terms and Conditions defines “work-related injury” as “injury(ies) resulting in disability or death arising out of and in the course of employment” and “work-related illness” as “any sickness resulting in disability or death as a result of an occupational disease listed under Section 32-A of this contract with the conditions set therein satisfied.” These are:

SECTION 32-A.       OCCUPATIONAL DISEASES

For an occupational disease and the resulting disability or death to be compensable, all of the following conditions must be satisfied:

1) The seafarer’s work must involve the risks described herein;

2) The disease was contracted as a result of the seafarer’s exposure to the described risks;

3) The disease was contracted within a period of exposure and under such other factors necessary to contract it; and 

4)     There was no notorious negligence on the part of the seafarer.

Sec. 32-A(11) of the 2000 POEA Amended Standard Terms and Conditions explicitly considers a cardiovascular  disease as an occupational disease if the same was contracted under  working  conditions that  involve  any of  the  following risks –

a)   If the heart disease was known to have been present during employment, there must be proof that an acute exacerbation was clearly precipitated by the unusual strain by reasons of the nature of his work.

b)  The strain of the work that brings about an acute attack must be sufficient severity and must be followed within 24 hours by the clinical signs of cardiac insult to constitute causal relationship.

c)  If a person who was apparently asymptomatic before being subjected to strain at work showed signs and symptoms of cardiac injury during the performance of his work and such symptoms and signs persisted, it is reasonable to claim a causal relationship.

Consequently, for cardiovascular disease to constitute an occupational disease for which the seafarer may claim compensation, it is incumbent upon said seafarer to show that he developed the same under any of the three conditions identified above.^[4][4]

In labor cases as in other administrative proceedings, substantial evidence or such relevant evidence as a reasonable mind might accept as sufficient to support a conclusion is required. The oft-repeated rule is that whoever claims entitlement to the benefits provided by law should establish his or her right thereto by substantial evidence.^[5][5] Substantial evidence is more than a mere scintilla.  The evidence must be real and substantial, and not merely apparent; for the duty to prove work-causation or work-aggravation imposed by law is real and not merely apparent.^[6][6]

In this case, the Court is of the considered view that respondent failed to prove that his ailment was work-related and was acquired during his 4-month sea deployment. Respondent claims that sometime in July 2003, he showed manifestations of a heart disease when he suddenly felt chest pains, shortness of breath and fatigability.^[7][7]  He, however, never substantiated such claim. He never showed any written note, request or record about any medical check-up, consultation or treatment.  Similarly, he failed to substantiate his allegation that after his arrival in Manila on July 18, 2003, he reported to petitioners’ office on July 31, 2003 to seek medical consultation for the discomfort he was experiencing but petitioners ignored him.^[8][8]

He also alleged that onAugust 4, 2003, more or less sixteen (16) days after arriving inManila, he underwent a physical and laboratory examination at the Maritime Clinic for International Service, Inc. conducted by petitioners where he was declared to be unfit for sea duty. Again, there is no record of this except his self-serving claim. What is on record is that onSeptember 24, 2003, respondent surfaced demanding payment of disability benefits.

Respondent failed to comply with the mandatory 3-day rule

More importantly, respondent failed to comply with the mandatory 3-day medical examination deadline provided in Section 20(B), paragraph (3) of the 2000 Amended Standard Terms and Conditions Governing the Employment of Filipino Seafarers on Board Ocean-Going Vessels. As earlier stated, it was only on September 24, 2003, or more than two (2) months after his arrival in Manila, that he sought a medical opinion from Dr. Vicaldo who declared him unfit to work as a seaman due to “hypertensive cardiovascular disease, atrial fibrillation and diabetes mellitus II.”^[9][9]  Section 20(B), paragraph (3) of the 2000 Amended Standard Terms and Conditions Governing the Employment of Filipino Seafarers on Board Ocean-Going Vessels, reads:

Section 20(B), paragraph (3) thereof states:

X x x.

3. Upon sign off from the vessel for medical treatment, the seafarer is entitled to sickness allowance equivalent to his basic wage until he is declared fit to work or the degree of permanent disability has been assessed by the company-designated physician but in no case shall this period exceed one-hundred twenty (120) days.

For this purpose, the seafarer shall submit himself to a post-employment medical examination by a company-designated physician within three working days upon his return except when he is physically incapacitated to do so, in which case a written notice to the agency within the same period is deemed as compliance. Failure of the seafarer to comply with the mandatory reporting requirement shall result in his forfeiture of the right to claim the above benefits. [Emphases and underscoring supplied]

 While the rule is not absolute, there is no credible explanation from respondent why he failed to comply with the mandatory rule considering his claim that in July, 2003, he was suffering from chest pain, shortness of breath and fatigue. An award of disability benefit to a seaman in this case, despite non-compliance with strict mandatory requirements of the law, cannot be sustained.  The rationale behind the rule can easily be divined. Within three days from repatriation, it would be fairly easier for a physician to determine if the illness was work-related or not.  After that period, there would be difficulty in ascertaining the real cause of the illness. 

To ignore the rule would set a precedent with negative repercussions because it would open the floodgates to a limitless number of seafarers claiming disability benefits.  It would certainly be unfair to the employer who would have difficulty determining the cause of a claimant’s illness considering the passage of time. In such a case, the employers would have no protection against unrelated disability claims.

Respondent claims that the 3-day mandatory rule is not applicable as it is only for those who were repatriated for medical reasons. This could only mean that he had no medical reason then.  In his pleadings, he claimed that sometime in July 2003, he showed manifestations of a heart disease as he suddenly felt chest pains, shortness of breath and fatigability.^[10][10] He, however, failed to disclose when exactly in July 2003 that he felt those manifestations whether before or after his repatriation onJuly 18, 2003. If it was before the said date, he should have submitted himself to a medical examination three days after repatriation.

The Court’s ruling is not novel.  In the past, the Court repeatedly denied the payment of disability benefits to seamen who failed to comply with the mandatory reporting and examination requirement. Lately, in the recent case of Alex C. Cootauco v. MMS Phil. Maritime Services, Inc.,^[11][11] it was written:

For this purpose, the seafarer shall submit himself to a post-employment medical examination by a company-designated physician within three working days upon his return except when he is physically incapacitated to do so, in which case a written notice to the agency within the same period is deemed as compliance. Failure of the seafarer to comply with the mandatory reporting requirement shall result in his forfeiture of the right to claim the above benefits.

As these provisions operate, the seafarer, upon sign-off from his vessel, must report to the company-designated physician within three working days from arrival for diagnosis and treatment.

Applying the above provision of Section 20(B), paragraph (3), petitioner is required to undergo post-employment medical examination by a company-designated physician within three working days from arrival, except when he is physically incapacitated to do so, in which case, a written notice to the agency within the same period would suffice.

In Maunlad Transport, Inc. v. Manigo, Jr., this Court explicitly declared that it is mandatory for a claimant to be examined by a company-designated physician within three days from his repatriation. The unexplained omission of this requirement will bar the filing of a claim for disability benefits.

The NLRC and the Court of Appeals determined that petitioner did not observe the established procedure as there is no proof at all that he reported to the office of the respondents. We see no reason to depart from their findings. While petitioner remains firm that he reported to the office of the respondents for mandatory reporting, the records are bereft of any proof to fortify his claim. The onus probandi falls on petitioner to establish or substantiate such claim by the requisite quantum of evidence. There is absolutely no evidence on record to prove petitioner’s claim that he reported to respondents’ office for mandatory reportorial requirement. Petitioner therefore failed to adduce substantial evidence as basis for the grant of relief. [Emphasis and underscoring supplied]

The Court reiterated the same ruling in the case of Coastal Safeway Marine Services, Inc. vs. Elmer T. Esguerra,^[12][12] where it was written:

For this purpose, the seafarer shall submit himself to a post-employment medical examination by a company-designated physician within three working days upon his return except when he is physically incapacitated to do so, in which case, a written notice to the agency within the same period is deemed as compliance. Failure of the seafarer to comply with the mandatory reporting requirement shall result in his forfeiture of the right to claim the above benefits.

If a doctor appointed by the seafarer disagrees with the assessment, a third doctor may be agreed jointly between the employer and the seafarer. The third doctor’s decision shall be final and binding on both parties.

The foregoing provision has been interpreted to mean that it is the company-designated physician who is entrusted with the task of assessing the seaman’s disability, whether total or partial, due to either injury or illness, during the term of the latter’s employment. Concededly, this does not mean that the assessment of said physician is final, binding or conclusive on the claimant, the labor tribunal or the courts. Should he be so minded, the seafarer has the prerogative to request a second opinion and to consult a physician of his choice regarding his ailment or injury, in which case the medical report issued by the latter shall be evaluated by the labor tribunal and the court, based on its inherent merit. For the seaman’s claim to prosper, however, it is mandatory that he should be examined by a company-designated physician within three days from his repatriation. Failure to comply with this mandatory reporting requirement without justifiable cause shall result in forfeiture of the right to claim the compensation and disability benefits provided under the POEA-SEC. [Emphases and underscoring supplied]

WHEREFORE, the petition is GRANTED. The September 16, 2009 Decision of the Court of Appeals and its March 3, 2010 Resolution are hereby REVERSED and SET ASIDE, and the October 17, 2005 and January 24, 2006 Resolutions of the National Labor Relations Commission are REINSTATED.

SO ORDERED.

JOSE CATRAL MENDOZA

                                                                                    Associate Justice

WE CONCUR:

PRESBITERO J. VELASCO, JR.

Associate Justice

Chairperson

DIOSDADO M. PERALTA                      ROBERTO A. ABAD

            Associate Justice                                     Associate Justice

ESTELA M. PERLAS-BERNABE

Associate Justice     

A T T E S T A T I O N

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.

          PRESBITERO J. VELASCO, JR.

                         Associate Justice

                                                                 Chairperson, Third Division

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

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