Category: TIPS FOR TRIAL LAWYERS


TIP 0012: FACTUAL ALLEGATION AGAINST THE COURT IS STILL CONTEMPTUOUS IF THE LANGUAGE USED IS ABUSIV E OR INSULTING.

 

SOURCE: FERDINAND A. CRUZ VS. JUDGE HENRICK F. GINGOYON (DECEASED), JUDGE JESUS B. MUPAS, ACTING PRESIDING JUDGE, REGIONAL TRIAL COURT, BRANCH 117, PASAY CITY (G.R. NO. 170404, 28 SEPTEMBER 2011, DEL CASTILLO, J.) SUBJECT: DIRECT CONTEMPT OF COURT (BRIEF TITLE: CRUZ VS. GINGOYON)

 

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DISPOSITIVE:

 

WHEREFORE, the Petition for Certiorari is DISMISSED.  The Order dated November 25, 2005 of Branch 117 of the Regional Trial Court of Pasay City finding petitioner Ferdinand A. Cruz guilty of direct contempt is AFFIRMED with MODIFICATION.  Petitioner is hereby sentenced to pay a fine of P2,000.00.  In addition, petitioner is ordered to PAY a fine of P3,000.00 for his repeated failure to heed the directives of this Court.  Petitioner is sternly WARNED that a repetition of the same or similar act shall be dealt with more severely.

SO ORDERED.

 

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SUBJECTS/DOCTRINES/ DIGEST:

 

 

WHY WAS ATTY. CRUZ CITED FOR DIRECT CONTEMPT?

 

 

BECAUSE OF HIS ALLEGATION IN HIS MOTION FOR RECONSIDERATION WHICH READS:

 

. . . . . . . . . . . . . . The court should be reminded that the undersigned plaintiff presented his evidence ex-parte and where else can the court gather these information about the alleys aside from the logical conclusion that the court has been communicating with the defendant, off the record, given that the latter has already been in default.[1][9]  (Emphasis supplied.)

XXXXXXXXXXXXXXXXX

 

 

WAS COUNSEL’S PLEADING CONTEMPTUOUS? WHY?

 

 

YES. BECAUSE THE ALLEGATION WAS UNSUBSTANTIATED AND BEREFT OF FACTUAL BASIS. IT BRINGS THE COURT INTO DISREPUTE.

 

The Motion for Reconsideration filed by petitioner with the respondent court contained a serious allegation that Judge Gingoyon has been communicating with the defendant off the record, which is considered as a grave offense. This allegation is unsubstantiated and totally bereft of factual basis.  In fact, when asked to adduce proof of the allegation, petitioner was not able to give any, but repeatedly argued that it is his “fair observation or conclusion.”[2][29]

………………………………….

 

The act of petitioner in openly accusing Judge Gingoyon of communicating with the defendant off the record, without factual basis, brings the court into disrepute. The accusation in the Motion for Reconsideration and the Compliance submitted by the petitioner to the respondent court is derogatory, offensive and malicious. The accusation taints the credibility and the dignity of the court and questions its impartiality.  It is a direct affront to the integrity and authority of the court, subjecting it to loss of public respect and confidence, which ultimately affects the administration of justice. 

XXXXXXXXXXXXXXXXX

 

SUPPOSE THE ALLEGATION OF THE PETITIONER IS JUSTIFIED. WOULD HIS PLEADING STILL BE CONTEMPTUOUS?

 

 

YES. BECAUSE THE LANGUAGE USED WAS ABUSIVE OR INSULTING. RESPECT FOR THE COURT SHOULD ALWAYS BE OBSERVED.

Furthermore, assuming that the conclusion of petitioner is justified by the facts, it is still not a valid defense in cases of contempt.  “Where the matter is abusive or insulting, evidence that the language used was justified by the facts is not admissible as a defense.  Respect for the judicial office should always be observed and enforced.”[3][32]

 

 

 

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Republic of thePhilippines

Supreme Court

Manila

 

FIRST DIVISION

 

FERDINAND A. CRUZ,    G.R. No. 170404

Petitioner,

   
    Present:

 

   

– versus –

  LEONARDO-DE CASTRO,
         Acting Chairperson,
    BERSAMIN,
JUDGE HENRICK F. GINGOYON,   DELCASTILLO,
[Deceased],   PEREZ, and
JUDGE JESUS B. MUPAS, Acting   MENDOZA,⃰ ⃰ JJ.
Presiding Judge, Regional Trial Court    
Branch 117, Pasay City,   Promulgated:

Respondent.

  September 28, 2011

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

 

D E C I S I O N

 

DEL CASTILLO, J.:

 

While there are remedies available to a party adjudged in contempt of court, same may only be availed of when the procedures laid down for its availment are satisfied.

By this Petition for Certiorari,[4][1] petitioner Ferdinand A. Cruz (petitioner) assails the Order[5][2] dated November 25, 2005 issued by the now deceased Judge Henrick F. Gingoyon (Judge Gingoyon) of Branch 117, Regional Trial Court (RTC) of Pasay City (respondent court) citing him in direct contempt of court, the dispositive portion of which states:

                WHEREFORE, Ferdinand Cruz is hereby found GUILTY beyond reasonable doubt of DIRECT CONTEMPT OF COURT.

                Accordingly, he is hereby sentenced to suffer TWO (2) DAYS of imprisonment and to pay a fine of P2,000.00.

                SO ORDERED.[6][3]

 

 

Essentially, petitioner prays for this Court to declare the assailed Order void and that Judge Gingoyon abused his discretion in citing him in contempt, as well as in denying his motion to fix the amount of bond.

Antecedent Facts

 

This case stemmed from a Civil Complaint[7][4] filed by petitioner against his neighbor, Benjamin Mina, Jr. (Mina), docketed as Civil Case No. 01-0401 in the RTC of Pasay City for abatement of nuisance.  In the said case, petitioner sought redress from the court to declare as a nuisance the “basketball goal” which was permanently attached to the second floor of Mina’s residence but protrudes to the alley which serves as the public’s only right of way.

Mina was declared in default[8][5] hence petitioner presented his evidence ex-parte

After trial, Judge Gingoyon, in his Decision[9][6] dated October 21, 2005, declared the basketball goal as a public nuisance but dismissed the case on the ground that petitioner lacked “locus standi.”  Citing Article 701 of the Civil Code, Judge Gingoyon ruled that the action for abatement of nuisance should be commenced by the city or municipal mayor and not by a private individual like the petitioner.

In the same Decision, Judge Gingoyon also opined that:

Plaintiffs must learn to accept the sad reality of the kind of place they live in. x x x Their place is bursting with people most of whom live in cramped tenements with no place to spare for recreation, to laze around or doing their daily household chores.

                Thus, residents are forced by circumstance to invade the alleys. The alleys become the grounds where children run around and play, the venue where adults do all sorts of things to entertain them or pass the time, their wash area or even a place to cook food in. Take in a few ambulant vendors who display their wares in their choice spots in the alley and their customers that mill around them, and one can only behold chaos if not madness in these alleys. But for the residents of the places of this kind, they still find order in this madness and get out of this kind of life unscathed. It’s because they all simply live and let live. Walking through the alleys daily, the residents of the area have become adept at [weaving] away from the playthings that children at play throw every which way, sidestepping from the path of children chasing each other, dodging and [ducking]from awnings or canopies or clotheslines full of dripping clothes that encroach [on] the alleys. Plaintiffs appear to be fastidious and delicate and they cannot be faulted for such a desirable trait. But they can only do so within their own abode. Once they step outside the doors of their home, as it were, they cannot foist their delicacy and fastidiousness upon their neighbors. They must accept their alleys as the jungle of people and the site of myriad of activities that it is. They must also learn to accept the people in their place as they are; they must live and let live. Unless they choose to live in a less blighted human settlement or better still move to an upscale residential area, their only remaining choice is for them to live in perpetual conflict with their neighbors all the days of their lives.[10][7]     

Petitioner sought reconsideration of the Decision. In his Motion for Reconsideration,[11][8] he took exception to the advice given by Judge Gingoyon thus:

The 12th and 13th paragraphs of the assailed decision, though only an advice of the court, are off-tangent and even spouses illegality;

Since when is living in cramped tenements become a license for people to invade the alleys and use the said alley for doing all sorts of things, i.e., as wash area or cooking food?  In effect, this court is making his own legislations and providing for exceptions in law when there are none, as far as nuisance is concerned;

The court might not be aware that in so doing, he is giving a wrong signal to the defendants and to the public at large that land grabbing, squatting, illegal occupation of property is all right and justified when violators are those people who live in cramped tenements or the underprivileged poor, as the court in a sweeping statement proclaimed that “residents are forced by circumstance to invade the alleys;”

For the enlightenment of the court, and as was proven during the ex-parte presentation of evidence by the plaintiff, Edang estate comprises properties which are subdivided and titled (plaintiffs and defendants have their own titled properties and even the right of way or alley has a separate title) and not the kind the court wrongfully perceives the place to be;

Moreover, the court has no right to impose upon the herein plaintiffs to accept their alleys as a jungle of people and the site of myriad of activities that it is. For the information of the court, plaintiffs have holdings in upscale residential areas and it is a misconception for the court to consider thePasayCityresidence of the plaintiffs as a blighted human settlement. Apparently the court is very much misinformed and has no basis in his litany of eye sore descriptions;

Undersigned is at quandary what will this court do should he be similarly situated with the plaintiffs? Will the court abandon his residence, giving way to illegality in the name of live and let live principle?

Nonetheless, what remains bugling [sic] is the fact that the court in his unsolicited advice knows exactly the description of the alley where the complained nuisance is located and the specific activities that the defendants do in relation to the alley. The court should be reminded that the undersigned plaintiff presented his evidence ex-parte and where else can the court gather these information about the alleys aside from the logical conclusion that the court has been communicating with the defendant, off the record, given that the latter has already been in default.[12][9]  (Emphasis supplied.)

Petitioner requested the respondent court to hear his motion for reconsideration on November 18, 2005.[13][10]

In an Order[14][11] dated November 11, 2005, Judge Gingoyon set the motion for hearing on November 18, 2005, a date chosen by petitioner,[15][12] and directed him to substantiate his serious charge or show cause on even date why he should not be punished for contempt.[16][13]  Judge Gingoyon also opined that:

This court, more specifically this Presiding Judge, has not seen the faintest of shadow of the defendant or heard even an echo of his voice up to the present.  Plaintiff Ferdinand Cruz is therefore directed to substantiate his serious charge that he “has been communicating with the defendant off the record, given that the latter has already been declared in default”.  He is therefore ordered to show cause on November 18, 2005, why he should not be punished for contempt of court for committing improper conduct tending directly or indirectly to degrade the administration of justice.[17][14]

On November 18, 2005, petitioner, however, did not appear.  Judge Gingoyon then motu proprio issued an Order[18][15] in open court to give petitioner another 10 days to show cause.  The Order reads:

In his Motion for Reconsideration, plaintiff Ferdinand Cruz specifically prayed that he is submitting his Motion for Resolution and Approval of this court today, Friday, November 18, 2005, at 8:30 A.M. Fridays have always been earmarked for criminal cases only. Moreover, long before plaintiff filed his motion for reconsideration, this court no longer scheduled hearings for November 18, 2005 because there will be no Prosecutors on this date as they will be holding their National Convention. Nevertheless, since it is the specific prayer of the plaintiff that he will be submitting his motion for resolution and approval by the court on said date, the court yielded to his wish and set his motion for hearing on his preferred date.

When this case was called for hearing today, plaintiff did not appear. The court waited until 9:45 A.M. but still no appearance was entered by the plaintiff or any person who might represent himself as an authorized representative of the plaintiff.  Instead it was the defendant and his counsel who appealed and who earlier filed an Opposition to Motion for Reconsideration.

                x x x x

In view of the failure of the plaintiff to appear in today’s hearing, the court considers the motion for reconsideration submitted for resolution. As for the Order of this court for the plaintiff to show cause why he should not be punished for contempt of court, the court [motu proprio] grants plaintiff last ten (10) days to show cause why he should not be punished for contempt of court. After the lapse of the said period, the court will resolve the issue of whether or not he should be cited for contempt. x x x[19][16]

In his Compliance[20][17] to the Show Cause Order, petitioner maintained that the alleged contumacious remarks he made have a leg to stand on for the same were based on the circumstances of the instant case.  He even reiterated his insinuation that Judge Gingoyon communicated with Mina by posing the query: “…where then did this court gather an exact description of the alley and the myriad of [sic] activities that the inhabitants of interior Edang do in relation to the alley, when the defendant was held in default and absent plaintiff’s evidence so exacting as the description made by this court in paragraphs 12 and 13 of his Decision dated October 21, 2005.”[21][18]

On November 25, 2005, Judge Gingoyon issued an Order[22][19] finding petitioner guilty of direct contempt of court.  The Order reads:

Ferdinand Cruz was ordered to substantiate with facts his serious charge that the Judge “has been communicating with the defendant off the record”. But instead of presenting proof of facts or stating facts, Cruz simply shot back with a query: “Where then did this court gather an exact description of the alley and the myriad activities that the inhabitants of interior Edang do in relation to the alley, when the defendant was held in default and absent plaintiff’s evidence so exacting as the description made by this court…“ By this token, Cruz adamantly stood pat on his accusation, which now appears to be wholly based on suspicion, that the Judge has been communicating with the defendant off the record.

                The suspicion of Ferdinand Cruz may be paraphrased thus: The only way for the Judge [to] know the blight in his place inPasayCityis for the Judge to communicate with the defendant. It is only by communicating with the defendant and by no other means may the Judge know such blight.

Blinded by his suspicion, Cruz did not consider that as State Prosecutor, the Judge was detailed inPasayCityin 1991 and that he has been a judge inPasayCitysince 1997. The nuisance that Cruz complained of, or the blight of his place, is not a unique feature of that particular place. It is replicated in many other places of the city. Indeed, it is but a microcosm of what is prevalent not only within the urban areas within Metro Manila but also in many other highly urbanized areas in the country. Judges are no hermits that they would fail to witness this blight. Cruz did not care to make this allowance for the benefit of preserving the dignity of the court.

                Cruz’s open accusation without factual basis that the judge is communicating with the defendant is an act that brings the court into disrepute or disrespect; or offends its dignity, affront its majesty, or challenge its authority. It constitutes contempt of court. (People vs. De Leon, L-10236, January 31, 1958).  x x x By alleging that the judge communicated with the defendant, Cruz is in effect charging the judge of partiality. Since there is not an iota of proof that the judge did the act complained of, the charge of partiality is uncalled for and constitutes direct contempt (Salcedo vs. Hernandez, 61 Phil. 724; Lualhati vs. Albert, 57 Phil.86; Malolos vs. Reyes, 111 Phil. 1113).

                WHEREFORE, Ferdinand Cruz is hereby found GUILTY beyond reasonable doubt of DIRECT CONTEMPT OF COURT.

                Accordingly, he is hereby sentenced to suffer TWO (2) DAYS of imprisonment and to pay a fine of P2,000.00.

                SO ORDERED.[23][20]

 

An Order of Arrest[24][21]  was issued against the petitioner on even date.

On December 1, 2005, at 10:00 A.M., petitioner filed an Urgent Ex-Parte Motion to Post Bond and Quash Warrant of Arrest (Ex-Parte Motion)[25][22] with the respondent court.  In said Ex-Parte Motion, petitioner averred that:

x x x x

2. To date, undersigned has already filed a Petition for Certiorari before the Supreme Court;

x x x x

The respondent court denied the Ex-Parte Motion in its Order[26][23] dated December 1, 2005 based on petitioner’s failure to attach the alleged duly filed Petition for Certiorari with the Supreme Court.  The respondent court held that unless petitioner has shown proof of filing said petition for certiorari, he cannot avail of the remedy provided in Section 2, Rule 71 of the Rules of Court.

Meanwhile, Judge Gingoyon was slain on December 31, 2005.  In a Resolution[27][24] dated February 1, 2006, this Court directed the incumbent Judge of Branch 117, RTC of Pasay City, Judge Jesus B. Mupas, to submit a comment on the petition “inasmuch as direct or indirect contempt pertains to the misbehavior or disrespect committed towards the court and not to judges in their personal capacities.”[28][25]  

Issues

 

            Petitioner raises the following issues:

A.

WHETHER x x x PETITIONER [IS] GUILTY OF CONTEMPT OF COURT.

B.

WHETHERRESPONDENT COURTHAS ENOUGH FACTUAL BASIS FOR CITING PETITIONER IN CONTEMPT.

C.

WHETHER THE RESPONDENT COURTABUSED ITS DISCRETION IN DENYING PETITIONER’S MOTION TO FIX BOND.[29][26]

The issues may be summed up as follows: whether the respondent court properly adjudged petitioner in direct contempt of court and whether abuse of discretion was committed by respondent court in denying the Ex-Parte Motion.

            Petitioner contends that the alleged contumacious remark is merely a fair observation or comment and a logical conclusion made based on the detailed description given by the respondent court of what has been happening in the alley subject of the civil case.  Petitioner avers that no other conclusion can be had except that Judge Gingoyon was communicating with the defendant off the record, since the exact description of what was happening in the alley was not adduced in evidence during trial.  Further, petitioner contends that fair and logical conclusion founded on circumstances of the case cannot be considered contemptuous.

            Petitioner likewise insists that the respondent court abused its discretion when it denied his motion to fix bond, therefore violating due process.

Our Ruling

 

            We find the petition unmeritorious.

A pleading containing derogatory, offensive or malicious statements submitted to the court or judge wherein proceedings are pending is considered direct contempt.   

“[C]ontemptuous statements made in pleadings filed with the court constitute direct contempt.”[30][27] “[A] pleading x x x containing derogatory, offensive or malicious statements submitted to the court or judge in which the proceedings are pending x x x has been held to be equivalent to ‘misbehavior committed in the presence of or so near a court or judge as to interrupt the proceedings before the same’ within the meaning of Rule 71, § 1 of the Rules of Court and, therefore, constitutes direct contempt.”[31][28]

Based on the abovementioned facts and consistent with the foregoing principles set forth, we agree with the finding of respondent court that petitioner is guilty of direct contempt of court.

The Motion for Reconsideration filed by petitioner with the respondent court contained a serious allegation that Judge Gingoyon has been communicating with the defendant off the record, which is considered as a grave offense. This allegation is unsubstantiated and totally bereft of factual basis.  In fact, when asked to adduce proof of the allegation, petitioner was not able to give any, but repeatedly argued that it is his “fair observation or conclusion.”[32][29]

Petitioner vehemently stood by his suspicion and repeated the allegation in the Compliance to the show-cause Order dated November 11, 2005which he filed with the respondent court. The allegation was repeated despite Judge Gingoyon’s outright denial of communicating with the defendant and explanation in the Order[33][30] dated November 25, 2005 that Judge Gingoyon was familiar with the area as he was detailed inPasayCity since 1991 as State Prosecutor, and thereafter, as judge since 1997.

Instead of showing proof of the alleged communication between Judge Gingoyon and the defendant off the record, petitioner stubbornly insisted that there is nothing contumacious about his allegation against the Judge as he was just giving his fair and logical observation.  Clearly, petitioner openly accused Judge Gingoyon of wrongdoing without factual basis.  Suffice it to say that this accusation is a dangerous one as it exposes Judge Gingoyon to severe reprimand and even removal from office.

On the other hand, a careful perusal of the description as provided by Judge Gingoyon in the Decision shows but a general description of what is normally seen and what normally happens in places such as Edang Street, to wit:  “x x x place is bursting with people most of whom live in cramped tenements with no place to spare for recreation, to laze around or [do] their daily household chores x x x. The alleys become the grounds where children run around and play, the venue where adults do all sorts of things to entertain [themselves] or pass the time, their wash area or even a place to cook food in x x x.  Ambulant vendors who display their wares in the alley and their customers that mill around them; x x x children chasing  each  other,  dodging   and   [ducking]  from  awnings  or  canopies;  x  x  x clotheslines full of dripping clothes that encroach [on] the alleys x x x.”[34][31]

The act of petitioner in openly accusing Judge Gingoyon of communicating with the defendant off the record, without factual basis, brings the court into disrepute. The accusation in the Motion for Reconsideration and the Compliance submitted by the petitioner to the respondent court is derogatory, offensive and malicious. The accusation taints the credibility and the dignity of the court and questions its impartiality.  It is a direct affront to the integrity and authority of the court, subjecting it to loss of public respect and confidence, which ultimately affects the administration of justice. 

Furthermore, assuming that the conclusion of petitioner is justified by the facts, it is still not a valid defense in cases of contempt.  “Where the matter is abusive or insulting, evidence that the language used was justified by the facts is not admissible as a defense.  Respect for the judicial office should always be observed and enforced.”[35][32]

Moreover, the charge of partiality is uncalled for, and there being no scintilla of proof that Judge Gingoyon did the act complained of, petitioner’s act amounts to direct contempt of court.[36][33] 

Denial of the Ex-Parte Motion to Post Bond and Quash Warrant of Arrest is proper; there is no abuse of discretion on the part of respondent court.

Petitioner avers that the respondent court abused its discretion in denying his Ex-Parte Motion.  Petitioner insists that the respondent court should have granted his Ex-Parte Motion since he already filed a Petition for Certiorari before this Court pursuant to Rule 71 of the Rules of Court.  He further avers that respondent court violated his right to due process by fixing the bond only on December 5, 2005 or 10 days after the Orders of contempt and arrest were issued.

Petitioner’s contention lacks merit.

The respondent court was  well  within  the  bounds  of its authority when it denied petitioner’s Ex-Parte Motion.

A person may be adjudged in direct contempt of court pursuant to Section 1, Rule 71 of the Rules of Court[37][34] without need of a hearing but may thereafter avail of the remedies of certiorari or prohibition.[38][35] 

Section 2, Rule 71 of the Rules of Court provides:

Section 2. Remedy therefrom. – The person adjudged in direct contempt by any court may not appeal therefrom, but may avail himself of the remedies of certiorari or prohibition. The execution of the judgment shall be suspended pending resolution of such petition, provided such person files a bond fixed by the court which rendered the judgment and conditioned that he will abide by and perform the judgment should the petition be decided against him. (Emphasis supplied.)

In this case, we find that the respondent court properly denied petitioner’s Ex-Parte Motion there being no proof that he already filed a petition for certiorari.  Notably, the Ex-Parte Motion was filed with the respondent court on December 1, 2005 at 10:00 A.M.[39][36] and therein petitioner stated that he already filed a Petition for Certiorari with this Court.  However, perusal of the records would show that the Petition for Certiorari was filed with the Supreme Court on the same day but at 1:06 P.M.[40][37]  Clearly, when the motion was filed with the respondent court, it cannot be accurately said that a petition for certiorari was already duly filed with this Court.  Significantly, the records show that respondent court was furnished a copy of the Petition for Certiorari by registered mail and which was received only on December 5, 2005.[41][38]  It is therefore clear that at the time that petitioner filed the Ex-Parte Motion with the respondent court, he has not yet availed of the remedy of certiorari.  In fact, it was only after filing the Ex- Parte Motion with respondent court that petitioner filed the Petition for Certiorari with the Supreme Court.  This explained why no proof of such filing was presented by petitioner to the respondent court thus prompting it to declare that unless petitioner has shown proof of filing said petition for certiorari, he cannot avail of the remedy provided in Section 2, Rule 71 of the Rules of Court.[42][39]  Petitioner thus cannot attribute abuse of discretion on the part of respondent court in denying the Ex-Parte Motion.  To reiterate, at the time the said Ex-Parte Motion was filed and acted upon by the respondent court, petitioner was not yet entitled to the remedy prayed for.  Clearly, the respondent court did not commit error, nor did it overstep its authority in denying petitioner’s Ex-Parte Motion.

All told, we take a similar stand as Judge Gingoyon and affirm the Order adjudging petitioner guilty of direct contempt.  However, as to the penalty imposed upon petitioner, we find the fine of P2,000.00 commensurate with the acts committed. 

We also find the necessity to emphasize strict observance of the hierarchy of courts.  “A becoming regard for that judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against first level (‘inferior’) courts should be filed with the [RTC], and those against the latter, with the Court of Appeals (CA).  A direct invocation of the Supreme Court’s original jurisdiction to issue extraordinary writs should be allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition.”[43][40]  For the guidance of the petitioner, “[t]his Court’s original jurisdiction to issue writs of certiorari (as well as prohibition, mandamus, quo warranto, habeas corpus and injunction) is not exclusive.”[44][41]  Its jurisdiction is concurrent with the CA, and with the RTC in proper cases.[45][42]  “However, this concurrence of jurisdiction does not grant upon a party seeking any of the extraordinary writs the absolute freedom to file his petition with the court of his choice.  This Court is a court of last resort, and must so remain if it is to satisfactorily perform the functions assigned to it by the Constitution and immemorial tradition.”[46][43]  Unwarranted demands upon this Court’s attention must be prevented to allow time and devotion for pressing matters within its exclusive jurisdiction.

Adhering to the policy on judicial hierarchy of courts, “[w]here the issuance of an extraordinary writ is also within the competence of the [CA] or a [RTC], it is in either of these courts that the specific action for the writ’s procurement must be presented.”[47][44]  In consequence, the instant petition should have been filed with the CA as there is no allegation of any special or compelling reason to warrant direct recourse to this Court. However, to avoid further delay, we deem it practical to resolve the controversy.

Finally, it must be pointed out that on April 28, 2010, we directed petitioner to cause the entry of appearance of his counsel[48][45] within 15 days from notice.  Petitioner failed to comply hence we directed him to show cause why he should not be disciplinarily dealt with in our Resolution dated September 6, 2010.[49][46]  Still, petitioner failed to comply hence he was fined P1,000.00 in our Resolution dated January 17, 2011[50][47] which was increased to P3,000.00 in our Resolution of June 29, 2011.  Consequently, petitioner is hereby directed to pay said fine of P3,000.00 otherwise he would be dealt with more severely.

WHEREFORE, the Petition for Certiorari is DISMISSED.  The Order dated November 25, 2005 of Branch 117 of the Regional Trial Court of Pasay City finding petitioner Ferdinand A. Cruz guilty of direct contempt is AFFIRMED with MODIFICATION.  Petitioner is hereby sentenced to pay a fine of P2,000.00.  In addition, petitioner is ordered to PAY a fine of P3,000.00 for his repeated failure to heed the directives of this Court.  Petitioner is sternly WARNED that a repetition of the same or similar act shall be dealt with more severely.

SO ORDERED.

 

 

MARIANO C. DEL CASTILLO

Associate Justice

 

WE CONCUR:

 

 

 

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

Acting Chairperson

 

LUCAS P. BERSAMIN

Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice

 

 

 

 

JOSE CATRAL MENDOZA

Associate Justice

 

 

 

 

 

 

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

            Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified 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][9]  Id. at 271-272.

[2][29] Rollo, pp. 83-89.

[3][32] Salcedo v. Hernandez, 61 Phil. 724, 729 (1935), citing In re Stewart, 118La., 827; 43 S., 455.

     In lieu of Associate Justice Martin S. Villarama, Jr., per Special Order No. 1080 dated September 13, 2011.

⃰ ⃰   In lieu of Chief Justice Renato C.Corona, per Special Order No. 1093 dated September 21, 2011.

[4][1]   Rollo, pp. 3-12.

[5][2]   Exhibit “A” of the Petition, id. at 12-14.

[6][3]  Id. at 14.

[7][4]   Records, pp. 1-8.

[8][5]  Id. at 214.

[9][6]  Id. at 257-264.

[10][7]Id. at 259-260.

[11][8]Id. at 267-273.

[12][9]Id. at 271-272.

[13][10]        Id. at 273

[14][11]         Exhibit “D” of the Petition, id. at 26.

[15][12]         See the Notice of Hearing in the Motion for Reconsideration, Exhibit “B” of the Petition, id. at 21.

[16][13]         In the same Order, Judge Gingoyon denied the allegation of the petitioner that he was communicating with the defendant off the record, thus: “x x x This court, more specifically this Presiding Judge, has not seen the faintest shadow of the defendant or heard even an echo of his voice up to the present. x x x.”

[17][14]         Records, p. 274

[18][15]        Id. at 304.

[19][16]        Id.

[20][17]        Id. at 311-313.

[21][18]        Id. at 312.

[22][19]        Id. at 316-318.

[23][20]        Id. at 317-318.

[24][21]        Id. at 319.

[25][22]        Id. at 320-322.

[26][23]        Id. at 327.

[27][24]         Rollo, p. 31.

[28][25]        Id.

[29][26]        Id. at 86.

[30][27]         Atty. Ante v. Judge Pascua, 245 Phil. 745, 747 (1988).

[31][28]         Wicker v. Hon. Arcangel, 322 Phil. 476, 483 (1996), citing Ang v. Judge Castro, 221 Phil. 149, 153 (1985) and Atty. Ante v. Judge Pascua, 245 Phil. 745 (1988).

[32][29]         Rollo, pp. 83-89.

[33][30]        Id. at 12-14. 

[34][31]        Id. at 24-25.

[35][32]         Salcedo v. Hernandez, 61 Phil. 724, 729 (1935), citing In re Stewart, 118La., 827; 43 S., 455.

[36][33]         Malolos v. Hon. Reyes, 111 Phil. 1113 (1961).

[37][34]         Section 1. Direct contempt punished summarily. A person guilty of misbehavior in the presence of or so near a court as to obstruct or interrupt the proceedings before the same, including disrespect toward the court, offensive personalities toward others, or refusal to be sworn or to answer as a witness, or to subscribe an affidavit or deposition when lawfully required to do so, may be summarily adjudged  in contempt by such court and punished by a fine not exceeding two thousand pesos or imprisonment not exceeding ten (10) days, or both, if it be the Regional Trial Court or a court of equivalent or higher rank, or by  a fine not exceeding two hundred pesos or imprisonment not exceeding one (1) day, or both, if it be a lower court.

[38][35]         Rules of Court, Rule 71, Section 2.

[39][36]         See the RTC’s stamped receipt on the motion, records, p. 320.

[40][37]         See the Supreme Court’s stamped receipt on the petition, rollo, p. 3.

[41][38]         See the RTC’s stamped receipt on a copy of the petition, records, p. 328.

[42][39]        Id. at 327.

[43][40]     People v. Cuaresma, 254 Phil. 418, 427 (1989).

[44][41]        Id. at 426.

[45][42]     Ouano v. PGTT International Investment Corp., 434 Phil 28, 34 (2002).

[46][43]         Id., citing Vergara, Sr. v. Judge Suelto, 240 Phil. 719, 732 (1987).

[47][44]     Vergara, Sr. v. Judge Suelto, 240 Phil. 719, 733 (1987).

[48][45]         Rollo, p. 121.

[49][46]        Id. at 123.

[50][47]        Id. at 124.

TRIAL NOTE 0014: WHEN YOU FILE A CASE AGAINST DPWH OR ANY UNINCORPORATED GOVERNMENT AGENCY, ALWAYS CAUSE THE SERVICE OF SUMMONS TO THE SOLICITOR GENERAL BECAUSE THE DEFENDNANT IS NOT DPWH BUT THE REPUBLIC.

 

 

SOURCE: REPUBLIC OF THE PHILIPPINES, REPRESENTED BY THE DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS, THROUGH THE HON. SECRETARY, HERMOGENES EBDANE  VS. ALBERTO A. DOMINGO (G.R. NO. 175299, 14 SEPTEMBER 2011, LEONARDO-DE CASTRO, J.) SUBJECTS: SUMMONS TO THE REPUBLIC; APPEARANCE OF OSG; ANNULMENT OF JUDGMENT. (BRIEF TITLE: REPUBLIC VS. DOMINGO)

 

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

 

 

DISPOSITIVE:

 

 

“WHEREFORE, the petition is GRANTED.  The Decision dated May 19, 2006 and the Resolution dated October 25, 2006 of the Court of Appeals in CA-G.R. SP No. 78813 are REVERSED.  The Decision dated February 18, 2003 of the Regional Trial Court of Malolos, Bulacan, Branch 18, in Civil Case No. 333-M-2002 is hereby ANNULLED and SET ASIDE, without prejudice to the filing of the original action in the proper Regional Trial Court.

 

SO ORDERED.”

 

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

 

 

SUBJECT/DOCTRINE/DIGEST:

 

 

RESPONDENT DOMINGO FILED A SUIT AGAINST DPWH REGION 3. THE REPUBLIC ARGUES THAT THE REAL PARTY IN INTEREST IS THE REPUBLIC AND DPWH IS ONLY ITS AGENT. THEREFORE SINCE SUMMONS WAS NOT SERVED TO THE REPUBLIC THROUGH OSG THEN THE PROCEEDINGS OF THE CASE ARE NULL AND VOID FOR LACK OF JURISDICTION. IS THE REPUBLIC CORRECT?

 

 

YES. WHEN A SUIT IS DIRECTED AGAINST AN UNINCORPORATED GOVERNMENT AGENCY, WHICH, BECAUSE IT IS UNINCORPORATED, POSSESSES NO JURIDICAL PERSONALITY OF ITS OWN, THE SUIT IS AGAINST THE AGENCY’S PRINCIPAL, I.E., THE STATE.[1][30] 

 

 

Section 13, Rule 14 of the Rules of Court states that:

 

SEC. 13. Service upon public corporations. – When the defendant is the Republic of the Philippines, service may be effected on the Solicitor General; in case of a province, city or municipality, or like public corporations, service may be effected on its executive head, or on such other officer or officers as the law or the court may direct.  (Emphasis ours.)

 

 

          Jurisprudence further instructs that when a suit is directed against an unincorporated government agency, which, because it is unincorporated, possesses no juridical personality of its own, the suit is against the agency’s principal, i.e., the State.[2][30]  In the similar case of Heirs of Mamerto Manguiat v. Court of Appeals,[3][31] where summons was served on the Bureau of Telecommunications which was an agency attached to the Department of Transportation and Communications, we held that:

 

Rule 14, Section 13 of the 1997 Rules of Procedure provides:

 

SEC. 13.          Service upon public corporations. — When the defendant is the Republic of thePhilippines, service may be effected on the Solicitor General; in case of a province, city or municipality, or like public corporations, service may be effected on its executive head, or on such other officer or officers as the law or the court may direct.

 

It is clear under the Rules that where the defendant is the Republic of the Philippines, service of summons must be made on the Solicitor General. The BUTEL is an agency attached to the Department of Transportation and Communications created under E.O. No. 546 on July 23, 1979, and is in charge of providing telecommunication facilities, including telephone systems to government offices. It also provides its services to augment limited or inadequate existing similar private communication facilities. It extends its services to areas where no communication facilities exist yet; and assists the private sector engaged in telecommunication services by providing and maintaining backbone telecommunication network. It is indisputably part of the Republic, and summons should have been served on the Solicitor General.   

 

We now turn to the question of whether summons was properly served according to the Rules of Court. Petitioners rely solely on the sheriff’s return to prove that summons was properly served. We quote its contents, viz:

 

“THIS IS TO CERTIFY that on the 19th day of May 1999, the undersigned caused the service of Summons and Complaint upon defendant J.A. Development Corporation at the address indicated in the summons, the same having been received by a certain Jacqueline delos Santos, a person employed thereat, of sufficient age and discretion to receive such process, who signed on the lower portion of the Summons to acknowledge receipt thereof.

 

Likewise, copy of the Summons and Complaint was served upon defendant Bureau of Telecommunications at the address indicated in the Summons, a copy of the same was received by a certain Cholito Anitola, a person employed thereat, who signed on the lower portion of the Summons to acknowledge receipt thereof.”

 

It is incumbent upon the party alleging that summons was validly served to prove that all requirements were met in the service thereof. We find that this burden was not discharged by the petitioners. The records show that the sheriff served summons on an ordinary employee and not on the Solicitor General. Consequently, the trial court acquired no jurisdiction over BUTEL, and all proceedings therein are null and void.[4][32]    (Emphases supplied.)

 

In the instant case, the Complaint for Specific Performance with Damages filed by Domingo specifically named as defendant the DPWH Region III.  As correctly argued by the Republic, the DPWH and its regional office are merely the agents of the former (the Republic), which is the real party in interest in Civil Case No. 333-M-2002.  Thus, as mandated by Section 13, Rule 14 of the Rules of Court, the summons in this case should have been served on the OSG.

 

 

XXXXXXXXXXXXXXXXXXXXXXXX

 

 

DOMINGO FURTHER ARGUES THAT THE REPUBLIC IS ESTOPPED BECAUSE IN TWO SIMILAR CASES FILED AGAINST THE DPWH, THE OSG ENTERED THEIR APPEARANCE. IS THIS ARGUMENT CORRECT?

 

 

NO. JURISDICTION IS ACQUIRED BY COERCIVE PROCESS OF SERVICE OF SUMMONS OR BY VOLUNTARY APPEARANCE OR SUBMISSION TO COURT. IN THE OTHER CASES, THERE WAS VOLUNTARY APPEARANCE. IN THE CASE AT HAND THERE WAS NO VOLUNTARY APPEARANCE, HENCE JURISDICTION MUST BE THROUGH SUMMONS. BUT SUMMONS WAS NOT SERVED TO THE REPUBLIC. THUS THE COURT AQUIRED NO JURISDICTION OVER THE CASE.

 

 

Summons is a writ by which the defendant is notified of the action brought against him.  Service of such writ is the means by which the court acquires jurisdiction over his person.  Jurisdiction over the person of the defendant is acquired through coercive process, generally by the service of summons issued by the court, or through the defendant’s voluntary appearance or submission to the court.[5][29]

 

……………………….

 

 

The Court, nonetheless, subscribes to the ruling of the Court of Appeals that the Republic is not estopped from raising the issue of jurisdiction in the case at bar in view of the alleged entry of appearance of the OSG, in behalf of the Republic, in the other civil cases supposedly filed by Domingo against the DPWH Region III.  As held by the appellate court, the other civil cases presumably pertained to transactions involving Domingo and the DPWH Region III, which were totally different from the contracts involved in the instant case.  The fact that the OSG entered its appearance in the other civil cases, notwithstanding that the summons therein were only served upon the DPWH Region III, has no bearing in the case now before us.  All this indicates is that, despite the improper service of summons in these other civil cases, there appeared to be notice to the OSG and voluntary appearance on the latter’s part.

 

Here, there was no indication, and Domingo did not insist otherwise, that the OSG had any notice of the filing of Civil Case No. 333-M-2002.  Domingo speculates that, in the subsequent civil actions against the DPWH Region III, the latter most likely brought the said cases to the attention of the OSG.  On the other hand, Domingo opines that the DPWH Region III apparently neglected to inform the OSG of the pendency of Civil Case No. 333-M-2002.  Accordingly, Domingo asserted that he should not be faulted therefor.  The Court disagrees.  Domingo ought to bear in mind that it is the duty of the plaintiff to implead all the necessary or indispensable parties for the complete determination of the action.[6][34]  It was, thus, incumbent upon him to name and implead the proper defendant in this case, i.e., the Republic, and cause the service of summons to be made upon the officer mandated by law, that is, the OSG.  As Domingo failed to discharge this burden, he cannot now be allowed to shift the blame on the DPWH Region III or hold in estoppel the OSG.   

 

 

XXXXXXXXXXXXXXXXXXX

 

 

WERE THE PROCEEDINGS THEN NULL AND VOID?

 

 

YES BECAUSE THE REPUBLIC WAS NOT VALIDLY SERVED WITH SUMMONS. BUT WITHOUT PREJUDICE TO THE REFILING OF THE CASE.

 

In sum, the Court holds that the Republic was not validly served with summons in Civil Case No. 333-M-2002.  Hence, the RTC failed to acquire jurisdiction over the person of the Republic.  Consequently, the proceedings had before the trial court and its Decision dated February 18, 2003 are hereby declared void.

In accordance with Section 7, Rule 47[7][35] of the Rules of Court, a judgment of annulment shall set aside the questioned judgment or final order or resolution and render the same null and void, without prejudice to the original action being refiled in the proper court.

 

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

 

Republic of the Philippines

Supreme Court

Manila

 

 

FIRST DIVISION

 

 

REPUBLIC OF THE PHILIPPINES, represented by the Department of Public Works and Highways, through the Hon. Secretary, HERMOGENES EBDANE,

                    Petitioner,

 

 

–  versus  –

 

 

ALBERTO A. DOMINGO,

                   Respondent.

  G.R. No. 175299

 

Present:

 

CORONA, C.J.,

     Chairperson,     

LEONARDO-DE CASTRO,

BERSAMIN,

DELCASTILLO, and

VILLARAMA, JR., JJ.

 

Promulgated:

 

September 14, 2011

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

 

 

D E C I S I O N

 

 

LEONARDO – DE CASTRO, J.:

 

          In this Petition for Review on Certiorari[8][1] under Rule 45 of the Rules of Court, the Court is called upon to reverse and set aside the Decision[9][2] dated May 19, 2006 and the Resolution[10][3] dated October 25, 2006 of the Court of Appeals in CA-G.R. SP No. 78813, as well as to declare null and void the Decision[11][4] dated February 18, 2003 of the Regional Trial Court (RTC) of Malolos, Bulacan, Branch 18, in Civil Case No. 333-M-2002.   

 

          As culled from the records, the factual antecedents of the case are as follows:

          On April 26, 2002, herein respondent Alberto A. Domingo filed a Complaint for Specific Performance with Damages[12][5] against the Department of Public Works and Highways (DPWH), Region III, which was docketed as Civil Case No. 333-M-2002 in the RTC of Malolos, Bulacan, Branch 18.  Domingo averred that from April to September 1992, he entered into seven contracts with the DPWH Region III for the lease of his construction equipment to said government agency.[13][6]  The lease contracts were allegedly executed in order to implement the emergency projects of the DPWH Region III, which aimed to control the flow of lahar from Mt. Pinatubo in the adjacent towns in the provinces of Tarlac and Pampanga.  After the completion of the projects, Domingo claimed that the unpaid rentals of the DPWH Region III amounted to P6,320,163.05.  Despite repeated demands, Domingo asserted that the DPWH Region III failed to pay its obligations.  Domingo was, thus, compelled to file the above case for the payment of the P6,320,163.05 balance, plus P200,000.00 as moral and compensatory damages, P100,000.00 as exemplary damages, and P200,000.00 as attorney’s fees.[14][7]

 

          Thereafter, summons was issued by the RTC. The Proof of Service[15][8] of the Sheriff dated May 9, 2002 stated, thus:

 

PROOF OF SERVICE

 

            The undersigned personally served the copy of the Summons together with the complaint issued in the above-entitled case upon defendant The Department of Public Works and Highways, Region III, San Fernando Pampanga on May 6, 2002 through Nora Cortez, Clerk III of said office as shown by her signature and stamped mark received by said office appearing on the original Summons.

 

            WHEREFORE, the original Summons respectfully returned to the Court “DULY SERVED”, for its record and information.

 

            Malolos, Bulacan, May 9, 2002.

 

 

            Subsequently, on July 30, 2002, Domingo filed a Motion to Declare Defendant in Default[16][9] in view of the failure of the DPWH Region III to file a responsive pleading within the reglementary period as required under the Rules of Court.  During the hearing of the motion on August 8, 2002, the RTC directed the counsel of Domingo to submit proof of service of said motion on the DPWH Region III.  Thereafter, the motion was deemed submitted for resolution.[17][10]  Counsel for Domingo timely filed a Manifestation,[18][11] showing compliance with the order of the trial court.

 

          In an Order[19][12] dated September 2, 2002, the RTC declared the DPWH Region III in default and thereafter set the date for the reception of Domingo’s evidence ex parte

 

After the ex parte presentation of Domingo’s evidence, the RTC rendered judgment on February 18, 2003, finding that:

 

          From the evidence presented by [Domingo], testimonial and documentary, it was convincingly proven that [Domingo] is entitled to the relief prayed for.

 

            In his seven causes of actions, [Domingo] has religiously undertaken what is incumbent upon him in the contracts of lease signed by both [Domingo] and [the DPWH Region III].  As a matter of course, the [DPWH Region III] has the duty to pay [Domingo] the amount equivalent to the services performed by [Domingo] which [in] this case now amount to P6,320,163.05 excluding interest.

 

            Considering that there was a long delay in the payment of the obligation on the part of the [DPWH Region III], Article 2209 of the New Civil Code finds application as to imputation of legal interest at six (6%) percent per annum, in the absence of stipulation of interest on the amount due.

 

            With respect to the claim for attorney’s fees, although as a general rule, attorney’s fees cannot be rewarded because of the policy that no premium should be placed on the right to litigate, this rule does not apply in the case at bar in the face of the stubborn refusal of [the DPWH Region III] to respect the valid claim of [Domingo] x x x.  Award of attorney’s fees in the amount of P30,000.00 appears proper.  Moreover, as to [the] demand for moral and exemplary damages, the same are hereby denied for lack of persuasive and sufficient evidence.[20][13]

 

 

          Thus, the RTC disposed:

Wherefore, premises considered, judgment is hereby rendered in favor of plaintiff Alberto Domingo and against defendant DPWH Region III, ordering defendant to pay plaintiff:

 

1.  the sum of Six Million Three Hundred Twenty Thousand One Hundred Sixty[-]Three and 05/100 Pesos (P6,320,163.05) representing the principal obligation of the defendant plus interest at six percent (6%) per annum from 1993 until the obligation is fully paid;

 

2.  to pay attorney’s fees in the total amount of Thirty Thousand Pesos (P30,000.00) and

 

3.  to pay the costs of suit.[21][14]

 

 

          On March 12, 2003, Domingo filed a Motion for Issuance of Writ of Execution,[22][15] asserting that the DPWH Region III failed to file an appeal or a motion for new trial and/or reconsideration despite its receipt of a copy of the RTC decision on February 19, 2003.  On March 20, 2003, the RTC granted the aforesaid motion of Domingo.[23][16]  A Writ of Execution[24][17] was then issued on March 24, 2003, commanding the sheriff to enforce the RTC Decision dated February 18, 2003. 

 

          On August 27, 2003, the Republic of the Philippines, represented by the Office of the Solicitor General (OSG), filed with the Court of Appeals a Petition for Annulment of Judgment with Prayer for the Issuance of a Temporary Restraining Order and/or a Writ of Preliminary Injunction.[25][18]  The petition was docketed as CA-G.R. SP No. 78813.  The Republic argued that it was not impleaded as an indispensable party in Civil Case No. 333-M-2002.  The seven contracts sued upon in the trial court stated that they were entered into by the Regional Director, Assistant Regional Director and/or Project Manager of the DPWH Region III for and in behalf of the Republic of thePhilippines, which purportedly was the real party to the contract.  Moreover, the Republic averred that, under the law, the statutory representatives of the government for purposes of litigation are either the Solicitor General or the Legal Service Branch of the Executive Department concerned.  Since no summons was issued to either of said representatives, the trial court never acquired jurisdiction over the Republic.  The absence of indispensable parties allegedly rendered null and void the subsequent acts of the trial court because of its lack of authority to act, not only as to the absent parties, but even as to those present.  The Republic prayed for the annulment of the RTC Decision dated February 18, 2003 and the dismissal of the said case, without prejudice to the original action being refiled in the proper court.

 

          On May 19, 2006, the Court of Appeals promulgated its decision, dismissing the Petition for Annulment of Judgment filed by the Republic.  The appellate court elaborated that:

 

          The hair-splitting distinction being made by [the Republic] between the DPWH as a department under the Republic, and the Regional Office of the DPWH fails to persuade Us.  Instead, We uphold [Domingo’s] position that the regional office is an extension of the department itself and service of summons upon the former is service upon the latter. x x x.

 

            x x x x

 

x x x [A] regional office of the DPWH is part of the composition of the department itself and is therefore, not an entity that is altogether separate from the department.  This conclusion lends credence to [Domingo’s] position that service of summons upon the regional office is service upon the department itself because the former is essentially part of the latter.  Indeed, what militates heavily against [the Republic’s] theory is the simple fact that the regional office is not a different entity at all, but, as can be gleaned from the manner of its creation, a part of the department itself, so much so that it does not even have a juridical personality of its own. x x x.

 

            Anent the claim that the procedure for service of summons upon the Republic was not followed because service should have been made on the OSG or the Legal Service Department of the DPWH, We are likewise not persuaded.  A perusal of the Revised Administrative Code of thePhilippinessuggests nothing of this import. x x x.

 

            x x x x

 

            Clearly, nothing [in the functions of the OSG] remotely suggests that service of summons upon the Republic should be made exclusively on the OSG.  What the [provisions] merely state is that the OSG will represent the government in all proceedings involving it.  It cannot be deduced nor implied from this, however, that summons should be served upon it alone.

 

            The same conclusion applies to the legal service branch of the DPWH, as there is also nothing in the law that suggests that service of summons on the DPWH should be made upon it alone. x x x.

 

            x x x x

 

            Obviously, petitioner’s conclusion that the proper procedure for service of summons was not observed is a mere conjecture because We find nothing in the provisions invoked by it that such indeed is the procedure sanctioned by law.  We are thus inclined to give more credence to [the Republic’s] argument that it was the regional office’s fault if it failed to bring the subject case to the attention of the OSG for proper representation.  To allow it to benefit from its own omission in order to evade its just and valid obligation would be the height of injustice.

 

            Finally, anent the argument that the Republic is estopped from questioning the jurisdiction of the trial court, We rule in the negative.  The existence of another case against the regional office of the DPWH where the OSG appeared is of no moment as it concerns a totally different transaction.  Thus, it would be erroneous for Us to rule on that basis alone, that the OSG is already acknowledging the service of summons upon the regional office, especially considering the categorical stand taken by the OSG on the matter in the case now before Us.  Be that as it may, however, We still rule, as We have discussed above, that [Domingo’s] position is more impressed with merit.

 

            WHEREFORE, in view of the foregoing, the instant Petition for Annulment of Judgment is hereby DISMISSED.[26][19]

 

 

          The Republic filed a Motion for Reconsideration[27][20] of the above decision, but the Court of Appeals denied the same in the assailed Resolution dated October 25, 2006.

 

Consequently, the Republic filed the instant petition before this Court.  In a Resolution[28][21] dated February 19, 2007, we denied the Republic’s petition for failure to properly verify the petition and that the jurat in the verification and certification against forum shopping did not contain any competent evidence of the affiant’s identity.  In addition, the Integrated Bar of the Philippines (IBP) dues payment (under IBP O.R. No. 663485) of one of the counsels who signed the petition was not updated.  The Republic filed a Motion for Reconsideration[29][22] of the above resolution.[30][23]  On July 2, 2007, the Court resolved[31][24] to grant the Republic’s motion, thereby reinstating its petition.

 

In assailing the judgment of the Court of Appeals, the Republic brings to fore the following arguments:

I.

 

If in the act by which the Republic consents to be sued, no designation is made as to the officer to be served with summons, then the process can only be served upon the Solicitor General.

 

[II.]

 

The State is not bound by the errors or mistakes of its agents.

 

III.

 

Respondent can recover on the government contracts sued upon in Civil Case No. [3]33-M-2002 only on a quantum meruit basis.[32][25]

 

 

          In essence, the primary issue that must be resolved in the instant petition is whether the Court of Appeals correctly dismissed the Petition for Annulment of Judgment filed by the Republic.

 

          Section 1, Rule 47[33][26] of the Rules of Court provides for the remedy of annulment by the Court of Appeals of judgments or final orders and resolutions of Regional Trial Courts for which the ordinary remedies of new trial, appeal, petition for relief or other appropriate remedies are no longer available through no fault of the petitioner.

 

          Under the first paragraph of Section 2, Rule 47[34][27] of the Rules of Court, the annulment may be based only on the grounds of extrinsic fraud and lack of jurisdiction.  As a ground for annulment of judgment, lack of jurisdiction refers to either lack of jurisdiction over the person of the defending party or over the subject matter of the claim.[35][28]  

 

In the petition at bar, the Republic argues that the RTC failed to acquire jurisdiction over the former.  The Republic reiterates that the service of summons upon the DPWH Region III alone was insufficient.   According to the Republic, the applicable rule of procedure in this case is Section 13, Rule 14 of the Rules of Court, which mandates that when the defendant is the Republic of thePhilippines, the service of summons may be effected on the Office of the Solicitor General (OSG).  The DPWH and its regional office are simply agents of the Republic, which is the real party in interest in Civil Case No. 333-M-2002.  The Republic posits that, since it was not impleaded in the case below and the RTC did not acquire jurisdiction over it, the proceedings in Civil Case No. 333-M-2002 are null and void. 

 

On the other hand, Domingo argues that the DPWH Region III is part of the DPWH itself; hence, a suit against the regional office is a suit against the said department and the Republic as well.  Domingo stresses that the case he filed was against the Republic, that is, against the DPWH Region III, and it was clear that the summons and a copy of the complaint was duly served on the said regional office.  Likewise, Domingo submits that the Republic is estopped from raising the issue of jurisdiction in the instant case given that he has filed two other civil actions for specific performance and damages against the DPWH Region III and, in the said cases, the OSG formally entered its appearance for and in behalf of the Republic.  Domingo alleges that the foregoing action of the OSG proved that it recognized the validity of the service of summons upon the DPWH Region III and the jurisdiction of the trial court over the said regional office.

 

          The Court finds merit in the Republic’s petition.

 

Summons is a writ by which the defendant is notified of the action brought against him.  Service of such writ is the means by which the court acquires jurisdiction over his person.  Jurisdiction over the person of the defendant is acquired through coercive process, generally by the service of summons issued by the court, or through the defendant’s voluntary appearance or submission to the court.[36][29]

 

Section 13, Rule 14 of the Rules of Court states that:

 

SEC. 13. Service upon public corporations. – When the defendant is the Republic of the Philippines, service may be effected on the Solicitor General; in case of a province, city or municipality, or like public corporations, service may be effected on its executive head, or on such other officer or officers as the law or the court may direct.  (Emphasis ours.)

 

 

          Jurisprudence further instructs that when a suit is directed against an unincorporated government agency, which, because it is unincorporated, possesses no juridical personality of its own, the suit is against the agency’s principal, i.e., the State.[37][30]  In the similar case of Heirs of Mamerto Manguiat v. Court of Appeals,[38][31] where summons was served on the Bureau of Telecommunications which was an agency attached to the Department of Transportation and Communications, we held that:

 

Rule 14, Section 13 of the 1997 Rules of Procedure provides:

 

SEC. 13.          Service upon public corporations. — When the defendant is the Republic of thePhilippines, service may be effected on the Solicitor General; in case of a province, city or municipality, or like public corporations, service may be effected on its executive head, or on such other officer or officers as the law or the court may direct.

 

It is clear under the Rules that where the defendant is the Republic of the Philippines, service of summons must be made on the Solicitor General. The BUTEL is an agency attached to the Department of Transportation and Communications created under E.O. No. 546 on July 23, 1979, and is in charge of providing telecommunication facilities, including telephone systems to government offices. It also provides its services to augment limited or inadequate existing similar private communication facilities. It extends its services to areas where no communication facilities exist yet; and assists the private sector engaged in telecommunication services by providing and maintaining backbone telecommunication network. It is indisputably part of the Republic, and summons should have been served on the Solicitor General.   

 

We now turn to the question of whether summons was properly served according to the Rules of Court. Petitioners rely solely on the sheriff’s return to prove that summons was properly served. We quote its contents, viz:

 

“THIS IS TO CERTIFY that on the 19th day of May 1999, the undersigned caused the service of Summons and Complaint upon defendant J.A. Development Corporation at the address indicated in the summons, the same having been received by a certain Jacqueline delos Santos, a person employed thereat, of sufficient age and discretion to receive such process, who signed on the lower portion of the Summons to acknowledge receipt thereof.

 

Likewise, copy of the Summons and Complaint was served upon defendant Bureau of Telecommunications at the address indicated in the Summons, a copy of the same was received by a certain Cholito Anitola, a person employed thereat, who signed on the lower portion of the Summons to acknowledge receipt thereof.”

 

It is incumbent upon the party alleging that summons was validly served to prove that all requirements were met in the service thereof. We find that this burden was not discharged by the petitioners. The records show that the sheriff served summons on an ordinary employee and not on the Solicitor General. Consequently, the trial court acquired no jurisdiction over BUTEL, and all proceedings therein are null and void.[39][32]    (Emphases supplied.)

 

 

In the instant case, the Complaint for Specific Performance with Damages filed by Domingo specifically named as defendant the DPWH Region III.  As correctly argued by the Republic, the DPWH and its regional office are merely the agents of the former (the Republic), which is the real party in interest in Civil Case No. 333-M-2002.  Thus, as mandated by Section 13, Rule 14 of the Rules of Court, the summons in this case should have been served on the OSG.

 

          Quite inexplicably, the Court of Appeals failed to apply, nay, to even consider, the provisions of Section 13, Rule 14 of the Rules of Court in rendering its assailed Decision.  A perusal of the Decision dated May 19, 2006 shows that the appellate court mainly dissertated regarding the functions and organizational structures of the DPWH and the OSG, as provided for in the Revised Administrative Code of 1987, in an attempt to demonstrate the relationship between the DPWH and its regional offices, as well as to refute the claim that the service of summons upon the Republic should be made exclusively upon the OSG.  Such an oversight on the part of the Court of Appeals is most unfortunate given the relevance and materiality of Section 13, Rule 14 of the Rules of Court to the instant case, in addition to the fact that the Republic itself quoted the aforesaid provision in its petition before the appellate court.[40][33]

 

The Court, nonetheless, subscribes to the ruling of the Court of Appeals that the Republic is not estopped from raising the issue of jurisdiction in the case at bar in view of the alleged entry of appearance of the OSG, in behalf of the Republic, in the other civil cases supposedly filed by Domingo against the DPWH Region III.  As held by the appellate court, the other civil cases presumably pertained to transactions involving Domingo and the DPWH Region III, which were totally different from the contracts involved in the instant case.  The fact that the OSG entered its appearance in the other civil cases, notwithstanding that the summons therein were only served upon the DPWH Region III, has no bearing in the case now before us.  All this indicates is that, despite the improper service of summons in these other civil cases, there appeared to be notice to the OSG and voluntary appearance on the latter’s part.

 

Here, there was no indication, and Domingo did not insist otherwise, that the OSG had any notice of the filing of Civil Case No. 333-M-2002.  Domingo speculates that, in the subsequent civil actions against the DPWH Region III, the latter most likely brought the said cases to the attention of the OSG.  On the other hand, Domingo opines that the DPWH Region III apparently neglected to inform the OSG of the pendency of Civil Case No. 333-M-2002.  Accordingly, Domingo asserted that he should not be faulted therefor.  The Court disagrees.  Domingo ought to bear in mind that it is the duty of the plaintiff to implead all the necessary or indispensable parties for the complete determination of the action.[41][34]  It was, thus, incumbent upon him to name and implead the proper defendant in this case, i.e., the Republic, and cause the service of summons to be made upon the officer mandated by law, that is, the OSG.  As Domingo failed to discharge this burden, he cannot now be allowed to shift the blame on the DPWH Region III or hold in estoppel the OSG.   

In sum, the Court holds that the Republic was not validly served with summons in Civil Case No. 333-M-2002.  Hence, the RTC failed to acquire jurisdiction over the person of the Republic.  Consequently, the proceedings had before the trial court and its Decision dated February 18, 2003 are hereby declared void.

In accordance with Section 7, Rule 47[42][35] of the Rules of Court, a judgment of annulment shall set aside the questioned judgment or final order or resolution and render the same null and void, without prejudice to the original action being refiled in the proper court.

 

In view of the above ruling of the Court declaring the nullity of the proceedings in the RTC, the Court shall no longer pass upon the other issues raised by the parties in the instant petition.

 

WHEREFORE, the petition is GRANTED.  The Decision dated May 19, 2006 and the Resolution dated October 25, 2006 of the Court of Appeals in CA-G.R. SP No. 78813 are REVERSED.  The Decision dated February 18, 2003 of the Regional Trial Court of Malolos, Bulacan, Branch 18, in Civil Case No. 333-M-2002 is hereby ANNULLED and SET ASIDE, without prejudice to the filing of the original action in the proper Regional Trial Court.

 

SO ORDERED.

 

 

 

 

TERESITA J. LEONARDO-DE CASTRO

  Associate Justice

 

 

WE CONCUR:

 

 

 

 

 

RENATO C. CORONA

Chief Justice

Chairperson

 

 

 

 

 

 

LUCAS P. BERSAMIN

Associate Justice

MARIANO C. DEL CASTILLO

Associate Justice

 

 

 

 

 

 

 

 

 

 

 

 

MARTIN S. VILLARAMA, JR.

Associate Justice

 

 

 

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, 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][30]          Philippine Rock Industries, Inc. v. Board of Liquidators, 259 Phil. 650, 655-656 (1989). See also Farolan, Jr. v. Court of Tax Appeals, G.R. No. 42204, January 21, 1993, 217 SCRA 298, 306.

[2][30]          Philippine Rock Industries, Inc. v. Board of Liquidators, 259 Phil. 650, 655-656 (1989). See also Farolan, Jr. v. Court of Tax Appeals, G.R. No. 42204, January 21, 1993, 217 SCRA 298, 306.

[3][31]          G.R. Nos. 150768 and 160176, August 20, 2008, 562 SCRA 422.

[4][32]         Id. at 431-432.

[5][29]          Guiguinto Credit Cooperative, Inc. v. Torres, G.R. No. 170926, September 15, 2006, 502 SCRA 182, 189-190.

[6][34]          Nery v. Leyson, 393 Phil. 644, 655 (2000).

[7][35]          Section 7, Rule 47 provides:

            SEC. 7. Effect of judgment. – A judgment of annulment shall set aside the questioned judgment or final order or resolution and render the same null and void, without prejudice to the original action being refiled in the proper court.  However, where the judgment or final order or resolution is set aside on the ground of extrinsic fraud, the court may on motion order the trial court to try the case as if a timely motion for new trial had been granted therein.

[8][1]           Rollo, pp. 9-31.

[9][2]          Id. at 32-45; penned by Associate Justice Mariflor P. Punzalan Castillo with Associate Justices Elvi John S. Asuncion and Noel G. Tijam, concurring.

[10][3]         Id. at 46-48.

[11][4]         Id. at 73-80; penned by Presiding Judge Victoria C. Fernandez-Bernardo.

[12][5]          Records, Vol. I, pp. 3-24. 

[13][6]          Id., Vol. III, pp. 2-3, 40-41, 75-76, 112-114, 171-173, 230-231, and 261-262. 

[14][7]         Id., Vol. I, pp. 22-23. 

[15][8]         Id. at 41.

[16][9]         Id. at 42-43.

[17][10]        Id. at 46.

[18][11]        Id. at 47-49.

[19][12]        Id. at 50.

[20][13]         Rollo, p. 79.

[21][14]        Id. at 80.

[22][15]         Records, Vol. I, pp. 76-78.

[23][16]        Id. at 79.

[24][17]        Id. at 80-81.

[25][18]         CA rollo, pp. 1-30.

[26][19]         Rollo, pp. 37-45.

[27][20]         CA rollo, pp. 158-165.

[28][21]         Rollo, p. 129. 

[29][22]        Id. at 130-149.

[30][23]         In brief, the Republic proffered the following reasons: (a) the OSG’s authority to administer oaths in matters of official business is derived from Presidential Decree No. 1347, hence, the Notarial Law or the 2004 Rules on Notarial Practice, including the approved forms of the 2004 Rules on Notarial Practice, is not particularly applicable to the said office; (b) the petition was properly verified and the identity and signature of affiant Hermogenes Ebdane was confirmed by the Solicitor/Officer of the OSG administering the oath; (c) IBP O.R. No. 663485 of Solicitor Edgar R. Tupas was paid for the Calendar Year 2006; and (d) substantial compliance with the Rules merits a liberal construction of the Rules with the instant case being determined on its merits rather than on technicality or procedural imperfections. (Rollo, pp. 130-131.)

[31][24]         Rollo, pp. 158-159.

[32][25]        Id. at 263.

[33][26]     Section 1 of Rule 47 reads:

SEC. 1. Coverage.  – This Rule shall govern the annulment by the Court of Appeals of judgments or final orders and resolutions in civil actions of Regional Trial Courts for which the ordinary remedies of new trial, appeal, petition for relief or other appropriate remedies are no longer available through no fault of the petitioner.

[34][27]         Section 2 of Rule 47 provides:

SEC. 2. Grounds for annulment.  – The annulment may be based only on the grounds of extrinsic fraud and lack of jurisdiction.

Extrinsic fraud shall not be a valid ground if it was availed of, or could have been availed of, in a motion for new trial or petition for relief.

[35][28]         Republic of the Philippines v. “G” Holdings, Inc., G.R. No. 141241, November 22, 2005, 475 SCRA 608, 617-618.

[36][29]         Guiguinto Credit Cooperative, Inc. v. Torres, G.R. No. 170926, September 15, 2006, 502 SCRA 182, 189-190.

[37][30]         Philippine Rock Industries, Inc. v. Board of Liquidators, 259 Phil. 650, 655-656 (1989). See also Farolan, Jr. v. Court of Tax Appeals, G.R. No. 42204, January 21, 1993, 217 SCRA 298, 306.

[38][31]         G.R. Nos. 150768 and 160176, August 20, 2008, 562 SCRA 422.

[39][32]        Id. at 431-432.

[40][33]         CA rollo, p. 12.

[41][34]         Nery v. Leyson, 393 Phil. 644, 655 (2000).

[42][35]         Section 7, Rule 47 provides:

            SEC. 7. Effect of judgment. – A judgment of annulment shall set aside the questioned judgment or final order or resolution and render the same null and void, without prejudice to the original action being refiled in the proper court.  However, where the judgment or final order or resolution is set aside on the ground of extrinsic fraud, the court may on motion order the trial court to try the case as if a timely motion for new trial had been granted therein.

TRIAL NOTE 0013: WHEN YOU FILE A SECOND MOTION FOR RECONSIDERATION, BE CAREFUL. READ FIRST THE FOLLOWING NOTES.

SOURCE: LEAGUE OF CITIES OF THE PHILIPPINES (LCP), REPRESENTED BY LCP NATIONAL PRESIDENT JERRY P. TREÑAS; CITY OF CALBAYOG, REPRESENTED BY MAYOR MEL SENEN S. SARMIENTO; AND JERRY P. TREÑAS, IN HIS PERSONAL CAPACITY AS TAXPAYER VS. COMMISSION ON ELECTIONS; MUNICIPALITY OF BAYBAY, PROVINCE OF LEYTE; MUNICIPALITY OF BOGO, PROVINCE OF CEBU; MUNICIPALITY OF CATBALOGAN, PROVINCE OF WESTERN SAMAR; MUNICIPALITY OF TANDAG, PROVINCE OF SURIGAO DEL SUR; MUNICIPALITY OF BORONGAN, PROVINCE OF EASTERN SAMAR; AND MUNICIPALITY OF TAYABAS, PROVINCE OF QUEZON  ETC. (G.R. NO. 176951 ETC., 28 JUNE 2011, BERSAMIN, J.) SUBJECT: SECOND MOTION FOR RECONSIDERATION. (BRIEF TITLE: LEAGUE OF CITIES VS. COMELEC).

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WHAT IS THE RULE GOVERNING SECOND MOTION FOR RECONSIDERATION IN ORDINARY COURTS?

RULE 2, RULE 15.

Sec. 2. Second motion for reconsideration.

No second motion for reconsideration of a judgment or final resolution by the same party shall be entertained. (n)

 

CAN A SECOND MOTION FOR RECONSIDERATION BE ENTERTAINED?

GENERALLY, NO BECAUSE SECTION 2, RULE 15 IS UNQUALIFIED.

The Motion for Reconsideration, being a second motion for reconsideration, cannot be entertained. As to that, Section 2[1][4] of Rule 51 of the Rules of Court is unqualified.

 

WHEN CAN A SECOND MOTION FOR RECONSIDERATION BE ENTERTAINED?

THERE ARE TWO CONDITIONS:

–                     THERE MUST BE EXTRA ORDINARY PERSUASIVE REASON.

–                     AN EXPRESS LEAVE HAS BEEN FIRST OBTAINED.

. . . and only for extraordinarily persuasive reasons and only after an express leave has been first obtained may a second motion for reconsideration be entertained.[2][6]

 

WHY IS THAT SO?

BECAUSE A SECOND MOTION FOR RECONSIDERATION IS A RESTRICTIVE PLEADING. OR THERE IS A RESTRICTIVE POLICY AGAINST SECOND MOTION FOR RECONSIDERATION.

 

WHAT IS THE RULE GOVERNING SECOND MOTION FOR RECONSIDERATION IN THE SUPREME COURT?

SECTION 3, RULE 15 OF THE INTERNAL RULES OF THE SUPREME COURT.

Section 3. Second motion for reconsideration. – The Court shall not entertain a second motion for reconsideration, and any exception to this rule can only be granted in the higher interest of justice by the Court en banc upon a vote of at least two-thirds of its actual membership.          There is reconsideration “in the higher interest of justice” when the assailed decision is not only legally erroneous, but is likewise patently unjust and potentially capable of causing unwarranted and irremediable injury or damage to the parties. A second motion for reconsideration can only be entertained before the ruling sought to be reconsidered becomes final by operation of law or by the Court’s declaration.

In the Division, a vote of three Members shall be required to elevate a second motion for reconsideration to the Court En Banc.

 

WHAT IS THE FULL RULING ON THE ISSUE IN THE LEAGUE  OF CITIES VS COMELEC CASE?

THE RULING READS:

The Motion for Reconsideration, being a second motion for reconsideration, cannot be entertained. As to that, Section 2[3][4] of Rule 51 of the Rules of Court is unqualified. The Court has firmly held that a second motion for reconsideration is a prohibited pleading,[4][5] and only for extraordinarily persuasive reasons and only after an express leave has been first obtained may a second motion for reconsideration be entertained.[5][6] The restrictive policy against a second motion for reconsideration has been re-emphasized in the recently promulgated Internal Rules of the Supreme Court, whose Section 3, Rule 15 states:

Section 3. Second motion for reconsideration. – The Court shall not entertain a second motion for reconsideration, and any exception to this rule can only be granted in the higher interest of justice by the Court en banc upon a vote of at least two-thirds of its actual membership.          There is reconsideration “in the higher interest of justice” when the assailed decision is not only legally erroneous, but is likewise patently unjust and potentially capable of causing unwarranted and irremediable injury or damage to the parties. A second motion for reconsideration can only be entertained before the ruling sought to be reconsidered becomes final by operation of law or by the Court’s declaration.

In the Division, a vote of three Members shall be required to elevate a second motion for reconsideration to the Court En Banc.

 

NOTE: WHEN THE SC STATES THAT A DECISION IS ALREADY FINAL NO SECOND MOTION FOR RECONSIDERATION SHALL BE ENTERTAINED.

We observe, too, that the prescription that a second motion for reconsideration “can only be entertained before the ruling sought to be reconsidered becomes final by operation of law or by the Court’s declaration” even renders the denial of the petitioners’ Motion for Reconsideration more compelling. As the resolution of April 12, 2011 bears out,[6][7] the ruling sought to be reconsidered became final by the Court’s express declaration. Consequently, the denial of the Motion for Reconsideration is immediately warranted.

 

IN THE LEAGUE OF CITIES VS. COMELEC, PETITIONERS ARGUE THAT A SECOND MOTION FOR RECONSIDERATION WAS PREVIOUSLY ENTERTAINED. THEREFORE, THEIR MOTION FOR ANOTHER RECONSIDERATION MUST BE ENTERTAINED. IS THEIR CONTENTION CORRECT?

NO.  BECAUSE THE SC, WITH REGARDS TO THE PREVIOUS SECOND MOTION FOR RECONSIDERATION UNANIMOUSLY DECLARED THAT THE SECOND  MOTION FOR RECONSIDERATION WAS NOT A PROHIBITED PLEADING. HERE THERE WAS NO SUCH DECLARATION.

Still, the petitioners seem to contend that the Court had earlier entertained and granted the respondents’ own second motion for reconsideration.  There is no similarity between then and now, however, for the Court en banc itself unanimously declared in the resolution of June 2, 2009 that the respondents’ second motion for reconsideration was “no longer a prohibited pleading.”[7][8] No similar declaration favors the petitioners’ Motion for Reconsideration. (REMEMBER: UNANIMOUS AND EN BANK DECLARATION NEEDED. IT SEEMS THAT IF YOU MEET SUCH CONDITION EVEN A 10TH MOTION FOR RECONSIDERATION WILL STILL BE ENTERTAINED? BASIC RULE IS HE WHO HAS THE POWER TO CREATE HAS THE POWER TO DESTROY?)

 

 

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

 


[1][4]   Section 2. Second motion for reconsideration. – No second motion for reconsideration of a judgment or final resolution by the same party shall be entertained.

[2][6]     Ortigas and Company Limited Partnership v. Velasco, supra.

[3][4]   Section 2. Second motion for reconsideration. – No second motion for reconsideration of a judgment or final resolution by the same party shall be entertained.

[4][5]           Securities and Exchange Commission v. PICOP Resources, Inc., 566 SCRA 451 (2008); APO Fruits corporation v. Land Bank of the Philippines, G.R. No. 164195, April 5, 2011; Ortigas and Company Limited Partnership v. Velasco, 254 SCRA 234.

[5][6]     Ortigas and Company Limited Partnership v. Velasco, supra.

[6][7]   Supra, note 2.

[7][8]   The resolution ofJune 2, 2009 pertinently declared:

xxx

In the present case, the Court voted on the second motion for reconsideration filed by the respondent cities. In effect, the Court allowed the filing of the second motion for reconsideration.  Thus, the second motion for reconsideration was no longer a prohibited pleading.  However, for lack of the required number of votes to overturn the18 November 2009 Decision and31 March 2009 Resolution, the Court denied the second motion for reconsideration in its28 April 2009 Resolution.

xxx