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433 Phil. 490
SECOND DIVISION
[ G.R. No. 144581, July 05, 2002 ]
SPOUSES ELANIO C. ONG,[1]
PETITIONERS, VS. COURT OF
APPEALS AND EMMA A. GARAMAY ONG, ASSISTED BY HER HUSBAND ROBERTO C. ONG, RESPONDENTS.
D E C I S I O N
BELLOSILLO, J.:
This petition
for review on certiorari stems from a complaint for ejectment and
damages filed on 30 August 1994 by plaintiffs Emma A. Garamay Ong and her husband
Roberto C. Ong (respondents herein) against Elanio C. Ong and spouse
(petitioners herein) with the Municipal Trial Court in Cities (MTCC)-Br. 4,
Olongapo City, docketed as Civil Case No. 3291. The complaint alleged that Emma A. Garamay was the registered
owner of a parcel of land together with the building thereon located at No. 22
Barretto St., East Bajac-Bajac, Olongapo City, covered by TCT No. P-584; in the
early part of 1975 she and her husband, brother of defendant Elanio C. Ong,
allowed Elanio and his spouse (petitioners) to occupy the ground floor of the
building for their glass service business on the condition that they would pay
the realty taxes during the time that they would be using the property; and, in
the early part of November 1993 when plaintiffs needed the property, Emma
demanded the return of the premises but defendants sternly refused.
Defendant Elanio
C. Ong, in his answer,[2] denied
that Emma A. Garamay was the true and registered owner of the land covered by
TCT No. P-584. He claimed that the
disputed lot and building were not merely his business address but also the
residence of his family from the time they were bought by his father Ong Tiong
in 1974. Since both he and his brother
were Chinese citizens, the property was placed in trust under the name of Emma
A. Garamay who was then the live-in partner, now wife, of his brother Roberto;[3] hence,
the land and improvements thereon belonged to him and his brother Roberto.
As affirmative
defenses, Elanio alleged that his action for reconveyance and partition in the
Regional Trial Court of Olongapo City, docketed as Civil Case No. 268-0-94, was
filed on 25 July 1994, or even before the institution of the ejectment case
involving the same property, against herein private respondents. He further argued that the pendency of this
action constituted litis pendentia to warrant the dismissal of the
ejectment complaint filed against him in the MTCC-Br. 4, Olongapo City. He also claims that the complaint did not
allege earnest efforts to compromise among members of the family as required by
Art. 151 of the Family Code, and as were no such earnest efforts
actually exerted the complaint lacked cause of action. He finally asserted his right as co-owner of
the property so that he should not be made to pay rentals. He included in his Answer a
counterclaim for damages, attorney’s fees and costs as he claimed that the suit
filed against him was baseless.
On 3 October
1994, after the preliminary conference, the trial court issued a pre-trial
order which was later amended on 21 October 1994. Plaintiffs and defendants filed their position papers and
affidavits on 18 and 24 October 1994, respectively. The position paper of defendants, significantly, objected to
plaintiffs’ evidence purportedly proving that earnest efforts had been exerted
to settle the case although in vain, and for the first time called attention to
the absence of a certification of non-forum shopping in the ejectment complaint
in violation of Administrative Circular No. 04-94.
On 22 November
1994, apparently to obviate the objection of defendants, counsel for plaintiffs
filed a motion with leave of court to admit certification of non-forum shopping
alleging that his secretary had inadvertently overlooked the requirement and
attaching a certification dated 17 October 1994 for compliance. On 7 December 1994 defendants opposed the
admission of the certification and moved for the disqualification of Judge
Cesar V. Bada of MTCC-Br. 4, Olongapo City.
On 8 December
1994 Judge Bada inhibited himself from further hearing the case, which was
eventually transferred to MTCC-Br. 5 presided over by Judge Eduardo D. Alfonso,
Jr. who on 13 March 1995 admitted the certification and condoned the omission
on the ground that plaintiffs were not anyway guilty of actual forum
shopping. The motion for
reconsideration was denied.
On 24 August
1995 the MTCC decided the ejectment case in favor of plaintiff-spouses Emma A.
Garamay Ong and Roberto C. Ong (private respondents). Despite objection from
defendants, the MTCC considered evidence showing prior earnest but futile
efforts among members of the same family to settle the case amicably. It rejected the argument of litis
pendentia between the ejectment case and the action for reconveyance and
partition on the ground that disparate causes of action were involved in these
cases.
On the merits,
the MTCC found preponderance of evidence in favor of plaintiffs and ordered
defendants Elanio C. Ong and spouse to vacate the ground floor occupied by them
and to restore possession thereof peacefully to plaintiffs in addition to
monetary awards to them of P5,000.00 per month starting January 1994 as
rent for the use and occupancy of the premises until defendants could vacate
the premises, P20,000.00 for attorney’s fees, and the costs of suit.
Defendants
Elanio and his wife appealed to the Regional Trial Court, docketed as Civil
Case No. 436-0-95. Upon their motion
and to avoid conflicting decisions, the presiding judge of RTC-Br. 75 ordered
the consolidation of Civil Case No. 436-0-95 with the action for reconveyance
and partition (Civil Case No. 268-0-94) earlier filed by Elanio and assigned to
RTC-Br. 72 presided over by Judge Eliodoro C. Ubiadas. There was no objection to the consolidation.
On 5 October
1998 the RTC rendered its Decision in Civil Case No. 268-0-94 ordering
the reconveyance and partition of the property as well as the improvements
thereon between the brothers Elanio and Roberto Ong, one-half each, and to pay
the Spouses Elanio Ong as plaintiffs therein the amounts of P100,000.00
for moral damages, P20,000.00 for attorney’s fees, and P10,000.00
as litigation expenses. The RTC found
that respondent Emma Garamay in whose name the property was registered only
held it in trust for brothers Elanio and Roberto Ong. The spouses Emma and Roberto appealed the decision to the Court
of Appeals where the case still awaits disposition.
On 7 October
1998 the RTC-Br. 72, as appellate court in the ejectment case (Civil Case No.
436-0-95), ordered the parties to submit their respective memoranda. Only appellant-spouses Elanio Ong filed
their memorandum. The spouses Emma and
Roberto Ong did not file any memorandum despite receipt of the court’s order
directing them to do so.
On 8 December
1998, upon the rationale that the ejectment case on appeal must follow the Decision
rendered in the case for reconveyance and partition on account of their
consolidation, the appellate court (RTC - Br. 72) in the ejectment case
reversed the Decision of the MTCC and declared Elanio C. Ong and spouse
to be entitled to remain in possession of one-half (1/2) of the property
subject of litigation and to recover from Emma Garamay Ong and her husband the
amounts of P100,000.00 for moral damages and P50,000.00 for
attorney’s fees.[4]
Their motion for
reconsideration having been denied, spouses Emma and Roberto Ong filed a
petition for review with the Court of Appeals, docketed as CA-G.R. SP No.
54992, assailing the Decision of the RTC in the ejectment case on appeal
alleging that the trial court failed to anchor its Decision on the
evidence presented before the MTCC; that the action for reconveyance had
prescribed; and that the oral claim could not have defeated Emma’s title over
the property subject of litigation. On
31 May 2000 the Court of Appeals promulgated its Decision reversing that
of the RTC and affirming in toto the MTCC Decision in the
ejectment case. Reconsideration of the CA
Decision was summarily denied. Hence this petition for review on certiorari where Elanio Ong and his
wife pray for the reinstatement of the RTC Decision rendered in the
ejectment case on appeal.
Petitioners
Elanio C. Ong and spouse argue before us that the complaint for ejectment
before the MTCC of Olongapo City should have been dismissed outright for
violation of Art. 151 of the Family Code when the complaint failed to
allege earnest efforts among members of the same family to compromise the suit
and for non-compliance with Administrative Circular No. 04-94 when the
same complaint failed to include or attach a certification of non-forum
shopping.[5] They also
assert that the Decision in the reconveyance and partition should have
been followed by the Court of Appeals in disposing of the ejectment case as was
done by the RTC in view of the consolidation of the two (2) cases and the
evidence proving that respondent Emma Garamay Ong held title to the disputed
property as mere trustee for the brothers Elanio and Roberto. Petitioners assail, finally, the standing of
Atty. Isagani Jungco to file the petition for review with the Court of Appeals
since he was not and still is not the counsel of record of respondent-spouses
Emma Garamay Ong and Roberto C. Ong.
Initially, we
note the failure of the courts a quo to require the parties to state the
name of petitioner Elanio C. Ong’s spouse, if not in the title of the
complaint,[6] then in
any of their pleadings or in the evidence presented by them. Either the RTC or the MTCC could have
ordered the amendment of the complaint for ejectment motu proprio or
motion at any stage of the action to reflect the name of the wife.[7]
Unfortunately, because the lower courts disregarded this matter, the records
are groping for the name of Elanio’s spouse as if she were a non-entity in the
instant proceedings when on the contrary the judgment herein could be
enforceable also against her.
It is also
important to point out that the MTCC did not err in admitting plaintiffs Emma
and Roberto’s evidence purportedly proving earnest efforts towards an amicable
settlement among members of the same family despite the objections of
defendants Elanio Ong and spouse. Certainly, the court may admit evidence on a matter not alleged in the
pleadings without amendment thereof and even against the objection of the
adverse party where the latter fails to satisfy the court that the admission of
the evidence would prejudice him in maintaining his defense upon the merits.[8] In the
instant case, while as a matter of formality the complaint could have been
amended to conform to the evidence, we observe that defendants did not suffer
impairment of their substantial rights as a result of these circumstances since
they were nevertheless given full opportunity, although opting not to make use
thereof, to meet and disprove the new situation created by the evidence.
After going
through the initial assessments, we rule to grant the petition. It is a matter of record that the ejectment
complaint lacks a certification of non-forum shopping and ought to have been
dismissed outright for violation of Administrative Circular No. 04-94. The
rule is crystal clear and plainly unambiguous that the certification is a
mandatory part of an initiatory pleading,[9] i.e., the
complaint, and its omission, may be excused only upon manifest equitable
grounds proving substantial compliance therewith.[10] Verily, in
those cases in which we tolerated the deficiency, special circumstances or
compelling reasons made the strict application of the Circular distinctly
unjustified.[11]
In the instant
case, however, we find no exceptional matters to justify withholding the rigid
requirement of certification of non-forum shopping. For one thing, respondents gave no acceptable reason for their
failure to submit the certificate in question. Their counsel of record even proffered the disgraceful and false reason
that his hapless secretary had overlooked the certification and failed to
attach it to the complaint.[12] Indeed the
unmistakable facts show that the certification could not have been
inadvertently left out since it was executed only on 17 October 1994 or long
after the filing of the ejectment complaint on 30 August 1994 and only after
petitioners called the trial courts attention to the fatal omission. Furthermore, the certification was submitted
to the MTCC on 22 November 1994 or more than one (1) year from the early part
of November 1993 when respondents first demanded that petitioners vacate the
disputed premises. Clearly,
respondents’ observance of Administrative Circular No. 04-94 was
consummated only after the expiration of the one (1)-year period to commence
the ejectment suit counted from the first demand.[13] Evidently,
the reglementary period for filing the complaint for unlawful detainer had
passed by then. In Tomarong v.
Lubguban[14] where we
rejected the plea of “substantial compliance” for a certification
submitted after the claim had prescribed, we stressed -
x x x x In the instant case, we cannot consider the subsequent filing of the required certification a substantial compliance with the requirements of the Circular, the same having been submitted only after the lapse of eighteen (18) days from the date of filing of the protests. Quite obviously, the reglementary period for filing the protest had, by then, already expired x x x x It should be emphasized that the mere submission of a certification under Administrative Circular No. 04-94 after the filing of a motion to dismiss on the ground of non-compliance thereof does not necessarily operate as a substantial compliance; otherwise, the Circular would lose its value or efficacy.
It bears stressing
that the MTCC cannot admit the belated certification on the ground that
plaintiffs (respondents) were not anyway guilty of actual forum shopping. The distinction between the prohibition
against forum shopping and the certification requirement should by now be too
elementary to be misunderstood. To
reiterate, compliance with the certification against forum shopping is separate
from and independent of the avoidance of the act of forum shopping itself. There is a difference in the treatment
between failure to comply with the certification requirement and violation of
the prohibition against forum shopping not only in terms of imposable sanctions
but also in the manner of enforcing them.[15] The former
constitutes sufficient cause for the dismissal without prejudice of the
complaint or initiatory pleading upon motion and after hearing, while the
latter is a ground for summary dismissal thereof and for direct contempt.[16] The rule
expressly requires that a certification against forum shopping should be attached
to or filed simultaneously with the complaint or other initiatory pleading
regardless of whether forum shopping had in fact been committed.[17]
Accordingly, in the instant case, the dismissal of the complaint for unlawful
detainer must follow as a matter of course.
While not raised
in the parties’ pleadings, it is necessary to mention that the failure of
petitioners’ answer filed in the ejectment case to allege the lack of
certification of non-forum shopping did not result in the waiver of their right
to assert the defect. Our decision in Kho v. Court of Appeals[18] where this
Court ruled that by virtue of Sec. 1, Rule 9, 1997 Rules of Civil Procedure,
objections of this kind are forfeited when not raised in the answer/comment
earlier tended to a petition for special civil action of certiorari, is not
controlling. The instant case is
governed by the 1991 Revised Rules on Summary Procedure where a motion
to dismiss is generally proscribed except for lack of jurisdiction over the
subject matter or failure to comply with conciliation proceedings[19] and where
the only matters deemed waived for failure to assert in the answer are negative
and affirmative defenses.[20]
Clearly,
petitioners were excused from filing a motion to question the absence of the
certification and, concomitantly, their failure to include the objection in
their answer did not result in the waiver thereof since the objection is
neither a negative nor an affirmative defense. To clarify, non-compliance with the requirement of certification does
not give rise to an affirmative defense, i.e., the allegation of new matter by
way of confession and avoidance, much less a negative defense since the
undertaking has nothing to do with the operative facts required to be alleged
in an initiatory pleading, such as allegations on the cause of action, but with
a special pre-requisite for admission of the complaint for filing in court.
The rule on waiver
of defenses and objections under Sec. 1, Rule 9, 1997 Rules of Civil
Procedure[21] does not
also apply suppletorily[22] to the
instant case to bar the objection of lack of certification of non-forum
shopping. What governs is Sec. 4 of the
1991 Revised Rules on Summary Procedure where the trial court is at
liberty to take notice of the grounds for the dismissal of a civil action that
are apparent from the case along with the evidence submitted therein. Under this provision and except for negative
and affirmative defenses not raised in the answer where an answer has been
filed, the trial court under summary procedure is empowered to dismiss the
complaint upon grounds adduced in the respective position papers of the parties
as was done in the instant case. In
sum, there are no legal barriers for this Court, as should have been the case
with the MTCC where the ejectment case was originally tried, to dismiss the
complaint in Civil Case No. 3291.
Ordinarily, the
dismissal of a complaint for violation of Administrative Circular No. 04-94 and
of its present counterpart in Sec. 5, Rule 7, 1997 Rules of Civil Procedure,
is without prejudice. This means
that the plaintiff may re-file the complaint in his discretion after making the
necessary corrections. In the instant
case, however, whether the dismissal is termed with or without
prejudice would not matter anymore since the right to institute an unlawful
detainer case for the same cause of action pleaded in the case at bar within
the one (1)-year period from the demand to vacate has long elapsed.
Nonetheless, in
the exercise of our discretion and to prevent clever and stubborn attempts to
resurrect the dismissed complaint, we declare the dismissal herein adjudicated
to be with prejudice. This is
necessary to allow the action for reconveyance and partition originally docketed
as Civil Case No. 268-0-94 and apparently still pending appeal with the Court
of Appeals, where both petitioners and respondents have equal chances of
winning the case, to take its legitimate and unfettered course. To reserve even a dint of possibility of
another ejectment case notwithstanding the pending appeal from the decision in
Civil Case No. 268-0-94 is to require needlessly not only the parties but the
court as well to spend time, effort and money in what may turn out to be a
sheer exercise in futility. In truth,
due to the existence in the pending action of the identity of parties and
issues, valuable considerations of economy of time and effort for the court,
the counsel and the parties, along with the pressing need to resolve the issue
of possession, justify our present resolution.
Although the
adverse consequences of the dismissal of the ejectment complaint are fairly
obvious to respondent-spouses Emma Garamay Ong and Roberto C. Ong, we must
emphasize that they were the same opposing parties, unfortunately belonging to
the same family, who spent time, effort and money litigating this case up to
this Court. That the ejectment case
should end on a technical ground is not a deplorable result by itself. For the parties have other things left to
attend to, particularly the appeal in the action for reconveyance and
partition. In another but perhaps more
important light, by this Decision we are able to uphold the basic rule that
compliance with the requirement of certification of non-forum shopping ought
not to be held hostage to a party’s afterthought lest the policy of the law be
undermined. With this ruling it is
unnecessary to resolve the other issues raised herein.
WHEREFORE, the instant Petition for Review
on Certiorari is PARTIALLY GRANTED. Civil Case No. 3291 entitled “Emma A. Garamay Ong, assisted by her
husband Roberto C. Ong v. Spouses Elanio C. Ong,” is DISMISSED WITH
PREJUDICE. Concomitantly, the Decision
dated 24 August 1995 of the MTCC-Br. 4, Olongapo City, rendered in the same
dismissed civil case ordering petitioners/defendants Elanio C. Ong and his
spouse to vacate the ground floor of the building occupied by them (No. 22
Barretto St., East Bajac-Bajac, Olongapo City) and to restore possession
thereof peacefully to respondents/plaintiffs, spouses Emma Garamay Ong and
Roberto C. Ong, as well as to pay respondents/plaintiffs P5,000.00 per
month starting January 1994 as rent for the use and occupancy of the premises
until petitioners/defendants vacate the place, P20,000.00 for attorney’s
fees and the costs of suit, is REVERSED and SET ASIDE. Accordingly, the
assailed Decision of the Court of Appeals dated 31 May 2000 in CA-G.R.
SP No. 54992 and its Resolution dated 17 August 2000 affirming the same,
which sustained and reinstated in toto the aforementioned Decision of
24 August 1995 of the MTCC-Br. 4, Olongapo City, in Civil Case No. 3291 is also
REVERSED and SET ASIDE. In the same
vein, there being no valid complaint for unlawful detainer upon which to render
a valid judgment, the Decision of the Regional Trial Court-Br. 72 dated
8 December 1998 in Civil Case No. 436-0-95, i.e., ejectment case on appeal,
declaring petitioners Elanio C. Ong and his spouse entitled to remain in
possession of the one-half (1/2) portion of the property subject of litigation
and ordering respondent-spouses Emma Garamay Ong and Roberto C. Ong, to pay
petitioners P100,000.00 as moral damages and P50,000.00 as
attorney’s fees, is REVERSED and SET ASIDE. This Decision is without prejudice to whatever disposition is made in
the action for reconveyance and partition (Civil Case No. 268-0-94) where basic
issues between the parties herein are still disputed before the Court of
Appeals.
SO ORDERED.
Quisumbing, J., on leave - abroad.
[1] Name of petitioner Elanio C. Ong’s spouse, which
should have been stated in the title of the complaint, does not appear in any
of the pleadings filed before this Court and the court’s a quo, nor in the
evidence presented in the course of the proceedings; see Sec. 4, Rule 3, and
Sec. 1, Rule 7, 1997 Rules of Civil Procedure.
[2] Only petitioner Elanio C. Ong appears as answering
defendant although his answer was presumptively filed also in behalf of his
unnamed wife.
[3] The parties admit that respondent Emma A. Garamay is
the wife of respondent Roberto C. Ong; Preliminary Conference Order, Annex “G”
of Petition for Review; Rollo, p. 61.
[4] The amount awarded deviated from the P20,000.00
attorney’s fees adjudged in Civil Case No. 268-0-94 without stating the basis
for the determination.
[5] Petitioners also initially argued that the petition
for review filed by Spouses Emma Garamay Ong and Roberto C. Ong with the Court
of Appeals, docketed as CA-G.R. SP No. 54992, did not contain a certification
of non-forum shopping. The records
however belie this claim. Petitioners later amended their argument to state
that the certification of non-forum shopping attached to their CA petition for
review was defective for failure to allege the appeal taken front the action for
reconveyance and partition originally docketed as Civil Case No. 268-0-94.
[6] See Note 1.
[7] Sec. 4, Rule 10, 1997 Rules of Civil Procedure.
[8] Co Tiamco v. Diaz, 75 Phil. 672 (1946); Sec.
5, Rule 10, 1997 Rules of Civil Procedure.
[9] Melo v.
Court of Appeals, G.R. No. 123686, 16 November 1999, 318 SCRA 764.
[10] Five Star Bus
Company, Inc. v Torres, G.R. No. 127064, 31 August 1999, 313 SCRA 367.
[11] E.g.,
Maricalum Mining Corporation v. National Labor Relations Commission,
G.R. No. 124711, 3 November 1998, 298 SCRA 378; Kavinta v. Castillo,
G.R. No. 117083, 27 October 1985, 249 SCRA 604.
[12] Motion with Leave of Court to Admit Certification,
Annex “L” of Petition for Review; Rollo, p. 89.
[13] See Cruz v.
Torres, G.R. No. 121939, 4 October 1999, 316 SCRA 193.
[14] G.R. Nos. 117955-58, 13 March 1997, 269 SCRA 624,
629.
[15] See Note 9.
[16] Ibid.
[17] Ibid.
[18] G.R. No. 115758, 19 March 2002.
[19] Sec. 19.
[20] Sec. 4.
[21] Sec. 1 reads in part: “Defenses and objections not
pleaded either in a motion to dismiss or in the answer are deemed waived x x x
x”
[22] Under Sec. 22 of the 1991 Revised Rules on Summary
Procedure: “The regular procedure prescribed in the Rules of Court shall apply
to the special cases herein provided for in a suppletory capacity insofar as
they are not inconsistent herewith.”