CIVPRO CASE 1 PLEADINGS-judge wagan.pdf

7/28/2019 CIVPRO CASE 1 PLEADINGS-judge wagan.pdf

1/27

PLEADINGS

MACTAN CEBU INTL AIRPORT V. HEIRS

OF MINOZA

MACTAN-CEBU INTERNATIONAL AIRPORTAUTHORITY,

Petitioner,

- versus -

HEIRS of ESTANISLAO MIOZA, namely: The HEIRSof FILOMENO T. MIOZA, represented by LAUREANOM. MIOZA; The HEIRS of PEDRO T. MIOZA; andThe HEIRS of FLORENCIA T. MIOZA, represented byANTONIO M. URBIZTONDO,

Respondents.

G.R. No. 186045

Present:

CARPIO, J., Chairperson,

NACHURA,

PERALTA,

ABAD, and

MENDOZA, JJ.

Promulgated:

February 2, 2011

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

PERALTA, J.:

This is a petition for review on certiorari seekingreverse and set aside the Decision[1] dated March 2008 of the Court of Appeals (CA) in CA-G.R. CV 70429, and the Resolution[2] dated January 8, 20denying petitioners motion for reconsideration.

The procedural and factual antecedents, as foundthe CA, are as follows:

On July 6, 1998, a Complaint[3] for ReconveyanCancellation of Defendants Title, Issuance of N

Title to Plaintiffs and Damages was filed by LeilaHermosisima (Leila) for herself and on behalf of other heirs of the late Estanislao Mioza. Tcomplaint alleged that Leilas late great grandfath

Estanislao Mioza, was the registered owner Cadastral Lot Nos. 986 and 991-A, located at BanEstate, Cebu City, per TCT Nos. RT-6101 (T-105and RT-6102 (T10026). It was, likewise, alleged tthe late Estanislao Mioza had three children, name

Adriana, Patricio, and Santiago, all surnamed MioIn the late 1940s, the National Airports Corporat(NAC) embarked in an expansion project of the Lah

Airport. For said purpose, the NAC acquired seveproperties which surrounded the airport either throu


2/27

negotiated sale or through expropriation. Among theproperties that were acquired by the NAC through anegotiated sale were Lot Nos. 986 and 991-A.[4]

Leila claimed that their predecessors-in-interest,specifically, Adriana, Patricio, and Santiago executed aDeed of Sale on February 15, 1950 conveying the

subject lots to the NAC on the assurance made by thelatter that they (Leilas predecessors-in-interest) canbuy the properties back if the lots are no longerneeded. Consequently, they sold Lot No. 986 to theNAC for only P157.20 and Lot No. 991-A for P105.40.However, the expansion project did not push through.More than forty years after the sale, plaintiffsinformed the NACs successor-in-interest, the Mactan-Cebu International Airport Authority (MCIAA), thatthey were exercising the buy-back option of the

agreement, but the MCIAA refused to allow therepurchase on the ground that the sale was in factunconditional.

The MCIAA, through the Office of the Solicitor General(OSG), filed an Answer with Counterclaim.

After the parties filed their respective pleadings, trialensued.

On November 16, 1999, before the MCIAA couldpresent evidence in support of its case, a Motion forIntervention,[5] with an attached Complainant-in-Intervention, was filed before the Regional Trial Court(RTC) of Cebu City, Branch 22, by the heirs ofFilomeno T. Mioza, represented by Laureano M.

Mioza; the heirs of Pedro T, Mioza, represented byLeoncio J. Mioza; and the Heirs of Florencia T.Mioza, represented by Antonio M. Urbiztondo(Intervenors), who claimed to be the true, legal, andlegitimate heirs of the late Estanislao Mioza. Theintervenors alleged in their complaint (1) that theplaintiffs in the main case are not related to the latespouses Estanislao Mioza and Inocencia Togonowhose true and legitimate children were: Filomeno,Pedro, and Florencia, all surnamed Mioza; (2) that,

on January 21, 1958, Adriana, Patricio, and Santiaexecuted, in fraud of the intervenors, an ExtrajudiSettlement of the Estate of the late spouses EstanisMioza and Inocencia Togono and adjudicated uthemselves the estate of the deceased spouses; a(3) that, on February 15, 1958, the same AdriaPatricio, and Santiago, fraudulently, deceitfully, andbad faith, sold Lot Nos. 986 and 991-A to the N

The intervenors thus prayed for the following reliefs

a. Declaring herein intervenors as the true, legal alegitimate heirs of the late spouses Estanislao Miand Inocencia Togono;

b. Declaring herein intervenors as the true, righand registered owners of Lots 986 and 991-A of Banilad Friar Lands Estate;

c. Declaring the Extrajudicial Settlement executedJanuary 21, 1958 by the late Adriana Mioza and late Patricio Mioza and the late Santiago Mioza tthey are the only heirs of the late spouses EstanisMioza and Inocencia Togono, who died intestate awithout any debts or obligations and adjudicat

among themselves the estate of the deceased x x xvoid ab initio;

d. Declaring the sale of Lots 986 and 991-A of Banilad Friar Lands Estate executed by the

Adriana Mioza, the late Patricio Mioza and the Santiago Mioza in favor of the National AirpCorporation on February 15, 1958 x x x as voidinitio;

e. Ordering the cancellation of Transfer CertificateTitle Nos. 120370 and 120372 for Lots 986 and 99in the name of the Mactan-Cebu International Airp

Authority and restoring Transfer Certificate of TNos. RT-6101 (T-10534) and RT-6102 (T-10026) tothe true and valid torrens titles to Lots 986 and 9[A].


3/27

f. Condemning plaintiffs Leila M. Hermosisima andConstancio Mioza to pay intervenors, who are thetrue, lawful and legitimate heirs of the late SpousesEstanislao Mioza and Inocencia Togono, the amountsof P300,000.00 and P100,000.00 as moral andexemplary damages respectively;

g. Condemning plaintiffs to pay the cost of suit.[6]

On February 18, 2000, the RTC of Cebu City, Branch22, issued an Order[7] denying the Motion forIntervention.

In denying the motion, the trial court opined that theownership of the subject lots was merely a collateralissue in the action. The principal issue to be resolvedwas whether or not the heirs of the late EstanislaoMioza whoever they may be have a right torepurchase the said lots from the MCIAA.Consequently, the rights being claimed by theintervenors should be asserted in and would be fullyprotected by a separate proceeding. Moreover, if themotion was granted, it would unduly delay theproceedings in the instant case. Finally, thecomplaint-in-intervention was flawed, considering thatit was not verified and does not contain the requisitecertification of non-forum shopping.

The intervenors filed a Motion for Reconsideration,[8]to which was attached a Complaint-in-Interventionwith the required Verification and Certificate of Non-

Forum Shopping.[9] However, the RTC denied themotion in its Order dated July 25, 2000.

Aggrieved, the intervenors sought recourse before theCA, docketed as CA-G.R. CV No. 70429, on thefollowing assignment of errors:

I.

THE COURT A QUO IN ITS ORDER DATED FEBRUA18, 2000 GRAVELY ERRED IN DISMISSING T

ABOVE CAPTIONED COMPLAINT BASED ON TGROUND THAT: 1). THE RIGHTS CLAIMED MOVANTS-INTERVERNORS (NOW INTERVENO

APPELLANTS) WOULD MORE APPROPRIATELY ASSERTED IN, AND WOULD BE FULLY PROTECTBY, A SEPARATE PROCEEDING; 2). IT (TCOMPLAINT-IN-INTERVENTION) WILL DELAY TPROCEEDINGS OF THE INSTANT CASE; AND 3). THTHE COMPLAINT-IN-INTERVENTION IS N

VERIFIED AND DOES NOT CONTAIN THE REQUISCERTIFICATION OF NON-FORUM SHOPPING.

II.

THE COURT A QUO IN ITS ORDER DATED JULY 2000 GRAVELY ERRED WHEN IT DENIED MOVANINTERVENORS (NOW INTERVENORS-APPELLANMOTION FOR RECONSIDERATION DATED MARCH 2000, AGAIN ON THE GROUND THAT TO ALLOW TINTERVENORS TO INTERVENE IN THIS CASE WHI

IS ALREADY SUBMITTED FOR DECISION WOUONLY DELAY THE DISPOSAL OF THIS CASE ATHAT ANYWAY, THE INTERVERNORS HAVE NOTHITO FEAR BECAUSE THEIR CLAIMS, IF THERE IS ACAN BE WELL THRESHED OUT IN ANOTHPROCEEDING.[10]

On March 25, 2008, the CA rendered the assaDecision, the decretal portion of which provides:

WHEREFORE, the appealed Orders dated February 2000 and July 25, 2000 of the RTC of Cebu City,Civil Case No. 22290, are REVERSED and SET ASIThe RTC of Cebu City is directed to resolve wdeliberate dispatch Civil Case No. 22290 and to adthe complaint-in-intervention filed by the intervenoappellants.


4/27

SO ORDERED.[11]

In ruling for the intervenors, the CA ratiocinated thatcontrary to the findings of the trial court, thedetermination of the true heirs of the late Estanislao

Mioza is not only a collateral, but the focal issue ofthe case, for if the intervenors can prove that they areindeed the true heirs of Estanislao Mioza, therewould be no more need to determine whether theright to buy back the subject lots exists or not as theMCIAA would not have acquired rights to the subjectlots in the first place. In addition, to grant the motionfor intervention would avoid multiplicity of suits. As tothe lack of verification and certification on non-forumshopping, the CA opined that the filing of the motion

for reconsideration with an appended complaint-in-intervention containing the required verification andcertificate of non-forum shopping amounted tosubstantial compliance of the Rules.

Petitioner then filed a motion for reconsideration, butit was denied in the Resolution dated January 8, 2009.

Hence, the petition assigning the lone error that:

THE COURT OF APPEALS (CEBU CITY) GRAVELYERRED IN ALLOWING RESPONDENTS TO INTERVENEIN CIVIL CASE NO. CEB-22290.[12]

Petitioner argues that to allow the intervenors tointervene in the proceedings before the trial courtwould not only unduly prolong and delay theresolution of the case, it would make the proceedingsunnecessarily complicated and change the nature ofthe proceedings. Furthermore, contrary to therequirements for the allowance of a motion forintervention, their legal interest in the subjectproperties appear to be merely contingent or

expectant and not of direct or immediate character.

Petitioner also posits that the intervenors rights be better protected in another proceeding.

Anent the lack of verification and certification on nforum shopping, petitioner maintains that the tcourt was correct in denying the motion on ground. In addition, even if the complaint

intervention with the required verification acertificate of non-forum shopping was appendedthe intervenors motion for reconsideration,

complaint-in-intervention was not verified by all interested parties or all the heirs of Filomeno Miowhich still warrants its dismissal.

The petition is meritorious.

At the outset, on the procedural aspect, contrarypetitioners contention, the initial lack of

complaint-in-intervention of the requisite verificatand certification on non-forum shopping was cuwhen the intervenors, in their motion reconsideration of the order denying the motionintervene, appended a complaint-in-interventcontaining the required verification and certificate

non-forum shopping.

In the case of Altres v. Empleo,[13] this Coclarified, among other things, that as to verificatinon-compliance therewith or a defect therein does necessarily render the pleading fatally defective. Tcourt may order its submission or correction, or actthe pleading if the attending circumstances are suthat strict compliance with the Rule may be dispen

with in order that the ends of justice may be servthereby. Further, a verification is deemsubstantially complied with when one who has amknowledge to swear to the truth of the allegationsthe complaint or petition signs the verification, awhen matters alleged in the petition have been main good faith or are true and correct.[14]


5/27

Moreover, as to the certification against forumshopping, non-compliance therewith or a defecttherein, unlike in verification, is generally not curableby its subsequent submission or correction thereof,unless there is a need to relax the Rules on theground of substantial compliance or presence ofspecial circumstances or compelling reasons. Also,

the certification against forum shopping must be

signed by all the plaintiffs or petitioners in a case;otherwise, those who did not sign will be dropped asparties to the case. Under reasonable or justifiablecircumstances, however, as when all the plaintiffs orpetitioners share a common interest and invoke acommon cause of action or defense, the signature ofonly one of them in the certification against forumshopping substantially complies with the Rule.[15]

Thus, considering that the intervenors in their motionfor reconsideration, appended a complaint-in-intervention with the required verification andcertificate of non-forum shopping, the requirement ofthe Rule was substantially complied with.

Notwithstanding the intervenors compliance with the

procedural requirements, their attempt to intervene isdoomed to fail.

Intervention is a remedy by which a third party, notoriginally impleaded in the proceedings, becomes alitigant therein to enable him, her or it to protect orpreserve a right or interest which may be affected bysuch proceedings.[16] It is a proceeding in a suit oraction by which a third person is permitted by thecourt to make himself a party, either joining plaintiff in

claiming what is sought by the complaint, or unitingwith defendant in resisting the claims of plaintiff, ordemanding something adversely to both of them; theact or proceeding by which a third person becomes aparty in a suit pending between others; the admission,by leave of court, of a person not an original party topending legal proceedings, by which such personbecomes a party thereto for the protection of someright of interest alleged by him to be affected by suchproceedings.[17]

Section 1, Rule 19 of the Rules of Court states:

SECTION 1. Who may intervene. A person who a legal interest in the matter in litigation, or in success of either of the parties, or an interest aga

both, or is so situated as to be adversely affected bdistribution or other disposition of property in custody of the court or of an officer thereof may, wleave of court, be allowed to intervene in the actThe court shall consider whether or not intervention will unduly delay or prejudice adjudication of the rights of the original parties, awhether or not the intervenors rights may be f

protected in a separate proceeding.

Under this Rule, intervention shall be allowed wheperson has (1) a legal interest in the matterlitigation; (2) or in the success of any of the part(3) or an interest against the parties; (4) or whenis so situated as to be adversely affected bydistribution or disposition of property in the custodythe court or an officer thereof.[18] Moreover, court must take into consideration whether or not intervention will unduly delay or prejudice

adjudication of the rights of the original parties, awhether or not the intervenors right or interest can

adequately pursued and protected in a separproceeding.

In the case at bar, the intervenors are claiming tthey are the legitimate heirs of Estanislao Mioza aInocencia Togono and not the original plaintrepresented by Leila Hermosisima. True, if thallegations were later proven to be valid claims, intervenors would surely have a legal interest in matter in litigation. Nonetheless, this Court has ruthat the interest contemplated by law must be actsubstantial, material, direct and immediate, and simply contingent or expectant. It must be of sdirect and immediate character that the intervenor either gain or lose by the direct legal operation aeffect of the judgment.[19] Otherwise, if persons parties to the action were allowed to interve


6/27

proceedings would become unnecessarily complicated,expensive and interminable.[20]

Moreover, the intervenors contentions that Leilas

predecessors-in-interest executed, in fraud of theintervenors, an extra judicial settlement of the estateof the late spouses Estanislao Mioza and Inocencia

Togono and adjudicated unto themselves the estate ofthe deceased spouses, and that subsequently, herpredecessors-in-interest fraudulently and deceitfullysold the subject lots to the NAC, would unnecessarilycomplicate and change the nature of the proceedings.

In addition to resolving who the true and legitimateheirs of Estanislao Mioza and Inocencia Togono are,the parties would also present additional evidence insupport of this new allegation of fraud, deceit, andbad faith and resolve issues of conflicting claims ofownership, authenticity of certificates of titles, andregularity in their acquisition. Verily, this woulddefinitely cause unjust delay in the adjudication of therights claimed by the original parties, which primarilyhinges only on the issue of whether or not the heirsrepresented by Leila have a right to repurchase thesubject properties from the MCIAA.

Verily, the allegation of fraud and deceit is anindependent controversy between the original partiesand the intervenors. In general, an independentcontroversy cannot be injected into a suit byintervention, hence, such intervention will not beallowed where it would enlarge the issues in theaction and expand the scope of the remedies. It isnot proper where there are certain facts giving the

intervenors case an aspect peculiar to himself anddifferentiating it clearly from that of the originalparties; the proper course is for the would-beintervenor to litigate his claim in a separate suit.[21]Intervention is not intended to change the nature andcharacter of the action itself, or to stop or delay theplacid operation of the machinery of the trial. Theremedy of intervention is not proper where it will havethe effect of retarding the principal suit or delayingthe trial of the action.[22]

To be sure, not only will the intervenors rights be f

protected in a separate proceeding, it would bdetermine the rights of the parties in relation to subject properties and the issue of who the legitimheirs of Estanislao Mioza and Inocencia Togowould be laid to rest.

Furthermore, the allowance or disallowance ofmotion for intervention rests on the sound discretof the court after consideration of the approprcircumstances.[23] It is not an absolute right. Tstatutory rules or conditions for the right intervention must be shown. The procedure to secthe right to intervene is to a great extent fixed by statute or rule, and intervention can, as a rule,

secured only in accordance with the terms of applicable provision.[24]

Consequently, the denial of the motion to intervenethe RTC was but just and proper. The conclusionthe RTC is not bereft of rational bases. It denied motion to intervene in the exercise of its soudiscretion and after taking into consideration particular circumstances of the case.

WHEREFORE, subject to the above disquisition, petition is GRANTED. The Decision dated March 2008 and the Resolution dated January 8, 2009, of Court of Appeals in CA-G.R. CV No. 70429, REVERSED and SET ASIDE. The Orders of Regional Trial Court of Cebu City, Branch 22, daFebruary 18, 2000 and July 25, 2000, REINSTATED.

SO ORDERED.

VALLACAR TRANSIT V. CATUBIG

VALLACAR TRANSIT, INC.,


7/27

Petitioner,

- versus -

JOCELYN CATUBIG,

Respondent.

G.R. No. 175512

Present:

CORONA, C.J.,

Chairperson,

VELASCO, JR.,

LEONARDO-DE CASTRO,

PERALTA,* and

PEREZ, JJ.

Promulgated:

May 30, 2011

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - -x

D E C I S I O N

LEONARDO-DE CASTRO, J.:

For review under Rule 45 of the Rules of Court is Decision[1] dated November 17, 2005 and

Resolution[2] dated November 16, 2006 of the CoAppeals in CA-G.R. CV No. 66815, which modified Decision[3] dated January 26, 2000 of the RegioTrial Court (RTC), Branch 30 of Dumaguete CityCivil Case No. 11360, an action for recovery damages based on Article 2180, in relation to Art2176, of the Civil Code, filed by respondent JoceCatubig against petitioner Vallacar Transit, Inc. Wthe RTC dismissed respondents claim for damag

the Court of Appeals granted the same.

The undisputed facts are as follows:

Petitioner is engaged in the business of transportatand the franchise owner of a Ceres Bulilit bus wPlate No. T-0604-1348. Quirino C. Caban(Cabanilla) is employed as a regular bus driverpetitioner.

On January 27, 1994, respondents husband, Quin

Catubig, Jr. (Catubig), was on his way home frDumaguete City riding in tandem on a motorcycle whis employee, Teddy Emperado (Emperado). Catuwas the one driving the motorcycle. Wapproaching a curve at kilometers 59 and 60, Catutried to overtake a slow moving ten-wheeler ca

truck by crossing-over to the opposite lane, which w


8/27

then being traversed by the Ceres Bulilit bus driven byCabanilla, headed for the opposite direction. Whenthe two vehicles collided, Catubig and Emperado werethrown from the motorcycle. Catubig died on the spotwhere he was thrown, while Emperado died whilebeing rushed to the hospital.

On February 1, 1994, Cabanilla was charged withreckless imprudence resulting in double homicide inCriminal Case No. M-15-94 before the Municipal CircuitTrial Court (MCTC) of Manjuyod-Bindoy-Ayungon ofthe Province of Negros Oriental. After preliminaryinvestigation, the MCTC issued a Resolution onDecember 22, 1994, dismissing the criminal chargeagainst Cabanilla. It found that Cabanilla was notcriminally liable for the deaths of Catubig andEmperado, because there was no negligence, not

even contributory, on Cabanillas part.

Thereafter, respondent filed before the RTC on July19, 1995 a Complaint for Damages against petitioner,seeking actual, moral, and exemplary damages, in thetotal amount of P484,000.00, for the death of herhusband, Catubig, based on Article 2180, in relation toArticle 2176, of the Civil Code. Respondent allegedthat petitioner is civilly liable because the latters

employee driver, Cabanilla, was reckless and negligentin driving the bus which collided with Catubigsmotorcycle.

Petitioner, in its Answer with Counterclaim, contendedthat the proximate cause of the vehicular collision,which resulted in the deaths of Catubig andEmperado, was the sole negligence of Catubig when

he imprudently overtook another vehicle at a curveand traversed the opposite lane of the road. As aspecial and affirmative defense, petitioner asked forthe dismissal of respondents complaint for not being

verified and/or for failure to state a cause of action, asthere was no allegation that petitioner was negligentin the selection or supervision of its employee driver.

In the Pre-Trial Order[4] dated June 10, 1997, parties stipulated that the primary issue for trial wwhether or not petitioner should be held liable Catubigs death. Trial then ensued.

Police Officer (PO) 2 Robert B. Elnas (Elnas),[5] EmEspiritu (Espiritu),[6] Dr. Norberto Baldado, Jr. (

Baldado),[7] Peter Cadimas (Cadimas),[8] arespondent[9] herself testified in support respondents complaint.

PO2 Elnas conducted an investigation of the collisincident. According to PO2 Elnas, the bus wrunning fast, at a speed of 100 kilometers per howhen it collided with the motorcycle which was tryto overtake a truck. The collision occurred on the lof the bus. Catubig was flung 21 meters away, Emperado, 11 meters away, from the point of impaThe motorcycle was totaled; the chassis broke ithree parts, and the front wheel and the steerwheel with the shock absorbers were found 26 metand 38 meters, respectively, from the collision poIn contrast, only the front bumper of the bus suffedamage.

Cadimas personally witnessed the collision of the and the motorcycle. He recalled that he was twaiting for a ride to Dumaguete City and saw Ceres Bulilit bus making a turn at a curve. Cadimsignaled the said bus to halt but it was running faCadimas also recollected that there was a cargo trrunning slow in the opposite direction of the bCadimas next heard a thud and saw that the already collided with a motorcycle.

Espiritu was the photographer who took photograof the scene of the accident. He identified the photographs which he had taken of Catubig lyingthe ground, bloodied; broken parts of the motorcyand the truck which Catubig tried to overtake.


9/27

Dr. Baldado was the medico-legal doctor whoconducted the post-mortem examination of Catubigsbody. He reported that Catubig suffered from thefollowing injuries: laceration and fracture of the rightleg; laceration and fracture of the left elbow; multipleabrasions in the abdominal area, left anterior chestwall, posterior right arm, and at the back of the leftscapular area; and contusion-hematoma just above

the neck. Dr. Baldado confirmed that Catubig wasalready dead when the latter was brought to thehospital, and that the vehicular accident could havecaused Catubigs instantaneous death.

Respondent herself testified to substantiate theamount of damages she was trying to recover frompetitioner for Catubigs death, such as Catubigs

earning capacity; expenses incurred for the wake and

burial of Catubig, as well as of Emperado; the cost ofthe motorcycle; and the costs of the legal services andfees respondent had incurred.

Respondents documentary exhibits consisted of her

and Catubigs Marriage Contract dated August 21,

1982, their two childrens Certificate of Live Births,

Catubigs College Diploma dated March 24, 1983, thelist and receipts of the expenses for Catubigs burial,

the sketch of the collision site prepared by PO2 Elnas,the excerpts from the police blotter, the photographsof the collision,[10] and the Post Mortem Report[11]on Catubigs cadaver prepared by Dr. Baldado.

In an Order[12] dated October 6, 1998, the RTCadmitted all of respondents aforementioned evidence.

On the other hand, Rosie C. Amahit (Amahit)[13] andNunally Maypa (Maypa)[14] took the witness stand forpetitioner.

Amahit was a Court Stenographer at the MCTC whotook the transcript of stenographic notes (TSN) inCriminal Case No. M-15-94 against Cabanilla. Amahitverified that the document being presented by the

defense in the present case was a true and corrcopy of the TSN of the preliminary investigation hin Criminal Case No. M-15-94 on May 25, 1994, aanother document was a duplicate original of MCTC Resolution dated December 22, 1994 dismissCriminal Case No. M-15-94.

Maypa is the Administrative and Personnel Managethe Dumaguete branch of petitioner. He starworking for petitioner on September 22, 1990 aclerk at the Human Resources DevelopmDepartment at the Central Office of petitionerBacolod City. Sometime in November 1993, became an Administrative Assistant at the Dumagubranch of petitioner; and in August 1995, he wpromoted to his current position at the same branch

While he was still an Administrative Assistant, Maywas responsible for the hiring of personnel includdrivers and conductors. Maypa explained that tohired as a driver, an applicant should be 35 to years old, have at least five years experiencedriving big trucks, submit police, court, and medclearances, and possess all the necessrequirements for driving a motor vehicle of more th4,500 kilograms in gross weight such as a professiodrivers license with a restriction code of 3. T

applicant should also pass the initial interview, actual driving and maintenance skills tests, andwritten psychological examination involving defensdriving techniques. Upon passing these examinatiothe applicant still had to go through a 15-familiarization of the bus and road conditions befbeing deployed for work. Maypa, however, admitthat at the time of his appointment as Administrat

Assistant at the Dumaguete branch, Cabanilla walready an employee driver of petitioner.

Maypa further explained the investigation agrievance procedure followed by petitioner in casesvehicular accidents involving the latters emplo

drivers. Maypa related that Cabanilla had been putpreventive suspension following the vehicular accidon January 27, 1994 involving the bus Cabanilla w

driving and the motorcycle carrying Catubig a


10/27

Emperado. Following an internal investigation of saidaccident conducted by petitioner, Cabanilla wasdeclared not guilty of causing the same, for he hadnot been negligent.

Lastly, Maypa recounted the expenses petitionerincurred as a result of the present litigation.

The documentary exhibits of petitioner consisted ofthe TSN of the preliminary investigation in CriminalCase No. M-15-94 held on May 25, 1994 before theMCTC of Manjuyod-Bindoy-Ayungon of the Province ofNegros Oriental; Resolution dated December 22, 1994of the MCTC in the same case; and the Minutes datedFebruary 17, 1994 of the Grievance Proceedingconducted by petitioner involving Cabanilla.[15]

The RTC, in its Order[16] dated November 12, 1999,admitted all the evidence presented by petitioner.

On January 26, 2000, the RTC promulgated itsDecision favoring petitioner. Based on the sketchprepared by PO2 Elnas, which showed that the point

of impact x x x occurred beyond the center lane neara curve within the lane of the Ceres bus[;][17] plus,

the testimonies of PO2 Elnas and Cadimas that themotorcycle recklessly tried to overtake a truck near acurve and encroached the opposite lane of the road,the RTC ruled that the proximate cause of the collisionof the bus and motorcycle was the negligence of thedriver of the motorcycle, Catubig. The RTC,moreover, was convinced through the testimony ofMaypa, the Administrative and Personnel Manager of

the Dumaguete branch of petitioner, that petitionerhad exercised due diligence in the selection andsupervision of its employee drivers, includingCabanilla.

After trial, the RTC concluded:

WHEREFORE, finding preponderance of evidencefavor of the [herein petitioner] that the [herrespondents] husband is the reckless and neglig

driver and not the driver of the [petitioner], above-entitled case is hereby ordered dismissed.

[Petitioners] counterclaim is also dismissed for lack

merit.[18]

Respondent appealed to the Court of Appeals. InDecision dated November 17, 2005, the appelcourt held that both Catubig and Cabanilla wnegligent in driving their respective vehicles. Catuon one hand, failed to use reasonable care for his o

safety and ignored the hazard when he tried overtake a truck at a curve. Cabanilla, on the othand, was running his vehicle at a high speed of 1kilometers per hour. The Court of Appeals abrushed aside the defense of petitioner thatexercised the degree of diligence exacted by lawthe conduct of its business. Maypa was not inposition to testify on the procedures followed petitioner in hiring Cabanilla as an employee drconsidering that Cabanilla was hired a year bef

Maypa assumed his post at the Dumaguete branchpetitioner.

Thus, the Court of Appeals decreed:

WHEREFORE, based on the foregoing, the assadecision of the trial court is modified. We rule t

[herein petitioner] is equally liable for the accidenquestion which led to the deaths of Quintin CatubJr. and Teddy Emperado and hereby award to heirs of Quintin Catubig, Jr. the amount P250,000.00 as full compensation for the death of latter.[19]


11/27

The Court of Appeals denied the motion forreconsideration of petitioner in a Resolution datedNovember 16, 2006.

Hence, the instant Petition for Review.

Petitioner asserts that respondents complaint for

damages should be dismissed for the latters failure to

verify the same. The certification against forumshopping attached to the complaint, signed byrespondent, is not a valid substitute for respondents

verification that she has read the pleading and that

the allegations therein are true and correct of herpersonal knowledge or based on authenticrecords.[20] Petitioner cited jurisprudence in whichthe Court ruled that a pleading lacking properverification is treated as an unsigned pleading, whichproduces no legal effect under Section 3, Rule 7 of theRules of Court.

Petitioner also denies any vicarious or imputed liabilityunder Article 2180, in relation to Article 2176, of theCivil Code. According to petitioner, respondent failedto prove the culpability of Cabanilla, the employee

driver of petitioner. There are already two trial courtdecisions (i.e., the Resolution dated December 22,1994 of the MCTC of Manjuyod-Bindoy-Ayungon of theProvince of Negros Oriental in Criminal Case No. M-15-94 and the Decision dated January 26, 2000 of theRTC in the instant civil suit) explicitly ruling that theproximate cause of the collision was Catubigs reckless

and negligent act. Thus, without the fault ornegligence of its employee driver, no liability at allcould be imputed upon petitioner.

Petitioner additionally argues, without conceding anyfault or liability, that the award by the Court ofAppeals in respondents favor of the lump sum

amount of P250,000.00 as total death indemnity lacksfactual and legal basis. Respondents evidence to

prove actual or compensatory damages are all self-serving, which are either inadmissible in evidence ordevoid of probative value. The award of moral and

exemplary damages is likewise contrary to the ruof the appellate court that Catubig should be equheld liable for his own death.

Respondent maintains that the Court of Appecorrectly adjudged petitioner to be liable for Catub

death and that the appellate court had already d

passed upon all the issues raised in the petition at b

The petition is meritorious.

At the outset, we find no procedural defect that wohave warranted the outright dismissal of responde

complaint.

Respondent filed her complaint for damages agapetitioner on July 19, 1995, when the 1964 RulesCourt was still in effect. Rule 7, Section 6 of the 1Rules of Court provided:

SEC. 6. Verification.A pleading is verified only byaffidavit stating that the person verifying has read pleading and that the allegations thereof are truehis own knowledge.

Verifications based on "information and belief,"upon "knowledge, information and belief," shall deemed insufficient.

On July 1, 1997, the new rules on civil procedure toeffect. The foregoing provision was carried on, witfew amendments, as Rule 7, Section 4 of the 19Rules of Court, viz:

SEC. 4. Verification. Except when otherwspecifically required by law or rule, pleadings need

be under oath, verified or accompanied by affidavit


12/27

A pleading is verified by an affidavit that the affianthas read the pleading and that the allegations thereinare true and correct of his knowledge and belief.

A pleading required to be verified which contains a

verification based on information and belief, or uponknowledge, information and belief, or lacks a proper

verification, shall be treated as an unsigned pleading.

The same provision was again amended by A.M. No.00-2-10, which became effective on May 1, 2000. Itnow reads:

SEC. 4. Verification. - Except when otherwisespecifically required by law or rule, pleadings need notbe under oath, verified or accompanied by affidavit.

A pleading is verified by an affidavit that the affianthas read the pleading and that the allegations thereinare true and correct of his personal knowledge orbased on authentic records.

A pleading required to be verified which contains averification based on information and belief or upon

knowledge, information and belief, or lacks a proper

verification, shall be treated as an unsigned pleading.

The 1997 Rules of Court, even prior to its amendmentby A.M. No. 00-2-10, clearly provides that a pleadinglacking proper verification is to be treated as anunsigned pleading which produces no legal effect.However, it also just as clearly states that [e]xcept

when otherwise specifically required by law or rule,pleadings need not be under oath, verified oraccompanied by affidavit. No such law or rule

specifically requires that respondents complaint

damages should have been verified.

Although parties would often submit a joverification and certificate against forum shopping, two are different.

In Pajuyo v. Court of Appeals,[21] we already poinout that:

A partys failure to sign the certification against for

shopping is different from the partys failure to s

personally the verification. The certificate of nforum shopping must be signed by the party, and

by counsel. The certification of counsel renders petition defective.

On the other hand, the requirement on verificationa pleading is a formal and not a jurisdictiorequisite. It is intended simply to secure an assurathat what are alleged in the pleading are true acorrect and not the product of the imagination omatter of speculation, and that the pleading is filed

good faith. The party need not sign the verificatA partys representative, lawyer or any person w

personally knows the truth of the facts alleged in pleading may sign the verification.[22]

In the case before us, we stress that as a general rua pleading need not be verified, unless there is a

or rule specifically requiring the same. Examplespleadings that require verification are: (1) pleadings filed in civil cases under the 1991 ReviRules on Summary Procedure; (2) petition for revfrom the Regional Trial Court to the Supreme Coraising only questions of law under Rule 41, Section(3) petition for review of the decision of the RegioTrial Court to the Court of Appeals under Rule Section 1; (4) petition for review from quasi-judibodies to the Court of Appeals under Rule 43, Sect


13/27

5; (5) petition for review before the Supreme Courtunder Rule 45, Section 1; (6) petition for annulment ofjudgments or final orders and resolutions under Rule47, Section 4; (7) complaint for injunction under Rule58, Section 4; (8) application for preliminary injunctionor temporary restraining order under Rule 58, Section4; (9) application for appointment of a receiver underRule 59, Section 1; (10) application for support

pendente lite under Rule 61, Section 1; (11) petitionfor certiorari against the judgments, final orders orresolutions of constitutional commissions under Rule64, Section 2; (12) petition for certiorari, prohibition,and mandamus under Rule 65, Sections 1 to 3; (13)petition for quo warranto under Rule 66, Section 1;(14) complaint for expropriation under Rule 67,Section 1; (15) petition for indirect contempt underRule 71, Section 4, all from the 1997 Rules of Court;(16) all complaints or petitions involving intra-

corporate controversies under the Interim Rules ofProcedure on Intra-Corporate Controversies; (17)complaint or petition for rehabilitation and suspensionof payment under the Interim Rules on CorporateRehabilitation; and (18) petition for declaration ofabsolute nullity of void marriages and annulment ofvoidable marriages as well as petition for summaryproceedings under the Family Code.

In contrast, all complaints, petitions, applications, andother initiatory pleadings must be accompanied by acertificate against forum shopping, first prescribed byAdministrative Circular No. 04-94, which took effect onApril 1, 1994, then later on by Rule 7, Section 5 of the1997 Rules of Court. It is not disputed herein thatrespondents complaint for damages was accompaniedby such a certificate.

In addition, verification, like in most cases required bythe rules of procedure, is a formal, not jurisdictional,requirement, and mainly intended to secure anassurance that matters which are alleged are done ingood faith or are true and correct and not of merespeculation. When circumstances warrant, the courtmay simply order the correction of unverifiedpleadings or act on it and waive strict compliance withthe rules in order that the ends of justice may therebybe served.[23]

We agree with petitioner, nonetheless, trespondent was unable to prove imputable negligeon the part of petitioner.

Prefatorily, we restate the time honored principle t

in a petition for review under Rule 45, only questiof law may be raised. It is not our function to analor weigh all over again evidence already consideredthe proceedings below, our jurisdiction is limitedreviewing only errors of law that may have becommitted by the lower court. The resolutionfactual issues is the function of lower courts, whfindings on these matters are received with respectquestion of law which we may pass upon must involve an examination of the probative value of

evidence presented by the litigants.[24]

The above rule, however, admits of certexceptions. The findings of fact of the Court

Appeals are generally conclusive but may be reviewwhen: (1) the factual findings of the Court of Appeand the trial court are contradictory; (2) the findiare grounded entirely on speculation, surmisesconjectures; (3) the inference made by the Court

Appeals from its findings of fact is manifemistaken, absurd or impossible; (4) there is grabuse of discretion in the appreciation of facts; (5) appellate court, in making its findings, goes beyothe issues of the case and such findings are contrto the admissions of both appellant and appellee; the judgment of the Court of Appeals is premised omisapprehension of facts; (7) the Court of Appefails to notice certain relevant facts which, if propconsidered, will justify a different conclusion; and

the findings of fact of the Court of Appeals contrary to those of the trial court or are mconclusions without citation of specific evidence,where the facts set forth by the petitioner are disputed by respondent, or where the findings of fof the Court of Appeals are premised on the abseof evidence but are contradicted by the evidence record.[25]


14/27

The issue of negligence is basically factual.[26]Evidently, in this case, the RTC and the Court ofAppeals have contradictory factual findings: theformer found that Catubig alone was negligent, whilethe latter adjudged that both Catubig and petitionerwere negligent.

Respondent based her claim for damages on Article2180, in relation to Article 2176, of the Civil Code,which read:

Art. 2176. Whoever by act or omission causesdamage to another, there being fault or negligence, isobliged to pay for the damage done. Such fault ornegligence, if there is no pre-existing contractualrelation between the parties, is called a quasi-delictand is governed by the provisions of this Chapter.

Art. 2180. The obligation imposed by Article 2176 isdemandable not only for ones own acts or omissions,

but also for those persons for whom one isresponsible.

x x x x

Employers shall be liable for the damages caused bytheir employees and household helpers acting withinthe scope of their assigned tasks, even though theformer are not engaged in any business or industry.

x x x x

The responsibility treated of in this article shall ceasewhen the persons herein mentioned prove that theyobserved all the diligence of a good father of a familyto prevent damage.

There is merit in the argument of the petitioner tArticle 2180 of the Civil Code imputing faultnegligence on the part of the employer for the faultnegligence of its employee does not apply petitioner since the fault or negligence of its emplodriver, Cabanilla, which would have made the latliable for quasi-delict under Article 2176 of the CCode, has never been established by respondent.

the contrary, the totality of the evidence presenduring trial shows that the proximate cause of collision of the bus and motorcycle is attributasolely to the negligence of the driver of motorcycle, Catubig.

Proximate cause is defined as that cause, whichnatural and continuous sequence, unbroken by efficient intervening cause, produces the injury, a

without which the result would not have occurrAnd more comprehensively, the proximate legal cais that acting first and producing the injury, eitimmediately or by setting other events in motion,constituting a natural and continuous chain of eveeach having a close causal connection with immediate predecessor, the final event in the chimmediately effecting the injury as a natural aprobable result of the cause which first acted, unsuch circumstances that the person responsible for

first event should, as an ordinary prudent aintelligent person, have reasonable ground to expat the moment of his act or default that an injurysome person might probably result therefrom.[27]

The RTC concisely articulated and aptly concluded tCatubigs overtaking of a slow-moving truck aheadhim, while approaching a curve on the highway, wthe immediate and proximate cause of the colliswhich led to his own death, to wit:

Based on the evidence on record, it is crystal clthat the immediate and proximate cause of collision is the reckless and negligent act of QuinCatubig, Jr. and not because the Ceres Bus wrunning very fast. Even if the Ceres Bus is runnvery fast on its lane, it could not have caused

collision if not for the fact that Quintin Catubig,


15/27

tried to overtake a cargo truck and encroached on thelane traversed by the Ceres Bus while approaching acurve. As the driver of the motorcycle, QuintinCatubig, Jr. has not observed reasonable care andcaution in driving his motorcycle which an ordinaryprudent driver would have done under thecircumstances. Recklessness on the part of QuintinCatubig, Jr. is evident when he tried to overtake a

cargo truck while approaching a curve in BarangayDonggo-an, Bolisong, Manjuyod, Negros Oriental.Overtaking is not allowed while approaching a curve inthe highway (Section 41(b), Republic Act [No.] 4136,as amended). Passing another vehicle proceeding onthe same direction should only be resorted to by adriver if the highway is free from incoming vehicle topermit such overtaking to be made in safety (Section41(a), Republic Act [No.] 4136). The collisionhappened because of the recklessness and

carelessness of [herein respondents] husband whowas overtaking a cargo truck while approaching acurve. Overtaking another vehicle while approachinga curve constitute reckless driving penalized not onlyunder Section 48 of Republic Act [No.] 4136 but alsounder Article 365 of the Revised Penal Code.

The Court commiserate with the [respondent] for theuntimely death of her husband. However, the Court

as dispenser of justice has to apply the law based onthe facts of the case. Not having proved bypreponderance of evidence that the proximate causeof the collision is the negligence of the driver of theCeres bus, this Court has no other option but todismiss this case.[28] (Emphases supplied.)

The testimonies of prosecution witnesses Cadimas andPO2 Elnas that Cabanilla was driving the bus at areckless speed when the collision occurred lackprobative value.

We are unable to establish the actual speed of the busfrom Cadimass testimony for he merely stated that

the bus did not stop when he tried to flag it downbecause it was running very fast.[29]

PO2 Elnas, on the other hand, made inconsiststatements as to the actual speed of the bus at time of the collision. During the prelimininvestigation in Criminal Case No. M-15-94 before MCTC, PO2 Elnas refused to give testimony as to speed of either the bus or the motorcycle at the tof the collision and an opinion as to who wasfault.[30] But during the trial of the present cbefore the RTC, PO2 Elnas claimed that he was tby Cabanilla that the latter was driving the bus at speed of around 100 kilometers per hour.[31]

As the RTC noted, Cadimas and PO2 Elnas bpointed out that the motorcycle encroached the lof the bus when it tried to overtake, while nearin

curve, a truck ahead of it, consistent with the fact tthe point of impact actually happened within the latraversed by the bus. It would be more reasonableassume then that it was Catubig who was driving motorcycle at high speed because to overtake truck ahead of him, he necessarily had to drive fasthan the truck. Catubig should have also avoiovertaking the vehicle ahead of him as the curvaton the road could have obstructed his vision of oncoming vehicles from the opposite lane.

The evidence shows that the driver of the bCabanilla, was driving his vehicle along the prolane, while the driver of the motorcycle, Catubig, hovertaken a vehicle ahead of him as he wapproaching a curvature on the road, in disregardthe provision of the law on reckless driving, at the of his life and that of his employee, Emperado.

The presumption that employers are negligent unArticle 2180 of the Civil Code flows from negligence of their employees.[32] Having adjudthat the immediate and proximate cause of collision resulting in Catubigs death was his o

negligence, and there was no fault or negligenceCabanillas part, then such presumption of fault

negligence on the part of petitioner, as Cabaniemployer, does not even arise. Thus, it is not e


16/27

necessary to delve into the defense of petitioner thatit exercised due diligence in the selection andsupervision of Cabanilla as its employee driver.

WHEREFORE, premises considered, the petition isGRANTED. The Decision dated November 17, 2005and Resolution dated November 16, 2006 of the Court

Appeals in CA-G.R. CV No. 66815 are SET ASIDE andthe Decision dated January 26, 2000 of the RegionalTrial Court, Branch 30 of Dumaguete City, dismissingCivil Case No. 11360 is REINSTATED.

SO ORDERED.

ALTRES V. EMPLEO

G.R. No. 180986 December 10, 2008

NORBERTO ALTRES, EVITA BULINGAN, EVANGELINESASTINE, FELIPE SASA, LILIBETH SILLAR, RAMONITOJAYSON, JELO TUCALO, JUAN BUCA, JR., JUECHRISTINE CALAMBA, ROMEO PACQUINGAN, JR.,CLEO JEAN ANGARA, LOVENA OYAO, RODOLFOTRINIDAD, LEONILA SARA, SORINA BELDAD, MA.LINDA NINAL, LILIA PONCE, JOSEFINA ONGCOY,

ADELYN BUCTUAN, ALMA ORBE, MYLENE SOLIVA,NAZARENE LLOREN, ELIZABETH MANSERAS,DIAMOND MOHAMAD, MARYDELL CADAVOS, ELENADADIOS, ALVIN CASTRO, LILIBETH RAZO, NORMACEPRIA, PINIDO BELEY, JULIUS HAGANAS, ARTHURCABIGON, CERILA BALABA, LIEZEL SIMAN, JUSTINAYUMOL, NERLITA CALI, JANETH BICOY, HENRYLACIDA, CESARIO ADVINCULA, JR., MERLYN RAMOS,VIRGIE TABADA, BERNARDITA CANGKE, LYNIEGUMALO, ISABEL ADANZA, ERNESTO LOBATON,RENE ARIMAS, FE SALVACION ORBE, JULIE QUIJANO,JUDITHO LANIT, GILBERTO ELIMIA, MANUELPADAYOGDOG, HENRY BESIN, ROMULO PASILANG,BARTOLOME TAPOYAO, JR., RUWENA GORRES,MARIBETH RONDEZ, FERDINAND CAORONG,TEODOMERO CORONEL, ELIZABETH SAGPANG, andJUANITA ALVIOLA, petitioners,vs.CAMILO G. EMPLEO, FRANKLIN MAATA, LIVEYVILLAREN, RAIDES CAGA, FRANCO BADELLES,ERNESTO BALAT, GRACE SAQUILABON, MARINAJUMALON and GEORGE DACUP,respondents.

D E C I S I O N

CARPIO MORALES, J.:

Assailed via petition for review on certiorari are Decision dated February 2, 20071and Order daOctober 22, 20072of Branch 3 of the Regional TCourt (RTC) of Iligan City, which denied petitionpetition for mandamus praying for a writ commandthe city accountant of Iligan, Camilo G. Emp(Empleo), or his successor in office, to issue

certification of availability of funds in connection wtheir appointments, issued by then Iligan City MaFranklin M. Quijano (Mayor Quijano), which wpending approval by the Civil Service Commiss(CSC).

Sometime in July 2003, Mayor Quijano sent noticesnumerous vacant career positions in the government to the CSC. The city government and CSC thereupon proceeded to publicly announce existence of the vacant positions. Petitioners aother applicants submitted their applications for

different positions where they felt qualified.

Toward the end of his term or on May 27, June 1, aJune 24, 2004, Mayor Quijano issued appointmentspetitioners.

In the meantime, the SangguniPanglungsodissued Resolution No. 04-2423addresto the CSC Iligan City Field Office requestingsuspension of action on the processing appointments to all vacant positions in the plantilla

the city government as of March 19, 2004 until enactment of a new budget.

The Sangguniang Panglungsodsubsequently issResolution No. 04-2664which, in view of its stapolicy against "midnight appointments," directed officers of the City Human Resource ManagemOffice to hold in abeyance the transmission of appointments signed or to be signed by the incumbmayor in order to ascertain whether these had behurriedly prepared or carefully considered awhether the matters of promotion andqualifications had been properly addressed. The saResolution enjoined all officers of the said Officeput off the transmission of all appointments to CSC, therein making it clear that non-compliatherewith would be met with administrative action.

Respondent city accountant Empleo did not thus isa certification as to availability of funds for payment of salaries and wages of petitioners, required by Section 1(e)(ii), Rule V of CMemorandum Circular No. 40, Series of 1998 readin
http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt1http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt1http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt1http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt2http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt2http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt3http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt3http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt4http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt4http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt4http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt4http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt3http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt2http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt1


17/27

x x x x

e. LGU Appointment. Appointment in localgovernment units for submission to theCommission shall beaccompanied, in additionto the common requirements, by the following:

x x x x

ii. Certification by the Municipal/CityProvincial Accountant/Budget Officerthat funds are available. (Emphasis andunderscoring supplied)

And the other respondents did not sign petitionersposition description forms.

The CSC Field Office for Lanao del Norte and IliganCity disapproved the appointments issued topetitioners invariably due to lack of certification ofavailability of funds.

On appeal by Mayor Quijano, CSC Regional Office No.XII in Cotabato City, by Decision of July 30,2004,5dismissed the appeal, it explaining that itsfunction in approving appointments is only ministerial,hence, if an appointment lacks a requirementprescribed by the civil service law, rules andregulations, it would disapprove it without delving intothe reasons why the requirement was not compliedwith.

Petitioners thus filed with the RTC of Iligan City theabove-stated petition for mandamus againstrespondent Empleo or his successor in office for himto issue a certification of availability of funds for thepayment of the salaries and wages of petitioners, andfor his co-respondents or their successors in office tosign the position description forms.

As stated early on, Branch 3 of the Iligan RTC deniedpetitioners petition for mandamus. It held that,among other things, while it is the ministerial duty of

the city accountant to certify as to the availability ofbudgetary allotment to which expenses andobligations may properly be charged under Section474(b)(4) of Republic Act No. 7160,6otherwise knownas the Local Government Code of 1991, thecity accountant cannot be compelled to issue acertification as to availability of funds for the paymentof salaries and wages of petitioners as this ministerialfunction pertains to the citytreasurer. In so holding,the trial court relied on Section 344 of the LocalGovernment Code of 1991 the pertinent portion ofwhich provides:

Sec. 344. Certification and Approval Vouchers. No money shall be disburunless the local budget officer certifies to existence of appropriation that has been legmade for the purpose, the local accountant obligated said appropriation, and local treasurer certifies to the availabilityfunds for the purpose. x x x x (Underscorsupplied)

Petitioners filed a motion for reconsideration7in whthey maintained only their prayer for a writ mandamus for respondent Empleo or his successooffice to issue a certification of availability of fundsthe payment of their salaries and wages. The tcourt denied the motion by Order of October 2007,8hence, the present petition.

By Resolution of January 22, 2008,9this Cowithout giving due course to the petition, requirespondents to comment thereon within ten (10) d

from notice, and at the same time required petitionto comply, within the same period, with the relevprovisions of the 1997 Rules of Civil Procedure.

Petitioners filed a Compliance Report dated Febru18, 200810to which they attached 18 copies of (averification and certification, (b) an affidavit of servand (c) photocopies of counsels Integrated Bar of Philippines (IBP) official receipt for the year 2008 ahis privilege tax receipt for the same year.

Respondents duly filed their Comment,11

allegtechnical flaws in petitioners petition, to whComment petitioners filed their Reply12in compliawith the Courts Resolution dated April 1, 2008.13

The lone issue in the present petition is whether iSection 474(b)(4) or Section 344 of the LoGovernment Code of 1991 which applies to requirement of certification of availability of fuunder Section 1(e)(ii), Rule V of CSC MemorandCircular Number 40, Series of 1998. As earlier statthe trial court ruled that it is Section 344. Petitionposit, however, that it is Section 474(b)(4) unwhich it is the ministerial duty of city accountant to issue the certification, and Section 344 which pertains to the ministerial functof the city treasurer to issue the therein stacertification.

A discussion first of the technical matters questioby respondents is in order.

Respondents assail as defective the verification a

certification against forum shopping attached to
http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt5http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt5http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt5http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt6http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt6http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt6http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt7http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt7http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt8http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt8http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt8http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt9http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt9http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt9http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt10http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt10http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt10http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt11http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt11http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt11http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt12http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt12http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt13http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt13http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt13http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt13http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt12http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt11http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt10http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt9http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt8http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt7http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt6http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt5


18/27

petition as it bears the signature of only 11 out of the59 petitioners, and no competent evidence of identitywas presented by the signing petitioners. They thusmove for the dismissal of the petition, citing Section 5,Rule 714vis a visSection 5, Rule 4515of the 1997Rules of Civil Procedure and Docena v.Lapesura16which held that the certification againstforum shopping should be signed by all the petitionersor plaintiffs in a case and that the signing by only one

of them is insufficient as the attestation requirespersonal knowledge by the party executing thesame.17

Petitioners, on the other hand, argue that they have ajustifiable cause for their inability to obtain thesignatures of the other petitioners as they could nolonger be contacted or are no longer interested inpursuing the case.18Petitioners plead substantialcompliance, citing Huntington Steel Products, Inc., etal. v. NLRC19which held, among other things, thatwhile the rule is mandatory in nature, substantial

compliance under justifiable circumstances is enough.

Petitioners position is more in accord with recentdecisions of this Court.

In Iglesia ni Cristo v. Ponferrada,20the Court held:

The substantial compliance rule has beenapplied by this Court in a number ofcases: Cavile v. Heirs of Cavile, where theCourt sustained the validity of the certification

signed by only one of petitioners because he isa relative of the other petitioners and co-owner of the properties in dispute; Heirs of

Agapito T. Olarte v. Office of the President ofthe Philippines, where the Court allowed acertification signed by only two petitionersbecause the case involved a family home inwhich all the petitioners shared a commoninterest; Gudoy v. Guadalquiver, where theCourt considered as valid the certificationsigned by only four of the nine petitionersbecause all petitioners filed as co-owners proindiviso a complaint against respondents forquieting of title and damages, as such, they allhave joint interest in the undivided whole;and DAR v. Alonzo-Legasto, where the Courtsustained the certification signed by only oneof the spouses as they were sued jointlyinvolving a property in which they hadacommon interest.21(Italics in the original,underscoring supplied)

Very recently, in Tan, et al. v. Ballena, et al.,22the

verification and certification against forum shopping

attached to the original petition for certiorari filed wthe Court of Appeals was signed by only two outover 100 petitioners and the same was filed one dbeyond the period allowed by the Rules. The appelcourt initially resolved to dismiss the original petitprecisely for these reasons, but on the therpetitioners motion for reconsideration, the appelcourt ordered the filing of an amended petitionorder to include all the original complaina

numbering about 240. An amended petition was tfiled in compliance with the said order, but only 180the 240 original complainants signed the verificatand certification against forum shopping. The Cour

Appeals granted the motion for reconsideration aresolved to reinstate the petition.

In sustaining the Court of Appeals in Tan, the Coheld that it is a far better and more prudent courseaction to excuse a technical lapse and afford parties a review of the case to attain the ends

justice, rather than dispose of the case on technica

and cause grave injustice to the parties, giving a faimpression of speedy disposal of cases while acturesulting in more delay, if not a miscarriage of justic

The Court further discoursed in Tan:

Under justifiable circumstances, we halready allowed the relaxation of requirements of verification and certificationthat the ends of justice may be betserved. Verification is simply intended

secure an assurance that the allegations in pleading are true and correct and not product of the imagination or a matter speculation, and that the pleading is filedgood faith; while the purpose of the aforescertification is to prohibit and penalize the eof forum shopping.

In Torres v. Specialized PackagDevelopment Corporation, we ruled that verification requirement had been substanticomplied with despite the fact that only t(2) out of the twenty-five (25) petitioners hsigned the petition for review and verification. In that case, we held that the tsignatories were unquestionably real partin-interest, who undoubtedly had sufficiknowledge and belief to swear to the truththe allegations in the Petition.

InAteneo de Naga University v. Manalo, also ruled that there was substancompliance with the requirement of verificat

when only one of the petitioners, the Presid
http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt14http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt14http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt15http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt15http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt16http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt16http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt17http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt17http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt17http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt18http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt18http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt18http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt19http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt19http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt20http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt20http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt20http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt21http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt21http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt21http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt22http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt22http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt22http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt22http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt21http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt20http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt19http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt18http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt17http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt16http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt15http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt14


19/27

of the University, signed for and on behalf ofthe institution and its officers.

Similarly, in Bases Conversion andDevelopment Authority v. Uy, we allowed thesignature of only one of the principal parties inthe case despite the absence of a BoardResolution which conferred upon him theauthority to represent the petitioner BCDA.

In the present case, the circumstancessquarely involve a verification that was notsigned by all the petitioners therein. Thus, wesee no reason why we should not uphold theruling of the Court of Appeals in reinstating thepetition despite the said formal defect.

On the requirement of a certification of non-forum shopping, the well-settled rule is that allthe petitioners must sign the certification ofnon-forum shopping. The reason for this isthat the persons who have signed thecertification cannot be presumed to have thepersonal knowledge of the other non-signingpetitioners with respect to the filing or non-filing of any action or claim the same as orsimilar to the current petition. The rule,however, admits of an exception and that iswhen the petitioners show reasonable causefor failure to personally sign the certification.The petitioners must be able to convince thecourt that the outright dismissal of the petition

woulddefeat the administration of justice.

In the case at bar, counsel for the respondentsdisclosed that most of the respondents whowere the original complainants have sincesought employment in the neighboring townsof Bulacan, Pampanga and Angeles City. Onlythe one hundred eighty (180) signatories werethen available to sign the amended Petition forCertiorari and the accompanying verificationand certification of non-forum shopping.23

In the present case, the signing of the verification byonly 11 out of the 59 petitioners already sufficientlyassures the Court that the allegations in the pleadingare true and correct and not the product of theimagination or a matter of speculation; that thepleading is filed in good faith; and that the signatoriesare unquestionably real parties-in-interest whoundoubtedly have sufficient knowledge and belief toswear to the truth of the allegations in the petition.

With respect to petitioners certification against forum

shopping, the failure of the other petitioners to sign as

they could no longer be contacted or are no loninterested in pursuing the case need not merit outright dismissal of the petition without defeating administration of justice. The non-signing petitionare, however, dropped as parties to the case.

In fact, even Docena24cited by respondents sustapetitioners position. In that case, the certificatagainst forum shopping was signed by only one of

petitioning spouses. The Court held that certification against forum shopping should deemed to constitute substantial compliance with Rules considering, among other things, that petitioners were husband and wife, and that subject property was their residence which walleged in their verified petition to be conjugal.25

With respect to petitioners non-presentation of identification before the notary public at the time tswore to their verification and certification attachedthe petition, suffice it to state that this was curedpetitioners compliance26with the Courts ResolutionJanuary 22, 200827wherein they submitted notarized verification and certification bearing details of their community tax certificates. This, toosubstantial compliance. The Court need not belabordiscretion to authorize subsequent compliance wthe Rules.

For the guidance of the bench and bar, the Corestates in capsule form the jurisprudenpronouncements already reflected above respect

non-compliance with the requirements on, submission of defective, verification and certificatagainst forum shopping:

1) A distinction must be made between ncompliance with the requirement on or submissiondefective verification, and non-compliance with requirement on or submission of defective certificatagainst forum shopping.

2) As to verification, non-compliance therewith odefect therein does not necessarily render pleading fatally defective. The court may order submission or correction or act on the pleading if attending circumstances are such that stcompliance with the Rule may be dispensed withorder that the ends of justice may be serthereby.28

3) Verification is deemed substantially compliedwwhen one who has ample knowledge to swear to truth of the allegations in the complaint or petitsigns the verification, and when matters alleged in
http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt23http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt23http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt23http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt24http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt24http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt25http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt25http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt25http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt26http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt26http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt27http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt27http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt27http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt28http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt28http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt28http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt28http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt27http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt26http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt25http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt24http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt23


20/27

petition have been made in good faith or are true andcorrect.29

4) As to certification against forum shopping, non-compliance therewith or a defect therein, unlike inverification, is generally not curable by its subsequentsubmission or correction thereof, unless there is aneed to relax the Rule on the ground of "substantialcompliance" or presence of "special circumstances or

compelling reasons."30

5) The certification against forum shopping must besigned by all the plaintiffs or petitioners in acase;31otherwise, those who did not sign will bedropped as parties to the case. Under reasonable orjustifiable circumstances, however, as when all theplaintiffs or petitioners share a common interest andinvoke a common cause of action or defense, thesignature of only one of them in the certificationagainst forum shopping substantially complies withthe Rule.32

6) Finally, the certification against forum shoppingmust be executed by the party-pleader, not by hiscounsel.33If, however, for reasonable or justifiablereasons, the party-pleader is unable to sign, he mustexecute a Special Power of Attorney34designating hiscounsel of record to sign on his behalf.

And now, on respondents argument that petitionersraise questions of fact which are not proper in apetition for review on certiorari as the same must

raise only questions of law. They entertain doubt onwhether petitioners seek the payment of their salaries,and assert that the question of whether the cityaccountant can be compelled to issue a certification ofavailability of funds under the circumstances hereinobtaining is a factual issue.35

The Court holds that indeed petitioners are raising aquestion of law.

The Court had repeatedly clarified the distinctionbetween a question of law and a question of fact. Aquestion of law exists when the doubt or controversyconcerns the correct application of law orjurisprudence to a certain set of facts; or when theissue does not call for an examination of the probativevalue of the evidence presented, the truth orfalsehood of facts being admitted.36A question of fact,on the other hand, exists when the doubt ordifference arises as to the truth or falsehood of factsor when the query invites calibration of the wholeevidence considering mainly the credibility of thewitnesses, the existence and relevance of specific

surrounding circumstances, as well as their relation to

each other and to the whole, and the probabilitythe situation.37When there is no dispute as to fathe question of whether the conclusion dratherefrom is correct is a question of law.38

In the case at bar, the issue posed for resolution dnot call for the reevaluation of the probative valuethe evidence presented, but rather the determinatof which of the provisions of the Local Governm

Code of 1991 applies to the Civil Service MemorandCircular requiring a certificate of availability of furelative to the approval of petitioners appointments

At all events, respondents contend that the case become moot and academic as the appointmentspetitioners had already been disapproved by the CPetitioners maintain otherwise, arguing that the acrespondent Empleo in not issuing the requicertification of availability of funds unduly interfewith the power of appointment of then Mayor Quijathat the Sangguniang PanglungsodResolutions re

upon by respondent Empleo constituted legislaintervention in the mayors power to appoint; and tthe prohibition against midnight appointments apponly to presidential appointments as affirmed inRama v. Court of Appeals.39

The Court finds that, indeed, the case had berendered moot and academic by the final disapproof petitioners appointments by the CSC.

The mootness of the case notwithstanding, the Co

resolved to rule on its merits in order to settle issue once and for all, given that the contested actis one capable of repetition40or susceptible recurrence.

The pertinent portions of Sections 474(b)(4) and 3of the Local Government Code of 1991 provide:

Section 474. Qualifications, Powers and Dut

x x x x

(b) The accountant shall take charge of bthe accounting and internal audit servicesthe local government unit concerned and sh

x x x x

(4) certify to the availability of budgetallotment to which expenditures aobligations may be properly charg(Emphasis and underscoring supplied)
http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt29http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt29http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt29http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt30http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt30http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt30http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt31http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt31http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt31http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt32http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt32http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt32http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt33http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt33http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt33http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt34http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt34http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt34http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt35http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt35http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt35http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt36http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt36http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt36http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt37http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt37http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt37http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt38http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt38http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt38http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt39http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt39http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt39http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt40http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt40http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt40http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt39http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt38http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt37http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt36http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt35http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt34http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt33http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt32http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt31http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt30http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt29


21/27

x x x x

Sec. 344. Certification and Approval ofVouchers. No money shall be disbursedunless the local budget officer certifies to theexistence of appropriation that has been legallymade for the purpose, the local accountanthasobligated said appropriation, and the localtreasurer certifies to the availability of funds

for the purpose. x x x (Emphasis andunderscoring supplied)

Petitioners propound the following distinctionsbetween Sections 474(b)(4) and 344 of the LocalGovernment Code of 1991:

(1) Section 474(b)(4) speaks of certification ofavailability of budgetary allotment, whileSection 344 speaks of certification ofavailability of funds for disbursement;

(2) Under Section 474(b)(4), before acertification is issued, there must be anappropriation, while under Section 344, beforea certification is issued, two requisites mustconcur: (a) there must be an appropriationlegally made for the purpose, and (b) the localaccountant has obligated said appropriation;

(3) Under Section 474(b)(4), there is no actualpayment involved because the certification isfor the purpose of obligating a portion of the

appropriation; while under Section 344, thecertification is for the purpose of payment afterthe local accountant had obligated a portion ofthe appropriation;

(4) Under Section 474(b)(4), the certification isissued if there is an appropriation, let us say,for the salaries of appointees; while underSection 344, the certification is issued if thereis an appropriation and the same is obligated,let us say, for the payment of salaries ofemployees.41

Respondents do not squarely address the issue in theirComment.

Section 344 speaks of actual disbursements of moneyfrom the local treasury in payment of due anddemandable obligations of the local government unit.The disbursements are to be made through theissuance, certification, and approval of vouchers. Thefull text of Section 344 provides:

Sec. 344. Certification and Approof Vouchers. No money shall be disburunless the local budget officer certifies to existence of appropriation that has been legmade for the purpose, the local accountant obligated said appropriation, and the lotreasurer certifies to the availability of fufor the purpose. Vouchers and payrolls shalcertified to and approved by the head of

department or office who has administracontrol of the fund concerned, as to validpropriety, and legality of the claim involvExcept in cases of disbursements involvregularly recurring administrative expensuch as payrolls for regular or permanemployees, expenses for light, watelephone and telegraph services, remittanto government creditor agencies such as GSSSS, LDP, DBP, National Printing OffProcurement Service of the DBM and otheapproval of the disbursement voucher by

local chief executive himself shall be requiwhenever local funds are disbursed.

In cases of special or trust fundisbursements shall be approved by administrator of the fund.

In case of temporary absence or incapacitythe department head or chief of office, officer next-in-rank shall automatically perfohis function and he shall be fully respons

therefor. (Italics and underscoring supplied)

"Voucher," in its ordinary meaning, is a documwhich shows that services have been performedexpenses incurred.42When used in connection wdisbursement of money, it implies the existence ofinstrument that shows on what account or by wauthority a particular payment has been made, or tservices have been performed which entitle the pato whom it is issued to payment.43

Section 344 of the Local Government Code of 19thus applies only when there is already an obligatto pay on the part of the local government uprecisely because vouchers are issued only whservices have been performed or expenses incurred

The requirement of certification of availability of fufrom the city treasurer under Section 344 of the LoGovernment Code of 1991 is for the purpof facilitating the approval of vouchers issued the payment of services already rendered to, aexpenses incurred by, the local government unit.
http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt41http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt41http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt41http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt42http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt42http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt42http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt43http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt43http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt43http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt43http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt42http://www.lawphil.net/judjuris/juri2008/dec2008/gr_180986_2008.html#fnt41


22/27


23/27

On February 12, 2004, the respondent RTC Judgeissued her first assailed order, denying thesecond motion to dismiss, disposing thus:

xxx

Inasmuch as the records show that the pendingincident is the second motion to dismiss filed by the

defendants, the same is hereby Denied for lack ofmerit.

SO ORDERED.

On May 25, 2004. the petitioners filed their motion forreconsideration, but the respondent RTC Judge deniedthe motion through her second assailed order datedDecember 29, 2004, to wit:

Acting on the Motion for Reconsideration (of the Orderdated February 12, 2004, filed by the defendant

Spo

CIVPRO CASE 1 PLEADINGS-judge wagan.pdf

Documents

Transcript of CIVPRO CASE 1 PLEADINGS-judge wagan.pdf