Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No.

159189 February 21, 2007

THE MANILA BANKING CORPORATION, Petitioner, vs. UNIVERSITY OF BAGUIO, INC. and GROUP DEVELOPERS, INC., Respondents. DECISION QUISUMBING, J.: On appeal is the Order1 dated April 11, 2002 of the Regional Trial Court (RTC) of Makati City, Branch 61, in Civil Case No. 90-389, dismissing petitioners amended complaint for a sum of money with application for preliminary attachment. In the appeal under Section 2, Rule 41, on a pure question of law, petitioner alleges that the assailed Order of the RTC was manifestly not in accord with law and jurisprudence. Also assailed is the trial courts June 27, 2003 Order2 denying the motion for reconsideration.1awphi1.net The facts are culled from the records. On November 26, 1981, petitioner Manila Banking Corporation granted a P14 million credit line3 to respondent University of Baguio, Inc. for the construction of additional buildings and purchase of new equipment.4 On behalf of the university, then Vice-Chairman Fernando C. Bautista, Jr.5 signed Promissory Note (PN) Nos. 10660, 10672, 10687, and 107086 and executed a continuing suretyship agreement.7 However, Bautista, Jr. diverted the net proceeds of the loan. He endorsed and delivered the four checks representing the net proceeds to respondent Group Developers, Inc. (GDI).8 The loan was not paid. On February 12, 1990, the bank filed a complaint for a sum of money with application for preliminary attachment9 against the university, Bautista, Jr. and his wife Milagros, before the RTC of Makati City. Five years later, on March 31, 1995, the bank amended the complaint and impleaded GDI as additional defendant. In the amended complaint,10 the bank alleged that it was unaware and did not approve the diversion of the loan to GDI; that it granted the loan without collateral upon the universitys undertaking that it would construct new buildings; and that GDI connived with the university and Bautista, Jr. in fraudulently contracting the debt. In its Answer, the university claimed that the bank and GDI approved the diversion. Allegedly, Victor G. Puyat, then GDIs President, and Vicente G. Puyat, then the banks President, decided to use the proceeds of the loan. The university stated that Vicente G. Puyat and Victor G. Puyat even assured the university, in separate letters11 both dated October 22, 1981, that it would be relieved of any liability from the loan. Consequently, even if the loan was overdue, the bank did not demand payment until February 8, 1989. By way of cross-claim, the university prayed that GDI be ordered to pay the

university the amount it would have to pay the bank. In addition, the university filed a third-party complaint against Victor G. Puyat and the heirs of Vicente G. Puyat. On December 14, 1995, the bank and GDI executed a deed of dacion en pago.12 As attorney-in-fact of Batulao Bio-Loop Farms, Inc., GDI ceded and transferred to the bank a parcel of land consisting of 210,000 square meters located in Nasugbu, Batangas and covered by Transfer Certificate of Title No. T70784. The dacion en pago was for a consideration of P78 million and in full settlement of the loan under PN Nos. 10660, 10672, 10687, and 10708, subject of Civil Case No. 90-389.13 In an Omnibus Order14 dated April 21, 1997, the trial court dismissed the third-party complaint against the heirs of Vicente G. Puyat for being premature since the banks cause of action was against the university as a "dummy" of GDI. The trial court also dismissed the case as to Fernando Bautista, Jr. and his wife upon Fernandos death. The trial court further ruled that the universitys motion to implead GDI as third-party defendant, and GDIs motions to dismiss the amended complaint and cross-claim, had been mooted by the dacion en pago. On March 19, 1998, the university moved to dismiss the amended complaint on the grounds that: (1) there was "no more cause of action" against it since the loan had been settled by GDI; and (2) the bank "failed to prosecute the action for an unreasonable length of time."15 In an Order16 dated August 17, 1999, the trial court denied the motion since the "matters relied upon by the university were evidentiary in nature." On October 14, 1999, the university moved to set the case for pre-trial on December 2, 1999.17 On August 3, 2000, the trial court resolved GDIs motion to resolve the motions to dismiss and defer pre-trial; expunged from the record the deed of dacion en pago; and reinstated GDIs motions to dismiss the amended complaint and cross-claim on the ground that no compromise agreement was submitted for its approval.18 On August 29, 2001, the university filed a manifestation with motion for reconsideration of the August 17, 1999 Order denying the universitys motion to dismiss the amended complaint. The university argued that the grounds for its motion to dismiss were not evidentiary as the deed of dacion en pago and the banks judicial admission thereof were on record. The bank opposed the motion on the ground that the motion for reconsideration of the August 17, 1999 Order was filed after more than two years. The bank noted that it was the university which moved to set the case for pre-trial; thus, its claim of not seeking reconsideration of the August 17, 1999 Order because of the scheduled pre-trial was preposterous. The bank concluded that the motion to dismiss lacked basis since the deed of dacion en pago had already been expunged. In the appealed Order of April 11, 2002, the trial court ruled that the bank had no cause of action against the defendants because its claim for a sum of money had been paid through the dacion en pago. The trial court noted that the bank even admitted the settlement. It disposed of the case as follows: WHEREFORE, in view of the foregoing, defendant [respondent herein] University of Baguios Motion to Dismiss Amended Complaint is herein GRANTED and this complaint for collection of sum of money is herein DISMISSED. Defendant UBI [respondent university] shall file the appropriate Manifestation in Court specifying the

dates in June when it will be available to present evidence on its counterclaim. SO ORDERED.19 Hence, this appeal where petitioner alleges: I. The RTC seriously erred in granting the Motion to Dismiss of respondent UBI on the basis of a document that has already been indisputably stricken off from (sic) the records of the case. ii. The RTC seriously erred in granting ubis Motion to Dismiss when the issues raised therein are evidentiary in nature and did not refer to the allegations in the complaint. iii. The RTC seriously erred in ruling, without trial, that the Deed of Dacion en Pago between petitioner and respondent ubI [Should be gdi] has not been rescinded. iv. The RTC should have denied ubis Manifestation (with Motion for Reconsideration) as the filing of the Motion to Dismiss after respondent ubi filed its Answer violated the Rules of Court. V. The RTC, without justifiable nor legal basis, adopted different policies to parties similarly situated. vi. The RTC, without justifiable nor legal basis, resolved for the second time a Motion to Dismiss which it has earlier denied instead of resolving the Manifestation (with Motion for Reconsideration of said denial) which it was being asked to resolve.20 In essence, the issue for our resolution is, did the trial court err in dismissing the amended complaint, without trial, upon motion of respondent university? Petitioner argues that the universitys motion to dismiss on alleged lack of cause of action because of the deed of dacion en pago, an evidence aliunde, was improper since petitioner has yet to present its evidence. Petitioner also argues that the April 11, 2002 appealed Order was flawed because it was based on evidence expunged from the record. Respondent university counters that the amended complaint deserved dismissal because petitioner admitted the dacion en pago and stated its lack of interest to pursue the case against respondent university. The university contends that petitioners acceptance of the Batangas property, as equivalent of performance, extinguished the obligation under the four promissory notes. Thus, the university concludes that no more cause of action lies against it.

For its part, respondent GDI maintains that the dacion en pago has no "legal effect" but also avers that the dacion en pago effectively paid the loan warranting dismissal of the complaint, cross-claim and counterclaim against it. Prefatorily, we note the trial courts inconsistent rulings in this case. To recall, the Omnibus Order dated April 21, 1997 appeared to have considered the dacion en pago as full settlement of the case. The trial court thus ruled that the dacion en pago mooted the motion to implead GDI as third-party defendant, and GDIs motions to dismiss amended complaint and third-party cross-claim.21 Yet, in the same order, the trial court dismissed the case against the heirs of Vicente G. Puyat on the ground of prematurity, since petitioners cause of action was against respondent university as "dummy" of GDI, implying that the case was not yet actually settled. Recall also that the August 17, 1999 Order ruled that the payment of the loan through the dacion en pago was "evidentiary"22 or had to be proved. The order was silent on whether it reversed the trial courts earlier statement that the dacion en pago settled the loan and the case. A year later, on August 3, 2000, the trial court expunged the deed of dacion en pago and reinstated GDIs motions to dismiss the amended complaint and cross-claim.23 Then, the appealed Order of April 11, 2002 ruled that petitioner had "no cause of action" against the defendants since the loan was settled by the dacion en pago,24 despite the order which expunged the deed. In Domondon v. Lopez,25 we distinguished a motion to dismiss for failure of the complaint to state a cause of action from a motion to dismiss based on lack of cause of action. The first is governed by Section 1 (g),26 Rule 16, while the second by Rule 33,27 of the Rules of Court, to wit: . . . The first [situation where the complaint does not allege a sufficient cause of action] is raised in a motion to dismiss under Rule 16 before a responsive pleading is filed and can be determined only from the allegations in the initiatory pleading and not from evidentiary or other matters aliunde. The second [situation where the evidence does not sustain the cause of action alleged] is raised in a demurrer to evidence under Rule 33 after the plaintiff has rested his case and can be resolved only on the basis of the evidence he has presented in support of his claim. The first does not concern itself with the truth and falsity of the allegations while the second arises precisely because the judge has determined the truth and falsity of the allegations and has found the evidence wanting. Hence, a motion to dismiss based on lack of cause of action is filed by the defendant after the plaintiff has presented his evidence on the ground that the latter has shown no right to the relief sought. While a motion to dismiss under Rule 16 is based on preliminary objections which can be ventilated before the beginning of the trial, a motion to dismiss under Rule 33 is in the nature of a demurrer to evidence on the ground of insufficiency of evidence and is presented only after the plaintiff has rested his case.28 (Emphasis supplied.) In this case, the universitys March 19, 1998 motion to dismiss the amended complaint was improper under Rule 16 because it was filed after respondent university filed its responsive pleading, its Answer. Also, the motions merit could not be determined based solely on the allegations of the initiatory pleading, the amended complaint, since the motion was based on the deed of dacion en pago, which was not even alleged in the complaint. And since the deed of dacion en pago had been expunged from the record, the trial court erred in its finding of payment and lack of cause of action based on the deed. In fact, on January 11, 2002 or just three months before it dismissed the amended complaint, the trial court had even noted petitioner counsels manifestation regarding the parties initial efforts to enter into

a "dacion en pago but not based on the previous offer made but on a new proposal involving new properties"29 and urged them to pursue further settlement discussions.30 In addition, the motion alleged that petitioner had "no more cause of action" or lacked a cause of action against the university. Following Domondon, that motion was a motion to dismiss under Rule 33 in the nature of demurrer to evidence and would be proper only after petitioner had presented its evidence and rested its case. In the case at bar, there had been no presentation of evidence yet and petitioner had not rested its case. Therefore, the August 17, 1999 Order properly denied the motion to dismiss for being improper under either Rule 16 or 33. The trial court had also made a premature statement in its Omnibus Order dated April 21, 1997 that the dacion en pago settled the loan and the case, even as it also stated that respondent university was used as a "dummy" of GDI. If indeed there was fraud, considering the uncollateralized loan, its diversion, nonpayment, absence of demand although overdue, and the dacion en pago where title of the property accepted as payment cannot be transferred, the fraud should be uncovered to determine who are liable to pay the loan. We note too that the April 11, 2002 Order was unclear if it ruled again on the universitys March 19, 1998 motion to dismiss or acted on its August 29, 2001 manifestation with motion for reconsideration of the two-year old August 17, 1999 Order. To reiterate, the August 17, 1999 Order aptly denied the motion. Thus, we reverse the April 11, 2002 and June 27, 2003 assailed Orders. Lastly, it must be pointed out that while the Court allows a relaxation in the application of procedural rules in some instances, courts and litigants are enjoined to follow rules strictly because they are designed to facilitate the adjudication of cases.31 Instead of rules being followed, however, we find their misapplication in this case resulting to inconsistent rulings, confusion and delay. Had the trial court exercised its inherent power to control its proceedings,32 it would not have taken this long to reach pre-trial, which had been first set on December 2, 1999 through respondent universitys motion. Significantly, even the trial court had tentatively set the pre-trial on June 7, 200233 but erroneously dismissed the amended complaint on April 11, 2002. WHEREFORE, we GRANT the petition and SET ASIDE the trial courts April 11, 2002 and June 27, 2003 Orders. The trial court is ORDERED to proceed with the pre-trial and hear this case with dispatch. No pronouncement as to costs. SO ORDERED. LEONARDO A. QUISUMBING Associate Justice WE CONCUR: UNITED PULP AND PAPER CO., INC., petitioner, vs. UNITED PULP AND PAPER CHAPTERFEDERATION OF FREE WORKERS, respondent. DECISION SANDOVAL-GUTIERREZ, J.: For our resolution is the instant petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended, assailing the Resolutions dated October 12, 1999[1] and December 10, 1999[2] of the Court of Appeals in CA-G.R. SP No. 55245, entitled United Pulp and Paper Co., Inc. vs. United Pulp and Paper Chapter-Federation of Free Workers.

The antecedent facts giving rise to the controversy at bar are as follows: Sometime in July 1991, United Pulp and Paper Co., Inc., petitioner, implemented a Promotions Policy[3] that recognizes the excellent and meritorious work performance of deserving employees during the last twelve (12) months. The Promotions Policy sets forth the following guidelines: VI. ADMINISTRATIVE GUIDELINES 1. Except in abnormal situations (subject to approval by the General Manager), promotions shall be made only if a vacancy in the next higher position occurs and Management has decided to fill-up such vacancy through approval of the Personnel Requisition form. xxx 9. In case of union employees, the promotional increase shall be 5% compounded for every pay class jump. However, the resulting effect of 5% promotional increase shall not cause the promoted employees salary to exceed that of the lowest paid incumbent within first, the section, second, department, and third, division. If this constraint will result to a promotional increase of lower than 3% over his previous salary, the employee will receive an increase of 3%. x x x.[4] On April 1, 1998, Teodorico Simbulan was promoted from Welder I to Welder II with the corresponding pay class (PC) movement from PC V to PC VIII. For and in behalf of Simbulan, United Pulp and Paper Chapter-Federation of Free Workers, respondent, questioned the regularity or correctness of the salary increase granted by petitioner. Invoking Section 1, Article XVII of the collective bargaining agreement (CBA),[5] respondent maintains that Simbulan is entitled to a 5% salary increase (for every pay class movement) because such salary increase does not exceed the salary rates of other incumbents. Respondent also contends that petitioner is guilty of discrimination against Simbulan since other employees, like Enrique Cruz and Joselito de Castro who were previously promoted, enjoy the 5% salary increase for their pay class movements. The controversy was submitted to the grievance machinery, but the parties failed to reach an acceptable settlement. Thus, the matter was elevated to a panel of Voluntary Arbitrators of the National Conciliation and Mediation Board (NCMB), Regional Branch No. III at San Fernando, Pampanga, docketed as NCMBAC-583-RB3-10-024-98. On July 1, 1999, the Voluntary Arbitrators rendered a Decision[6] partly reproduced as follows: In light of all the foregoing, this Panel holds that the promotional increase in the case of union employees is 5% compounded for every pay class jump unless the effect of such increase will be such as to cause the promoted employees salary to exceed that of the lowest paid incumbent in the same position as that to which the employee is being promoted, in which case the promotional increase shall be limited to not less than 3%.

Consequently, in the case of the subject employee, Teodorico Simbulan, since there is no showing that, for the second and third jumps in his promotion on 1 April 1998, his salary would have exceeded that of the lowest paid incumbent in the pertinent position if granted a 5% promotional increase, he is entitled to a salary increase of 5%+5%+5%, compounded for each pay class, effective as of the said date. WHEREFORE, respondent United Pulp and Paper Co., Inc. is hereby ordered to pay Teodorico Simbulan the difference between the promotional increase of 5%+5%+5%, compounded for each pay class, and the salary increase be actually received as a result of his promotion, effective as of 1 April 1998. The respondent is also directed to continue implementing the promotions policy, in appropriate cases, in the manner stated in this Decision. SO ORDERED. Petitioner filed a motion for reconsideration but was denied by the Voluntary Arbitrators in a Resolution[7] dated September 3, 1999. On October 6, 1999, petitioner filed with the Court of Appeals a petition for review under Rule 43 of the 1997 Rules of Civil Procedure, as amended, assailing the Decision and Resolution of the Voluntary Arbitrators. In a Resolution dated October 12, 1999, the Appellate Court dismissed the petition outright for being insufficient in form, thus: "1. The verification and certification of non-forum shopping was signed only by counsel for the petitioner corporation, rather than by a duly-authorized officer thereof; 2. The affidavit of service is inadequate, as the registry receipts evidencing mailing of copies of the petition to the respondent were not attached; 3. Absence of the mandatory written explanation required under Sec. 11, Rule 13, 1997 Rules of Civil Procedure to explain why personal service upon the respondents of copies of the petition was not resorted to. The foregoing defects warrant an outright dismissal of the instant petition. IN VIEW THEREOF, the Petition is hereby DENIED DUE COURSE and DISMISSED. SO ORDERED. On October 29, 1999, petitioner filed a motion for reconsideration but was denied by the Appellate Court in a Resolution dated December 10, 1999. Hence, this petition for review on certiorari alleging that the Court of Appeals seriously erred in dismissing its petition for review on mere technicalities. We agree with the Court of Appeals. Section 5, Rule 7 of the same Rules[8] provides that it is the

plaintiff or principal party who shall certify under oath in the complaint or other initiatory pleading that he has not commenced any action involving the same issues in any court, tribunal or quasi-judicial agency. Here, only petitioners counsel signed the certification against forum-shopping. There is no showing that he was authorized by the petitioner company to represent the latter and to sign the certification. In Sy Chin vs. Court of Appeals,[9] we held that the petition is flawed as the certificate of non-forum shopping was signed only by counsel and not by the party. The rule requires that it should be the plaintiff or principal party who should sign the certification, otherwise, this requirement would easily be circumvented by the signature of every counsel representing corporate parties.[10] Moreover, petitioners failure to attach with the petition a written explanation why the service or filing was not done personally violates Section 11, Rule 13 of the same Rules.[11] We have ruled that where no explanation is offered to justify the service of pleadings by other modes, the discretionary power of the court to expunge the pleading becomes mandatory. [12] Thus, the Court of Appeals correctly considered the petition as not having been filed, in view of petitioners failure to present a written explanation why it failed to effect personal service of its petition for review. In Kowloon House/Willy Ng vs. Hon. Court of Appeals,[13] we held that (r)ules of procedure exist for a purpose, and to disregard such rules in the guise of liberal construction would be to defeat such purpose. Procedural rules are not to be disdained as mere technicalities. They may not be ignored to suit the convenience of a party. Adjective law ensures the effective enforcement of substantive rights through the orderly and speedy administration of justice. Rules are not intended to hamper litigants or complicate litigation. But they help provide for a vital system of justice where suitors may be heard in the correct form and manner, at the prescribed time in a peaceful though adversarial confrontation before a judge whose authority litigants acknowledge. Public order and our system of justice are well served by a conscientious observance of the rules of procedure, particularly by government officials and agencies. WHEREFORE, the petition is DENIED. Costs against the petitioner. SO ORDERED. Corona, and Carpio-Morales, JJ., concur. Vitug, (Chairman), J., on official leave.

GLICERIA SARMIENTO, Petitioner,

- versus -

EMERITA ZARATAN, Respondent. G.R. No. 167471 Present: YNARES-SANTIAGO, J., Chairperson, AUSTRIA-MARTINEZ, CALLEJO, SR., and CHICO-NAZARIO, JJ. Promulgated: February 5, 2007 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x DECISION CHICO-NAZARIO, J.: This petition for Review on Certiorari under Rule 45 of the Rules of Court seeks to nullify the Court of Appeals Decision[1] in CA-G.R. SP No. 79001 entitled, Emerita Zaratan v. Hon. Ramon A. Cruz, as Presiding Judge of RTC, Quezon City, Branch 223, and Gliceria Sarmiento, dated 17 August 2004, which reversed and set side the Orders dated 19 June 2003 and 31 July 2003 of the Regional Trial Court (RTC) of Quezon City in Civil Case No. Q-03-49437, dismissing respondents appeal for failure to file the memorandum within the period provided for by law. On 2 September 2002, petitioner Gliceria Sarmiento filed an ejectment case[2] against respondent Emerita Zaratan, in the Metropolitan Trial Court (MeTC) of Quezon City, Branch 36, docketed as Civil Case No. 29109. On 31 March 2003, the MeTC rendered a decision in favor of petitioner, the dispositive portion of which reads: WHEREFORE, the Court finds that plaintiff has sufficiently established her causes against the defendant and hereby order the defendant and all persons claiming rights under her: 1. to pay plaintiff the monthly rentals of P3,500.00 for the said premises from August 1, 2002 until defendant vacates the premises; 2. to pay plaintiff the sum of P20,000.00 plus P1,500.00 per appearance of counsel in court, as and for attorneys fees; and to pay the cost of suit.[3]

Respondent filed her notice of appeal.[4] Thereafter, the case was raffled to the RTC of Quezon City, Branch 223, docketed as Civil Case No. Q-03-49437. In the Notice of Appealed Case,[5] the RTC directed respondent to submit her memorandum in accordance with the provisions of Section 7(b) of Rule 40 of the Rules of Court and petitioner to file a reply memorandum within 15 days from receipt. Respondents counsel having received the notice on 19 May 2003, he had until 3 June 2003 within which to file the requisite memorandum. But on 3 June 2003, he filed a Motion for Extension of Time of five days due to his failure to finish the draft of the said Memorandum. He cited as reasons for the delay of filing his illness for one week, lack of staff to do the work due to storm and flood compounded by the grounding of the computers because the wirings got wet.[6] But the motion remained unacted. On 9 June 2003, respondent filed her Memorandum. On 19 June 2003, the RTC dismissed the appeal as follows: Record shows that defendant-appellant received the Notice of Appealed Case, through counsel, on May 19, 2003 (Registry Return Receipt dated May 12, 2003, Record, back of p. 298). Thus, under Section 7(b), Rule 40 of the 1997 Rules of Civil Procedure, she had fifteen (15) days or until June 3, 2003 within which to submit a memorandum on appeal. As further appears on record, however, the required Memorandum was filed by defendant-appellant only on June 9, 2003 (Record, p. 623), or six (6) days beyond the expiration of the aforesaid fifteen day period. It should be stressed that while the rules should be liberally construed, the provisions on reglemenatry periods are strictly applied as they are deemed indispensable to the prevention of needless delays and necessary to the orderly and speedy discharge of judicial business (Legaspi-Santos vs. Court of Appeals, G.R. No. 60577, October 11, 1983) and strict compliance therewith is mandatory and imperative (FJR Garments Industries vs. Court of Appeals, G.R. No. L-49329, June 29, 1984). The same is true with respect to the rules on the manner and periods for perfecting appeals (Gutierrez vs. Court of Appeals, L-25972, November 26, 1968). Premises considered, the instant appeal is hereby DISMISSED. This renders academic defendantappellants application for a writ of preliminary injunction.[7] On the basis of the above-quoted Order, petitioner filed a Motion for Immediate Execution,[8] while respondent moved for the Reconsideration.[9] Both motions were denied by the RTC on 31 July 2003. The Order in part reads: In the main, defendant-appellants Motion for Reconsideration is premised on the argument that she filed a timely Motion for Extension of Time To File Memorandum, dated and filed on June 3, 2003, but that her motion was not acted upon by this Court. She adds that her appeal memorandum was filed well within the period sought by her in her Motion for Extension of Time to File Memorandum so that her appeal should not have been dismissed. The argument is without merit. This Court did not take cognizance of defendant-appellants Motion for Extension of Time to File Memorandum, and rightly so, because it did not contain a notice of hearing as required by Sections 4 and 5, Rule 15 of the Rules of Court, an omission for which it could

offer no explanation. As declared in the case of Gozon, et al. v. court of Appeals (G.R. No. 105781, June 17, 1993); xxx It is well-entrenched in this jurisdiction that a motion does not meet the requirements of Sections 4 and 5 of Rule 15 of the Rules of Court is considered a worthless piece of paper which the clerk has no right to receive, and the court has no authority to act upon. xxx Moreover, parties and counsel should not assume that courts are bound to grant the time they pray for. A motion that is not acted upon in due time is deemed denied (Orosa vs. Court of Appeals, 261 SCRA 376 [1996]). Thus, defendant-appellants appeal was properly dismissed on account of her failure to file an appeal memorandum within the fifteen (15) day period provided under Section 7(b), Rule 40 of the 1997 Rules of Civil Procedure. With regard to the Motion for Immediate Execution, dated June 23, 2003, filed by plaintiff-appellee, the rule is explicit that the execution of a judgment in an ejectment case, must be sought with the inferior court which rendered the same. The appellate court which affirms a decision brought before it on appeal cannot decree its execution in the guise of an execution of the affirming decision. The only exception is when said appellate court grants an execution pending appeal, which is not the case herein (City of Manila vs. Court of Appeals, 204 SCRA 362; Sy vs. Romero, 214 SCRA 187).[10] Petitioner moved for reconsideration of the said Order, while respondent sought clarification on whether the 31 July 2003 Order dismissing the appeal was anchored on Section (b), Rule 40 or Section 7(c) of the same Rule. On 27 August 2003, the RTC reconsidered its previous Order by granting petitioners motion for Immediate Execution, but denied respondents Motion for Clarification, in this wise: Section 21, Rule 70 of the Rules of Court provides that the judgment of the Regional Trial Court against the defendant shall be immediately executory, without prejudice to a further appeal that may be taken therefrom. Pursuant to this Rule and taking into account the arguments of the plaintiff in her Urgent Motion for Reconsideration, the Court is inclined to grant the same. As further correctly argued by the plaintiff, through counsel, during the hearing on her motion on August 15, 2003, the cases of City of Manila v. Court of Appeals (204 SCRA 362) and Sy vs. Romero (214 SCRA 187) cited in the July 31, 2003 Order refer to ejectment cases which has (sic) been decided with finality and hence, inapplicable to this case where a further appeal is still available to the defendant. It should likewise be noted that while the Supreme Court ruled in these cases that execution of a judgment in an ejectment case must be sought with the inferior court which rendered the same, it likewise provided that for an exception to this rule, that is, in cases where the appellate court grants an execution pending appeal, as the case herein. With regard to defendants Motion for Clarification, contained in her Opposition, the Court notes that the issues raised therein have already been squarely dealt with in the July 31, 2003 Order. The same must, therefore, be denied.[11]

Aggrieved, respondent filed a Petition for Certiorari in the Court of Appeals, which was granted in a decision dated 17 August 2004. The appellate court nullified and set aside the 19 June 2003 and 31 July 2003 Orders of the RTC and ordered the reinstatement of respondents appeal. Consequently, respondents appeal memorandum was admitted and the case remanded to the RTC for further proceedings.[12] Petitioner filed a motion for reconsideration[13] on 13 September 2004, followed by a Motion for Inhibition[14] of the members of the Eighth Division of the Court of Appeals on 20 September 2004. Both motions were denied for lack of merit on 10 March 2005.[15] Hence, this appeal by petitioner posing the following issues,[16] thus: 1. Whether respondents petition for certiorari should have been dismissed in the first place;

2. Whether the trial court committed grave abuse of discretion in denying respondents motion for extension; 3. Whether it is Section 19 of Rule 7 that applies, and not Section 21; and

4. Whether the Court of Appeals Justices should have inhibited themselves from further proceeding with the subject case. Stated otherwise, the main issue for resolution is whether the Court of Appeals committed a reversible error of law in granting the Writ of Certiorari. In granting the petition, the Court of Appeals ruled that the RTC erred in dismissing respondents appeal for failure to file the required Memorandum within the period provided by law and in granting petitioners Motion for Immediate Execution of the MeTC decision. Before resolving the substantive issues raised by petitioner, the Court will first address the procedural infirmities ascribed by petitioner. Petitioner assails the correctness and propriety of the remedy resorted to by respondent by filing a Petition for Certiorari in the Court of Appeals. According to petitioner, certiorari is not appropriate and unavailing as the proper remedy is an appeal. It must be noted that respondents appeal in the RTC was dismissed for failure to file the required memorandum within the period allowed by law, as the Motion for Extension of Time to file Memorandum was not acted upon for failure to attach a notice of hearing. From the said dismissal, respondent filed a Petition for Certiorari in the Court of Appeals. Respondent correctly filed said petition pursuant to Section 41 of the Rules of Court, which provides: Section 1. Subject of appeal. An appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by these Rules to be appealable. No appeal may be taken: xxxx

(d) An order disallowing or dismissing an appeal; xxxx In all the above instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate civil action under Rule 65. (Underscoring supplied.) Petitioner also contends that the Petition for Certiorari filed in the Court of Appeals should be dismissed as the certification of non-forum shopping was defective. The verification in part reads: I, EMERITA ZARATAN, of legal age, after having been duly sworn to, according to law, depose and say: That I, Emerita Zaratan is one of the respondent (sic) in the above entitled case, hereby declare, that I have caused the preparation and filing of the foregoing Comment on the Petition; that I have read all the allegations therein, which are true and correct to the best of my own knowledge. That as respondent, I further certify that I have not commenced any other action or proceeding involving the same issues in the foregoing Petition in the Court of Appeals, the Supreme Court, or different Divisions thereof, respectively, or any tribunal, or agency; and should it be known that a similar action or proceeding has been filed or is pending in any of the abovementioned Courts or different Divisions thereof, the petitioner shall notify the Honorable Court to which this certification is filed, within five (5) days from such notice. (Underscoring ours.) Petitioner avers that respondent by stating in the above-quoted certification that she was the respondent, while in truth she was the petitioner and by stating that respondent caused the preparation of the comment on the petition, instead of the petition itself, indicate that respondent did not understand what she was signing. The defect of the verification all renders the petition in the Court of Appeals without legal effect and constitutes ground for its dismissal. The contention is baseless. The purpose of requiring a verification is to secure an assurance that the allegations of the petition have been made in good faith, or are true and correct, not merely speculative. This requirement is simply a condition affecting the form of pleadings and non-compliance therewith does not necessarily render it fatally defective.[17] Perusal of the verification in question shows there was sufficient compliance with the requirements of the Rules and the alleged defects are not so material as to justify the dismissal of the petition in the Court of Appeals. The defects are mere typographical errors. There appears to be no intention to circumvent the need for proper verification and certification, which are intended to assure the truthfulness and correctness of the allegations in the petition and to discourage forum shopping.[18] Now, the substantial issues. Corollary to the dismissal of the appeal by the RTC is the question of whether the lack of notice of hearing in the Motion for Extension of Time to file Memorandum on Appeal is fatal, such that the filing of the motion is a worthless piece of paper.

Petitioner avers that, because of the failure of respondent to include a Notice of Hearing in her Motion for Extension of Time to file Memorandum on Appeal in the RTC, the latters motion is a worthless piece of paper with no legal effect. It is not disputed that respondent perfected her appeal on 4 April 2003 with the filing of her Notice of Appeal and payment of the required docket fees. However, before the expiration of time to file the Memorandum, she filed a Motion for Extension of Time seeking an additional period of five days within which to file her Memorandum, which motion lacked the Notice of Hearing required by Section 4, Rule 15 of the 1997 Rules of Court which provides: SEC. 4. Hearing of Motion. - Except for motions which the court may act upon without prejudicing the rights of the adverse party, every written motion shall be set for hearing by the applicant. Every written motion required to be heard and the notice of the hearing thereof shall be served in such a manner as to ensure its receipt by the other party at least three (3) days before the date of hearing, unless the court for good cause sets the hearing on shorter notice.

As may be gleaned above and as held time and again, the notice requirement in a motion is mandatory. As a rule, a motion without a Notice of Hearing is considered pro forma and does not affect the reglementary period for the appeal or the filing of the requisite pleading.[19] As a general rule, notice of motion is required where a party has a right to resist the relief sought by the motion and principles of natural justice demand that his right be not affected without an opportunity to be heard.[20] The three-day notice required by law is intended not for the benefit of the movant but to avoid surprises upon the adverse party and to give the latter time to study and meet the arguments of the motion.[21] Principles of natural justice demand that the right of a party should not be affected without giving it an opportunity to be heard.[22] The test is the presence of the opportunity to be heard, as well as to have time to study the motion and meaningfully oppose or controvert the grounds upon which it is based.[23] Considering the circumstances of the present case, we believe that procedural due process was substantially complied with. There are, indeed, reasons which would warrant the suspension of the Rules: (a) the existence of special or compelling circumstances, b) the merits of the case, (c) a cause not entirely attributable to the fault or negligence of the party favored by the suspension of rules, (d) a lack of any showing that the review sought is merely frivolous and dilatory, and (e) the other party will not be unjustly prejudiced thereby.[24] Elements or circumstances (c), (d) and (e) exist in the present case. The suspension of the Rules is warranted in this case. The motion in question does not affect the substantive rights of petitioner as it merely seeks to extend the period to file Memorandum. The required extension was due to respondents counsels illness, lack of staff to do the work due to storm and flood, compounded by the grounding of the computers. There is no claim likewise that said motion was interposed to delay the appeal.[25] As it appears, respondent sought extension prior to the expiration of the time to do so and the memorandum was subsequently filed within the requested

extended period. Under the circumstances, substantial justice requires that we go into the merits of the case to resolve the issue of who is entitled to the possession of the land in question. Further, it has been held that a motion for extension of time x x x is not a litigated motion where notice to the adverse party is necessary to afford the latter an opportunity to resist the application, but an ex parte motion made to the court in behalf of one or the other of the parties to the action, in the absence and usually without the knowledge of the other party or parties. As a general rule, notice of motion is required where a party has a right to resist the relief sought by the motion and principles of natural justice demand that his rights be not affected without an opportunity to be heard. It has been said that ex parte motions are frequently permissible in procedural matters, and also in situations and under circumstances of emergency; and an exception to a rule requiring notice is sometimes made where notice or the resulting delay might tend to defeat the objective of the motion.[26] It is well to remember that this Court, in not a few cases, has consistently held that cases shall be determined on the merits, after full opportunity to all parties for ventilation of their causes and defense, rather than on technicality or some procedural imperfections. In so doing, the ends of justice would be better served.[27] Furthermore, this Court emphasized its policy that technical rules should accede to the demands of substantial justice because there is no vested right in technicalities. Litigations, should, as much as possible, be decided on their merits and not on technicality. Dismissal of appeals purely on technical grounds is frowned upon, and the rules of procedure ought not to be applied in a very rigid, technical sense, for they are adopted to help secure, not override, substantial justice, and thereby defeat their very aims. As has been the constant rulings of this Court, every party-litigant should be afforded the amplest opportunity for the proper and just disposition of his cause, free from constraints of technicalities.[28] Indeed, rules of procedure are mere tools designed to expedite the resolution of cases and other matters pending in court. A strict and rigid application of the rules that would result in technicalities that tend to frustrate rather than promote justice must be avoided.[29] The visible emerging trend is to afford every party-litigant the amplest opportunity for the proper and just determination of his cause, free from constraints and technicalities. Parenthetically, it must be noted also that when the appeal was dismissed on 19 June 2003, the memorandum was already filed in court on 9 June 2003. On the issue of immediate execution of judgment. The applicable provision is Section 19, Rule 70 of the Rules of Court, which reads: SEC. 19. Immediate Execution of judgment; how to stay the same.- If judgment is rendered against the defendant, execution shall issue immediately upon motion, unless an appeal has been perfected and the defendant to stay execution files a sufficient supersedeas bond, approved by the Municipal Trial Court and executed in favor of the plaintiff to pay the rents, damages, and costs accruing down to the time of the judgment appealed from, and unless, during the pendency of the appeal, he deposits with the appellate court the amount of rent due from time to time under the contract, if any, as determined by the judgment of the Municipal Trial Court. x x x. To stay the immediate execution of judgment in ejectment proceedings, Section 19 requires that the defendant-appellant must (a) perfect his appeal, (b) file a supersedeas bond, and (c) periodically deposit the rentals falling due during the pendency of the appeal.

As correctly observed by the Court of Appeals, execution pending appeal was premature as respondent had already filed a supersedeas bond and the monthly rental for the current month of the premises in question.[30] The invocation of petitioner of the provisions of Section 21, Rule 70 of the Rules of Court, which runs: Sec. 21. Immediate execution on appeal to Court of Appeals or Supreme Court.- The judgment of the Regional Trial Court against the defendant shall be immediately executory, without prejudice to a further appeal that may be taken therefrom. to justify the issuance of the writ of execution pending appeal in this case is misplaced. A closer examination of the above-quoted provision reveals that said provision applies to decision of the RTC rendered in its appellate jurisdiction, affirming the decision of the MeTC. In the case at bar, the RTC order was an order dismissing respondents appeal based on technicality. It did not resolve substantive matters delving on the merits of the parties claim in the ejectment case. Thus, the case brought to the Court of Appeals was the dismissal of the appeal for failure to file the required memorandum within the period provided by law, and not on the merits of the ejectment case. Lastly, petitioner posited the view that the Court of Appeals justices should have inhibited themselves because of bias and partiality for deciding the case within eight months and for being very selective in discussing the issues. We reject the proposition. Inhibition must be for just and valid causes. The mere imputation of bias and partiality is not enough ground for judges to inhibit, especially when the charge is without basis. This Court has to be shown acts or conduct clearly indicative of arbitrariness or prejudice before it can brand them with the stigma of bias and partiality.[31] This Court has invariably held that for bias and prejudice to be considered valid reasons for the voluntary inhibition of judges, mere suspicion is not enough. Bare allegations of their partiality will not suffice in the absence of clear and convincing evidence to overcome the presumption that the judge will undertake his noble role to dispense justice according to law and evidence and without fear and favor.[32] There is no factual support to petitioners charge of bias and partiality. A perusal of the records of the case fails to reveal that any bias or prejudice motivated the Court of Appeals in granting respondents petition. Neither did this Court find any questionable or suspicious circumstances leading to the issuance of the questioned decision, as suggested by petitioner. The fact alone that the Court of Appeals decided the case within eight months does not in any way indicate bias and partiality against petitioner. It is within the constitutional mandate to decide the case within 12 months.[33] As to petitioners allegation that the Court of Appeals was selective in choosing what issues to resolve, it bears to stress again that a judges appreciation or misappreciation of the sufficiency of evidence x x x adduced by the parties, x x x, without proof of malice on the part of respondent judge, is not sufficient to show bias and partiality.[34] We also emphasized that repeated rulings against a litigant,

no matter how erroneously, vigorously and consistently expressed, do not amount to bias and prejudice which can be bases for the disqualification of a judge.[35] IN ALL, petitioner utterly failed to show that the appellate court erred in issuing the assailed decision. On the contrary, it acted prudently in accordance with law and jurisprudence. WHEREFORE, the instant petition is hereby DENIED for lack of merit. The Decision dated 17 August 2004 and the Resolution dated 10 March 2005 of the Court of Appeals in CA-G.R. SP No. 79001 are hereby AFFIRMED. No costs. SO ORDERED