SALAO, RAUL DOMINIC B.

JD201

CIVIL PROCEDURE ATTY. NARSOLIS

IFC SERVICE LEASING and ACCEPTANCE CORPORATION vs. VENANCIO NERA, G.R. No. L-21720 January 30, 1967 FACTS: The writ of possession was issued by lower court on February 26, 1963, on the ex parte application of the Venancio Nera. Aappellee filed with the sheriff's office in Quezon City a verified petition for the extrajudicial foreclosure of the mortgage. After notice and publication, the property was sold to Venancio Nera as the highest bidder. However, the period of redemption expired without the property being redeemed. On March 6, 1963, appellant asked for a reconsideration of the order granting the writ of possession. The court denied the motion for failure of appellant to serve a copy on the appellee. On March 26, 1963, appellant filed another motion, an ex

parte application to set aside the writ of possession and the auction sale,
on the ground that the court had no jurisdiction to issue the writ and that the price at which the mortgaged property was sold was grossly inadequate. The motion was denied. Appellant contends that the jurisdiction of the lower court to issue a writ of possession is limited only to the duration of the period of redemption and that after the expiration of that period; the mortgagee's remedy is an ordinary action for recovery of possession. In support of this

proposition, appellant cites the following provisions of Act No. 3135, as amended by Act No. 4118. Appellant also invokes Luna vs. Encarnacion, 91 Phil. 531 (1952) in which it was held that in case of refusal of the mortgagor to surrender the possession of the property sold by the Sheriff the remedy of the purchaser is to bring an ordinary action for recovery of possession, instead of merely asking for a writ of possession, in order to give the mortgagor the opportunity to be heard not only regarding possession but also regarding the obligation covered by the mortgage. ISSUE: Whether or not in cases of extrajudicial foreclosure of real estate mortgages, a regular action must be instituted in order to secure possession of the property sold HELD: Supreme Court held that the contention of appellant is without merit. The applicable provision of Act No. 3135 is Section 6 which provides that: in cases in which an extrajudicial sale is made, redemption shall be governed by the provisions of sections 464 to 466, inclusive, of the Code of Civil Procedure in so far as these are not inconsistent with the provisions of this Act." Sections 464-466 of the Code of Civil Procedure were superseded by Sections 25-27 and Section 31 of Rule 39 of the Rules of Court which in

turn were replaced by Sections 29-31 and Section 35 of Rule 39 of the Revised Rules of Court. Section 35 of Rule 39 of the Revised Rules of Court expressly states that: "If no redemption be made within twelve (12) months after the sale, the purchaser, or his assignee, is entitled to a conveyance and possession of the property.. The possession of the property shall be

given to the purchaser or last redemptioner by the officer unless a third party is actually holding the property adversely to the judgment debtor."
The Court referred their decision in Tan Soo Huat vs. Ongwico, 63 Phil. 746, 749 (1936), There is no law in this jurisdiction whereby the purchaser at a sheriff's sale of real property is obliged to bring a separate and independent suit for possession after the one-year period for redemption has expired and after he has obtained the sheriff's final certificate of sale. There is neither legal ground nor reason of public policy precluding the court from ordering the sheriff in this case to yield possession of the property purchased at public auction where it appears that the judgment debtor is the one in possession thereof and no rights of third persons are involved. Moreover, if under Section 7 of Act No. 3135 the court has the power, on the ex parte application of the purchaser, to issue a writ of possession during the period of redemption, there is no reason why it

should not also have the same power after the expiration of that period, especially where, as in this case, a new title has already been issued in the name of the purchaser. In view of the foregoing, the order appealed from is hereby affirmed, without pronouncement as to costs.

SALAO, RAUL DOMINIC B. JD201

CIVIL PROCEDURE ATTY. NARSOLIS

MUNICIPALITY OF BIAN vs. HON. JOSE MAR GARCIA and ERLINDA FRANCISCO, G.R. No. 69260 December 22, 1989 FACTS: The expropriation suit involved in this certiorari proceeding was commenced by complaint of the Municipality of Bian, Laguna filed in the Regional Trial Court of Laguna and City of San Pablo, presided over by respondent Judge Jose Mar Garcia. The complaint named as Erlinda Francisco the owner of eleven (11) adjacent parcels of land in Bian with an aggregate area of about eleven and a half (11-1/2) hectares. The land sought to be expropriated was intended for use as the new site of a modern public market and the acquisition was authorized by a resolution of the Sangguniang Bayan of Bian approved on April 11, 1983. One of the defendants was Erlinda Francisco. She filed a Motion to Dismiss dated August 26, 1983, on the following grounds; (a) The allegations of the complaint are vague and conjectural; (b) The complaint violates the constitutional limitations of law and jurisprudence on eminent domain; (c) It is oppressive; (d) It is barred by prior decision and disposition on the subject matter; and

(e) It states no cause of action. Now, her motion to dismiss was filed pursuant to Section 3, Rule 67 of the Rules of Court: Sec. 3. Defenses and objections within the time specified in the summons, each defendant, in lieu of an answer, shall present in a single motion to dismiss or for other appropriate relief, all of his objections and defenses to the right of the plaintiff to take his property for the use or purpose specified in the complaint. All such objections and defenses not so presented are waived. A copy of the motion shall be served on the plaintiffs attorney of record and filed with the court with the proof of service. Her motion to dismiss was thus actually a pleading, taking the place of an answer in an ordinary civil action. It was not an ordinary motion governed by Rule 15, or a motion to dismiss within the contemplation of Rule 16 of the Rules of Court. On October 23, 1983, respondent Judge issued a writ of possession in favor of the plaintiff Municipality. On February 3, 1984, Erlinda Francisco filed a Motion for Separate Trial, invoking Section 2, Rule 31. Erlinda Francisco contended that the Municipality had submitted and obtained approval of a rezoning of the lots in question, it was premature for it to file a case for expropriation. The

Court granted the motion. By Order dated March 2, 1984, it directed that a separate trial be held for defendant. At the separate trial, the Fiscal, in representation of the Municipality called the Trial Court's attention to the irregularity of allowing Erlinda Francisco to present her evidence ahead of the plaintiff. He argued that the motion to dismiss was an answer, and its filing did not mean that the order of presentation of evidence will be reversed, but the usual procedure should be followed and the evidence adduced should be deemed evidence only for the motion for reconsideration of the writ of possession. Nevertheless, at the hearing of March 5, and March 26, 1984, the Court directed Erlinda Francisco to commence the presentation of evidence. Erlinda Francisco presented the testimony of Atty. Josue L. Jorvina, Jr. and certain exhibits the Land Use Map of the Municipality of Bian, the Locational Clearance and Development Permit issued by the H.S.R.C. in favor of Erlinda Francisco c/o Ferlins Realty & Development Corporation, and Executive Order No. 648 and Letter of Instruction No. 729, etc. Thereafter, the respondent Judge issued an Order dated July 24, 1984 dismissing the complaint as against Erlinda Francisco, and amending the Writ of Possession dated October 18, 1983 so as to exclude therefrom and from its force and effects said defendant and her property The Municipality filed on August 17, 1984 a Motion for

Reconsideration. The appellant set its motion for reconsideration for

hearing on August 28, 1984 after furnishing Francisco's counsel with copy thereof The Court however re-scheduled the hearing more than two (2) months later, on November 20, 1984. Why the hearing was reset to such a remote date is not explained. On September 13, 1984, Francisco filed an Ex-Parte Motion for Execution and/or Finality of Order, contending that the Order of July 27, 1984 had become final and executory on August 12, 1984 for failure of the Municipality to file a motion for reconsideration and/or appeal within the reglementary period, fifteen (15) days counted from the notice of the final order appealed from. On October 10, 1984, the Court issued an Order declaring the Municipality's motion for reconsideration dated August 15, 1984 to have been filed out of time. It drew attention to the fact that notice of its Order of July 24, 1984 was served on plaintiff Municipality on July 27, 1984, but its motion for reconsideration was not presented until August 17, 1984, beyond the fifteen-day period for appeal prescribed by law. And on October 15, 1985, the judge give order directing the issuance of (1) A writ of execution of the Order of July 24, 1984, and (2) A certificate of finality of said order. The Municipality attempted to have the respondent Court reconsider both and Orders of October 10, and October 15, 1984. To this end it submitted a motion contending that:

1) Multiple appeals are allowed by law in actions of eminent domain, and hence the period of appeal is thirty (30), not fifteen (15) days; 2) Moreover, the grant of a separate trial at Francisco's instance had given rise ipso facto to a situation where multiple appeals became available; 3) It was wrong for the Trial Court to have acted ex-parte on the motion for execution, the motion being litigable in character; and 4) It (the Municipality) was denied due process when the Court, after receiving Francisco's evidence and admitting her exhibits, immediately resolved the case on the merits as regards Francisco, without setting the case for further hearing for reception of evidence for the plaintiff. The motion was denied, by Order dated October 18, 1984. Hence, the special civil action of certiorari at bar. ISSUE: Whether the special civil action of eminent domain under Rule 67 of the Rules of Court is a case wherein multiple appeals are allowed, as regards which the period of appeal shall be thirty [30] days, instead of fifteen (15) days Whether or not the Trial Court may treat the motion to dismiss filed by one of the defendants in the action of eminent domain as a motion to dismiss under Rule 16 of the Rules of Court, reverse the sequence of trial

in order and hear and determine said motion to dismiss, and thereafter dismiss the expropriation suit as against the movant HELD: The Court therefore holds that in actions of eminent domain, as in actions for partition, since no less than two (2) appeals are allowed by law, the period for appeal from an order of condemnation is thirty (30) days counted from notice of order and not the ordinary period of fifteen (15) days prescribed for actions in general, conformably with the provision of Section 39 of Batas Pambansa Bilang 129, in relation to paragraph 19 (b) of the Implementing Rules to the effect that in appeals in special proceedings in accordance with Rule 109 of the Rules of Court and other cases wherein multiple appeals are allowed, the period of appeal shall be thirty (30) days, a record of appeal being required. The municipality's motion for reconsideration filed on August 17, 1984 was therefore timely presented, well within the thirty-day period laid down by law therefore and it was error for the Trial Court to have ruled otherwise and to have declared that the order sought to be considered had become final and executory. As already observed, the Municipality's complaint for expropriation impleaded eleven (11) defendants. A separate trial was held on motion of one of them, Erlinda Francisco, it appearing that she had asserted a defense personal and peculiar to her, and inapplicable to the other defendants, supra. Subsequently, and on the basis of the evidence presented by her, the Trial Court promulgated a separate Order dismissing

the action as to her, in accordance with Section 4, Rule 36 of the Rules of Court reading as follows: Sec. 4. Several judgments in an action against several defendants, the court may, when a several judgment is proper, render judgment against one or more of them, leaving the action to proceed against the others. It is now claimed by the Municipality that the issuance of such a separate, final order or judgment had given rise ipso facto to a situation where multiple appeals became available. The Municipality is right. In the case at bar, where a single complaint was filed against several defendants having individual, separate interests, and a separate trial was held relative to one of said defendants after which a final order or judgment was rendered on the merits of the plaintiff s claim against that particular defendant, it is obvious that in the event of an appeal from that separate judgment, the original record cannot and should not be sent up to the appellate tribunal. The record will have to stay with the trial court because it will still try the case as regards the other defendants. As the rule above quoted settles, in an action against several defendants, the court may, when a several judgment is proper, render judgment against one or more of them, leaving the action to proceed against the others. In lieu of the original record, a record on appeal will perforce have to be prepared and transmitted to the appellate court. More than one appeal being permitted in this case, therefore, the period of appeal shall be thirty (30)

days, a record of appeal being required as provided by the Implementing Rules in relation to Section 39 of B.P. Blg. 129, supra. Erlinda Francisco filed a motion to dismiss intraverse of the averments of the Municipality's complaint for expropriation. That motion to dismiss was in fact the indicated responsive pleading to the complaint, in lieu of an answer. Now, the Trial Court conducted a separate trial to determine whether or not, as alleged by Francisco in her motion to dismiss, she had a vested right via a pre-existing approved Locational Clearance from the HRSC, making the expropriation suit premature. While such a separate trial was not improper in the premises, and was not put at issue by the Municipality, the latter did protest against the Trial Court's (a) reversing the order of trial and receiving first, the evidence of defendant Francisco, and (b) subsequently rendering its order sustaining Francisco's defense and dismissing the action as to her, solely on the basis of said Francisco's evidence and without giving the plaintiff an opportunity to present its own evidence on the issue. The Trial Court was clearly wrong on both counts. The Court will have to sustain the Municipality on these points. Nothing in the record reveals any valid cause to reverse the order of trial. What the Trial Court might have had in mind was the provision of Section 5, Rule 16 of the Rules of Court allowing any of the grounds for dismissal in Rule 16 to be pleaded as an affirmative defense and authorizing the holding of a preliminary hearing thereon as if a motion to dismiss had been filed. Assuming this to be the fact, the reception of

Francisco's evidence first was wrong, because obviously, her asserted objection or defense that the locational clearance issued in her favor by the HSRC was a legal bar to the expropriation suit was not a ground for dismissal under Rule 16. She evidently meant to prove the Municipality's lack of cause of action but lack of cause of action is not a ground for dismissal of an action under Rule 16. The ground is the failure of the complaint to state a cause of action, which is obviously not the same as plaintiff's not having a cause of action. Nothing in the record, moreover, discloses any circumstances from which a waiver by the Municipality of the right to present contrary proofs may be inferred. So, in deciding the issue without according the Municipality that right to present contrary evidence, the Trial Court had effectively denied the Municipality due process and thus incurred in another reversible error. Wherefore, the challenged Order issued by Judge Garcia is annulled and set aside, and the case is remanded to the Trial Court for the reception of the evidence of the plaintiff Municipality of Bian as against defendant Erlinda Francisco.

SALAO, RAUL DOMINIC B. JD201

CIVIL PROCEDURE ATTY. NARSOLIS

GEORGIA T. ESTEL vs. RECAREDO P. DIEGO, SR. and RECAREDO R. DIEGO, JR., G.R. No. 174082, January 16, 2012 FACTS: The present petition originated from a Complaint for Forcible Entry, Damages and Injunction with Application for Temporary Restraining Order filed by respondents Recaredo P. Diego, Sr., and Recaredo R. Diego, Jr. before the Municipal Trial Court in Cities (MTCC) of Gingoog City, Misamis Oriental. Respondents alleged that on April 16, 1991, they entered into a contract of sale with petitioner. After receiving the amount of P17, 000.00 as downpayment, petitioner voluntarily delivered the physical and material possession of the subject property to respondents. Respondents had been in possession of the subject lot since then and that petitioner never disturbed the respondents with respect to their possession of the said property. Around 8:30 in the morning of July 20, 1995, petitioner, together with her two grown-up sons and five other persons, uprooted the fence surrounding the disputed lot, after which they entered its premises and then cut and destroyed the trees and plants found therein. Respondent Recaredo R. Diego, Jr. witnessed the incident. Respondents prayed for the restoration of their possession, for the issuance of a permanent injunction against petitioner as well as payment of damages, attorney's fees and costs of suit.

On July 26, 1995, the MTCC issued a Temporary Restraining Order against petitioner and any person acting in her behalf. In petitioners Answer with Special/Affirmative Defenses and Counterclaims, she denied the material allegations in the Complaint contending that respondents were never in physical, actual, public, adverse and uninterrupted possession of the subject lot. Full possession and absolute ownership of the disputed parcel of land, with all improvements thereon, had always been that of petitioner and her daughter. The agreement she entered with the wife of respondent Recaredo P. Diego, Sr. for the sale of the subject lot had been nullify. She even offered to return the amount she received from respondents, but the latter refused to accept the same and instead offered an additional amount of P12, 000.00 as part of the purchase price but she also refused to accept their offer. The subject of the deed of sale between petitioner and respondents and what has been delivered to respondents was actually Lot 16 which is adjacent to the disputed Lot 19. On February 16, 2002, the MTCC rendered a Decision favorable to the plaintiffs. Aggrieved, petitioner appealed to the RTC of Gingoog City. On October 7, 2002, the RTC rendered its Decision affirming the assailed Decision of the MTCC. Petitioner then filed a petition for review with the Court of Appeals. On September 30, 2005, the CA promulgated its Decision which affirmed the Decision of the RTC. Petitioner filed a Motion for Reconsideration, but the CA denied it.

ISSUE: Whether or not MTCC did acquired jurisdiction over the subject matter of the said complaint Whether or not MTCC did acquired jurisdiction over the case for failure of respondents to specifically allege facts constitutive of forcible entry Whether or not the complaint states cause of action because the verification and certificate of non-forum shopping accompanying the complaint are defective and, as such, the complaint should be treated as an unsigned pleading. HELD: The Supreme Court does not agree. A review of the records shows that petitioner did not raise the issue of jurisdiction or venue in her Answer filed with the MTCC. The Court of Appeals correctly held that even if the geographical location of the subject property was not alleged in the Complaint, petitioner failed to seasonably object to the same in her Affirmative Defense, and even actively participated in the proceedings before the MTCC. In fact, petitioner did not even raise this issue in her appeal filed with the RTC. Thus, she is already estopped from raising the said issue in the CA or before this Court. In any case, since the Complaint is clearly and admittedly one for forcible entry, the jurisdiction over the subject matter of the case is, thus, upon the MTCC of Gingoog City. Section 33 of Batas Pambansa Bilang 129, as amended by Section 3 of Republic Act (R.A.) No. 7691, as well as

Section 1, Rule 70 of the Rules of Court, clearly provides that forcible entry and unlawful detainer cases fall within the exclusive original jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts. Hence, as the MTCC has jurisdiction over the action, the question whether or not the suit was brought in the place where the land in dispute is located was no more than a matter of venue and the court, in the exercise of its jurisdiction over the case, could determine whether venue was properly or improperly laid. There having been no objection on the part of petitioner and it having been shown by evidence presented by both parties that the subject lot was indeed located in Gingoog City, and that it was only through mere inadvertence or oversight that such information was omitted in the Complaint, petitioner's objection became a pure technicality. As to respondents' supposed failure to allege facts constitutive of forcible entry, it is settled that in actions for forcible entry, two allegations are mandatory for the municipal court to acquire jurisdiction. First, the plaintiff must allege his prior physical possession of the property. Second, he must also allege that he was deprived of his possession by any of the means provided for in Section 1, Rule 70 of the Revised Rules of Court, namely, force, intimidation, threats, strategy, and stealth. In the present case, it is clear that respondents sufficiently alleged in their Complaint the material facts constituting forcible entry, as they explicitly claimed that they had prior physical possession of the subject property since its purchase from petitioner, who voluntarily delivered the same to them. They also particularly described in their complaint how

petitioner, together with her two sons and five other persons, encroached upon the subject property and dispossessed them of the same. Respondents' complaint contains the allegations that petitioner, abetting and conspiring with other persons, without respondents' knowledge and consent and through the use of force and intimidation, entered a portion of their land and, thereafter, uprooted and destroyed the fence surrounding the subject lot, as well as cut the trees and nipa palms planted thereon. Unlawfully entering the subject property and excluding therefrom the prior possessor would necessarily imply the use of force and this is all that is necessary. In order to constitute force, the trespasser does not have to institute a state of war. No other proof is necessary. Anent respondents' alleged defective verification, the Court again notes that this issue was not raised before the MTCC. Even granting that this matter was properly raised before the court a quo, the Court finds that there is no procedural defect that would have warranted the outright dismissal of respondents' complaint as there is compliance with the requirement regarding verification. Section 4, Rule 7 of the Rules of Court, as amended by A.M. No. 00-2-10-SC provides: Sec. 4. Verification. Except when otherwise specifically required by law or rule, pleadings need not be under oath, verified or accompanied by affidavit. A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are true and correct of his personal knowledge or based on authentic records. A pleading required to be verified which contains a verification based on information and belief

or upon knowledge, information and belief or lacks a proper verification, shall be treated as an unsigned pleading. Verification is deemed substantially complied with when, as in the instant case, one who has ample knowledge to swear to the truth of the allegations in the complaint or petition signs the verification, and when matters alleged in the petition have been made in good faith or are true and correct. As to respondents' certification on non-forum shopping, a reading of respondents Verification/Certification reveals that they, in fact, certified therein that they have not commenced any similar action before any other court or tribunal and to the best of their knowledge no such other action is pending therein. The only missing statement is respondents' undertaking that if they should thereafter learn that the same or similar action has been filed or is pending, they shall report such fact to the court. This, notwithstanding, the Court finds that there has been substantial compliance on the part of respondents. It is settled that with respect to the contents of the certification against forum shopping, the rule of substantial compliance may be availed of. This is because the requirement of strict compliance with the provisions regarding the certification of non-forum shopping merely underscores its mandatory nature in that the certification cannot be altogether dispensed with or its requirements completely disregarded. It does not thereby interdict substantial compliance with its provisions under justifiable circumstances, as the Court finds in the instant case.

Therefore, the Supreme Court denied the petition. Hence, the decision of the CA is affirmed.

SALAO, RAUL DOMINIC B. JD201

CIVIL PROCEDURE ATTY. NARSOLIS

HEIRS OF AGAPITO T. OLARTE AND ANGELA A. OLARTE, NAMELY NORMA OLARTE-DINEROS, ARMANDO A. OLARTE, YOLANDA OLARTE-MONTECER AND RENATO A. OLARTE, VS. OFFICE OF THE PRESIDENT OF THE PHILIPPINES, NATIONAL HOUSING AUTHORITY (NHA), MARIANO M. PINEDA, AS GENERAL MANAGER, THE MANAGER, DISTRICT I, NCR, EDUARDO TIMBANG AND DEMETRIO OCAMPO, [G.R. No. 177995 : June 15, 2011]

FACTS: Subject of the instant case is a parcel of land denominated as Lot 12, Block 2 of the Tramo-Singalong Zonal Improvement Project (ZIP) located at 2131 F. Muoz St., San Andres, Malate, Manila. The property used to be owned by the Philippine National Railways (PNR), but was later turned over to the National Housing Authority (NHA). Petitioners, siblings Armando Olarte, Norma Olarte-Dineros, Yolanda Olarte-Montecer and Renato A. Olarte, claim that their parents started occupying the subject property in 1943 by virtue of a lease contract with the PNR and constructed a two-storey residential house. Petitioners further allege that they were born and raised during their parents' occupancy of the subject property.

On November 3, 1965, the Board of Liquidators under the Office of the President (OP) awarded a Certificate of Priority to their father. Their parents passed away in 1981 and 1984. Petitioner Norma Olarte-Dineros was then designated as administrator of the residential house and the subject parcel of land. In 1985, the two-storey residential house was declared in the name of their father for taxation purposes. In the same year, petitioners leased out a portion of the residential house to respondents Eduardo Timbang and Demetrio Ocampo. Thereafter, Yolanda left for Saudi Arabia to work while Norma lived with her husband in Pangarap Village, Caloocan City. In 1987, the NHA conducted a Census Tagging Operation in the area where the subject property is located. In 1988, Ocampo was judicially ejected from the premises by petitioners for nonpayment of rentals. On April 30, 1997, the NHA issued a Resolution resolving a conflict of claims between petitioners and respondents Timbang and Ocampo over the subject property favorable to the Eduardo Timbang and Demetrio Ocampo. Twenty-six (26) days later, or on July 21, 1997, petitioners filed an Appeal and Memorandum on Appeal with the Office of the President. On November 29, 2002, the OP, thru Deputy Executive Secretary Arthur P. Autea, issued a Resolution dismissing petitioners' appeal for being filed out of time and for lack of merit.

The OP cited Section 2 of Presidential Decree (P.D.) No. 1344 which provides that an appeal from the decision of the NHA should be made within fifteen (15) days from receipt of the decision and that if an appeal was made and said decision is not reversed and/or amended within a period of thirty (30) days, the decision is deemed affirmed. The OP held that since more than thirty (30) days had lapsed since the appeal became ripe for decision and there was no reversal or amendment of the appealed ruling, the questioned award of the NHA is deemed affirmed. The OP further ruled that the appeal was filed out of time, noting that it took petitioners twenty-six (26) days to file it. The OP further ruled that findings of fact of administrative bodies will not be interfered with, in the absence of a grave abuse of discretion or unless the findings are not supported by substantial evidence. It held that petitioners failed to prove grave abuse of discretion on the part of the NHA and that the records show that the assailed ruling is supported by substantial evidence. Petitioners moved to reconsider the November 29, 2002 Resolution of the OP arguing that petitioners rightly relied on the statement of the NHA regarding the period for filing the appeal because the NHA was the entity specifically charged with deciding the parties' rights and obligations to the subject land. They contend that there was no bad faith or any intention on their part to delay the disposition of the case; hence, the OP should have relaxed the rules on the matter of perfection of appeals. They likewise claim that the delay is not unreasonable since it was precipitated by a

mistake of the NHA itself. Petitioners add that there was grave abuse of discretion on the NHA's part for completely disregarding the facts as laid down by petitioners, and for relying on its census tagging to favor respondents Timbang and Ocampo. By Resolution dated June 27, 2003, however, the OP denied petitioners' motion for reconsideration. Thus, on September 15, 2003, petitioners filed a petition for certiorari with the CA assailing the OP's rulings. In a Resolution dated September 19, 2003, the CA dismissed the petition for certiorari outright on the grounds that the certification of nonforum shopping was signed by only two of the four petitioners and that they erroneously availed of the remedy of certiorari under Rule 65 instead of an appeal under Rule 43 of the 1997 Rules of Civil Procedure, as amended. Petitioners moved to reconsider the dismissal of their petition, but the same was denied by the CA. The case was thereafter elevated to this Supreme Court via a petition for review on certiorari. On June 21, 2005, The Supreme Court rendered a Decision reversing and setting aside the September 19, 2003 and August 19, 2004 CA Resolutions and remanding the case to the CA for further proceedings. However, since the issues involved are factual in nature, the Supreme Court ruled that such issues are best addressed to the CA, which has the power to try cases and conduct hearings, receive evidence and perform

any and all acts necessary to resolve factual issues raised in cases falling within its original and appellate jurisdiction, including the power to grant and conduct new trials or further proceedings. Upon remand, however, the CA again dismissed the petition sustaining the OP's ruling. Petitioners again brought the case before Supreme Court. ISSUE: Whether or not the NHA acted in grave abuse of discretion in blaming the petitioners for filing their appeal late because they relied on the erroneous pronouncement in the NHA resolution Whethere or not petitioners are disqualified to be awardees of the said property

HELD: In the first issue, Supreme Court held that the right to appeal is not a natural right or a part of due process, but merely a statutory privilege and may be exercised only in the manner and in accordance with the provisions of the law. The party who seeks to avail of the same must comply with the requirements of the rules, failing in which the right to appeal is lost.

In the instant case, the proximate cause of petitioners' failure to comply with the rules, specifically that pertaining to the period within which to appeal, is the pronouncement in the appealed resolution itself that they have thirty (30) days contrary to what is prescribed in Section 2 of P.D. No. 1344, the applicable law in the case. We agree with petitioners that they cannot be blamed for honestly believing that they indeed had thirty (30) days considering it was the NHA itself which said so. Being the agency tasked to implement P.D. No. 1344, it is but plausible for petitioners to assume that what the NHA pronounced is the correct period within which they can file their appeal. However, as to the second issue, the Supreme Court ruled affirmative. The Zonal Improvement Project or ZIP was adopted to strengthen further the efforts of the government to uplift the living conditions in the slums and blighted areas in line with the spirit of the constitutional provision guaranteeing housing and a decent quality of life for every Filipino. The ownership of land by the landless is the primary objective of the ZIP. The Code of Policies embodied in NHA Circular No. 13 governed the implementation of the ZIP as to the classification and treatment of existing structures, the selection and qualification of intended beneficiaries, the disposition and award of fully developed lots in all ZIP zones within Metro Manila, and other related activities. In the Declaration of Policy, it provides that the tagging of structures and the census of occupants shall be the

primary

basis

for

determining

beneficiaries

within

ZIP

Project

sites. Paragraph V, on the other hand, lays down the rules on beneficiary selection and lot allocation: V. BENEFICIARY SELECTION AND LOT ALLOCATION 1. The official ZIP census and tagging shall be the primary basis for determining potential program beneficiaries and structures or dwelling units in the project area. 2. Issuance of ZIP tag number in no way constitutes a guarantee for ZIP lot allocation. 3. Absentee censused households and all uncensused households are automatically disqualified from lot allocation. 4. Only those households included in the ZIP census and who, in addition, qualify under the provisions of the Code of Policies, are the beneficiaries of the Zonal Improvement Program. 5. A qualified censused-household is entitled to only one residential lot within the ZIP project areas of Metro Manila. 6. Documentation supporting lot allocation shall be made in the name of the qualified household head. 7. An Awards and Arbitration Committee (AAC) shall be set up in each ZIP project area to be composed of representative each from the Authority, the local government, the barangay and the community. The AAC shall determine lot allocation amongst qualified

beneficiaries, arbitrate in matters of claims and disputes, and safeguard the rights of all residents in ZIP project areas by any legal means it may consider appropriate. All decisions of the AAC shall be subject to review and approval of the General Manager of the Authority, the local Mayors, and finally the Governor of the Metropolitan Manila Commission.[23] The declaration of policy in the Code of Policies stated that an absentee or uncensused structure owner was disqualified from owning a lot within the ZIP zones. The Code of Policies shows the following persons to be automatically disqualified as beneficiaries of the project, namely: (1) Absentee censused household - censused household that vacates a duly tagged structure or dwelling unit and leaves the project area for a continuous period for at least six months without written notice to the NHA and the local government unit; (2) Uncensused household - household that is not registered in the official ZIP census; (3) Absentee structure owner - any individual who owns a structure or dwelling unit in a ZIP project area and who has not occupied it prior to the official closure of the Census; and (4) Uncensused structure owner - any person who owns a structure or dwelling unit not registered in the official ZIP census.[25] (Emphasis supplied.)

Thus, in the award of the ZIP lot allocation, the primary bases for determining the potential program beneficiaries and structures or dwelling units in the project area were the official ZIP census and tagging conducted. It was, therefore, the primordial requisite that the intended beneficiary must be the occupant of the tagged structure at the time of the official ZIP census or at the closure thereof. Otherwise, the person was considered an absentee structure owner for being absent from his usual residence or domicile. Here, at the time of the official ZIP census, the NHA found that Norma was an absentee structure owner and it was not petitioners but respondents Timbang and Ocampo and a certain Mr. Ilagan who were occupying the subject property. Armando on the other hand occupied the portion vacated by Mr. Ilagan in 1988 one year after the official closure of the census tagging operation while Yolanda occupied a portion vacated by Demetrio Ocampo in 1994 after the latter was judicially evicted in 1993. Though there was no mention as to Renato, petitioners in their pleadings admit that he was working in Novaliches and would only go to the subject property during weekends. Petitioners however dispute the NHA and census findings and allege that Armando and Renato never left the subject property, but we find no cogent reason to disturb the findings of the NHA. Evidently, all petitioners cannot qualify as beneficiaries because they were not the occupants of the subject property at the time of the census. They were living elsewhere at that crucial time. Undeniably, they were primarily using the subject property as a source of income by renting it out to third persons and not as their abode. Petitioners thus are not homeless

persons which the ZIP intended to benefit. That petitioners were the descendants of the persons who built the residential house does not mean that the lot on which it stood would automatically be awarded to them. Petitioners cannot anchor their rights on the Certificate of Priority awarded to their parents. As correctly argued by the OSG, petitioners are deemed to have abandoned whatever right they may have over the property by virtue of the Certificate of Priority, when they chose not to reside on the subject property and found by NHA as not census residents within the project area. In sum, the Supreme Court finds that petitioners' appeal to the OP considered timely filed, and find the same to be without merit. Therefore, the petition for review on certiorari is denied.