[ G.R. No.

151369 | March 23, 2011 ]

ANITA MONASTERIO-PE and the SPOUSES ROMULO TAN and EDITHA PE-TAN
v.
JOSE JUAN TONG, herein represented by his Attorney-in-Fact, JOSE Y. ONG

DECISION

PERALTA, J.:

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court seeking the reversal and
nullification of the Decision1 and Order,2 respectively dated October 24, 2001 and January 18, 2002, of the Regional Trial
Court (RTC) of Iloilo City, Branch 24.

The instant petition stemmed from an action for ejectment filed by herein respondent Jose Juan Tong (Tong) through his
representative Jose Y. Ong (Ong) against herein petitioners Anita Monasterio-Pe (Anita) and the spouses Romulo Tan and
Editha Pe-Tan (Spouses Tan). The suit was filed with the Municipal Trial Court in Cities (MTCC), Branch 3, Iloilo City
and docketed as Civil Case No. 2000(92).

In the Complaint, it was alleged that Tong is the registered owner of two parcels of land known as Lot Nos. 40 and 41 and
covered by Transfer Certificate of Title (TCT) Nos. T-9699 and T-9161, together with the improvements thereon, located
at Barangay Kauswagan, City Proper, Iloilo City; herein petitioners are occupying the house standing on the said parcels
of land without any contract of lease nor are they paying any kind of rental and that their occupation thereof is simply by
mere tolerance of Tong; that in a letter dated December 1, 1999, Tong demanded that respondents vacate the house they
are occupying, but despite their receipt of the said letter they failed and refused to vacate the same; Tong referred his
complaint to the Lupon of Barangay Kauswagan, to no avail.3

In their Answer with Defenses and Counterclaim, herein petitioners alleged that Tong is not the real owner of the disputed
property, but is only a dummy of a certain alien named Ong Se Fu, who is not qualified to own the said lot and, as such,
Tong's ownership is null and void; petitioners are the true and lawful owners of the property in question and by reason
thereof they need not lease nor pay rentals to anybody; a case docketed as CA-G.R. CV No. 52676 (RTC Civil Case No.
20181) involving herein petitioner Pe and respondent is pending before the Court of Appeals (CA) where the ownership
of the subject property is being litigated; respondent should wait for the resolution of the said action instead of filing the
ejectment case; petitioners also claimed that there was, in fact, no proper barangay conciliation as Tong was bent on filing
the ejectment case before conciliation proceedings could be validly made.4

On March 19, 2001, the MTCC rendered judgment in favor of herein respondent, the dispositive portion of which reads as
follows:

WHEREFORE, judgment is rendered, finding the defendants Anita Monasterio-Pe, and Spouses Romulo Tan and Editha
Pe-Tan to be unlawfully withholding the property in litigation, i.e., Lot. Nos. 40 and 41 covered by TCT Nos. T-9699 and
9161, respectively, together with the buildings thereon, located at Brgy. Kauswagan, Iloilo City Proper, and they are
hereby ordered together with their families and privies, to vacate the premises and deliver possession to the plaintiff
and/or his representative.

The defendants are likewise ordered to pay plaintiff reasonable compensation for the use and occupancy of the premises
in the amount of ₱15,000.00 per month starting January, 2000 until they actually vacate and deliver possession to the
plaintiff and attorney's fees in the amount of ₱20,000.00.

Costs against the defendants.

SO DECIDED.5

Aggrieved by the above-quoted judgment, petitioners appealed the decision of the MTCC with the RTC of Iloilo City.

In its presently assailed Decision, the RTC of Iloilo City, Branch 24 affirmed in its entirety the appealed decision of the
MTCC.

Hence, the instant petition for review on certiorari.

At the outset, it bears emphasis that in a petition for review on certiorari under Rule 45 of the Rules of Court, only
questions of law may be raised by the parties and passed upon by this Court.6 It is a settled rule that in the exercise of this
Court's power of review, it does not inquire into the sufficiency of the evidence presented, consistent with the rule that this
Court is not a trier of facts.7 In the instant case, a perusal of the errors assigned by petitioners would readily show that they
are raising factual issues the resolution of which requires the examination of evidence. Certainly, issues which are being
raised in the present petition, such as the questions of whether the issue of physical possession is already included as one
1
of the issues in a case earlier filed by petitioner Anita and her husband, as well as whether respondent complied with the
law and rules on barangay conciliation, are factual in nature.

Moreover, the appeal under Rule 45 of the said Rules contemplates that the RTC rendered the judgment, final order or
resolution acting in its original jurisdiction.8 In the present case, the assailed Decision and Order of the RTC were issued
in the exercise of its appellate jurisdiction.

Thus, petitioners pursued the wrong mode of appeal when they filed the present petition for review on certiorari with this
Court. Instead, they should have filed a petition for review with the CA pursuant to the provisions of Section 1, 9Rule 42 of
the Rules of Court.

On the foregoing bases alone, the instant petition should be denied.

In any case, the instant petition would still be denied for lack of merit, as discussed below.

In their first assigned error, petitioners contend that the RTC erred in holding that the law authorizes an attorney-in-fact to
execute the required certificate against forum shopping in behalf of his or her principal. Petitioners argue that Tong
himself, as the principal, and not Ong, should have executed the certificate against forum shopping.

The Court is not persuaded.

It is true that the first paragraph of Section 5,10 Rule 7 of the Rules of Court, requires that the certification should be
signed by the "petitioner or principal party" himself. The rationale behind this is because only the petitioner himself has
actual knowledge of whether or not he has initiated similar actions or proceedings in different courts or
agencies.11 However, the rationale does not apply where, as in this case, it is the attorney-in-fact who instituted the
action.12 Such circumstance constitutes reasonable cause to allow the attorney-in-fact to personally sign the Certificate of
Non-Forum Shopping. Indeed, the settled rule is that the execution of the certification against forum shopping by the
attorney-in-fact is not a violation of the requirement that the parties must personally sign the same. 13 The attorney-in-fact,
who has authority to file, and who actually filed the complaint as the representative of the plaintiff, is a party to the
ejectment suit.14 In fact, Section 1,15 Rule 70 of the Rules of Court includes the representative of the owner in an
ejectment suit as one of the parties authorized to institute the proceedings. In the present case, there is no dispute that Ong
is respondent's attorney-in-fact. Hence, the Court finds that there has been substantial compliance with the rules
proscribing forum shopping.

Petitioners also aver that the certificate against forum shopping attached to the complaint in Civil Case No. 2000(92)
falsely stated that there is no other case pending before any other tribunal involving the same issues as those raised
therein, because at the time the said complaint was filed, Civil Case No. 20181 was, in fact, still pending with the CA
(CA-G.R. CV No. 52676), where the very same issues of ejectment and physical possession were already included.

Corollarily, petitioners claim that the MTCC has no jurisdiction over Civil Case No. 2000(92) on the ground that the issue
of physical possession raised therein was already included by agreement of the parties in Civil Case No. 20181. As such,
petitioners assert that respondent is barred from filing the ejectment case, because in doing so he splits his cause of action
and indirectly engages in forum shopping.

The Court does not agree.

The Court takes judicial notice of the fact that the disputed properties, along with three other parcels of land, had been the
subject of two earlier cases filed by herein petitioner Anita and her husband Francisco against herein respondent and some
other persons. The first case is for specific performance and/or rescission of contract and reconveyance of property with
damages. It was filed with the then Court of First Instance (CFI) of Iloilo City and docketed as Civil Case No. 10853. The
case was dismissed by the CFI. On appeal, the Intermediate Appellate Court (IAC) upheld the decision of the trial court.
When the case was brought to this Court,16 the decision of the IAC was affirmed. Subsequently, the Court's judgment in
this case became final and executory per Entry of Judgment issued on May 27, 1991.

Subsequently, in 1992, the Spouses Pe filed a case for nullification of contract, cancellation of titles, reconveyance and
damages with the RTC of Iloilo City. This is the case presently cited by petitioners. Eventually, the case, docketed as
Civil Case No. 20181, was dismissed by the lower court on the ground of res judicata. The RTC held that Civil Case No.
10853 serves as a bar to the filing of Civil Case No. 20181, because both cases involve the same parties, the same subject
matter and the same cause of action. On appeal, the CA affirmed the dismissal of Civil Case No. 20181. Herein petitioner
Anita assailed the judgment of the CA before this Court, but her petition for review on certiorari was denied via a
Resolution17 dated January 22, 2003. On June 25, 2003, the said Resolution became final and executory. The Court notes
that the case was disposed with finality without any showing that the issue of ejectment was ever raised. Hence,
respondent is not barred from filing the instant action for ejectment.

In any case, it can be inferred from the judgments of this Court in the two aforementioned cases that respondent, as owner
of the subject lots, is entitled to the possession thereof. Settled is the rule that the right of possession is a necessary
2
incident of ownership.18 Petitioners, on the other hand, are consequently barred from claiming that they have the right to
possess the disputed parcels of land, because their alleged right is predicated solely on their claim of ownership, which is
already effectively debunked by the decisions of this Court affirming the validity of the deeds of sale transferring
ownership of the subject properties to respondent.

Petitioners also contend that respondent should have filed an accion publiciana and not an unlawful detainer case, because
the one-year period to file a case for unlawful detainer has already lapsed.

The Court does not agree.

Sections 1 and 2, Rule 70 of the Rules of Court provide:

Section 1. Who may institute proceedings and when. – Subject to the provisions of the next succeeding section, a person
deprived of the possession of any land or building by force, intimidation, threat, strategy, or stealth, or a lessor, vendor,
vendee, or other person against whom the possession of any land or building is unlawfully withheld after the expiration or
termination of the right to hold possession, by virtue of any contract, express or implied, or the legal representatives or
assigns of any such lessor, vendor, vendee, or other person, may, at any time within one (1) year after such unlawful
deprivation or withholding of possession, bring an action in the proper Municipal Trial Court against the person or
persons unlawfully withholding or depriving of possession, or any person or persons claiming under them, for the
restitution of such possession, together with damages and costs.

Section 2. Lessor to proceed against lessee only after demand. – Unless otherwise stipulated, such action by the lessor
shall be commenced only after demand to pay or comply with the conditions of the lease and to vacate is made upon the
lessee, or by serving written notice of such demand upon the person found on the premises, or by posting such notice on
the premises if no person be found thereon, and the lessee fails to comply therewith after fifteen (15) days in the case of
land or five (5) days in the case of buildings.

Respondent alleged in his complaint that petitioners occupied the subject property by his mere tolerance. While tolerance
is lawful, such possession becomes illegal upon demand to vacate by the owner and the possessor by tolerance refuses to
comply with such demand.19 Respondent sent petitioners a demand letter dated December 1, 1999 to vacate the subject
property, but petitioners did not comply with the demand. A person who occupies the land of another at the latter's
tolerance or permission, without any contract between them, is necessarily bound by an implied promise that he will
vacate upon demand, failing which a summary action for ejectment is the proper remedy against him. 20 Under Section 1,
Rule 70 of the Rules of Court, the one-year period within which a complaint for unlawful detainer can be filed should be
counted from the date of demand, because only upon the lapse of that period does the possession become
unlawful.21 Respondent filed the ejectment case against petitioners on March 29, 2000, which was less than a year from
December 1, 1999, the date of formal demand. Hence, it is clear that the action was filed within the one-year period
prescribed for filing an ejectment or unlawful detainer case.1avvphi1

Neither is the Court persuaded by petitioners' argument that respondent has no cause of action to recover physical
possession of the subject properties on the basis of a contract of sale because the thing sold was never delivered to the
latter.

It has been established that petitioners validly executed a deed of sale covering the subject parcels of land in favor of
respondent after the latter paid the outstanding account of the former with the Philippine Veterans Bank.

Article 1498 of the Civil Code provides that when the sale is made through a public instrument, the execution thereof shall
be equivalent to the delivery of the thing which is the object of the contract, if from the deed the contrary does not appear
or cannot clearly be inferred. In the instant case, petitioners failed to present any evidence to show that they had no
intention of delivering the subject lots to respondent when they executed the said deed of sale. Hence, petitioners'
execution of the deed of sale is tantamount to a delivery of the subject lots to respondent. The fact that petitioners
remained in possession of the disputed properties does not prove that there was no delivery, because as found by the lower
courts, such possession is only by respondent's mere tolerance.

Lastly, the Court does not agree with petitioners' assertion that the filing of the unlawful detainer case was premature,
because respondent failed to comply with the provisions of the law on barangay conciliation. As held by the
RTC, Barangay Kauswagan City Proper, through its Pangkat Secretary and Chairman, issued not one but two certificates
to file action after herein petitioners and respondent failed to arrive at an amicable settlement. The Court finds no error in
the pronouncement of both the MTCC and the RTC that any error in the previous conciliation proceedings leading to the
issuance of the first certificate to file action, which was alleged to be defective, has already been cured by the MTCC's act
of referring back the case to the Pangkat Tagapagkasundo of BarangayKauswagan for proper conciliation and mediation
proceedings. These subsequent proceedings led to the issuance anew of a certificate to file action.

WHEREFORE, the instant petition is DENIED. The assailed Decision and Order of the Regional Trial Court of Iloilo
City, Branch 24, are AFFIRMED. SO ORDERED.