FIRST DIVISION
[G.R. No. 212834. March 25, 2019.][Formerly UDK-15082]
MARTIN SONGAHID, JR., petitioner, vs.EDITHA AND JULIOUS 1BOTH SURNAMED TERRANO, respondents.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution dated March 25, 2019which reads as follows:
"G.R. No. 212834 [Formerly UDK-15082] (Martin Songahid, Jr. v. Editha and Julious both surnamed Terrano)
This is an appeal by certiorari from the July 16, 2013 Decision 2 and March 20, 2014 Resolution 3 of the Court of Appeals-Cebu City (CA) in CA-G.R. SP No. 05528 which affirmed the March 23, 2010 4 and August 31, 2010 5 Orders of the Regional Trial Court of Burauen, Leyte, Branch 15 (RTC), denying petitioner's notice of appeal in Civil Case No. B-07-01-601.
Antecedents
On January 10, 2007, Martin Songahid, Jr. (petitioner) filed a Complaint 6 for reconveyance and damages against spouses Editha and Cenon Terrano, and their son Julious Terrano (respondents).
Petitioner alleged that he is the sole heir and descendant of the late Bibiana 7 Acala Vda. de Songahid who died intestate on February 3, 1992. During his mother's lifetime, she acquired 1/3 portion of Lot No. 3943, formerly of Burauen Cadastre, now located at Barangay Sta. Cruz, Julita, Leyte, and covered by Original Certificate of Title (OCT) No. O-1831. Said lot, with an area of 22,824 square meters, was mortgaged to her in 1961 by Apolonia Dagondon (Apolonia) and was later sold to her under a Deed of Absolute Sale, dated May 18, 1963. This deed of sale was neither registered nor annotated at the back of OCT O-1831. However, Bibiana Acala had been in possession of the lot since 1961. Upon her death, petitioner continued to be in possession of the same. 8
On December 26, 2006, Julious Terrano (Julious), upon order of his father, suddenly entered petitioner's property and tried to take possession of it by starting to cultivate the land preparatory to the planting of rice. When confronted by petitioner and his tenant, Danilo Morabe (Morabe), Julious showed them a copy of Transfer Certificate of Title (TCT) No. T-13803 and told them that petitioner's lot is included in the said title. Julious also showed them a Deed of Absolute Sale executed by Romualdo Dagondon, indicating that the entire Lot No. 3943 was sold to his parents as early as September 8, 1971. 9 CAIHTE
Petitioner claimed that respondent Editha Terrano had testified in Civil Case No. 238 (Court of First Instance, Branch IX, Palo, Leyte) that her father, Romualdo Dagondon (Romualdo), bought the property from Alberto Junto; that part of the purchase price was contributed by her aunt Apolonia who thus became the owner of 1/3 of the land. Apolonia's 1/3 portion consisting of an area of more than two hectares was sold to Bibiana, who, with petitioner, immediately occupied and possessed it. The proceedings in Civil Case No. 238 showed very clearly that the respondents had already known and had recognized as early as 1976 the ownership and possession by the petitioner of the subject lot. 10
Unfortunately, despite such awareness of petitioner's ownership and possession of the subject lot, the Terrano spouses fraudulently misrepresented to the Register of Deeds of Leyte that they were the owners of the entire portion of Lot No. 3943-B, and that their title emanated from OCT No. O-1831, which had already been cancelled in 1963 by TCT No. 4157. The Terrano spouses secured in their name TCT No. T-13803, which included the subject lot. 11
In their Answer with Counterclaim, 12 respondents averred that they acquired Lot No. 3943 from Romualdo who had executed in their favor a Deed of Absolute Sale on September 8, 1971. Immediately thereafter, they took possession of the property and cultivated it up to the present. They also regularly paid the taxes on the land and enjoyed the fruits thereof. TCT No. T-13803 covering 34,236 square meters (not 3943-B), was issued in their name on August 15, 1974. Petitioner, on the other hand, never had possession of Lot No. 3943-B. 13
Respondents claimed to have been in possession of the subject lot for 35 years already; in fact, they executed on December 3, 1987, a Deed of Sale with Right of Repurchase in favor of spouses Romeo and Demetria Macaso. The Macaso spouses cultivated the land until it was repurchased by the respondents who continued to cultivate it. In fact, they had recently planted crops which were ready for harvest by March 2007. 14
Raising the defense of prescription, the respondents argued that petitioner had filed this case more than 32 years after the issuance of TCT No. T-13803 on August 15, 1974. The rule is that an action for reconveyance based on fraudulently registered real property must be instituted within ten (10) years from issuance of title. They likewise argued that the action is barred by laches considering that the petitioner waited for 35 years before asserting his right to the subject property. Further, respondents claimed there was no compliance with a condition precedent to the filing of the present action as provided in the 1997 Rules of Civil Procedure considering that no Lupon Tagapamayapa or Lupon Tagapagkasundo was constituted. The Certification to File Action attached to the complaint was pro forma. 15
The parties submitted their respective memorandum.
Ruling of the RTC
On October 1, 2009, the RTC issued a Resolution 16 dismissing the case, as well as the claims for damages and counterclaims. Said court found that petitioner did not present evidence of his possession of the property while respondents had been paying taxes over the same. Petitioner was also uncertain as to when the respondents allegedly entered the property. 17
On the issue of prescription, the RTC held that the action has prescribed since the period to file a reconveyance suit based on fraud is four years from the discovery of the fraud. Petitioner was also found to be guilty of laches, as he or his mother would not have waited for a long period of time to initiate an action for the recovery of the land if they were the owners of 1/3 portion of the subject property. 18
In addition, the RTC said:
Finally, the Court cannot grant unto plaintiff the reliefs prayed for in the complaint, because both the plaintiff and the defendants can be accommodated in the subject property. From the 68,471 total area of lot [N]o. 3943, only 34,236 square meters 19 have been acquired by the defendants to which Transfer Certificate of Title No. [T-13803] had been issued in their names. As such, the 22,834 square meters claimed by the plaintiff may still be awarded to him from the remaining portion of the property without taking away the one-half portion that had already been conveyed to the defendants. 20 DETACa
Petitioner filed a Motion for Reconsideration, 21 which was denied in an Order, dated December 28, 2009, as follows:
Firstly, the motion was filed out of time. The record will disclose that the plaintiff received a copy of the oft-mentioned resolution on October 13, 2009. Pursuant to Sec. 1 of Rule 37 of the 1997 Rules of Civil Procedure, he had a period of fifteen (15) days only counted from the time he received the resolution within which to file the instant motion. Since the motion was filed only on October 30, 2009, the period granted to him had already lapsed.
Secondly, the plaintiff anchors his claim on the allegation that he was allegedly in possession of one-third (1/3) portion of the subject property. However, as explained in the said Resolution, the Court did not give credence to his claim because the defendants were able to present evidence that they have been in possession of the subject property tacked to that of their predecessors-in-interest for a period of 32 years already. Added to that, they were the ones paying taxes on the subject property and have been issued Transfer Certificate of Title No. T-13803 in their names by the Registry of Deeds for the Province of Leyte on August 15, 1974 yet. 22
On January 19, 2010, petitioner filed a Notice of Appeal 23 from the October 1, 2009 Resolution dismissing the case. In its Order, 24 dated March 23, 2010, the RTC denied the notice of appeal, stating that:
The notice of appeal will not be given favorable consideration by this Court because the plaintiff through his counsel received a copy of the said resolution on October 10, 2009. Accordingly, he had fifteen (15) days within which to file the notice of appeal which would have been filed on or before October 26, [2009]. Since the said pleading was filed only on January 19, 2010, the same was filed out of time. 25
Petitioner moved to reconsider the above order, asserting that he received the October 1, 2009 resolution on October 13, 2009, thru counsel. As shown by Registry Receipt No. 10631 issued by the Post Office of Tacloban City, petitioner filed his motion for reconsideration by registered mail on October 21, 2009. With the denial of his motion for reconsideration, petitioner had seven remaining days within which to file a notice of appeal. He received the Order, dated December 28, 2009, denying his motion for reconsideration on January 12, 2010; hence, when he filed his notice of appeal on the seventh day (January 19, 2010), it was within the reglementary period of appeal. 26
In its August 31, 2010 Order, 27 the RTC denied the motion for reconsideration of the denial of the notice of appeal. With the lapse of the 15-day period to file a motion for reconsideration, said court concluded that the period within which to file a notice of appeal had also lapsed.
Petitioner challenged the validity of the RTC orders via a petition for certiorari under Rule 65 filed before the CA.
Ruling of the CA
In its Decision, 28 the CA denied the petition. Citing the case of Quelnan v. VHF Philippines, Inc., et al., 29 the CA held that mandamus is not proper in view of the late filing of the notice of appeal and stressed that a petition for mandamus "is not and cannot be an elixir to a lost appeal." 30
Petitioner's motion for reconsideration was also denied in the appellate court's March 20, 2014 Resolution. 31
ISSUE
WHETHER THE CA COMMITTED REVERSIBLE ERROR IN DENYING THE PETITION FOR MANDAMUS FILED BY PETITIONER.
Petitioner's Arguments
Petitioner insists that he filed on October 21, 2009, through registered mail, the motion for reconsideration of the October 1, 2009 Resolution, which he received on October 13, 2009. The RTC received the said motion on October 30, 2009, as evidenced by the stamp showing the same date of receipt. However, instead of considering October 21, 2009 as the actual date of filing, the RTC deemed it was filed only on October 30, 2009. Attached to the petition before this Court and the CA is the Certification 32 issued by the Postmaster IV of the Tacloban Central Post Office. 33 aDSIHc
Petitioner likewise assails the CA for sanctioning the RTC's act denying his notice of appeal, although filed within the fifteen-day period from the date of receipt of the denial of his motion for reconsideration. He pointed out that the notice of appeal was filed within the reglementary period, in accordance with the "fresh period" rule laid down in Neypes, et al. v. Court of Appeals, et al., 34 and is applicable to the present case. 35
Respondents' Arguments
Respondents assert that the RTC correctly ruled that the notice of appeal of petitioner was filed out of time. Jurisprudence teaches that the right to appeal is neither a natural right nor a part of due process. It is merely a statutory privilege and may be exercised only in the manner and in accordance with the provisions of law. Hence, one who seeks to avail of the right to appeal must comply with the requirements of the Rules. Failure to do so often leads to the loss of the right to appeal. 36
THE COURT'S RULING
The petition has no merit.
It is basic and elementary that a Notice of Appeal should be filed "within fifteen (15) days from notice of the judgment or final order appealed from." 37
SEC. 3. Period of ordinary appeal. — The appeal shall be taken within fifteen (15) days from notice of the judgment or final order appealed from. Where a record on appeal is required, the appellants shall file a notice of appeal and a record on appeal within thirty (30) days from notice of the judgment or final order.
The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No motion for extension of time to file a motion for new trial or reconsideration shall be allowed.
In situations where a party opts to seek reconsideration first of the final order or judgment on grounds "that the damages awarded are excessive, that the evidence is insufficient to justify the decision or final order, or that the decision or final order is contrary to law," the same must be done within the period of taking an appeal. 38
Section 13, Rule 41 authorizes the trial court not to grant a late notice of appeal:
SECTION 13. Dismissal of appeal. — Prior to the transmittal of the original record or the record on appeal to the appellate court, the trial court may motu proprio or on motion dismiss the appeal for having been taken out of time.
From the denial of his notice of appeal, petitioner filed a petition for mandamus under Rule 65 before the CA.
We have held that a trial court's order disallowing a notice of appeal, which is tantamount to a disallowance or dismissal of the appeal itself, is not a decision or final order from which an appeal may be taken. The suitable remedy for the aggrieved party is to elevate the matter through a special civil action under Rule 65. 39 Petitioner thus correctly availed of a Rule 65 petition for the reversal of the RTC's order denying due course to his notice of appeal.
The writ of mandamus serves to compel a respondent, who fails to perform a legal duty or unlawfully excludes another from the enjoyment of an entitled right or office, to do the act required to be done to protect the rights of the petitioner. 40
In Quelnan v. VHF Philippines, Inc., et al., 41 we held that —
Petitioner maintains that mandamus was the proper remedy in the instant case, and that his Notice of Appeal was seasonably filed.
Mandamus will lie to compel the performance of a ministerial duty, not a discretionary duty, and petitioner must show that he has a well-defined, clear and certain right to warrant the grant thereof.
The timeliness of the filing of a notice of appeal determines whether the trial court's giving due course to it is ministerial. ETHIDa
If the notice of appeal is filed within the reglementary period, it becomes the ministerial duty of the trial court to give it due course. If not, the trial court cannot be compelled by mandamus to do so.42 (emphasis supplied; citations omitted)
In this case, the CA ruled that mandamus is not the proper recourse for petitioner since the RTC acted on his notice of appeal by denying or disallowing it for not being timely filed. Petitioner's earlier motion for reconsideration was already denied for having been filed beyond the fifteen-day period; hence, it did not toll the running of the reglementary period to file an appeal.
We hold that the CA correctly denied the petition for mandamus.
Petitioner received the October 1, 2009 Resolution dismissing the case on October 13, 2009. He claims to have filed a motion for reconsideration on October 21, 2009, by registered mail, which the RTC received on October 30, 2009. Since a motion for reconsideration should be filed within the fifteen-day period of appeal, the last day of such period is October 28, 2009. The stamped receipt "October 30, 2009" at "9AM" on the original of the undated motion for reconsideration indicates that it was personally served on the trial court on that date and time.
To prove that he sent by registered mail the subject motion for reconsideration, petitioner submitted the following certification from Postmaster IV Cesar Noli C. Espos, Tacloban City:
CERTIFICATION
This is to certify that as per record of this Office, Registered Letter No. 10631 from Atty. Von Kaiser Soro addressed to the Regional Trial Court, Burauen, Leyte, was mailed on October 21, 2009.
Issued this 13th day of July 2010 upon the request of Atty. Soro.
CESAR NOLI C. ESPOS43
Petitioner submitted the postmaster's certification for the first time to the Court. In his motion for reconsideration of the March 23, 2010 order denying his notice of appeal, petitioner mentioned that Registry Receipt No. 10631 would show that he had indeed mailed his motion for reconsideration on October 21, 2009. 44 However, no such registry receipt was attached to his motion. Even in his August 22, 2013 Motion for Reconsideration, 45 after the CA had promulgated its July 16, 2013 Decision, petitioner did not submit the postmaster's certification or registry return receipt.
When the dispute is on the date when a pleading should be deemed filed, Section 3, Rule 13 of the Rules of Court applies. Said provision states:
Section 3. Manner of filing. — The filing of pleadings, appearances, motions, notices, orders, judgments and all other papers shall be made by presenting the original copies thereof, plainly indicated as such, personally to the clerk of court or by sending them by registered mail. In the first case, the clerk of court shall endorse on the pleading the date and hour of filing. In the second case, the date of the mailing of motions, pleadings, or any other papers or payments or deposits, as shown by the post office stamp on the envelope or the registry receipt, shall be considered as the date of their filing, payment or deposit in court. The envelope shall be attached to the record of the case. (emphases supplied)
The rule, therefore, is that where the filing of pleadings or motions with the court are made by sending them by registered mail, as in this case, the date of mailing as shown by the post office stamp on the envelope or the registry receipt shall be considered as the date of filing. 46
Petitioner failed to produce before the CA or the Court a certified true copy of the post office stamp on the envelope or the registry receipt which formed part of the records in the trial court.
The basic evidentiary rule is that he who asserts a fact or the affirmative of an issue has the burden of proving it. 47 A party who fails to discharge his or her burden of proof is not entitled to the relief prayed for. 48 cSEDTC
Since petitioner's affirmative allegation of a timely filed motion for reconsideration is anchored on the registry receipt and post office stamp on the envelope evidencing the filing by registered mail of his motion for reconsideration on October 21, 2009, he should have presented to the Court such material portions of the case records in the RTC. Petitioner having failed to do so, the factual finding by the RTC of the late filing of his motion for reconsideration and notice of appeal stands. Hence, petitioner cannot be granted relief from the denial of his notice of appeal.
It bears stressing that in a petition for review on certiorari, the Court is limited to the review of errors of law. We do not pass upon findings of fact under this mode of review unless the lower tribunal's decision is shown to be attended by grave abuse of discretion, as when they are shown to have been made arbitrarily or in disregard of the evidence on record. 49 In this case, we find no such arbitrariness or disregard of the evidence on record.
WHEREFORE, the petition is DENIED. The July 16, 2013 Decision and March 20, 2014 Resolution of the Court of Appeals-Cebu City in CA-G.R. SP No. 05528 are hereby AFFIRMED.
The letter dated September 18, 2018 of Mr. Mario C. Agura, Chief, Archives Unit, Court of Appeals, Cebu City, in compliance with the Resolution dated July 9, 2018, transmitting the Court of Appeals rollo of CA G.R. SP No. 05528 consisting of 334 pages is NOTED.
SO ORDERED." Jardeleza, J., on official business.
Very truly yours,
(SGD.) LIBRADA C. BUENADivision Clerk of Court
Footnotes
1. Also spelled "Julius Terrano" in other documents, particularly in the Petition for Review on Certiorari (Rollo, pp. 12-26); CA Decision (id. at 31-38); CA Resolution (id. at 40-41); Amended Petition (id. at 100-111).
2.Rollo, pp. 31-38; penned by Associate Justice Ma. Luisa C. Quijano-Padilla with Associate Justices Ramon Paul L. Hernando (now a Member of this Court) and Carmelita Salandanan-Manahan, concurring.
3.Id. at 40-41.
4.Id. at 93; penned by Executive Judge Yolanda U. Dagandan.
5.Id. at 98-99.
6.Id. at 42-50.
7. Also spelled "Bebiana A. Songahid" which appears in rollo, p. 53.
8.Id. at 43-44.
9.Id. at 44-45.
10.Id. at 45-46.
11.Id. at 46.
12.Id. at 69-76.
13.Id. at 69-70.
14.Id. at 71.
15.Id. at 72-74.
16.Id. at 79-82.
17.Id. at 80-81.
18.Id. at 81-82.
19.Id. at 78.
20.Id. at 82.
21.Id. at 83-85.
22.Id. at 89-90.
23.Id. at 91-92.
24.Id. at 93.
25.Id.
26.Id. at 94-96.
27.Id. at 98-99.
28.Supra note 2.
29. 477 Phil. 740 (2004).
30.Rollo, pp. 36-37.
31.Id. at 40-41.
32.Id. at 88.
33.Id. at 20-21.
34. 506 Phil. 613 (2005).
35.Rollo, pp. 22-24.
36.Id. at 135-137.
37. RULES OF COURT, Rule 41, Section 3.
38. RULES OF COURT, Rule 37, Section 1.
39.Philippine Bank of Communications v. Court of Appeals, et al., 805 Phil. 964, 974 (2017), citing Neplum v. Orbeso, 433 Phil. 844, 854 (2002).
40.Reliance Surety & Insurance Co., Inc. v. Hon. Amante, Jr., et al., 501 Phil. 86, 102 (2005).
41.Supra note 29.
42.Id. at 747.
43.Supra note 32.
44.Supra note 26.
45.CA rollo, pp. 160-168.
46.Secretario v. NLRC, et al., 286 Phil. 618, 620 (1992).
47.Eureka Personnel & Management Services, Inc. v. Valencia, 610 Phil. 444, 452 (2009), citing Republic v. Orbecido III, 509 Phil. 108, 116 (2005); Noceda v. Court of Appeals, 372 Phil. 383, 399 (1999); Luxuria Homes, Inc. v. Court of Appeals, 361 Phil. 989, 1000 (1999).
48.See Gatmaytan v. Sps. Dolor, 806 Phil. 1, 3 (2017).
49.Eureka Personnel & Management Services, Inc. v. Valencia, supra note 47, at 452-453, citing Maya Farms Employees Organization v. NLRC, 309 Phil. 465, 470 (1994); Bernaldez v. Francia, 446 Phil. 643, 649-650 (2003).