1

Republic of the Philippines

Regional Trial Court
10th Judicial Region
Branch 34,
Cabadbaran, Agusan del Norte

LIGAYA T. TIRADOR,
SPECIAL
CIVIL
ACTION
NO.________
FLORENLI TIRADOR, FLORENTINA DUMAY
FOR CERTIORARI,
INJUNCTION,
AND CATHERINE TIRADOR,
PRELIMINARY
INJUNCTION, TRO,
Petitioners,
and other reliefs and to
Declare the Decision Void
-versus-

in relation to Civil Case No.

1106
(4th

Municipal

Circuit

Trial

Court
Of Cabadbadran)
VIOLA G. MUNDAS, and the Honorable
Presiding Judge Canite, of the Municipal
Trial Court of Cabadbaran City,
Agusan del Norte,
Respondents.
X - - - - - - - - - - - - - - - - - - - - - - - -/

PETITION
The petitioners, by the undersigned counsel, most
respectfully aver, to wit:

THE PARTIES
a) The petitioners are all of legal ages, Filipinos, and
residents of Kauswagan, Cabadbaran City, Agusan del
Norte;

b) The private respondent is of legal age, widow, Filipino and

a resident of Sta. Ana, Tubay, Agusan del Norte;
c) The public respondent Hon. Nemesio S. Canite is of legal
age, Filipino, and is sued in his capacity as the Presiding
Judge of the Municipal Circuit Trial Court of Cabadabaran
Remedios Trinidad Romualdez, Cabadbaran, Agusan del
Norte;
The parties may be served with the courts processes in
the addresses above-mentioned.

NATURE OF THE PETITION

1. This is a petition for Certiorari under Rule 65 of the Rules
of Court to annul, set aside, and declare void the
Judgment of the lower court for having been rendered with
grave abuse of discretion amounting to lack or excess of
jurisdiction.
2. With respect to the petitioner Ligaya T. Tirador, appeal is
not the adequate and speedy remedy considering that she
lost her locus standi before the respondent court.
3. On the part of the defendants Florenli Tirador-Dumay and
Catherine Tirador, they were not made parties to the case
even if they were co-owners of the property claimed by
the private respondent, and therefore, were indispensable
parties. There being no joinder of indispensable parties,
no judgement can bound them as the same would
constitute a denial of their constitutional rights to due
process. Appeal is not also the adequate and proper
remedy.

4. The contested decision is clearly a patent nullity.

TIMELINESS OF THE PETITION

5. The challenged Decision was dated December 12, 2012
but was received by the undersigned counsel on January
2, 2012. On December 29, or even before receipt of the
official copy of the Decision, the petitioner filed a Motion
for Reconsideration which was denied in a Resolution
dated January 9, 2012 but which was received by the
undersigned on January 24, 2012.

BRIEF STATEMENT OF FACTS

AND CASE
6. This is a trumped-up lawsuit filed by VIOLA G. MUNDAS
the

surviving

daughter

GUMILING

and

AURICIA

defendant

LIGAYA

T.

of
C.

Spouses

EUSTAQUIO

GUMILING

TIRADOR

for

the

against

N.
the

Recovery

of

Ownership and Possession of Real Property with Damages

and Attorneys Fees.
7. Private respondent claimed that the disputed property
located

at

Cabinet,

Cabadbaran,

Agusan

del

Norte

consisting of Two Thousand Nine Hundred Forty Two

(2,942) square meters was only leased to the petitioners
predecessor-in-interest, JORGE TIRADOR, thus entitling the
former to recover said property by virtue of the expiration
of the Contract of Lease. This fact being disproven by the

Transferors Affidavit1 and a Deed of Absolute Sale 2

executed by the widow of said EUSTAQUIO GUMILIN.
8. The facts are as follows: The land covered under Tax
Declaration

No.

4648

is

owned

by

the

deceased

EUSTAQUIO GUMILIN, such property was the subject of the

Contract of Lease dated December 13, 1949. The contract
is entered into by EUSTAQUIO GUMILIN and JORGE
TIRADOR. On November 24, 1952, the former transferred
the land to the latter, as evidenced by the Transferors
Affidavit. Also, the widow of Eustaquio Gumilin, a certain
Valerina Gumilin confirmed and ratified the sale of her
husband when she executed on May 1954 a Deed of
Absolute Sale.
9. The private respondent asserting her ownership over the
property filed aefore the

Municipal Circuit Trial Court of

Cabadbaran, Province of Agusan del Norte the instant

case.3 In an earlier case,4 the private respondent filed a
case before the Regional Trial Court of Cabadbaran on
January 24, 2011 involving the same subject matter, the
same cause of action, and the same parties.
10.

With respect to the case lodged before the Municipal

Court, herein petitioner Ligaya Tirador was served with

summons and complaint through her daughter on April 01.
2011. For failure of the petitioner Ligaya Tirador

to

answer within the reglementary period, the private

respondent filed a Motion to Declare Defendant in Default
on May 27, 2011.
1
2
3
4

Please
Please
Please
Please

see
see
see
see

Transferors Affidavit as ANNEX A

Deed of Sale as ANNEX B
the Complaint before the Municipal Trial Court as ANNEX C
the Complaint before the Regional Trial Court as ANNEX D

11.

In the order of the Honorable Court dated June 02,

2011, the Motion filed by the private respondent was

granted and an ex-parte hearing of the case was set on
June 30, 2011.
12. On July 11, 2011, petitioner Ligaya Tirador filed a
Motion to Dismiss5 on the ground that private respondent
violated the Rule against Forum Shopping for filing a case
of

the

same

nature

before

the

RTC,

Branch

34,

Cabadbaran, Agusan del Norte. Said Motion was denied by

the Honorable Court in its Resolution 6 dated September
29, 2011.
13.

An Omnibus Motion for Intervention and to Set Aside

Judgment7 was filed by the other petitioners for evidently,

there

is

violation

on

the

compulsory

joinder

of

indispensable parties considering that the other heirs of

JORGE TIRADOR were not impleaded. Said Motion was also
denied in a resolution8 by the Honorable Court.
14.

A Judgment9 dated December 12, 2011 was rendered

in favor of the plaintiff, Viola G. Mundas, ordering the

defendant and all persons under her to vacate the
aforementioned land and surrender the possession thereof
to the plaintiff and to pay the corresponding fees.
15.

The petitioner Ligaya Tirador filed a Motion for

Reconsideration to the said Judgment, but the same was

5
6
7
8
9

Please
Please
Please
Please
Please

see
see
see
see
see

Motion to Dismiss as ANNEX E

Resolution as ANNEX F
Motion for Intervention as ANNEX G
Resolution denying Motion for Intervention as ANNEX H
Judgment as ANNEX I

also denied in a Resolution 10 dated January 9, 2012 but

which was received by the undersigned counsel only on
January 24, 2012.

GROUNDS RELIED UPON

FOR THE PETITION
I.

The respondent judge gravely abused his discretion

when it did not dismiss the case despite his knowledge,
and upon motion that exactly the same case involving
the same parties and subject matter was filed before
the Regional Trial Court, in violation of the rule against
forum shopping.

II.

The respondent judge gravely abused its discretion

when it rendered the Decision which would deprive the
other heirs of Florentino Tirador without due process of
law.

III.

The respondent judge gravely abused his discretion

when, despite that the disputed property was co-owned
by the heirs of Florentino Tirador, he did not direct
private respondent to implead as co-defendants the
other heirs of Florentino Tirador, and in fact, proceed to
render a Decision even if there was clearly a nonjoinder of indispensable parties.
DISCUSSION

I.

Violative of the rule against forum shopping

16.

The instant case should have been dismissed for

violation of forum-shopping.

The withdrawal by private

respondent of an exactly identical case which she filed

before the Regional Trial Court did not cure the defect of
the violation.

The court, moto propio, should have

imposed the penalty by, at the very least, dismissing the

10

Please see Resolution dated January 09, 2012 as ANNEX J

instant case. The mandate of the Supreme Court is very

clear.

Forum-shopping,

an

act

of

malpractice,

is

proscribed and condemned as trifling with the courts and

abusing their processes. It is improper conduct that
degrades the administration of justice. The rule has been
formalized in Paragraph 17 of the Interim Rules and
Guidelines issued by this Court on January 11, 1983, in
connection with the implementation of the Judiciary
Reorganization Act. 17. Thus, Said Paragraph 17 provides
that no petition may be filed in the then Intermediate
Appellate Court, now the Court of Appeals "if another
similar petition has been filed or is still pending in the
Supreme Court" and vice-versa. The Rule ordains that "(a)
violation of the rule shall constitute a contempt of court
and shall be a cause for the summary dismissal of both
petitions, without prejudice to the taking of appropriate
action against the counsel or party concerned. This rule
has been equally applied in the recent case of Limpin,
Jr., et al. vs. Intermediate Appellate Court, et al., where
the party having filed an action in one branch of the
regional trial court shops for the same remedies of a
restraining order and a writ of preliminary injunction in
another branch of the same court. We ruled therein that:
So, too, what has thus far been said more than amply
demonstrates Sarmiento's and Basa's act of forumshopping. Having failed to obtain the reliefs to which they
were not entitled in the first place from the "Solano
Court," the Court of Appeals, and the Supreme Court, they
subsequently instituted two (2) actions in the "Beltran
Court" for the same purpose, violating in the process the
ruling against splitting causes of action. The sanction is

inescapable: dismissal of both actions, for gross

abuse of judicial processes.11 [ underscoring supplied]
II.

Denial of due process

18.With respect to petitioners Florenli Tirador-Dumay and
Catherine Tirador, they are poised to lose their property
without due process of law.
19. No person shall be deprived of life, liberty, or
property without due process of law, nor shall any person
be denied the equal protection lf laws.12
20. In the instant case, only the petitioner Ligaya Tirador
was impleaded in the case lodged before the municipal
trial court. The other heirs of Florentino Tirador, who are
the co-heirs and co-owners with respect to the disputed
property, were left out. And even with the subsequent
knowledge by the public respondent, he did not require
the joiner of indispensable parties.
21. In the case of Banco Espanol Filipino versus Palanca, a
clear delineation of the essentials of procedural fairness in
judicial proceedings was established:
As applied to judicial proceedingsit may be
laid down with certainty that the requirement of
due process is satisfied if the following conditions
are present, namely: (1) There must be a court or

11

G.R. No. 120958 December 16, 1996 , FIL-ESTATE GOLF AND

DEVELOPMENT, INC., petitioner, vs. COURT OF APPEALS, HON. STELLA
CABUCO-ANDRES, Presiding Judge of Branch 31, Regional Trial Court,
Fourth Judicial Region, San Pedro, Laguna, SPOUSES FELIPE and VICTORIA
LAYOS, EDUARDO R. LOYOLA, NENITA ZARRIS, MANUEL R. TUASON and
BENILDA AMBIOJA, respondents.
12

See the 1987 Philippine Consitution, Article III, Section thereof

tribunal clothed with judicial power to hear and

determine the matter before it; (2) jurisdiction
must be lawfully acquired over the person of the
defendant or over the property which is the
subject matter of the proceedings; (3) the
defendant must be given an opportunity to be
heard; and (4) judgment must be rendered upon
lawful hearing.13
22. In the challenged Decision, the respondent judge
torn asunder the essential requirements of due process. A
void judgment never acquires finality. Hence, while
admittedly, the petitioner in the case at bar failed to appeal
timely the aforementioned decision of the Municipal Trial
Court of Naic, Cavite, it cannot be deemed to have become
final and executory. In contemplation of law, that void
decision is deemed non-existent. Thus, there was no
effective or operative judgment to appeal from. In
Metropolitan Waterworks & Sewerage System vs. Sison, this
Court held that: x x x [A] void judgment is not entitled to the
respect accorded to a valid judgment, but may be entirely
disregarded or declared inoperative by any tribunal in which
effect is sought to be given to it. It is attended by none of
the consequences of a valid adjudication. It has no legal or
binding effect or efficacy for any purpose or at any place. It
cannot affect, impair or create rights. It is not entitled to
enforcement and is, ordinarily, no protection to those who
seek to enforce. All proceedings founded on the void
judgment are themselves regarded as invalid. In other
words, a void judgment is regarded as a nullity, and the
situation is the same as it would be if there were no
judgment. It, accordingly, leaves the parties litigants in the
same
position
they
were
in
before
the
trial.
Thus, a void judgment is no judgment at all. It cannot be the
source of any right nor of any obligation. All acts performed
pursuant to it and all claims emanating from it have no legal
effect. Hence, it can never become final and any writ of
execution based on it is void: "x x x it may be said to be a
lawless thing which can be treated as an outlaw and slain at
sight, or ignored wherever and whenever it exhibits its
head."14
III.
13

14

Non-joinder of indispensable parties

37 Philippines 921-934

Nazareno v. Court of Appeals, G.R. No. 111610, February 27, 2002, 378 SCRA 28.
(2002)

10

23.

Parties

in

interest

without

whom

no

final

determination can be had of an action shall be joined

either as plaintiffs or defendants.15
24. The private respondent did not implead indispensable
parties. An almost identical

case was filed before the

Regional Trial Court-Branch 34 of Cabadbaran, Agusan del

Norte in re: Civil Case No. OC-11-01 against the heirs of
Jorge Tirador namely: Ligaya Tirador and Florenti Tirador
for Ownership and Possession with Damages on January
20, 2011;
25. In the said case, another indispensable party Florenli
Tirador was impleaded. But other co-heirs like Catherine T.
Tirador and Leahflor T. Aquino were not impleaded at all;
26. In the instant assailed decision, only Ligaya Tirador
was impleaded as party-defendant;
27. Clearly, there is a violation on the compulsory joinder
of indispensable parties considering that the other heirs of
Florentino Tirador were not impleaded;
28. Note the disputed property belongs to the estate of
the late Florentino Tirador. The property is not owned
solely by Ligaya Tirador.

The private respondent is

cognizant of this fact. Yet , she did not implead all the
heirs of Florentino Tirador;
29. The judgment in the instant case should be set aside
for being null and void. The law on the matter is clear
thus:

15

The Rules of Court , Rule 3, Section 7

11

a) An indispensable party is one whose interest will

be affected by the courts action in the
litigation,
and
without
whom
no
final
determination of the case can be had. The
partys interest in the subject matter of the suit
and in the relief sought are so inextricably
intertwined with the other parties that his legal
presence as a party to the proceeding is an
absolute necessity. In his absence, there cannot
be a resolution of the dispute of the parties
before the court which is effective, complete, or
equitable. (Imson v. Court of Appeals,G.R.
No. 106436, Dec. 8,1994, 57 SCAD 375,
239 SCRA 59; Servicewide Specialists, Inc.
v. Court of Appeals, G.R. No. 183301, Dec.
8, 1995, 66 SCAD 396; Cited in Arcelona v.
Court of Appeals, G.R. No. 102900, Oct. 2,
1997, 87 SCAD 539, 280 SCRA 20)
b) Indispensable parties are those with such an
interest in the controversy that a final decree
would necessarily affect their rights so that the
court could not proceed without their presence.
(Seno v. Mangubat, supra; Quisumbing v.
Court of Appeals, 189 SCRA 325 [1990];
see also Lozano v. Ballesteros. 195 SCRA
681 [1991]; Kho v. Court of Appeals, 214
SCRA 329 [1992])
c) Whenever it appears to the court in the course
of a proceeding that an indispensable party has
not been joined, it is the duty of the court to
stop the trial and to order the inclusion of such
party. (The Revised Rules of Court,
Annotated by Senator Vicente J. Francisco,
Vol. 1, p. 271, 1973 ed; See also Cortez v.
Avila, 101 Phil. 205 [1957]) Such an order is
unavoidable, for the general rule with reference
to the making of parties in a civil action requires
the joinder of all necessary parties wherever
possible, and the joinder of all indispensable
parties under any and all conditions, their

12

presence being sine qua non for the exercise of

judicial power. (Borlosa v. Polistico, 47 Phil.
345, 347 [1925] It is precisely when an
indispensable party is not before the court
(that) the action should be dismissed. (People
v. Rodriguez, 106 Phil. 325, 327 [1959]
cited in Arcelona v. Court of Appeals, G.R.
No. 102900, October 2, 1997, 87 SCAD
539, 280 SCRA 80)
d) The absence of an indispensable party renders
all subsequent actuations of the court null and
void, for want of authority to act, not only as to
the absent parties but even as to those present.
(Lim Tanhu v. Ramolete, 66 SCRA 425, 448;
See also Director of Lands v. Court of
Appeals, 93 SCRA 238 [1979]; Alabang
Development Corp. v. Valenzuela, 116
SCRA 261 [1982]; cited in Arcelona v.
Court of Appeals, supra) (underscoring
supplied)
30. A perusal of the cited laws and jurisprudence would
make it clear that the co-heirs of Ligaya Tirador should
have been impleaded. Failure to implead them rendered
the judgment null and void.

PLEA FOR INJUNCTION, PREMILINARY INJUNCTION

AND TEMPORARY RESTRAINING ORDER
31. The petitioners hereby re-plead the foregoing allegations
by reference, and further state, to wit:
32. On January 30, 2012, the private respondent, through
counsel, immediately filed a Motion for Execution 16. Anytime
soon, or perhaps as of the filing of the foregoing Petition, the
respondent Honorable Judge may already issue the Writ of
16

Please see Motion for Execution as ANNEX

13

Execution, and hence, the possession of over the disputed

property may be taken already from the petitioners in clear
and obnoxious derogation of the clear right to due process.
33. There is a cogent need to issue a writ of Temporary
Restraining Order directing the respondent Honorable Judge
to cease and desist from issuing a writ of execution and/ or
in any manner enforce the challenged decision. Without said
writ,

the

petitioners

shall

have

suffered

grave

and

irreparable damages.
34. The petitioners are willing to put up the bond which it is
prayed that the same be reasonable.
35. After due notice and hearing, it s prayed that the
preliminary injunction and injunction, as prayed for be
issued.
PRAYER
WHEREFORE, premises considered, it is most respectfully
prayed that the challenged Decision be set aside for being a
patent nullity as the same is violative of the established rules and
the constitutional right to due process.
In the interim, it is prayed that a writ of Temporary
Restraining Order be issued directing the respondent Honorable
Judge to cease and desist from issuing a writ of execution and/ or
in any manner enforce the challenged decision. Without said writ,
the

petitioners

damages.

shall

have

suffered

grave

and

irreparable

14

The petitioners are willing to put up the bond which it is

prayed that the same be reasonable.
After due notice and hearing, it s prayed that the preliminary
injunction and injunction, as prayed for be issued.
Finally, the petitioners further pray for other remedies that
may be deemed just and equitable under the premises.
Cagayan de Oro City (for Cabadbaran City, Agusan del Norte)
6 February 2012.

PALASAN,
APOLINARIO,
ASSOCIATES
LAW OFFICE
3/F Ramada Goodwill Building
Rizal-Fernandez streets
Cagayan de Oro City

AND

By:
TIBURCIO M. PALASAN, JR.
Counsel for the Petitioners
PTR NO: 2107003A 12-15-2011
IBP NO: 832392
12-15-2011
ROLL NO: 37410
MCLE COMPLIANCE CERTIFICATE No. IV002813, 3 October 2011