CO TIAC, PETITIONER, VS. FELIPE NATIVIDAD, JUDGE OF THE COURT OF FIRST INSTANCE OF MANILA, JOAQUIN GARCIA, SHERIFF OF CITY OF MANILA, AND DOMINGO LAO, RESPONDENTS.

This is a petition for certiorari to review an order of execution and to
restrain the Honorable Felipe Natividad as Judge of the Court of First Instance
of Manila, the City Sheriff, and Domingo Lao, from carrying out that execution,
issued in case No. 71052 of that Court entitled “Domingo Lao, plaintiff,
vs. Co Kay, defendant.”

The antecedents of the case as disclosed by the record are as follows: Under
date of June 26, 1945, Domingo Lao brought an action in the municipal court for
unlawful detainer of a warehouse (bodega) said to be located at 528
Elcano St, Manila, alleging that the property had been leased prior to February,
1945, to a certain Co Fiac on a month-to-month basis at a monthly rental of P40
payable In advance. It was further alleged that on or about the month of
February 1945, Co Fiac, without giving any notice to the plaintiff, left the
premises, and his whereabouts were unknown at the time of the filing of the
complaint; that in the same month, the defendant, without obtaining the prior
permission of the plaintiff, began to live in the said premises, telling the
plaintiff that he was Co Tiac’s relative; that the defendant, notwithstanding
repeated demands, refused to vacate said premises. There are other allegations,
under a second and a third cause of action, which have no bearing en the
case.

On July 24, 1945, Judge Vicente Bautista of the Municipal Court gave judgment
for the plaintiff. The defendant having appealed to the Court of First Instance,
the parties, before trial, submitted a stipulation in accordance with which the
latter Court rendered judgment on February 21, 1946. The important terms of the
stipulation provided that the defendant was to continue occupying the premises
in question until and not later than August 31, 1946, at the same monthly rental
of P50.

The defendant refused to vacate the premises on the date above stipulated,
and on September 3, 1946, the counsel for the plaintiff moved for the execution
of the judgment and execution was issued.

On the 6th of September, the Sheriff made a return on the writ of execution,
informing the court that the warehouse at No. 528 was occupied by another person
and was not the subject of litigation. The Sheriff further informed the court
that the building involved in the suit was No. 534, which, he said, was occupied
by one Co Tiac, and that Co Kay, according to his information, resided on
Villalobos street. Consequently, on the 18th of September, counsel for Domingo
Lao moved to correct the order of execution by changing the number of the
building from 528 to 534. On the 21st the Hon. Alfonso Felix, Judge, amended the
judgment in the manner requested, saying that there was no question as to the
identity of the property in litigation and that the confusion in numbers was
only a clerical error.

On September 25, 1946, Co Tiac, the present petitioner, through counsel filed
an “Urgent Motion to Quash Execution”, asserting that he had been the lessee and
occupant of the bodega for a period of ten years, having leased it from
Mrs. Ignacia Lao as co-administratrix of the estate of the deceased Albina de los
Santos. He reasoned that he had not been a party to the case and heard of it for
the first time a few days ago, when, he said, a deputy sheriff and Domingo Lao
examined the premises and spoke something about wrong numbers. Co Tiac also
assailed the legality of the amendment of the judgment which, he averred, was
made “after the lapse of over five (5) months from the date the decision had
already become final.” He finally alleged “that the plaintiff is not the real
party in interest and has no capacity whatsoever to file this suit”.

On October 5, Judge Felix appointed the deputy clerk of Branch VII of the
Court of First Instance, to receive the evidence which the parties might present
and to submit such evidence to the court for proper action, evidence which, the
court said, was necessary before the motion of Co Tiac to quash might be acted
upon. The court set October 11, 1946, for the taking of such evidence. Because
of objections to the appointment of a commissioner and a renewal of the petition
for execution filed in the midst of the hearing, the taking of evidence was not
finished on October 11. On the 19th of October the court denied the objections
of the execution creditor and ordered the reception of evidence continued on
October 26 “to determine whether Co Tiac is a squatter or not”. Andres
Concepcion, deputy clerk, submitted on December 4, 1946 all the evidence, oral
and documentary, taken by him and the matter was argued orally before Judge
Felix on December 26, After that hearing Judge Felix was appointed to the Court
of Appeals apparently before he could decide the incident just mentioned. For
this reason, the respondent Judge, Judge Natividad, as the new Judge of the
Seventh Branch, reset the matter for January 18. On the 30th, Judge Natividad
denied the motion to quash the execution, on the ground that “the movant, Co
Tiac, is not a party in this case, either as plaintiff, or as defendant, or as
intervenor.” The court expressed “the opinion that said movant has no
personality to intervene in this case at this stage of the proceedings and to
ask for the quashing of the writ issued for the execution of the judgment
rendered therein, which is now final and executory.”

We shall decide only the questions put in issue in this instance. It is our
view that the respondent Judge did not exceed his jurisdiction or abuse his
discretion in entering the order now being challenged. Without determining the
correctness of the ground on which the order was rested – that one who is not a
party to a case may not move for a stay or vacation of execution – the error if
any committed by His Honor on this score is, in our opinion, unimportant and not
reversible. The denial of the motion to quash was legal and proper for another
reason. Inasmuch as this was a possessory action Co Kay was rightly sued as
defendant, and Co Tiac’s omission from the complaint did not render the judgment
or execution ineffective.

The rule governing the matter of who should be made defendants in a suit for
forcible entry and detainer or for unlawful detainer is stated in 22 Am. Jur.,
936:

“As a general rule, every person who has participated in the acts complained
of is a proper party defendant, provided he remains in possession of
the property, because, since the proceeding is to recover
possession, there is no doubt that It is not maintainable against a person
not in possession when it was commenced. even though he was guilty of a
forcible entry, and although at some time prior to the beginning of the
proceeding and after he made the entry he might have been a proper and even
necessary party defendant. The best test by which to determine who should be
parties defendant, therefore, is to inquire who were guilty, either in person or
by agents, of the acts amounting to the forcible entry, and who remain in
possession, so that a judgment in favor of the plaintiff may not be sufficient
to afford him complete relief unless they are removed from the premises. It has
previously been pointed out that the capacity in which an entry was made or
possession held is immaterial in so far as the liability of the possessor is
concerned, whether he is an agent, lessor, lessee, owner, or
corporation.”

Corpus Juris (Vol. 26, p. 836), citing Leaño vs. Leaño, 12 Phil., 508, among
American decisions, says:

“Except as otherwise provided by statute, an action of forcible entry and
detainer may be maintained only against one in possesion at the commencement of
the action, and not against one who does not in fact hold the
land.”

This is in harmony with section 1, Rule 72, of the Rules of Court. This rule
does not require that the lessee or the person who committed the forcible entry
should be made a party even though his whereabouts be unknown. The doctrine is
doubly applicable in the present case because there are emphatic allegations,
supported by Co Kay’s pleadings in the main case and not denied by the
petitioner, that Co Tiac is Co Kay’s brother and associate in business at 534
Elcano Street and that Co Kay informed the lessor that Co Tiac had been killed
by the Japanese, an information which subsequent developments showed Co Kay knew
to be false. And that Co Tiac had knowledge of the deception, if he was not a
party thereto, is attested by the fact that he, Co Tiac, was found residing at
the place in question when the sheriff came to carry out the judgment; also by
the allegation, likewise undisputed, that Co Tiac falsely testified before the
clerk of court, explaining his alleged absence, that he went to China in 1944
and returned to the Philippines in July, 1946. We say this testimony is perjury,
first, because we take judicial notice of the fact that it was extremely
difficult, if not impossible, for a Chinese not connected with the Japanese Army
to leave the Philippines for China in 1944, and, second, because no reason was
given why Co Tiac should have visited his country, granting that he could have
done so, at that perilous time. In the second place, one of the exhibits Co Tiac
presented at the investigation, his alien certificate of registration, discloses
that on November 3, 1945, be presented himself at the Immigration Bureau in
compliance with the existing rules and regulations.

Forcible entry or unlawful detainer is a summary proceeding, intended to
provide an expeditious means of protecting actual possession or right to
possession of property. Title is not involved. This aspect of the action and
pretended death or absence of the petitioner differentiate the instant case
from Omaña vs. Gatulayao 40 Off. Gaz., No. 11, p. 2227 and other
decisions cited by the petitioner. The theory of the plaintiff is inconsistent
with the special, summary character and purposes of an unlawful detainer
proceeding. Under such theory, a lessee who unlawfully witholds possession of
the leased property, or one who has taken possession of a property by force,
could defeat or retard the recovery of such possession by hiding. Summons by
publication would not fully satisfy the object of the law.

The circumstances disclosed by the allegations and exhibits give warrant to
the charge that the petitioner absconded or concealed his whereabouts in the
belief that by so doing he could frustrate the anticipated action for eviction.
He put forward his brother or partner to fight the case out, and when the fight
was all over for Co Kay, whose efforts had earned for him more than one and
one-half valuable years of possession, Co Kay disappeared from the scene and Co
Tiac emerged, resurrected from the grave to take up the cudgels. What is more,
he would not start where his partner and kin left off; he would have all the
issues fought over again. Unluckily for the petitioner, law and justice can not
be circumvented and outwitted so easily.

In view of what has been said, it matters not, in our judgment, that the
respondent Judge did not look into the status of the petitioner — whether he was
a lessee or a squatter — as Judge Felix had proposed to do. This question seems
to us immaterial. Having absented himself or concealed his identity, he cannot
be heard to complain that he was not included In the action. A party will not be
allowed to take undue advantage advantage of a situation created by his own
fault, especially if it is deliberate, to the detriment of his opponent.

The petition is dismissed with costs.

Perfecto, and Briones, JJ. concur.

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DISSENTING

PARÁS, J.:

In a deshaucio case filed by Domingo Lao against Co Kay for the
possession of accesoria or appartment No. 528 Elcano, Manila, judgment
was rendered for the plaintiff and against the defendant which became final on
February 21, 1946. When the sheriff, upon motion of the plaintiff, proceeded to
execute the judgment, he found in the premises another person and learned that
Co Kay was living at No. 115 Villalobos, Quiapo, Manila, Plaintiff Domingo Lao,
however, indicated that the appartment or accesoria in question is No.
534 Calle Elcano which was occupied by petitioner herein, named Co Tiac. When
the sheriff tried to oust him upon request of the plaintiff, Co Tiac sought the
protection of the court, alleging that he was never a defendant fcfl the case
and that the appartment occupied by him has not been the subject of any judicial
action. He claims that to oust him under the circumstance would be to deprive
him of his right without due process of law, especially beoemse he has been
occupying said place for about ten years under a lease contract from one Ignacio
Lao, a fact admitted by the plaintiff in his complaint.

Inasmuch as the plaintiff alleged that there was privity between Co Kay and
petitioner Co Tiac and that the latter is acting in bad faith, the court, then
presided over by Judge Alfonso Felix who decided the case on the merits, ordered
that evidence on said privity be presented before the cleric of court as
commissioner. Evidence from both parties was received and the report of the
commissioner was subsequently submitted. Judge Natividad, who succeeded Judge
Alfonso Felix after the latter had been promoted to the Court of Appeals,
without examining the evidence presented before the commissioner or his clerk,
however, immediately issued an order of execution stating that Co Tiac, the
herein petitioner, has no personality in the case, not being a party plaintiff
or party defendant, and that, therefore, he cannot by any means intervene or
stop the execution of the judgment.

We have already held, following Omaña vs. Gatulayao, 40 Off. Gaz.,
No. 11, p. 2277, that “La sentencia dictada en presente asunto es in
personam y como tál sólo es obligatoria para las partes y no para extraños.
(Articulo 44, párrfo b, Regla 39). Si el recurrente Anacleto Santiago, que no
fué parte en la causa por desahucio, era poseedor de buena fé de la finca en
cuestión, la sentencia dictada en dicha causa no podía ejecutarse válidamente
contra é1. Se puede insistir, sin embargo, en la ejecución de la sentencia si se
prueba que el poseedor es simplemente un causahabiente, o un huesped, o an
agente del ejecutado en el propósito fraudulento de frustrar la sentencia; en
tal caso, debe haber un procedimiento en el Juzgado de Primera Instancia que
expidió la orden de ejecución para la dilucidación del carácter de la posesión
del ocupante extraño.” (Santiago vs. Sheriff of Manila, 44 Off. Gaz.,
863) This doctrine was reiterated in Gozon vs. De la Rosa, 44 Off.
Gaz., 1225 As these two recent cases relate to ejectment cases, there is
absolutely no reason for not giving them application, even if, as the majority
seem to allege, the decision in Omaña et la. vs. Gatulayao does not fit
in forcible entry or unlawful detainer cases which are summary in nature. In
Gozon vs. Be la Rosa, the lower court did, not wait for the
intervention of the actual possessors, but it took initiative of summoning them
for investigation as to the character of their possession, and we in effect
sustained the procedure. At any rate, it is clear that an actual possessor, who
was not a party to the ejectment suit, must be heard.

In the present case, we cannot hold that there is privity between the,
petitioners and Co Kay, because the respondent Judge did not pass upon the
evidence presented by the parties on the point, and his order denying
petitioner’s motion to quash the execution is based solely on the erroneous
ruling that the petitioner “has no personality to intervene in this case at this
stage of the proceedings and to ask for the quashing of the writ issued for the
execution of the judgment rendered therein, which is now final and
executory.”

I therefore vote to grant the petition and to order the respondent Judge to
decide the propriety of proceeding with the writ of execution only after he
shall have passed upon the evidence relative to the alleged privity between the
petitioner and Co Kay.

HILADO, J.:

I concur in this dissent.