MERCEDES T. RIVERA, JESUS F. LUNOD AND EPIFANIA MANAHAN, PETITIONERS, VS. COURT OF APPEALS, FELIZARDO M. MARTINEZ AND VICTORIA MAGAYANES?MARTINEZ, RESPONDENTS.

Assailed in this petition for review on certiorari is the
decision* of the Court of Appeals in CA-G.R. No. 53117-R,
reversing and setting aside the decision of the Court of First Instance of Rizal, Branch XXVI (now Regional Trial Court), dismissing
the complaint and counterclaim in Civil Case No. 15761, entitled Felizardo M. Martinez vs. Mercedes Teehankee
Rivera.

The dispositive
part of the decision reads as follows:^[1]

WHEREFORE, the judgment appealed from is hereby reversed and set
aside.  Another one is hereby rendered
declaring the Deed of Absolute Sale, Exhibit A, as a contract of sale with right of repurchase, and allowing the
plaintiffs to redeem the same within a
period of thirty (30) days from the finality of this judgment.  Defendants-appellees
shall pay the costs.

IT IS SO ORDERED.

The facts as succinctly
stated by the Court of Appeals are as follows:^[2]

Plaintiffs spouses were the owners of a
3-bedroom bungalow erected on a lot situated at Cambridge
Street, Holy
Family Village,
Marikina,
Rizal.  They
acquired the said property from Cecilia Estepa Manansala who had likewise transferred her rights over a
contract to purchase the lot on which the house is erected from the Provident
Securities Corporation which owns the said subdivision.  The said transfer of rights is evidenced by a
document dated March 31, 1970
(Exhibit 2).

On June 29, 1971, the plaintiffs executed a document entitled
“DEED OF ABSOLUTE SALE”, Exhibit A, whereby for and in consideration
of the sum of P20,000.00 they sold to defendant Mercedes Teehankee
Rivera the following described property:

“A three-bedroom bungalow, with all the improvements, furnitures, appliances and fixtures thereon, situated in
the Holy Family Village, Marikina, Rizal, particularly identified as No.___ Cambridge Street
and erected on Lot No. 38, Block No. 21
of said Village,”

On November 27, 1971, defendant
Mercedes Teehankee Rivera sold to her co-defendants,
the spouses Jesus F. Lunod and Epifania
Manahan-Lunod, the same property described above for
the sum of P35,000.00, the transaction being evidenced
by a notarial deed of absolute sale (Exhibit 4).

On January 18, 1972,
the Lunod spouses filed an ejectment
case in the Municipal Court of Marikina against
herein plaintiff Felizardo Martinez, docketed therein
as Civil Case No. 1989.  On February 16, 1972, the plaintiffs, in
turn, filed the present action before the Court of First Instance of Rizal, wherein it was docketed as Civil Case No. 15761, praying that the deeds of sale,
Exhibits A and 4, be declared null and void. 
The attempt of the plaintiffs to suspend the proceedings in the ejectment case due to the pendency
of the civil action for the annullment of the deeds
of sale was rejected by the Municipal Court of Marikina,
and the ejectment proceeded to judgment rendered
against the herein plaintiffs on September 1, 1972.

In their complaint in Civil Case No. 15761, the plaintiffs alleged
that the transaction they had with defendant Mercedes Teehankee
Rivera was not a sale but merely a mortgage; that it was made to appear as a sale subject to the
agreement that the plaintiffs may repurchase the property within a period of
four months from the date of the sale; that of the stated consideration of
P20,000.00, the plaintiffs received only P18,000.00, the balance of P2,000.00
having been deducted by Mercedes Teehankee Rivera by
way of usurious interest for the period of four months; that the 3-bedroom
bungalow is worth P70,000.00, while the appliances, fixtures and furnitures contained therein are worth P40,000.00; and that
the execution of the deed of sale, Exhibit A, was attended by fraud and
effected by means of misrepresentation and other forms of machinations.

The defendants filed a common answer, denying the material
allegations of the complaint and alleging as a special defense that the plaintiffs requested and were
granted by the defendants the right to occupy the bungalow up to December, 1971
at a monthly rental of P250.00.

The Court a quo dismissed the complaint for the
principal reason that the plaintiffs failed to adduce sufficient evidence to
establish in a satisfactory manner their allegation that the execution of the
deed of sale, Exhibit A, was attended by fraud and misrepresentation and other
forms of machinations.

The petitioners raise the following errors:^[3]

I.

THE COURT OF APPEALS ERRED IN ALLOWING A CHANGE OF THEORY ON
APPEAL, AND RENDERING JUDGMENT BASED ON THIS NEW THEORY OF PRIVATE RESPONDENTS.

II.

THE COURT OF APPEALS ERRED IN CONSIDERING A THEORY ADVANCED BY PRIVATE RESPONDENTS, AND DECIDING THE CASE IN CONFORMITY THEREWITH WHEN THE SAME WAS NOT EVEN
DISCUSSED OR ARGUED IN RESPONDENTS’ BRIEF.

The crux of the controversy is whether or not there was indeed a
change of theory when, in the complaint, the plaintiffs (private respondents)
prayed for the declaration of the
nullity of the Deeds of Sale (Annexes A and B, Complaint) while, on appeal,
they prayed that they be allowed to redeem the property.

The petitioners contend
that the theory of the private respondents in the court a quo is that the Deed
of Sale (Annex “A”) is null and void as the same does not reflect the
real transaction between the parties, their true agreement being merely a loan, and
that the Deed of Absolute Sale was intended to hide a usurious transaction.  The petitioners submit that this theory is
supported by the private respondents’ prayer in their complaint that the Deed
of Sale be declared null and void.  Hence, the petitioners submit that a
drastic change of theory occurred when on appeal, the private respondents, in
their brief, prayed that they be allowed “to redeem the property with its
appliances worth more than P20,000.00.” The
petitioners argue that “to claim one has the right to repurchase the
property would be to (up)hold in the same instant the validity of the sale,
because if there was no valid sale in the first place, there can be no right to
repurchase.  The so-called right to
repurchase is not an independent right, for necessarily, it is always attached
to a valid sale.”

On the other hand, the
private respondents counter that they did not change their theory as contained in their complaint.  On appeal, they averred that the alleged
change of theory is a mere conclusion of the petitioners not supported by the
pleadings.  Further, they maintain that though
it may be apparent, the claimed change of theory is not real because only the
pleadings filed and the evidence presented in the trial court were considered
on appeal; moreover, the complaint prayed “for such other reliefs as may be deemed just and equitable.” And
then, although they did not specifically pray in their complaint that they be
allowed to redeem the property in
question, they argue it can be
clearly inferred from their allegations that they offered to sell the property to petitioner Rivera with the agreement that they be given the right to
repurchase within four months from the date of sale.

The private respondents’ position is well-taken.  There was no change of theory of the case on
appeal.  There was no surprise sprang on
the petitioners in the Court of Appeals, which surprise, after all, is the
raison d’etre of the prohibition against such a
change of theory.  The injunction against
change of theory on appeal insures fairness in the proceedings; in other words,
fair play or due process bars
flip-flopping.

The theory of the case simply refers to the facts on which the
cause of action is based.  The facts are
those alleged in the complaint and satisfactorily proven at the trial.

If the defendant believes that he can not intelligently answer,
or otherwise plead, due to some vagueness or uncertainty in the allegations of
the complaint, he can either move to dismiss^[4]
or ask for a bill of particulars.^[5] Thus, in an early case,^[6] which is almost on all fours with the case
at bar, we stated:

(1)     In discussing the
first point (that “the court below decided the case against her upon a
theory different from that presented by the pleadings”), counsel insists
that the object of the fourth cause of action as set forth in the complaint,
was merely the annulment of the agreement of May 10, 1918, and did not include
the redemption from the sale with the right to repurchase, nor a declaration that the sale was made
for the purpose of securing a loan and, therefore, was only an equitable
mortgage.

It is true that paragraph (c) of the prayer of the complaint might
lead one to believe that only the annulment of the agreement in question was
sought, but examining the allegations of the body of the complaint, especially
paragraph (5) of the fourth cause of action, it will be found that facts are
stated which, if true, are sufficient to sustain the judgment of the court
below in regard to the character of the transactions between the plaintiff and
the defendant Luisa Lim, and it is a well-known rule of pleading that the character of
the cause of action is not determined by the prayer of the complaint, but by
the facts alleged (21 R.C.L., 489; sec. 126, Code of Civil Procedure.)

The allegations were also sufficient to inform the defendants of
the nature of the plaintiff’s claims and to enable them to prepare their
defense.  These requirements fulfilled,
the theories entertained by the parties become comparatively unimportant, as
far as the soundness of the judgment is concerned.  If the complaint was so
vague and uncertain as to leave the defendants in doubt in regard to its
meaning, timely objection should have been made by demurrer or by a motion to
make the complaint more specific.

In the instant case, as correctly
pointed out by the private
respondents, the Court of
Appeals based its decision, now assailed before us, on all the pleadings filed
and on the evidence presented in the court a quo.

The complaint filed by
the private respondents in the trial court a quo specifically avers:

3.  That sometime in June,
1971, plaintiffs offered to sell aforesaid property to defendant Mercedes Teehankee Rivera for Twenty Thousand (P20,000.00) Pesos
with the agreement that plaintiffs be given the right to repurchase the same
within the period of four (4) months from and after the date of sale to which
defendant agreed.

4.  That in accordance with
the agreement mentioned in the next preceeding
paragraph, defendant Mercedes Teehankee Rivera then
prepared a document purportedly to be a sale with right to repurchase of
above-described property but included therein without the knowledge and consent
of plaintiffs all the furniture, appliances and fixtures in the said bungalow,
and by means of machinations and misrepresentations convinced plaintiffs to
sign the said document which later was discovered by plaintiffs to be a Deed of
Absolute Sale.  A copy of said Deed of
Absolute Sale is hereto attached as Annex “A” and made an integral
part of this complaint.

And then the same complaint prays, among
others, that the Deeds of Sale, Annexes “A” and “B” thereof,
be declared null and void.  Prescinding from those allegations and from the prayer all
clearly set out in the complaint, it is fair to conclude that the real purpose
in asking for the nullity of the contract of sale is to enable the private
respondents to recover or redeem the property they deeded in favor of Mercedes Teehankee Rivera. 
Thus the nature of the contract has been raised as an issue in the
pleadings.  It would be absurd to pray
for the nullity of an agreement and stop there. 
There would be a vacuum and the law, like nature, abhors a vacuum.

The private respondents’
first assignment of error (denominated grandly as “First Error of Civil
Justice”) in their brief in the Court of Appeals clearly shows that they
persisted in their claim to entitlement of the right to recover, redeem, or
repurchase.  Thus, they interpose that
“the court a quo erred in not annulling the sale and allowing the
plaintiffs-appellants to repurchase the property in question.” This
assignment can not be construed as change of theory; it is persistence, plain
and simple.  It does not leave any
interstice in the entire theory of the case. 
Consistency in the position of the private respondents runs throughout
the presentation of their advocacy.

From the foregoing, we
therefore find no reversible error in the findings and conclusions^[7] of the Court of Appeals, to wit:

It being our finding that the contract entered into between the
plaintiffs and defendant Mercedes Teehankee Rivera
was in reality a sale with a right of repurchase, and the true nature of the
contract having been raised in the pleadings, the plaintiffs are entitled to
exercise the right to redeem the property within thirty (30) days from the
finality of this judgment pursuant to the last paragraph of Article 1606 of the
New Civil Code.  The circumstance that
the property had been sold by Mercedes Teehankee
Rivera to the Lunod spouses is no bar to the exercise
of this right.  The right to redeem is a real right (Mortena
vs. Martinez, 14 Phil. 541), and may be exercised against every possessor whose
right is derived from the vendee a retro even if the second
contract makes no mention of
the right of repurchase (Art. 1608, Ibid.).

WHEREFORE, the petition is DENIED.  The decision of the respondent court is
AFFIRMED.

Costs against the petitioner.

THIS DECISION IS IMMEDIATELY EXECUTORY.

SO ORDERED.

Melencio-Herrera, (Chairman), Paras, and Padilla, JJ., concur.

* Vasquez, Conrado
M., ponente; Leuterio, Jose
N. and Escolin, Venicio, JJ., concurring.

^[1]
Decision, Court of Appeals, 14-15; rollo,
39-40.

^[2]
Id., 1-4; rollo, 26-29.

^[3]
Brief for the Petitioners, 1-4; rollo,
64 (9).

^[4]
Rule 16, The Revised Rules Of Court In The Philippines.

^[5]
Id., Rule 12.

^[6]
Cabigao vs. Lim, 50 Phil. 844, 857-858.

^[7]
Decision, Court of Appeals, 39.