G.R. No. L-29467. June 30, 1970
GENEROSO VILLANUEVA TRANSIT CO., INC., PETITIONER, VS. DOLLY C. JAVELLANA, PUBLIC SERVICE COMMISSION, RESPONDENTS.
ZALDIVAR, J.:
Petition for review of the decision of the Public Service
Commission, in its Case No. 67-1712, granting the application of respondent
Dolly C. Javellana for a certificate of public
convenience to operate a taxicab automobile service in the island
of Negros.
Respondent Dolly C. Javellana filed
with the Public Service Commission an application to operate a taxicab automobile
service in Bacolod
City, and from the said City to any
point in the island of Negros open to motor vehicle
traffic, and vice-versa, with the use of thirty (30) units. In her application said respondent alleged,
among others, that she is of legal age, a Filipino citizen, financially capable
to operate the proposed service, and that public necessity and convenience
demands the approval of the application.[1]
Petitioner Generoso Villanueva
Transportation Co., Inc. and Vicente Tañedo, through
counsel, opposed the application. At the
hearing, however, only oppositor Generoso
Villanueva Transportation Co., Inc. appeared through counsel, and so the
opposition of the other oppositor was dismissed for
lack of interest. Herein petitioner (oppositor below) premised its opposition on the grounds,
namely, (1) that oppositor with other taxicab service
operators are rendering adequate, efficient, and satisfactory service in the
territory covered by the application; (2) that applicant is not financially
capable to operate and maintain the proposed service; and (3) that the grant of
the application would cause ruinous competition.[2]
At the hearing on June 7,
1968 applicant presented her evidence, oral and documentary,
after which she rested her case. Counsel
for herein petitioner, however, without presenting any evidence, orally moved
for the dismissal of the application upon the ground that the applicant failed
to prove her Filipino citizenship and her financial capacity, and asked for
time to submit a written memorandum in support of his motion. At that juncture, counsel for herein petitioner
was admonished by the Commissioner hearing the case that an adverse resolution
of his motion to dismiss would imperil his client’s case for he would be barred
from introducing evidence in support of the opposition. Notwithstanding the admonition, counsel
submitted his memorandum, praying “that this application be ordered
dismissed, and in the alternative this case be set for hearing for the,
presentation of the evidence of oppositor.”[3]
On August 26, 1968,
respondent Public Service Commission rendered its decision, denying herein
petitioner’s motion to dismiss, and at the same time – in the same decision –
approved the application. It is this
decision that is now sought to be reviewed in the instant case.
In its petition for certiorari with writ of preliminary mandatory
injunction, which this Court has considered as a petition for review,[4]
petitioner prayed that the decision be set aside and that respondents Public
Service Commission and Dolly C. Javellana be directed
to “desist and refrain from carrying out in any manner the decision in
question, particularly the registration thereof, upon posting by the petitioner
herein of such bond as this Honorable Court should require.”[5]
On September 26, 1968, petitioner filed a petition before this
Court praying for the issuance of a writ of preliminary injunction restraining
the respondent Public Service Commission from issuing an order extending the
period of the registration of the thirty taxicab units asked by respondent Javellana, and that the latter be also enjoined from
registering said units in the Land Transportation Commission Agency, Bacolod City, and from operating under taxi denomination
the 30 units authorized in the decision.
Acting on the petition this Court, on October 1, 1968, issued a
temporary restraining order prohibiting respondent Public Service Commission
“from issuing an order extending the period of time for the registration
and operation of the thirty (30) taxicab units of herein respondent Dolly C. Javellana” – … and respondent Javellana
“from operating under taxi denomination the thirty (30) taxi units
authorized in the decision… -“[6]
On November 6, 1968 respondent Javellana
filed a motion to lift the temporary restraining order, and also her answer to
the petition wherein she questions the propriety of the petition for
certiorari, on the ground that petitioner had a plain, speedy, and adequate
remedy which was a motion for reconsideration of the decision, but which was
not availed of; that petitioner cannot complain of having been deprived of its
day in court because it waived said right when it agreed to have the
application case submitted for decision without presenting evidence to support
its opposition; that petitioner never questioned the citizenship of applicant
in its opposition; and that applicant is, as per finding of fact of the
Commission, financially capable to maintain and operate the proposed
service. In a resolution, dated November 19, 1968, this Court denied
the motion to lift the temporary restraining order.
On February 6, 1969
respondent Javellana filed a motion for the
dissolution of the temporary restraining order issued on October 1, 1968, on the ground that petitioner
had not filed a bond. By resolution,
dated February 12, 1969,
this Court resolved to issue a writ of preliminary, injunction upon
petitioner’s posting a bond of P2,000.00.
On May 24, 1969
respondent Javellana filed a motion for the
dissolution of the preliminary injunction, alleging the insufficiency of
petitioner’s bond and offering to put up a counterbond
double the amount of the bond filed by petitioner. This Court denied the motion for dissolution
of the preliminary injunction, but required petitioner to increase his bond to
P8,000.00.
On July 10, 1969,
petitioner filed a motion to declare respondent Javellana
in contempt of court upon the ground that in spite of the writ of preliminary
injunction, said respondent had persistently operated two taxicab units for the
year 1969. In her comments on the
motion, respondent Javellana admitted having
registered two units on September 3 and September
25, 1968, that is, prior to the temporary restraining order which
was issued by this Court on October 1,
1968; and that the renewal of the registration in 1969 was not
covered by the injunction. In reply to
the explanation, petitioner argued that both the temporary restraining order
of October 1, 1968 and the writ of preliminary injunction of February 19, 1969
restrained respondent Javellana “from
registering” and also “from operating under taxi denomination”
the 30 taxi units. The motion for
contempt has not been resolved.
In its brief, petitioner assigns the following errors, allegedly
committed by respondent Public Service Commission:
I. The Public Service
Commission erred in denying the motion to dismiss in the decision itself and
granting the certificate of public convenience in question without giving an
opportunity to petitioner to present its evidence in opposition depriving it
of its day in court.
II. The Public Service
Commission erred in holding that respondent Javellana
has proven that she is a Filipino citizen.
III. The Public Service
Commission erred in issuing the certificate of public convenience in question
considering that on the evidence and records of this case respondent is
unquestionably financially incapable of operating and maintaining the proposed
service.
The instant case may be disposed of by resolving the issue raised
in the first error assigned.
In support of the first assignment of error, petitioner argues
that the motion to dismiss should have been denied in an order separate from
the decision, in order to give petitioner an opportunity to file a motion for
reconsideration of the order of denial; that in rendering its decision, denying
therein the motion to dismiss and not allowing petitioner to present evidence
in support of its opposition, the Public Service Commission barred the
petitioner from presenting evidence in support of its opposition, and thus
violated Section 1 of Rule 35 of the Rules of Court, and denied petitioner the
due process of law.
Respondent Javellana, on the other
hand, argues that petitioner cannot complain of having been denied its day in
court because it waived its right to present evidence in support of its
opposition, and preferred to file a memorandum to substantiate its motion to
dismiss instead of presenting evidence, and its counsel even expressed his
preference to take the risk of the result of his motion to dismiss, in spite of
the admonition of the Commission that he had better present his evidence.
We sustain the stand of petitioner. The right of a defendant who files a motion
to dismiss for insufficiency of plaintiff’s evidence, or a demurer to the
evidence, is specifically provided for in Rule 35, of the Rules of Court, the
lone section of which provides as follows:
“Section 1. Effect
of judgment on demurer to evidence.
After the plaintiff has completed the presentation of his evidence, the
defendant without waiving his right to offer evidence in the event the motion
is not granted, may move for a dismissal on the ground that upon the facts and
the law the plaintiff has shown no right to relief. However, if the motion is granted and the
order of dismissal is reversed on appeal, the movant
loses his right to present evidence in his behalf.”
This Court applied this rule in the case of Director of lands vs.
Ceniza[7],
wherein the Director of Lands, as oppositor to the
application for registration, orally moved, thru counsel, after the applicant
had presented his evidence, for the dismissal of the application upon the
ground of insufficiency of evidence.
The trial court denied the motion to dismiss, and considered the case
submitted for decision without allowing the opposition to present
evidence. Alleging before this Court
that the respondent judge neglected to perform an act which the law
specifically enjoined as a duty resulting from his office, and that said judge
excluded him from the enjoyment of a right to which he was entitled — the duty
to give every party to a litigation a reasonable opportunity to be heard and
his right to present his side, this Court held that under Section 1, Rule 35 of
the Rules of Court it was “evident that the respondent court, in the case
at bar, after denying the motion to dismiss, for insufficiency of evidence
(demurer to evidence), should have permitted the petitioner-defendant to
present his own evidence, notwithstanding its failure or omission to make a
reservation to that effect; more so, as in this particular case, when the
petitioner-defendant had asked to be given a day in court in order to defend
the government’s title to a 78-hectare parcel of land”.
In Siayngco vs. Costibolo,[8]
the issue on the legal effects and consequences of the defendant’s motion to
dismiss, or demurer to evidence, was raised.
The trial court therein ruled that the defendants, after moving to
dismiss the case after the presentation, of plaintiff’s evidence, were
understood to have waived their right to present their evidence,
notwithstanding their reservation, and plaintiff could take judgment according
to the evidence already on record. Petitioners
in that case complained that they had been deprived of their day in court. This Court, speaking through Mr. Justice Teehankee, reaffirmed the doctrine laid down in Director of
Lands vs. Ceniza supra, and gave the rationale
behind Section 1, Rule 35 of the Rules of Court, saying:
“The rationale behind the rule and doctrine is simple and
logical. The defendant is permitted,
without waiving his right to offer evidence in the event that his motion is not
granted, to move for a dismissal (i.e, demur to the
plaintiff’s evidence) on the ground that upon the facts as thus established and
the applicable law, the plaintiff has shown no right to relief. If the trial court denies the dismissal
motion, i.e. finds that plaintiff’s evidence is sufficient for an award of
judgment in the absence of contrary evidence, the case still remains before the
trial court which should then proceed to hear and receive the defendant’s
evidence so that all the facts and evidence of the contending parties may be
properly placed before it for adjudication as well as before the appellate
courts, in case of appeal. Nothing is lost. The doctrine is but in line with the
established procedural precepts in the conduct of trials that the trial court
liberally receive all proferred evidence at the trial
to enable it to render its decision with all possibly relevant proofs in the
record, thus assuring that the appellate courts upon appeal have all the
material before them necessary to make a correct judgment, and avoiding the
need of remanding the case for retrial or reception of improperly excluded
evidence, with the possibility thereafter of still another appeal, with all
the concomitant delays. The rule,
however, imposes the condition by the same token that if his demurer is granted
by the trial court, and the order of dismissal is reversed on appeal,
the movant loses his right to present evidence in
his behalf and he shall have been deemed to have elected to stand on the
insufficiency of plaintiff’s case and evidence. In such event, the appellate court which
reverses the order of dismissal shall proceed to render judgment on the merits
on the basis of plaintiff’s evidence.
The Public Service Commission’s disregard of Rule 35 cannot be
justified on the ground that the Commission is not strictly bound by the
technical rules of procedure and evidence.
A rule of procedure such as that provided in Rule 35, Section 1, concerning
the opportunity of a litigant to present his evidence in support of his side on
matters before the court, which may affect his rights, can hardly be classified
as a technical rule. The process
requires that every person shall have his day in court and be given an
opportunity to be heard in order to establish any fact which will protect his
rights.[9]
It cannot be said either, that herein petitioner waived his right
to present evidence in support of his opposition, as the Public Service
Commission said in its decision, and stressed by respondent, when
“counsel for oppositor was
admonished that an adverse resolution on his motion to dismiss would imperil
his client’s case for he would be barred from introducing evidence in support
of the opposition x x x
Counsel nevertheless decided to take said risk and agreed to have the case
submitted after submission of his memorandum in support of his oral motion to
dismiss.”[10]
It is untenable that a mere admonition by the Public Service
Commissioner would suffice to take away a right granted by law to a party to a
case — that is, the right to present evidence in support of his
opposition. Neither can it be said that
petitioner by the mere filing of the demurer to evidence waived his right to
present evidence, because Rule 35, Section 1, expressly provides that the filing
of such motion to dismiss is not a waiver of the right to offer evidence in the
event the motion is not granted.
Moreover, counsel for petitioner herein expressly reserved said right,
when in his memorandum in support of the verbal motion to dismiss he
“respectfully prayed that this application be ordered dismissed and in
the alternative this case be set for hearing for the presentation of the
evidence oppositor.”[11] Waiver of a right must be express, made in a
clear and unequivocal manner.[12]
It is clear, therefore, that the Public Service Commission
arbitrarily disregarded the right of herein petitioner to present evidence in
support of its opposition, and so the decision in question should be set aside.
WHEREFORE, the decision of the Public Service Commission,
dated August 26, 1968, in
Case No. 67-1712 is set aside, and the certificate of public convenience issued
in accordance thereto is revoked. This
case is remanded to the Public Service Commission, for further proceeding
whereby herein petitioner (oppositor below) is given
opportunity to present evidence in support of its opposition. The writ of Preliminary injunction issued by
this Court on February 19, 1969
is made permanent insofar as it relates to the decision herein, set aside. Costs at this instance against respondent
Dolly C. Javellana.
IT IS SO ORDERED.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Castro,
Fernando, Teehankee, and
Barredo, JJ., concur.
Villamor, J., on leave.
[1]
Annex A to petition; page 7 of the record.
[2]
Annex C to petition; page 9 of the record.
[3]
Annex D to petition; pages 10-12 of the record.
[4] Resolution
of November 26, 1968; page
55 of record.
[5]
Prayer of petition; page 6 of record.
[6]
Page 30, of the record.
[7]
G. R. No. L-18527, June 29, 1963;
8 SCRA 436.
[8]
G. R. No. L-22506, February 28, 1969;
27 SCRA 272.
[9]
State vs. Sax, 18 ALR2d 929; 231 Minn 1, 42 NW2d 680.
[10]
Decision in Case No. 67-1712, p. 2; page 14 of the record.
[11]
Record, page 12; underscoring supplied.
[12]
Lang vs. Provincial Sheriff of Surigao, et
al., 93 Phil. 661.