AMADOR IBARDOLAZA, PETITIONER, VS. THE HON. FELIX V. MACALALAG, JUDGE OF THE COURT OF FIRST INSTANCE OF AKLAN, PILAR C. TUMBOKON, JOSE M. CONCEPCION, ET AL., RESPONDENTS.

Upon a claim that he was turned away because the judge
arbitrarily refused to set aside the order of general default in a land
registration case,^[1]
petitioner comes to this Court on certiorari to test the validity of such
refusal order.

The present case came about because on July 30, 1963 in the land
registration case referred to, respondent judge issued an order of general
default, referred the case to a commissioner for reception of evidence.  Petitioner’s evidence was thereupon taken.  No decision has up to now been rendered.  It is upon the averment in a verified motion
that he is an owner of some 110,000 square meters of land forming part of Lot
No. 2, one of the three lots applied for by private respondents, that
petitioner sought to set aside the order of general default.  He pleaded accident or mistake.  This was disposed of in a minute order of
November 9, 1963 adverse to petitioner. 
Petitioner’s motion to reconsider of November 20, 1963, with an
affidavit of merits, suffered the same fate in a similar order of December 21,
1963.

1.     
Few phrases in law are elusive of
exact definition as the term “grave abuse of discretion”.  Primarily to be assessed in ascertaining
whether or not grave abuse of discretion is present in a given case, are the
environmental facts.  With this criterion
in mind, we must say that petitioner’s argument directed at its existence, knocks at an open door.

First.  By Section 32 in relation to Section 21 of
the Land Regis­tration Act, all occupants of and persons with adverse claims to
lands sought to be registered are entitled – in addition to notice by
publication to personal notice of initial hearing by mail, registered if
practicable.  And yet, the notice sent
out by the clerk of court failed to include petitioner’s name and address.  Because, respondents omitted specific mention
of his name in the application, although it recites that a portion of Lot 2
“was occupied by Celestino Ibardolaza
and his family during the war by permission of Mrs. Pilar
C. Tumbokon, as evacuation place.” The omission
of petitioner’s name as possessor with Celestino Ibardolaza of that portion could be an oversight.  Nonetheless, this is a fact known to
respondents.  For, as early as March 22,
1954, the attorneys for the respondents wrote petitioner and Celestino Ibardolaza a letter
stating that the latter were “illegally occupying” the disputed
portion and requesting them “to come to a conference with us anytime
within a period of ten (10) days from receipt of this letter, so that if
possible we can thresh out your differences with our clients regarding the
land, and at the same time take up certain points beneficial to all
concerned.” As he was not mentioned in the notice of initial hearing sent
out by the clerk of court and published in the Official Gazette, petitioner’s averment
of lack of notice and lack of knowledge of the initial hearing, as basis for
excusable negligence, is not at all without basis.  It is really not improbable that he could not
have read the notice as it was published in the Official Gazette.  And then, petitioner’s affidavit states that
he had been oftentimes in the land he claims, and yet, he “neither
saw” nor “had knowledge of the notice posted thereon regarding such
application for registration or initial hearing.”

Second.  The burden
of petitioner’s gripe before this Court is that substantial justice was denied
him when respondent judge refused to set aside the order of general default and
to decide the respective claims of petitioner and respondents in a full-dress
trial on the merits.  He sought relief
below barely 27 days after the order of general default.  No decision has thus far been rendered on the
basis of respondents’ evidence presented ex parte.

Not that petitioner’s claim of ownership is to be brushed aside
as without merit.  His affidavit says
that he has “continuously pos­sessed, usufructed
and exercised dominion over the same for a period of over 25 years against the
claim of third party whomsoever, including applicants, in concept of owner,
publicly, adversely and peacefully”; that he had declared it for taxation
purposes, paid the taxes thereon; that he had made improvements on the portion
afore­said; and that in fact, he has his fishpond in the portion of land he
asserts as his.

It is in the context heretofore recited that we say that it would
have been far better to risk a little delay rather than in a sweeping manner
foreclose that man’s right to property. 
A principle deeply ingrained in our judicial system is the right to be
heard.  And this should not be denied
absent a substantial prejudice to the adverse party and in the face of a good
and substantial defense.  There is,
indeed, reason to complain that the order under review contravenes the basic
dictates of fairness.

2.     
And still, there is a suggestion
in the record of this case before us which should not be easily shrugged
off.  We note in petitioner’s affidavit
(attached to and in support of his motion for the reconsideration of the order
below) that the northern portion of Lot 2 in
dispute is not hereditary property of petitioner, “but an accretion
which movant-petitioner has for a long time occupied
and cultivated.” Respondents join issue with this averment^[2]
that that accretion belongs to them.  The
notice of initial hearing issued by the clerk of court, however, says that the
northern and northeastern portion of Lot 2 is bounded by
the Sibuyan Sea.  And this is precisely the portion in dispute
because the application itself says that this disputed land is “on the
northern side bordering the shore part of Lot
2.” These averments could be true; or, they might not be true.  At any rate, this point is worth exploring
into.  And this to enable the State to
assert its claim, if warranted, to the portion disputed.^[3]

3.     
The order of general default,
practice teaches us, is not always rigidly to be adhered to.  The Land Registration Act is to be read as
meaning that the order of general default is not an inflexible judicial act
such as would shut off a meritorious claim thereafter presented.  Indeed, judicial actuations upon a motion to
set aside a general default order must move within accepted notions of justice
and fairness.  As we concede the
discretion of the court in the matter of lifting the order of general default,
it would perhaps be appropriate to say that an arbitrary stretch of authority
needful to no justifiable ends should be avoided.  Because the right of an applicant must be
equated with a claimant’s right to oppose and establish a case for ownership in
himself.

On balance, we say that petitioner has made out a case of grave abuse
of discretion which calls for the corrective powers of this Court.

Upon the record, judgment is hereby rendered (1) granting the
petition for a writ of certiorari; (2) setting aside the order of July 30, 1963; and (3) directing the
Court of First Instance of Aklan to permit petitioner
to file his opposition to the application for land registration in Land
Registration Case No. K-125 (LRC Record No. N-22879) of said
court, covering the application of Pilar C. Tumbokon, et al., for the registration of title to land,
and thereafter to take appropriate proceedings therein.

Costs against respondents other than respondent
judge.

Let a copy of this decision be forwarded to the Director of Lands
and to the Solicitor General to enable the State to ascertain whether or not
the portion of land claimed by petitioner is public land and to take
appropriate action.

SO ORDERED.

Reyes, J.B.L., (Acting C.J.), Dizon, Makalintal, Bengzon, J.P., Ruiz Castro,
Angeles, and Fernando, JJ., concur.

^[1]
Application was filed on September 26,
1962, amended on November
10, 1962, in the Court of First Instance of Aklan
and docketed as Land Reg. Case No. K-125 (LRC Record No. N-22879), entitled
“Application for Registration of Title to Land, Pilar
C. Tumbokon, et al., Applicants.”

^[2] See:
Respondents’ Answer, p. 7.

^[3]
Land formed by the action of the sea is property of the State.  Ignacio vs. Director of Lands, 58 O.G.
No. 12, pp. 2403, 2404-2405; Joven vs.
Director of Lands, 93 Phil. 134, 135-136.