REPUBLIC OF THE PHILIPPINES, PETITIONER, VS. HON. WENCESLAO M. POLO, PRESIDING JUDGE, COURT OF FIRST INSTANCE OF SAMAR, BRANCH V (CALBAYOG CITY); BASILIO ROSALES, TRINIDAD D. EN…

This case is about the timeliness of the Government’s appeal in a
land registration case.  The Court of
First Instance of Samar in a decision dated May 10, 1978 in LRC Case No. N-86-CC granted the
application of Basilio Rosales, Herminigildo Rosales, Trinidad D. Enriquez,
Jose Roño, Maria S. Quesada, Cesar Dean, Aurora Soliman and Jaime Roco for the
registration of thirteen lots (including a small island), with a total area of
about seven hectares, located at Barangay Malahug, Tinambacan, Calbayog City.

A copy of that decision was received in the Solicitor General’s
Office on May 25, 1978.  On June
23, 1978 or twenty-nine days after service of the said decision,
the Solicitor General filed a motion for reconsideration.  A copy of the order denying that motion was
received in the Solicitor General’s office on August 18, 1978.  On
that same date, he filed a notice of appeal and a motion for an extension of
thirty days from August 19 (last day of the thirty-day reglementary period)
within which to file the record on appeal. 
The motion for extension was not acted upon.  The record on appeal was filed on September 15, 1978 or within the period
sought in the motion for extension.

The lower court disapproved the record on appeal and did not give
due course to the Government’s appeal because the record on appeal was
allegedly filed out of time.  The lower
court reasoned out that the thirty-day period should be computed, not from May 25, 1978, when the Solicitor
General was served with a copy of the decision, but from May 11, 1978, when the city fiscal of Calbayog
City, who represented the Solicitor
General at the hearings, was served with that decision.

Disagreeing with that order, the Solicitor General, in behalf of
the Republic of the Philippines,
filed this petition for review to compel the lower court to give due course to
the appeal.  The case may be treated as a
mandamus action to require the trial court to allow the Government’s
appeal (Sec. 15, Rule 41, Rules of Court).

The issue is whether the thirty-day period should be reckoned
from the service of the decision upon the fiscal or from the time it was served
upon the Solicitor General.

We hold that the thirty-day period should be counted from the
date when the Solicitor General received a copy of the decision because the
service of the decision upon the city fiscal did not operate as a service upon
the Solicitor General.

It should be clarified that, although the Solicitor General
requested the city fiscal to represent him in the trial court, he,
nevertheless, made his own separate appearance as counsel for the State.  In that “notice of appearance”, he
expressly requested that he should be served in Manila with “all notices
of hearings, orders, resolutions, decisions and other processes” and that
such service is distinct from the service of notices and other papers on the
city fiscal.

The Solicitor General also indicated in his “notice of appearance”
that he “retains supervision and control of the representation in this
case and has to approve withdrawal of the case, non-appeal, or other
actions which appear to compromise the interests of the Government” and
that “only notices of orders, resolutions and decisions served on him
will bind” the Government.

The Solicitor General in requesting the city fiscal to represent
him at the hearings called the attention of that official to Circular No. 41 of
the Secretary of Justice dated November 28, 1973 wherein provincial and city
fiscals were advised that, in cases where they represent the Solicitor General,
“service on the Solicitor General shall be the basis” “for
the purpose of finality of the decision“.

In this case, it is obvious that, strictly speaking, the city
fiscal did not directly represent the Government.  He was merely a surrogate of the Solicitor
General whose office, “as the law office of the Government of the Republic
of the Philippines”,
is the entity that is empowered to “represent the Government in all land
registration and related proceedings” (Sec. 1[e], Presidential Decree No.
478).

The trial court in disallowing the Government’s appeal relied on
the ruling that the service of the decision in a land registration case on the
fiscal is necessarily a service on the Solicitor General (Republic vs. Reyes,
L-35545, June 18, 1976, 71 SCRA 426, 436-437).

That ruling is not applicable to this case because in the Reyes
case the fiscal, as representative of the Solicitor General, was authorized not
only to attend hearings but also to file pleadings for the Government.  In the instant case, the city fiscal’s
authority was confined to attending the hearings.  The office of the Solicitor General was the
one that filed the pleadings and motions in the lower court.

The Solicitor General in his petition herein observed that it was
the ruling in the Reyes case that prompted his office “to revise
completely the letter of authority to fiscals representing” him by making
it clear that it is the service of the decision on the Solicitor General that
would bind the Government.

The respondents contend that the petition for review is
unwarranted because the Solicitor General stated in his notice of appeal that
he was appealing to the Court of Appeals. 
They argue that the petition is not a special civil action of certiorari
since no jurisdictional errors were committed by the trial court and,
therefore, this Court should not entertain the petition.

As already stated, the petition should be regarded as an action
for mandamus.  That petition could
have been filed in the Court of Appeals in aid of its appellate jurisdiction
(Sec. 30, Judiciary Law).  But it was
also properly filed in this Court which has concurrent
jurisdiction with the Court of Appeals to issue the writ of mandamus
(Breslin vs. Luzon Stevedoring Co., 84 Phil. 618, 625; Salva vs. Palacio, 90
Phil. 731, 734).

The private respondents further contend that the Solicitor
General’s motion for reconsideration, which was filed on June 23, 1978 or on
the twenty-ninth day, did not interrupt the period for appeal because they were
personally served with a copy of the motion on June 27, 1978 or three days
after the expiration of the period.  They
invoke the ruling that a motion for reconsideration, which was not served upon
the adverse party, could not be entertained and did not interrupt the period
for appeal (Cabatit vs. Court of Agrarian Relations, 120 Phil. 56; National
Development Company vs. CIR and National Textile Workers Union, 116 Phil.
1085).

The instant case is not a case where there was no service at all
of the motion for reconsideration.  It is
a case where the service of the motion was late.  But the tardiness is more apparent than real
because if the Solicitor General’s office, on June 23, 1978, had opted to send
a copy of that motion to the private respondents by registered mail, that copy
would have reached them most likely after June 27, 1978, when they were personally
served with a copy thereof.  (See ruling
that in the interest of justice, this Court may except
a particular case from the operation of its own rules.  U.S.
vs. Breitling, 15 L. ed. 900, 902; C. Viuda de Ordoveza vs. Raymundo, 63 Phil.
275, 278; Republic vs. Court of Appeals, L-31303-04, May 31, 1978.)

WHEREFORE, we hold that the appeal was perfected
seasonably.  The trial court’s order
disallowing petitioner’s appeal is reversed and set aside.  It is directed to pass upon the record on
appeal, and, if found to be sufficient, to give due course to petitioner’s
appeal.  No costs.

SO ORDERED.

Antonio, Concepcion, Jr., Santos, and
Abad Santos, JJ., concur.

Fernando, J., (Chairman), concurs
in both opinions.

Barredo, J., see concurring opinion.

CONCURRING OPINION

BARREDO.. J.: 

I concur.

Independently of the specific qualifications contained in the appearance of the Solicitor General which in effect gave notice to  the court and the adverse parties of the limited extent of the authority  of any other attorney who might appear in the case in behalf of the  Republic of the Philippines, of which by law the Solicitor General is  the sole authorized counsel, for which reason, the Republic cannot  be bound by any notice to such other attorney, much less by any  omission of the latter otherwise fatal, it is important to reiterate  here that service of pleadings and processes is legally effective only  when it is made to the counsel of record, and the mere fact that  an attorney appears at the trial or at any stage of the proceedings  in collaboration with or in representation of the former does not  make the latter a counsel of record. For the reasons stated in the  main opinion, I agree that the ruling in Republic v. Reyes does not  hold in the case at bar.

Unlike in the making of an appeal under Section 3 of Rule 41 in which it is required to also serve upon the adverse party the notice  of appeal, the appeal bond and the record on appeal within the period  that the said notice, bond and record should be filed with the court, there is no such requirement of service of the motion for new trial  within the period for appeal under Rule 37. Neither is there such  a requirement under Rule 38 relative to the petition for relief. But,  of course, it is indispensable that the adverse party be duly notified  of the hearing of the motion for new trial. Reasonably construed,  Section 6 of Rule 15 does not imperatively mandate that if the notice  of hearing is not served within the period specified in Section 4 of  the same rule (at least three (3) days before the hearing) the court  must deny the motion. In case of any delay, it is within the discretion  of the court as the interests of justice may require under the obtaining  circumstances of the case to order the corresponding service before  hearing and acting on the motion.