NICANOR NACAR, PETITIONER, VS. CLAUDIO A. NISTAL AS MUNICIPAL JUDGE OF ESPERANZA, AGUSAN DEL SUR; PROVINCIAL SHERIFF OF AGUSAN DEL SUR, ILDEFONSO JAPITANA AND ANTONIO DOLORICON,…

Nicanor Nacar
filed this petition for certiorari, prohibition, and mandamus
with preliminary injunction to annul an order of the respondent judge of the
municipal court of Esperanza, Agusan del Sur directing the attachment of seven (7) carabaos, to effect the return of four (4) carabaos seized under the questioned order, and to stop the
respondent judge from further proceeding in Civil Case No. 65.

Respondent Ildefonso Japitana filed the complaint in Civil Case No. 65 and
entitled it “Claim Against the Estate of the Late
Isabelo Nacar With
Preliminary attachment.” On the
basis of this complaint, including an allegation “that defendant are (sic)
about to remove and dispose the above-named property (seven carabaos)
with intent to defraud plaintiff herein”, and considering that Mr.
Japitana had given security according to the Rules of Court, Judge Nistal
issued the order commanding the provincial sheriff to attach the seven (7)
heads of cattle in the possession of petitioner Nicanor
Nacar.  Actually only four (4) carabaos were
attached because three (3) carabaos had earlier been
slaughtered during the rites preceding the burial of the late Isabelo Nacar.

Nicanor Nacar filed a
motion to dismiss, to dissolve writ of preliminary attachment, and to order the
return of the carabaos.  Private respondent Japitana
filed an opposition to this motion while intervenor
Antonio Doloricon filed a complaint in intervention
asserting that he was the owner of the attached carabaos
and that the certificates of ownership of large cattle were in his name.

The respondent Judge
denied the motion to dismiss prompting Mr. Nacar to
come to the Supreme Court.

In a resolution dated January
13, 1971, this
Court, upon the posting of a bond in the amount of P1,000.00,
directed the issuance of a preliminary mandatory injunction.  The respondents were enjoined from further
enforcing the writ of attachment and to return the seized carabaos.  The judge was restrained from further
proceeding with Civil Case No. 65.

We find the petition
meritorious.

The pertinent portions of
the complaint filed by Mr. Japitana with the
municipal court read as follows:

“ILDEFONSO JAPITAN                                                                                                        Civil Case No. 65

Plaintiff,

F O R:

CLAIM AGAINST THE
ESTATE OF THE

  LATE  ISABELO NACAR WITH PRE-

                       – Versus –                                                                                                  LIMINARY ATTACHMENT

NICANOR NACAR

Defendant.

x – – – – – – – – – – – – – – – – – – – – – x

C O
M P L A I N T

COMES NOW the undersigned plaintiff and before this Honorable Court,
respectfully avers:

xxx                            xxx                               xxx

“That at various dates since the year 1968, the defendant have
(sic) in­curred indebtedness to the plaintiff in the total sum of TWO THOUSAND
SEVEN HUNDRED NINETY ONE (P2,791.00) PESOS, which said amount had long been overdue for
pay­ment, and which the defendant up to this date have (sic) not been able to
pay, despite repeated demands from the plaintiff;

“That the defendant Isabelo Nacar died last April, 1970 leaving among other things
personal property consisting seven (7) heads of carabaos
now in the possession of the defendant Nicanor Nacar;

“That plaintiff herein file a claim against the estate of the
late Isabelo Nacar to
recover the aforemen­tioned sum of P2,791.00;

“That defendant are (sic) about to
remove and dispose the above mentioned property with intent to defraud
plaintiff herein;

“That plaintiff is willing to put up a bond for the issuance
of a preli­minary attachment in an amount to be fixed by the Court, not
exceeding the sum of P2,791.00 which is the plaintiff’s claim herein;

“WHEREFORE, it is respectfully prayed that pending the hearing
of this case, a writ of preliminary attachment be issued against the properties
of the defendant to serve as security for the payment or satisfaction of any
judgment that may be recovered herein; and that after due hearing on the
principal cause of action, judgment be rendered against the defendant for the
sum of P2,791.00 with legal interest from September
15, 1970 plus costs of this suit.” (Annex “A”,
p. 7 rollo).

In his motion to dismiss,
the petitioner raised the issue of lack of jurisdiction and absence of a cause
of action.  Mr. Nacar
averred that the indebted­ness mentioned in the complaint was alleged to have
been incurred by the late Isabelo Nacar
and not by Nicanor Nacar.  There was, therefore, no cause of action
against him.  The petitioner also stated
that a municipal court has no jurisdiction to
entertain an action involving a claim filed against the estate of a deceased
person.

The same grounds have
been raised in this petition.  Mr. Nacar contends:

xxx                            xxx                               xxx

“9.  That the respondent judge acted without
jurisdiction.  The municipal
courts or inferior courts have NO jurisdiction to settle the estate of deceased
persons.  The proper remedy is for the creditor
to file the proper proceedings in the court of first instance and file the
corresponding claim.  But assuming
without admitting that the respondent judge had jurisdiction, it is very patent
that he committed a very grave abuse of discretion and totally disregarded the
provisions of the Rules of Court and decisions of this honorable Court when he
issued an ex-parte writ of preliminary
attachment, when there is no showing-that the plaintiff therein has a
sufficient cause of action, that there is no other security for the claim
sought to be enforced by the plaintiff; or that the amount claimed in the
action is as much as the sum for which the order is prayed for above all legal
counterclaims; There was no bond to answer for whatever damages that herein
petitioner may suffer; (Rollo, pp. 3-4).

xxx                            xxx                               xxx

The respondent judge
tried to avoid the consequences of the issues raised in the motion to dismiss
by stating that although the title of the complaint styled it a claim against
the estate of the late Isabelo Nacar,
the allegations showed that the nature of the action was really for the
recovery of an indebtedness in the amount of P2,791.99.

The rule cited by the
judge is correctly stated but it is hardly relevant to the contents of the complaint
filed by Mr. Japitana.

It is patent from the
portions of the complaint earlier cited that the allegations are not only vague
and ambiguous but downright misleading. 
The second paragraph of the body of the complaint states that the
defendant (herein petitioner Nicanor Nacar) at various dates since the year 1968 incurred debts
to the plaintiff in the total sum of P2,791.00.  And yet, in the subsequent paragraphs, one
clearly gathers that the debts were actually incurred by the late Isabelo Nacar, who died several
months before the filing of the complaint. 
The complaint which the respondent judge reads as one for the collection
of a sum of money and all the paragraphs of which are incidentally unnumbered,
expressly states as a material averment:

xxx                            xxx                               xxx

That plaintiff herein file (sic) a claim against the estate of the
late Isabelo Nacar to
recover the aforementioned sum of P2,791.00;

xxx                            xxx                               xxx

Under the circumstances
of this case, respondent Japitana has no cause of
action against petitioner Nacar.  Mathay v.
Consolidated Bank and Trust Company  (58
SCRA 559) gives the elements of a valid cause of action:

“A cause of action is an act or omission of one party in
violation of the legal right of the other. 
Its essential elements are, namely: 
(1) the existence of a legal right in the plaintiff, (2) a correlative
legal duty in the defendant, and (3) an act or omission of the defendant in
violation of plaintiff’s right with consequential injury or damage to the
plaintiff for which he may main­tain an action for the recovery of damages or
other appropriate relief.  (Ma-ao Sugar Central Co., Inc. vs.
Barrios, et al., 79 Phil. 666, 667; Ramitere, et al.  vs. Montinola Vda. de
Yulo, et al., L-19751, February 28, 1966, 16 SCRA
251, 255).  On the other hand, Section 3
of Rule 6 of the Rules of Court provides that the com­plaint must state the
ultimate facts constituting the plaintiff’s cause of action.  Hence, where the complaint states ultimate facts that constitute the three
essential elements of a cause of action, the complaint states a cause of
action; (Community Investment and Finance Corp. vs. Garcia, 88 Phil. 215, 218)
otherwise, the complaint must succumb to a motion to dismiss on that
ground.”

Indeed, although
respondent Japitana may have a legal right to recover
an indebtedness due him, petitioner Nicanor Nacar has no correlative
legal duty to pay the debt for the simple reason that there is nothing in the
complaint to show that he incurred the debt or had anything to do with the
creation of the liability.  As far as the
debt is concerned, there is no allegation or showing that the petitioner had
acted in violation of Mr. Japitana’s rights with
consequential injury or damage to the latter as would create a cause of action
against the former.

It is also patent from
the complaint that respondent Japitana filed the case
against petitioner Nacar to recover seven (7) heads
of carabaos allegedly belonging to Isabelo Nacar which Japitana wanted to recover from the possession of the
petitioner to answer for the outstanding debt of the late Isabelo
Nacar.  This
matter, however, is only ancillary to the main action.  The ancillary matter does not cure a fatal
defect in the complaint for the main action is for the recovery of an outstanding
debt of the late Isabelo Nacar
due respondent Japitana, a cause of action about
which petitioner Nacar has nothing to do.

In fact the fatal defect
in the complaint was noticed by the respondent court when it advised respondent
Japitana to amend his complaint to conform with his evidence and from the court’s admission that it was
inclined to dismiss the case were it not for the complaint in intervention of
respondent Doloricon. 
Respondent Doloricon filed his complaint for
inter­vention on the ground that the four carabaos, subject
of the writ of attachment, were actually his carabaos.  Thus, the respondent court in its Order
denying the petitioner’s motion to dismiss, to dissolve writ of preliminary
attachment and to order the return of the carabaos
said:

“x x x Antonio Doloricon further mani­fested
before this Court that he is filing a third-party complaint alleging that he is
the true and lawful owner of the carabaos in
questions.

“IN VIEW OF ALL THE FOREGOING, this Court for the interest of both
parties will not for the meantime dismiss this case.  Antonio Doloricon
is hereby given 10 days from receipt hereof within which to file his
third-party complaint.  The plaintiff who in his opposition to defendant’s motion to
dismiss pray (sic) for the
custody of the carabaos.  (sic) This Court
further requires plaintiff to put up the additional bond of P1,000.00 after which the latter may be entitled of (sic) the
custody of the carabaos subject of litigation pending
final termination of this case.” (Rollo,
pp.  18-19)

The respondent court’s
reason for not dismissing the case is contrary to applicable precedents on the
matter.  We ruled in Mathay
v. Consolidated Bank and Trust Company, supra:

“Section I, Rule 16 of the Rules of Court, providing in part
that:

“Within the time for pleading a motion to dismiss may be made
on any of the following grounds; x x x

“‘(g)  That
the complaint states no cause of action. 
x x x’

explicitly
requires that the sufficiency of the complaint must be tested exclusively on the
basis of the complaint itself and no other should be considered when the ground
for motion to dismiss is that the complaint states no cause of action.  Pursuant thereto this Court has ruled that:

“‘As a rule the sufficiency of the complaint, when challenged
in a motion to dismiss, must be determined exclusively on the basis of the
facts alleged therein.’ Uy Chao
vs. De La Rama Steamship Co., Inc. L-14495, September 29, 1962, 6 SCRA 69, 72.
See also De Jesus, et al. vs. Belarmino, et al., 95
Phil. 365, 371; Dalandan, et al. vs. Julio, et al.,
L-19101, February 29, 1964,
10 SCRA 400; Remitere, et al. vs. Montinola
Vda. de Yulo,
et al., L-19751, February 28, 1966,
16 SCRA 250, 254; Acuña vs. Batac
Producers Cooperative Marketing Association, Inc., et al., L-20338, June 30, 1967, 20 SCRA 526, 531.)

Hence, it was error for
the respondent court not to dismiss the case simply because respondent Doloricon filed the complaint for intervention alleging
that he owned the carabaos.

Moreover, even assuming that respondent Japitana
had a legal right to the carabaos which were in the
possession of petitioner Nacar, the proper procedure
would not be to file an action for the recovery of the outstanding debts of the late Isabelo Nacar against his stepfather, the petitioner Nacar as defendant. 
As we said in Maspil v. Romero
(61 SCRA 197):

“Appropriate actions for the enforcement
or defense of rights must be taken in accordance with procedural rules and
cannot be left to the whims or caprices of litigants.  It cannot even be left to the untrammeled
discretion of the courts of justice without sacrificing uniformity and equality
in the application and effectivity thereof.”

Considering the foregoing, the respondent court’s denial of the
motion to dismiss the complaint and its issuance of a writ of attachment based
on the allega­tions of the complaint are improper.  With this con­clusion, we find no need to
discuss the other issue on whether or not the procedural rules on the issuance
of a writ of attachment were followed by the respondent court in issuing the
subject writ of attachment.

WHEREFORE, the petition is hereby granted.  The preliminary mandatory injunction issued
on January 13, 1971 is made
permanent and the cash bond filed by the petitioner in connection therewith is ordered
returned to him.

SO ORDERED.

Teehankee, (Chairman), Melencio-Herrera, Plana, and Relova, JJ., concur.

Vasquez, J., see concurring opinion.