DOMINGO R. DANDO, PETITIONER, VS. NORMAN JAMES FRASER, MARITA S. CAYMO AND COURT OF APPEALS, RESPONDENTS.

This is an appeal by certiorari under Rule 45 of the
Revised Rules of Court from the
decision of the Court of Appeals
in CA-G.R. CV No. 26050, entitled “DOMINGO R. DANDO v. NORMAN JAMES
FRASER, et al.,” reversing the decision of the Regional Trial Court,
Branch 33, Siniloan, Laguna, in Civil Case No. 5-423.

It appears that on November 15, 1983, Cornelio F. Carlos sold to
Amelia Gayon the Argentina Club and Disco (CLUB) located at No. 2110 Roxas Boulevard,
Pasay City and housed in a building leased from Dominador S. Luz.

On the same day, Gayon also executed a Deed of Trust, attesting
that Gayon, as trustee, bought the CLUB, including the improvements found
therein for and in behalf of respondent Norman J. Fraser from Cornelio F.
Carlos for the sum of P370,000.00. The
said Deed of Trust stated that respondent Fraser furnished all the funds for
the purchase and operation of the said CLUB and that Gayon was administering,
operating and holding the aforesaid
CLUB for and in behalf of respondent Fraser.

On April 9, 1984, respondent Fraser sold on installment basis the said CLUB to Silverio V. Puno,
Arnaldo L. Domingo and Ronald Clifton Vercoe as evidenced by a “Sale of
Nightclub on Installment Basis” (Records, Vol. II, p. 235; Annex “F”) for the sum of
P510,000.00. However, the buyers were
allowed to operate and take possession of the said CLUB earlier or on April 1, 1984.

On or about April 10, 1984, Gayon consulted petitioner for legal
advise about the moves being taken by Puno and Domingo to get the CLUB from her
(TSN, June 18, 1986, p. 4). She was
advised by petitioner that she had a right to possess the CLUB and must file a case against Puno, Domingo
and respondent Fraser (TSN, June 18, 1986, p. 4). Furthermore, she was advised to get the CLUB by force since
litigations are usually protracted (TSN, p. 5; ibid).

Acting on
petitioner’s advice, Gayon, together with ten policemen, proceeded to the CLUB
on April 18, 1984 and succeeded in evicting Puno and his partners (TSN, p. 6;
ibid).

In anticipation of a case to be filed by Puno
against Gayon, petitioner prepared a Deed
of Sale (Records, Vol. I, p. 13; Exhibit “A”) whereby Gayon allegedly
sold the said CLUB to him for P350,000.00 on April 2, 1984. Said date was antedated to make it appear
that the sale was made earlier than the one made by respondent Fraser to Puno
and his partners. A receipt for the
amount of P350,000.00 was likewise prepared by petitioner and signed by Gayon.

Petitioner succeeded in convincing Gayon to allow one Mr.
Fujicawa, who was supposedly interested in buying the CLUB, to operate it for one month on a trial basis. However, it turned out that it was
petitioner himself, not Mr. Fujiwara, who operated the said CLUB.

Because of their forcible eviction from the CLUB, Puno and his
partners filed a complaint for forcible entry with damages and preliminary
mandatory injunction against Gayon and one
“Atty. Yam” with the Metropolitan Trial Court of Pasay City. Atty. Yam happened to be a law partner of
petitioner. When petitioner met Puno,
he misrepresented himself as “Atty. Yam” by presenting Atty. Yam’s
calling card.

On December 10, 1986, the Metropolitan Trial Court of Pasay City
rendered its decision ordering: (1)
Gayon and all persons claiming rights under her to vacate the premises known as
the Argentina Club and Disco; (2) to pay the plaintiffs the sum of P20,000.00 a
month as reasonable compensation for the use and occupation of the aforesaid
premises, starting April 18, 1984 until she and all persons claiming possession
under her finally vacate the premises and possession thereof was restored to
plaintiffs; and (3) the sum of P5,000.00 as attorney’s fees (Original Records,
Vol. I, p. 98).

On December 14, 1984, pursuant to the Order of Execution issued by the Metropolitan
Trial Court of Pasay City, Gayon and “Atty. Yam” (petitioner) were
evicted from the Club (Original Records, Vol. I, p. 22).

Aggrieved by his eviction, petitioner filed a criminal case for
estafa against respondent Fraser with the Office of the City Fiscal of Pasay
City. He alleged that Gayon sold to him
the CLUB and that respondent Fraser, by falsely pretending to be the owner of
the CLUB, was able to sell the same to the group of Puno, who in turn succeeded
in having him evicted from the CLUB pursuant to the Order of Execution issued
by the Metropolitan Trial Court of Pasay City. The criminal case was, however, dismissed on August 22, 1986. After the reinvestigation, the complaint was
likewise dismissed on June 11, 1985
(Rollo, p. 74; Annex “1”). A
petition for review was dismissed by the Department of Justice (Rollo, p. 79;
Annex “2”).

On or about February 1, 1985, petitioner filed an “Amended
Complaint for Ownership, Possession, Annulment of Contract and Damages with
prayer for Preliminary Mandatory Injunction and/or Restraining Order”
against respondents Fraser, Puno, Domingo, Gayon and Vercoe docketed as Civil
Case No. 2588-P with the Regional Trial Court, Pasay City, Metro Manila.

On February 12, 1985, the Regional Trial Court, Pasay City, Metro
Manila granted the prayer for a writ of preliminary mandatory injunction. However, on March 11, 1985, the said trial
court approved the counterbond filed by respondents Fraser, et al. and dissolved
the writ of preliminary mandatory injunction. Puno and his partners were authorized
to resume the operation and management of the CLUB, subject to the conditions set
forth in the Order (Original Records,
Vol. I, p. 173).

From the order denying his motion for reconsideration of the order
dissolving the writ of preliminary mandatory injunction, petitioner appealed to
the Court of Appeals (CA-G.R. No.
0618-SP).

The appellate court dismissed the petition on October 24, 1986.

Undaunted, petitioner filed on September 26, 1985, a complaint for
a sum of money and damages with preliminary attachment against respondents
Fraser and Marita S. Caymo with the Regional Trial Court of Siniloan, Laguna,
Branch 33 and docketed as Civil Case No. 5-423. Respondent Caymo was impleaded for allegedly being the wife of respondent Fraser.

Petitioner sought to collect the amount of P510,000.00,
representing the purchase price of the CLUB sold by respondent Fraser to Puno
and his partners. Furthermore,
petitioner sought to attach the property of respondent Caymo located at San
Lorenzo Village, Makati alleging that the latter was a mere dummy of respondent
Fraser. In addition thereto, petitioner
sought to recover damages for his eviction from the CLUB pursuant to the decision of the Metropolitan
Trial Court of Pasay City, alleging that not being a party to the said case, he was not given his
day in court (Original Records, Vol. I,
pp. 1-9).

In his complaint, petitioner alleged that he was the owner of the
CLUB, having bought the same from Gayon on April 2, 1984 as evidenced by a Deed
of Sale (Original Records, Vol. I, p. 13) and
a receipt (Original Records, Vol. I, p. 15).

On September 30, 1985, the trial court ordered the attachment of
respondent Caymo’s property located at San Lorenzo Village, Makati (Records, Vol.
I, p. 39).

On June 22, 1987, the trial court rendered the questioned decision, the dispositive portion of which reads as follows:

“WHEREFORE, judgment is hereby rendered in favor of the
plaintiff and against the defendants, ordering the latter to pay jointly and
severally the plaintiff the following amounts:

a)      
Five Hundred Ten Thousand (P510,000.00) pesos as an indemnity
for the investment of plaintiff in the Argentina Club and Disco.

b)      
One Million (P1,000,000.00) pesos by way of moral damages.

c)      
Thirty Four Thousand (P34,000.00) pesos monthly for
compensatory damages from December 14, 1984 up to the date of actual
indemnification.

d)      
Seven Hundred Fifty Thousand
(P750,000.00) pesos as exemplary damages arising from the fraud committed by
the defendants against the plaintiff.

e)      
One Hundred Thousand (P100,000.00) pesos as attorney’s fees;
and

f)        
To pay the costs of the suit.

SO ORDERED.” (Records, Vol. III, pp. 534-535).

On July 7, 1987, respondents Fraser and Caymo filed a notice of
appeal which was granted by the trial court on July 15, 1987 (Original Records,
Vol. III, pp. 538-539). On the same
day, petitioner filed a Motion for Issuance of Writ of Execution (Original
Records, Vol. III, p. 543). Both
respondents filed an opposition to the Motion for Issuance of Writ of Execution Pending Appeal (Original
Records, Vol. III, pp. 553-579).

On August 21, 1987, the trial court issued an Omnibus Order
granting petitioner’s motion for issuance of writ of execution and denying
respondents’ opposition thereto and recalled its Order dated July 15, 1987
elevating the records of the case to the Court of Appeals (Original Records, Vol. IV, p. 603).

On August 31, 1987, the trial court issued a writ of execution
(Original Records, Vol. IV, p. 607).

Respondents Fraser and Caymo filed with the Court of Appeals
separate petitions for certiorari with prohibition and mandamus
and restraining order docketed as CA-G.R. No. 12713 and 12718
respectively. On December 15, 1987, the
Court of Appeals rendered its decision, affirming the trial court’s Omnibus
Order granting execution pending appeal but ordered petitioner to file a good
and sufficient bond in the amount of P2,000,000.00 in order to answer for any
damage which the respondents may suffer
in the event the decision was reversed on appeal (Original Records, Vol. IV, p.
643).

On January 11, 1988, respondent Caymo filed a motion for
reconsideration of the appellate court’s order, granting execution pending
appeal (Original Records, Vol. IV, pp. 657-659).

On January 20, 1988, a notice of sheriff’s sale over the property of respondent Caymo was
issued (Original Records, Vol. IV, p.
672).

On January 21, 1988, respondent Caymo filed an urgent motion for status
quo and motion for leave to file counterbond (Original Records, Vol. IV,
pp. 676-677).

In its Resolution dated January 22, 1988, the Court of Appeals
ordered the parties to maintain the status quo until the motion for
reconsideration was resolved by it (Original Records, Vol. IV, pp. 684-685).

On April 22, 1988, the Court of Appeals resolved the motion for
reconsideration by ordering petitioner to increase the bond from P2,000,000.00
to P2,800,000.00 (Original Records, Vol. IV, pp. 702-703).

On April 12, 1989, petitioner filed with the trial court a
“Motion for Issuance of Order To Enforce the Writ of Execution dated
August 31, 1987” (Original Records, Vol. IV, p. 730).

On April 28, 1989 respondent Fraser filed an opposition to the
aforesaid motion (Records, Vol. IV, p. 734). On the other hand, respondent Caymo filed a “Motion to Disapprove Bond of Plaintiff or To
Allow Defendant to File a Counterbond or Supersedeas Bond” (Original
Records, Vol. IV, p. 736).

On March 14, 1990, the trial court issued an order, granting
petitioner’s motion, which ordered the Provincial Sheriff to enforce the writ
of execution dated August 31, 1987 and to proceed with the auction sale
(Original Records, Vol. V, p. 921).

On April 30, 1990, petitioner as the highest bidder in the
auction sale of respondent Caymo’s property was issued a Certificate of Sale
(Original Records, Vol. V, p. 995).

On May 5, 1990, respondent Caymo filed a motion to elevate the
records to the Court of Appeals (Original Records, Vol. V, p. 992).

On May 14, 1990, petitioner filed a motion for the issuance of
writ of possession, which was denied by the trial court on May 15, 1990. The trial court ordered the elevation of the
case to the Court of Appeals (Original Records, Vol. V, p. 1112).

On July 3, 1991, the Court of Appeals rendered its decision,
reversing the trial court’s decision and declaring null and void the execution
sale of respondent Caymo’s property. The dispositive portion of said decision reads:

“IN VIEW OF THE FOREGOING PREMISES, the decision appealed from
is hereby REVERSED and SET ASIDE and the execution sale of Marita Caymo’s
property covered by T.C.T. No. 135563 is declared null and void. The complaint filed by plaintiff-appellee is
hereby dismissed. Costs against
plaintiff-appellee” (Rollo, p. 47).

On September 23, 1991, petitioner’s motion for reconsideration
was denied (Rollo, p. 52).

Hence, this petition.

Petitioner raises the following assignment of errors:

I

“THE COURT OF APPEALS ERRED IN
CONSIDERING A MATTER NOT STATED AS AN ASSIGNED ERROR AND NOT PROPERLY ARGUED
BEFORE IT.

II

THE COURT OF APPEALS ERRED IN CONSIDERING
THE VALIDITY OF THE EXECUTION SALE OF THE PROPERTY
OF DEFENDANT-RESPONDENT CAYMO ALTHOUGH SUCH MATTER HAD ALREADY BEEN
RESOLVED WITH FINALITY BY THE SAME COURT IN ANOTHER CASE.

III

THE COURT OF APPEALS ERRED IN REVERSING THE
FINDINGS OF FACT OF THE TRIAL COURT” (Rollo, p. 22).

Petitioner contends that the Court of Appeals acted beyond and in
excess of its jurisdiction when it
ruled on the validity of the
execution sale of the property of respondent Caymo. Claiming that such matter was neither stated in the assignment of
errors nor properly argued in respondent Caymo’s brief, he invokes the rule that
“no error which does not
affect the jurisdiction over the subject matter will be considered unless
stated in the assignment of errors and properly argued in the brief, save as the Court, in its
option, may notice plain errors not specified, and also clerical errors”
(Rule 51, Section 7, Rules of Court).

We disagree. Although as
a general rule, the Court of Appeals may determine only such questions as those
that have been properly raised in the briefs, this rule, however, admits of
exceptions.

In the cases of Maritime Agencies and Services, Inc. v. Court
of Appeals, G. R. No. 77638 and Union Insurance Society of Canton, Ltd. v.
Court of Appeals, G.R. No. 77674, 187 SCRA 346 [1990] we ruled that:

“Besides, an unassigned error closely related to the error
properly assigned, or upon which the determination of the question raised by
the error properly assigned is dependent, will be considered by the appellate
court notwithstanding the failure to assign
it as error.”

At any rate, the Court is clothed with ample authority to review matters, even if they are not assigned as errors in their appeal, if
it finds that their consideration is necessary in arriving at a just decision of the case.”

In her brief, respondent Caymo raised the issue of her alleged
marriage to respondent Fraser as evidenced by a photo-copy of a marriage
contract presented by petitioner. Such
marriage contract became the basis for the trial court to conclude that
respondents Caymo and Fraser were married to each other and therefore the
property registered in the name of
respondent Caymo is a conjugal property of the spouses which may be attached.

The determination of the existence of marriage between respondent
Caymo and Fraser will determine the validity of the attachment and execution
sale made on the property registered in the name of respondent Caymo
alone. Hence, the issue on the validity
of the attachment and execution sale of respondent Caymo’s property is closely
related to the error properly assigned, that is the existence of the marriage
between respondents Caymo and Fraser.

As correctly found by the Court of Appeals, the photo-copy of an
alleged marriage contract presented by petitioner is inadmissible for failure
to comply with Rule 132 Sections 25 and 26 of the Rules of Court (now Rule 132,
Sections 24 and 25 of the 1987 Rules on Evidence). As between a photo-copy of an alleged marriage contract and a
certification issued by the Local Civil Registrar of Pasay City attesting to
the fact that no marriage was officiated by Judge Eriberto V. Loreto of the
Metropolitan Trial Court of Pasay City and that no record of such marriage
could be found in the Local Civil Registrar, the latter deserves more weight.

Having failed to prove the existence of marriage between
respondent Caymo and Fraser, the attachment and eventual execution sale of the
property registered in the name of respondent Caymo is therefore invalid.

Anent the second error assigned by petitioner, the petitions for certiorari
with writ of prohibition filed by respondents Caymo and Fraser with the Court
of Appeals docketed as CA-G.R. Nos. 12713 and 12718 respectively, merely
questioned the jurisdiction of the Regional Trial Court, Br. 33, Siniloan, Laguna, in
granting the motion for execution pending appeal in Civil Case No. 5-423.

A special civil action for certiorari is an original or
independent action and not a continuation or a part of the trial resulting in the rendition of the judgment
complained of (Perez v. Court of Appeals, 168 SCRA 236 [1988]). Hence, no finality as to the merits of the
case was made. The only issue decided
by the Court of Appeals in CA-G.R. Nos. 12713 and 12718 was whether the trial
court properly issued the writ of advance execution.

The third error assigned by petitioner questions the findings of
the Court of Appeals as to the validity of the Deed of Trust executed by Amelia
Gayon in favor of respondent Fraser.

Petitioner contends that respondent Fraser, being an Australian
citizen, is precluded from owning a retail business pursuant to Republic Act
No. 1180, otherwise known as the Nationalization of Retail Trade Law. Indeed under said law, an alien is
prohibited from engaging in the retail business (Sec. 1) which includes the
operation of a cocktail lounge with a restaurant (Sec. 4).

However, the Mayor’s Permit for the operation of the Club as a
cocktail lounge with a restaurant (Records, Vol. I, p. 21) was issued in favor
of “Amelia Gayon.”

Under Section 5 of the Nationalization of Retail Law:

“Every license to engage in retail business issued in favor
of any citizen of the Philippines or
of any association, partnership or corporation wholly owned by citizens
of the Philippines shall be conclusive evidence of the ownership by such
citizen, association, partnership or corporation of the business for
which the license was issued except as against the Government of the State. (Underscoring supplied).

Since the license to engage a cocktail lounge and restaurant was
issued in the name of Gayon, who
is a citizen of the Philippines, such license shall be conclusive evidence of
Gayon’s ownership of the said retail
business as far as private
parties, including petitioner, are concerned.

Gayon testified that the deed of sale and receipt prepared by petitioner and signed by her were
simulated, the same having been prepared only in anticipation of the ejectment
case filed by Puno against her. She
also claims that the deed of sale and receipt were antedated to make it appear
that it was made earlier than the deed of sale executed by respondent Fraser.

The characteristic of simulation is the fact that the apparent
contract is not really desired or intended to produce legal effects nor in any way alter the judicial situation of
the parties (Carino v. Court of Appeals, 152 SCRA 529 [1987]).

In this case,
Gayon was convinced by petitioner
that she could be protected from the action to be filed against her by Puno if
she would execute a deed of sale in his favor. Thus, she even admitted to have lied in her testimony during the
ejectment case filed against her upon the instructions of petitioner.

If it were true as claimed by petitioner that he was in
possession of the CLUB as early as April 1, 1984, then it was impossible for
him not to have known that Puno and his partners were in actual, physical
possession of the CLUB up to April 18, 1984. Why did he not bring an ejectment case against them? If it were true that Gayon sold to him the
CLUB on April 2, 1984, why was it Gayon, instead of him, who evicted Puno on
April 18, 1984? The truth is, he was
not in possession of the CLUB on April 1, 1984 and neither was the said CLUB
legally conveyed to him on April 2, 1984. He did not do anything because there was nothing for him to protect for
he knew that the contract of sale and the receipt made in his favor were merely
simulated for the protection of Gayon.

WHEREFORE, the petition is hereby DENIED and the decision
of the Court of Appeals is AFFIRMED.

SO ORDERED.

Cruz, (Chairman), Davide, Jr., and
Bellosillo, JJ., concur.

Griño-Aquino, J., on leave.