Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 152672 October 2, 2007
JIMMY T. GO a.k.a. JAIME T. GAISANO, petitioner,
vs.
HON. ZEUS ABROGAR, in his capacity as Presiding Judge of REGIONAL TRIAL COURT, Branch 150, Makati City, & INTERNATIONAL EXCHANGE, respondents.
D E C I S I O N
AZCUNA, J.:
This is a petition for review on certiorari1 of the Court of Appeals’ (CA) Decision promulgated on September 19, 2001 and its Resolution dated March 7, 2002 denying petitioner’s motion for reconsideration.
The CA held that respondent, Judge Zeus Abrogar of the Regional Trial Court (RTC) of Makati City, Branch 150, did not act with grave abuse of discretion amounting to lack or excess of jurisdiction in denying petitioner’s Motion to Direct China Banking Corporation To Show Cause and For Sheriff Renato C. Flora to Desist from Implementing the Unlawful Writ of Execution dated April 19, 2000.
The facts are as follows:
On March 31, 1998, private respondent International Exchange Bank filed a complaint for a sum of money with an application for a writ of attachment against Alberto Looyuko and petitioner Jimmy T. Go before the RTC of Makati City, Branch 150.
On April 14, 1998, the RTC issued a Writ of Attachment by virtue of which Sheriff Arturo Flores sent a Notice of Levy on Attachment to China Banking Corporation on the China Bank shares of stock of Looyuko and petitioner. The Notice of Levy on Attachment identified petitioner’s shares of stock as follows: Stock Certificate Nos. 36964, 25447, 25449, 25450, 26481, 28418, 30916, 32501, 34697 and 36713.
Per the Sheriff’s Return dated April 29, 1998, Sheriff Flores levied on attachment parcels of land with the Register of Deeds of Pasig in the name of petitioner on April 17 and 20, 1998, and also on some shares of stock of China Banking Corporation belonging to Alberto Looyuko and petitioner.
On October 7, 1999, the RTC rendered a Decision in favor of private respondent, ordering Looyuko and petitioner jointly to pay P96 million to private respondent.
On January 3, 2000, private respondent filed a motion for the issuance of a writ of execution. On February 14, 2000, the RTC granted the motion and appointed Sheriff Renato Flora to implement the writ of execution which was issued on the same day.
On March 20, 2000, private respondent filed another motion for the issuance of a writ of execution against petitioner alone to obviate any technical question on whether a similar motion filed earlier was premature. The writ was issued on April 19, 2000.
On April 27, 2000, Sheriff Renato Flora sent a Notice of Garnishment to the Corporate Secretary of China Banking Corporation stating that garnishment was made upon all the monies, credits, shares, interests, claims and more particularly Stock Certificate Nos. 36964, 25447, 25449, 25450, 26481, 28418, 30916, 32501, 34697 and 36713 and all China Banking Corporation shares of stock of petitioner under the bank’s control and possession. The Notice also required an answer from the Corporate Secretary within five days from receipt.
In a letter dated May 5, 2000, the Corporate Secretary of China Banking Corporation informed Sheriff Flora that they had noted through its Transfer Agent, RCBC Trust and Investment Division, the Sheriff’s Notice of Garnishment as regards Stock Certificate No. 36964-V registered in the name of Alberto Looyuko, and that the other certificates subject of the Notice of Garnishment were "no longer outstanding."
On May 16, 2000, petitioner filed with the RTC a Motion to Direct China Banking Corporation To Show Cause and For Sheriff Renato C. Flora to Desist from Implementing the Unlawful Writ of Execution dated April 19, 2000. Petitioner prayed that the Court issue an Order directing China Banking Corporation to show cause, explain and account for the shares of stock registered in his name, particularly Stock Certificate Nos. 25447, 25449, 25450, 26481, 28418, 30916, 32501, 34697 and 36713 which were already in custodia legis as early as April 29, 1998 as per Sheriff Arturo C. Flores’ return, but which were allegedly no longer in their custody per letter of the Corporate Secretary of China Banking Corporation dated May 9, 2000.
Petitioner also prayed that pending resolution of the said motion, Sheriff Renato Flora be directed to desist from implementing the writ of execution dated April 19, 2000 and/or also to hold in abeyance any further action on the said writ, particularly the levy/execution on his real properties for being premature pending the explanation of China Banking Corporation since under paragraph (b), Sec. 9, Rule 39 of the Revised Rules on Civil Procedure, levy is first made on the personal properties, if any, and then on the real properties if the personal properties are insufficient to answer for the judgment.
Private respondent opposed the motion.
In an Order dated June 15, 2000, the RTC denied the motion stating that there was no reason for the Court to direct the Sheriff to desist from implementing a valid writ of execution. The RTC also stated that "whether or not China Banking Corporation explains the reason why the alleged shares of petitioner are no longer outstanding cannot affect at all the implementation of the writ of execution dated April 19, 2000."
Petitioner’s motion for reconsideration was denied in an Order dated October 25, 2000.
Petitioner filed a petition for certiorari under Rule 65 with the CA seeking to set aside the RTC Orders dated June 15, 2000 and October 25, 2000 and raised this sole issue: Was there grave abuse of discretion tantamount to lack or excess of jurisdiction in denying petitioner’s motion to direct China Banking Corporation to explain and account for petitioner’s previously attached shares of stock?
The CA dismissed the petition in a Decision promulgated on September 19, 2001. It held that the RTC did not act with grave abuse of discretion amounting to lack or excess of jurisdiction in rendering the assailed Orders since the same are not tainted by capricious, arbitrary and whimsical exercise of power.
It held that at the time the levy on attachment was served upon China Banking Corporation on April 21, 1998, the subject shares of stock had already been transferred in February 1997 to Alberto T. Looyuko through a blank endorsement signed by petitioner. The CA declared that petitioner himself related this transfer in his Affidavit-Complaint for estafa against Looyuko subscribed on May 21, 1998. The Court also stated:
Significantly, the sheriff’s return does not identify the shares of stock levied, specifically Stock Nos. 25447, 25449, 25450, 26481, 28418, 30916, 32501, 34697 and 36713 (the subject shares). And, petitioner never undertook to verify what those shares were. However, a month later he executed the affidavit-complaint for estafa against Alberto T. Looyuko admitting unequivocably and categorically that the subject shares of stock were no longer in his name. By such act, it is self-evident that petitioner was aware by then -- or as early as then -- that there were no more China Bank shares of stock in his name that could have been placed in custodia legis by the levy on attachment.2
Petitioner’s motion for reconsideration was denied by the CA in a Resolution dated March 7, 2002.
Hence, this petition for review on certiorari.
The issues are:
I. Whether or not the appellate court may consider an issue raised for the first time on appeal?
II. Whether or not the Honorable Court of Appeals erred in dismissing the petition for certiorari and consequently in finding that there was no grave abuse of discretion on the part of the presiding judge of the court a quo.3
Petitioner argues as follows:
The CA erred in considering the Affidavit-Complaint for estafa filed by petitioner against Looyuko in a criminal case before the RTC of Makati City to show that petitioner knew about the whereabouts of the subject shares claimed to be "no longer outstanding" by China Banking Corporation.
Petitioner stated that the matter of the Affidavit-Complaint was raised for the first time by private respondent only in its Comment to the petition for certiorari before the CA, which is contrary to the settled rule that an issue which was not raised in the trial court cannot be raised for the first time on appeal. Further, the issue of the Affidavit-Complaint is not material to the determination of whether or not the RTC abused its discretion in denying petitioner’s motion to issue a show cause order against China Banking Corporation.
Petitioner also stated that he should not be considered to have suppressed the allegations or incidents contained in the Affidavit-Complaint for the reason that his refusal to discuss the same is justified. The gist of the Affidavit-Complaint is still pending before the RTC of Makati City, Branch 56 in a criminal case for estafa against Looyuko; hence, it is improper for the appellate court to pass judgment on it.
Next, petitioner contends that the CA erred in finding that respondent judge did not act with grave abuse of discretion amounting to lack or excess of jurisdiction in denying his motion to issue a show cause order against China Banking Corporation to explain why the subject shares of stock were no longer with the bank when these had already been attached by the RTC and were, therefore, in custogia legis.
As per return of Sheriff Flores dated April 29, 1998, the subject shares of stock were levied on attachment. However, upon levy on execution, the subject shares of stock were declared as "no longer outstanding" by China Banking Corporation. Hence, petitioner moved that the RTC require China Banking Corporation to explain what happened to his shares of stock. Absent any order from the RTC to release the subject shares of stock, China Banking Corporation, as the actual custodian of the said shares, should account for them.
Petitioner asserts that the absence of any legally acceptable explanation on the part of China Banking Corporation would absolve petitioner from any liability to private respondent International Exchange Bank. To rule otherwise would defeat the purpose for which attachment was issued.
Lastly, petitioner contends that the unwarranted disposition of petitioner’s attached shares without the knowledge and consent of the RTC which held said shares in custodia legis is illegal and contrary to law. In not directing China Banking Corporation to show cause why the shares were "no longer outstanding," the RTC is deemed to have given an imprimatur to such illegal act. Patent, therefore, is the respondent judge’s grave abuse of discretion.
Petitioner’s arguments do not persuade.
Petitioner contends that the CA erred in finding that respondent judge did not act with grave abuse of discretion in denying his motion to issue a show cause order against China Banking Corporation.
There is grave abuse of discretion equivalent to lack or excess of jurisdiction when the tribunal acts in a capricious, whimsical, arbitrary or despotic manner in the exercise of its judgment.4
In this case, the RTC denied petitioner’s motion as it found no reason to direct the Sheriff to desist from implementing a valid writ of execution. The RTC was not obliged to ask for the explanation of China Banking Corporation before it could proceed with the implementation of the writ of execution, more so that there were other properties of petitioner available for the satisfaction of his debt in the absence of the subject shares of stock. The RTC acted in accordance with paragraph (b), Sec. 9, Rule 39 of the Revised Rules of Court, thus:
(b) Satisfaction by levy.—If the judgment obligor cannot pay all or part of the obligation in cash, certified bank check or other mode of payment acceptable to the judgment obligee, the officer shall levy upon the properties of the judgment obligor of every kind and nature whatsoever which may be disposed of for value and not otherwise exempt from execution giving the latter the option to immediately choose which property or part thereof may be levied upon, sufficient to satisfy the judgment. If the judgment obligor does not exercise the option, the officer shall first levy on the personal properties, if any, and then on the real properties if the personal properties are insufficient to answer for the judgment. [Emphasis supplied.]
Hence, the Court agrees with the CA that the RTC did not act with grave abuse of discretion amounting to lack or excess of jurisdiction in denying the motion of petitioner.
Next, petitioner questions whether the CA may consider his Affidavit-Complaint for estafa which was mentioned for the first time on appeal to show that he knew about the whereabouts of the subject shares of stock.
It must be pointed out that petitioner’s motion for a show cause order against China Banking Corporation was denied by the RTC in its Order dated June 15, 2000. When petitioner appealed the RTC’s Order to the CA, private respondent was required to file a Comment on the petition for certiorari filed by petitioner. Private respondent mentioned the Affidavit-Complaint in its Comment. All the time, however, petitioner suppressed his knowledge of what happened to the subject shares of stock.
The Court holds that the CA, in the interest of justice, can take into account the content of the Affidavit-Complaint for estafa filed by petitioner himself before the RTC of Makati City, Branch 56, since petitioner is the one asking for an explanation as to the whereabouts of his shares of stock with China Banking Corporation declared to be "no longer outstanding." Petitioner himself admitted the existence of said Affidavit-Complaint in his petition before this Court. It is only right to clear up what happened to the subject shares of stock. Furthermore, there was no surprise and no disadvantage caused on petitioner, since the Affidavit-Complaint was his own and, therefore, known to him all along.
As found by the CA, the subject shares of stock had been already been transferred to Looyuko in February 1997 through a blank endorsement signed by petitioner; hence, petitioner was aware that there were no more China Bank shares of stock in his name that could have been placed in custodia legis by the levy on attachment served upon China Banking Corporation on April 21, 1998. Petitioner himself narrated this transfer in his Affidavit-Complaint for estafa against Looyuko subscribed on May 21, 1998, thus:
x x x
2. That sometime in the years 1985, 1990, 1993, 1994 and 1995, I subscribed to and purchased shares of stock from China Banking Corporation, with a par value of P100.00 per share; that I subscribed and paid for a total of 41,376 shares which were covered by the following stock certificates:
Date of Certificate |
Certificate No. |
No. of Shares |
8/6/85 |
25447 |
5000 |
8/9/85 |
25449 |
4432 |
8/14/85 |
25450 |
4019 |
5/7/87 |
26481 |
672 |
4/6/90 |
28418 |
1412 |
3/2/93 |
30916 |
5650 |
11/12/93 |
32501 |
5296 |
11/18/94 |
34697 |
6620 |
9/12/95 |
36713 |
8275 |
TOTAL |
|
41,376 |
x x x
3. That sometime in February 1997, since we were then in need of funds to pay off and settle some financial obligations of our business, I endorsed the above certificates in blank and entrusted the same to Alberto T. Looyuko, so that we could sell our shares together in big bulk, at the time when the share price goes up in the stock market and that it will be in place when a broker with a ready buyer comes by;
4. That being business partners for a long time, and 50% co-owner of all the assets of Noah’s Ark and its several businesses, I agreed to endorse my share in blank and entrusted the same to Alberto T. Looyuko pursuant to our agreement and his representations to me;
5. That after some time since I endorsed and entrusted my shares to Alberto T. Looyuko, I have not heard anything from him anymore, nor did he inform me if the shares were sold or not, or give me the proceeds of the sale of my shares;
6. That upon verification of the status of my shares of stock, with China Banking Corporation in its office in Paseo de Roxas, Makati City, I was surprised to discover that Alberto T. Looyuko had surreptitiously and fraudulently converted, misappropriated and transferred in his name all of my 41,376 shares, by taking advantage of my blank endorsement therein, with unfaithfulness and intent to gain, to my great damage and prejudice; a copy of the confirmation letter by China Banking Corporation dated February 16, 1998, of the fact of transfer of my 41,376 shares, and the transaction report by the Equitable Banking Corporation, as clearing agent for the Manila Stock Exchange, showing that the said shares were in fact transferred, converted and misappropriated by Alberto T. Looyuko in his name, are herewith attached as Annexes ‘J,’ ‘K," ‘L,’ & ‘M,’ respectively.5
WHEREFORE, in view of the foregoing, the petition is DENIED and the Court of Appeals’ Decision promulgated on September 19, 2001 and its Resolution dated March 7, 2002 are AFFIRMED.
Costs against petitioner.
SO ORDERED.
Puno, Sandoval-Gutierrez, Corona, Garcia, JJ., concur.
Footnotes
1 Under Rule 45 of the Rules of Court.
2 Rollo, p. 38.
3 Id. at 19.
4 Ching v. Court of Appeals, G.R. No. 124642, February 23, 2004, 423 SCRA 356.
5 CA Rollo, pp. 161-162.
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