SPECIAL ELEVENTH DIVISION
[CA-G.R. SP No. 45109. April 27, 2000.]
JULIA VDA. DE FRANCISCO and REGINO FRANCISCO, petitioners, vs. DEPARTMENT OF AGRARIAN REFORM ADJUDICATION BOARD and TOMAS S. BERNARDO, respondents.
D E C I S I O N
* BUZON, J p:
This is a petition for review 1 of the decision of the Department of Agrarian Reform Adjudication Board (DARAB), which affirmed in toto the decision of the Provincial Adjudicator of Malolos Bulacan ordering petitioners and all persons acting in their behalf to vacate the landholding in question
The antecedent facts, as found by the DARAB, are as follows:
"The late Remedios Santiago, Remedios for brevity, was the former owner of two (2) parcels of land which, for brevity, shall thereafter (sic) be called Lot A with an area of ONE POINT SIX TWO TWO FIVE (1.6225) HECTARES, and Lot B with an area of ZERO POINT SEVEN SIX FIVE NINE (0.7659) HECTARES, respectively located in Barangays San Agustin and San Pablo, Hagonoy, Bulacan. Respondents Julia Vda. de Francisco, Julia for brevity, and Regino Francisco, Regino for brevity, are mother and son, the latter having been employed as a license inspector in Hagonoy, Bulacan from 1980 to 1986 and 1987 to March 31, 1992 (Certification of Ms. Cecilia Hipolito, dated August 16, 1993), while Mamerto Francisco, another son of Julia, is a contract worker in Japan.
There is of course no question that Julia was the recognized tenant of Remedios as shown by their Agricultural Leasehold Contract executed in July 22, 1981 involving Lot A and, according to Bernardo, Lot C with an area of 0.7380 hectares, not Lot B. However, in August, 1986, Julia went to the United States where her six (6) other children, namely, Cristino, Constancia, Jesusa, Lolita, Maria and Placida, all surnamed Francisco, are residents of North Miami, Florida, where 'she is presently in the United States' (Appeal Memorandum, p. 16).
Before she died in June, 1990, Remedios executed a Deed of Absolute Sale dated September 29, 1988 transferring her ownership over Lots A and B in favor of complainant Tomas S. Bernardo and his spouse.
On November 20, 1992, Bernardo filed the above complaint against Julia for (a) abandoning the subject lots in 1986, without her knowledge; (b) non-payment of rentals from 1988 up to the present; (c) failure to give the three (3) days notice before the harvesting; and (d) failure to comply with the terms and conditions of the leasehold agreement; and against Regino who, being a full-time government employee, cannot succeed to the tenancy of his mother Julia; that he unlawfully entered Lot B which is not included in the leasehold agreement, and for non-payment of rentals, despite Regino's knowledge that Bernardo is now the owner of the lots in question; that inspite of repeated demands. Regino refused to vacate the premises. Lastly, that he and Remedios are not owners of other lands exceeding seven (7) hectares.
Answering the complaint, respondents deny the above allegations and interposed the special and affirmative defenses that Julia has been assisted, which is her right, by her sons Regino and Mamerto in the cultivation of subject lots as confirmed by Rufino Ramos, Federico Ramos, Felipe Pascual and Francisco Santiago, Jr. (Annex '2', Sinumpaang Salaysay dated December 17, 1992); that they recognized Remedios as the landowner (Annex '1', Tax Declaration No. 27136) and upon her death, her son Donato S. Galang replaced her who, in turn, confirmed that Julia had been paying the rentals (Annexes '3' to '3-B', Rental Receipts; Annex '4'. Affidavit of S. Galang dated December 14, 1992; that they have no knowledge of the transfer of ownership and so the rentals were paid to Remedios and now to her son Donato. As the legitimate tenant, Julia is entitled to security of tenure and cannot be ejected.
During the hearing, on March 3, 1993, both parties were ordered to submit, their respective position papers together with all the documentary evidences in support of their respective allegations and defenses up to March 31, 1993.
Complainant Tomas S. Bernardo filed his position paper on March 31, 1993 reiterating his claim that (1) respondents, including Mamerto, have abandoned the lots in question because Julia while in the United States cannot personally cultivate the same, which is also true with Regino, a full-time government employee and Mamerto a contract worker in Japan. Thus, respondents, particularly Regino, simply hired helpers to cultivate the lands, among them are Rufino Eusebio, uncle of affiant Jose Eusebio (Annex 'H', Affidavit of Jose Eusebio), Fermin dela Cruz (Annex 'I', Affidavit of Ricardo Estella), Rufino Ramos and Federico Ramos (Annex 'J', Affidavit of Rolando Pineda) — these hired workers are not their immediate farm household, and (2) the respondents violated the terms of the agricultural leasehold contract by not paying the required rentals; that on March 31, 1992, Regino was informed in the house of the barangay chairman that complainant is the present owner of Lots A and B because these lots were not included in the Last Will and Testament dated March 10, 1989 (Annex 'L'). Lastly, they failed to notify him as regards harvesting."
In finding that petitioners are not legitimate tenants on subject landholding, the DARAB ratiocinated as follows:
"Thus, the evidence reveals that Julia went to the United States in August 1986 without the knowledge and consent of Remedios, former owner, and, in the words of respondents which are considered admission on their part — 'is presently in the United States' (p. 16, Appeal Memorandum dated September 7, 1994). This means that an absence of more than eight (8) years is indicative of her intention to abandon the lots in dispute for she did not go to the United States merely to visit her children but more importantly to live there permanently and enjoy a better life. Having left in August 1986, without any evidence of having returned to the Philippines, even raises a fair presumption that she is now an immigrant or already an American citizen and so is no longer interested to resume her tenancy obligations. As aptly held in Caasi vs. Court of Appeals, et. al., 191 SCRA 229, 'immigration to the United States in 1984 constituted an abandonment of his domicile and residence in the Philippines.'
Even the contention that 'respondent Regino (Rene) Francisco is the son of Julia Vda. de Francisco to whom she left the possession and cultivation of subject landholdings when she went to the United States to visit her children in 1986' (p. 17, Appeal Memorandum) is not tenable. As declared in Cruz vs. Marcelo, CA GR No. 03240-R, 29 April 1976 — 'while the tenant may avail of the aid of the members of his immediate farm household, he is nonetheless expected to undertake the principal phases of farm production which includes plowing, harrowing, transplanting and harvesting.' In the case at bar, Cruz had practically delegated the major phases of cultivation to Garcia, Cruz was no longer taking advantage of the assistance of his farm household.'
The law requires of Julia, the agricultural lessee, 'to cultivate and take care of the farm, growing crops and other improvements on the landholding as a good father of a family, and perform all the work therein in accordance with proven farm practices' (Section 26, RA 3844 as amended) and ' failure to comply with one's obligation as a tenant is tantamount to abandonment' (Limos vs. Bragado, CA GR No. SP-05891, 28 March 1977). Indeed, Section 5 of Republic Act No. 3844 explicitly requires Julia to personally cultivate the lots, and so, equally applying the ruling in Aguilar vs. Gomez, CA-GR No. SP-05933-R, 30 May 1977 — 'to recognize Gomez (or Julia for that matter) now to be the lessee will be violative of the above provision of law and will encourage tenants or lessees in absencia which the spirit of the law seeks to prevent. Stated differently, 'if the law abhors absentee owners, more so with absentee tenants' (Gabriel vs. Pangilinan. 58 SCRA 590).
The foregoing considerations constrained us to rule that Julia had indeed abandoned her cultivation in 1986 because 'respondent's vacating the land amounted to abandonment' (Alum vs. Paragila CA-GR No. SP-05673-R, 25 February 1977). Consequently, 'abandonment of the land without the knowledge of the lessor is one of the grounds for terminating leasehold contracts under the law' (Ronquillo vs. De Vera, et. al., CA-GR No. SP-01593-R, 6 May 1974).
Regino, however, tries to impress upon this Board that he has been instituted as the bona fide tenant succeeding his mother (p. 18 Appeal Memorandum). He contends that 'from the beginning, it is very clear that Regino (Rene) Francisco is the agricultural lessee in his own right after his mother left to him the possession and cultivation of the farmholding in 1986' (p. 21. Appeal Memorandum). Regino further claims that 'in 1991, Julia Vda. de Francisco transferred her tenurial right to Regino Francisco' (p. 20 Appeal Memorandum).
We do not agree. Firstly, when Julia abandoned the lots in 1986, her right as a tenant over the same lots ended and so she had no tenancy rights whatsoever to transmit to Regino in 1991. Secondly, Julia cannot install another tenant on her farmholdings. Thus, 'a tenant has neither the right nor the prerogative to create another tenant on the same landholding he work, without the consent of the landholder' (Sanglap, et. al. vs. Sarabia Sr., et. al., CA-GR No. 44846-R, 18 January 1973). For 'tenancy relationship can only be created with the consent of the landholder through lawful means and not through fraud, by imposition or usurpation' (PNB vs. Ramirez, 109 Phil. 175). Thirdly, it must be observed that Regino was permanently employed from 'October 19, 1987 to the present' pursuant to the Certification dated October 18, 1990 of Ms. Perpetua Reyes, Human Resource Management Officer II (Annex 'D') who certified that 'his employment is on a permanent basis,' hence, his subsequent resignation effective April 1, 1992 did not alter the fact that the work of a municipal license inspector is a full time job. Regino therefore cannot justly consider his being a municipal license inspector as incidental without jeopardizing his farmwork and vice versa. On this score, the Court of Appeal ruled:
'That plaintiff personally cultivated the seven (7) hectares of landholding in question and introduced massive improvements thereon, and at the same time worked as a government employee, committed to render at least eight (8) hours of service a day, is hard to believe, considering that, by the nature of his two diverse jobs, each of which requiring his full time attention, it is highly improvable (sic) that he could successfully serve his two masters at the same time (Dumas vs. Vda. de Bundalian, CA-GR No. 40135-R, 22 April 1969).
'Plaintiff who was employed as a full time machine operator in a corn mill working from 8:00 AM to 12:00 noon and from 2:00 PM to 6:00 PM every day excluding Sundays and holidays cannot be a tenant of a riceland' (Magalong vs. Yap, CA-GR No. SP-03163-CAR, 14 April 1977).
More importantly, Regino's claim is not even supported by his own witness who all declares (sic) that from 1986 to 1991 it was Mamerto who was the 'katulong' of Julia in the cultivation of the lots, not Regino who took over alledgedly (sic) in 1992 . . . "
Their motion for reconsideration of the decision of the DARAB having been denied petitioners filed the instant petition on the following grounds:
"A. THAT ERRORS IN THE FINDINGS OF FACTS AND CONCLUSION OF LAWS WERE COMMITTED WHICH, IF NOT CORRECTED, WOULD CAUSE GRAVE AND IRREPARABLE INJURY TO THE PETITIONERS.
B. THAT THERE IS A GRAVE ABUSE OF DISCRETION ON THE PART OF THE RESPONDENT DARAB AMOUNTING TO LACK OR IN EXCESS OF JURISDICTION."
It is argued that the visit of Julia Vda. de Francisco to the United States was only temporary and did not amount to abandonment of her farmholding and that her son, Regino, succeeded her in the cultivation of the farmholding as a bona fide and legitimate tenant
The same is without merit.
Petitioners have not submitted any evidence in support of their claim that although Julia left for the United States in 1986, she returned in the early part of 1987 and that she left again in January, 1991. The failure of petitioners to present evidence on the dates of departure from and arrival in the Philippines of Julia lends credence to the findings of the DARAB that she stayed in the United States after leaving the country in 1986 and that her absence for a long period of time amounted to an abandonment of her farmholding. Inasmuch as Julia ceased to be a tenant on the landholding, she had no tenancy rights which she could transmit to her son, Regino, especially without the consent of the landowner. Moreover, as shown by the Certification attached as Annex "F" to the petition, Regino Francisco was employed in the Office of the Mayor of Hagonoy, Bulacan from May 12, 1986 to April 27, 1987 and from October 19, 1987 to March 31, 1992. As succinctly pointed out by DARAB being a full time employee, Regino could not be considered a tenant on the landholding, in addition to the fact that his own witnesses declared that it was his brother, Mamerto, who cultivated the landholding from 1986 to 1991.
There is likewise no merit to the contention of petitioners that the complaint filed by respondent Tomas S. Bernardo was defective as it was not verified by him and it has not been shown that his counsel, Atty. Vic N. Tan, was authorized to file the complaint on behalf of said respondent. As pointed out by respondent Bernardo, the DARAB Rules of Procedure of 1989, which was in force when the complaint was filed in 1992, did not require verification of the complaint, which only had to be signed by the complainant of petitioner or his counsel or by one who could show a special power of attorney to do so. Moreover, the alleged defect in the complaint was raised for the first time in the petition and was not brought to the attention of the DARAB. Settled is the rule that issues not raised below cannot be pleaded for the first time on appeal. 2
WHEREFORE, the petition for review is DISMISSED for lack of merit.
SO ORDERED.
** Velasco, Jr. and *** Sabio, Jr., JJ., concur.
Footnotes
* Vice Justice Ramon A. Barcelona, who is on leave.
** Acting Thru Member.
*** Vice Justice Eduardo P. Cruz, who is on leave.
1. Re-raffled to the undersigned in view of the retirement of Justice Jorge S. Imperial.
2. Manalili vs. Court of Appeals, 280 SCRA 400.