Costs against private respondents.

SO ORDERED.

Ynares-Santiago (Chairperson), Chico-Nazario,

Nachura and Reyes, JJ., concur.

Petition granted, judgment and resolution reversed and

set aside.

Notes.—Simulation is defined as “the declaration of a

fictitious will, deliberately made by agreement of the
parties, in order to produce, for the purposes of deception,
the appearances of a juridical act which does not exist or is
different from that which was really executed.” (Mendezona
vs. Ozamiz, 376 SCRA 482 [2002])
When the plaintiff is in possession of the land to be
reconveyed, prescription cannot set in. (Santos vs. Lumbao,
519 SCRA 408 [2007])

——o0o——

G.R. No. 160795. June 27, 2008.*

CORINTHIAN GARDENS ASSOCIATION, INC.,

petitioner, vs. SPOUSES REYNALDO and MARIA LUISA
TANJANGCO, and SPOUSES FRANK and TERESITA
CUASO, respondents.

Provisional Remedies; Injunctions; To be entitled to the

injunctive writ, there must be a showing that the invasion of the
right is material and substantial, that the right of complainant is
clear and unmistakable, and that there is an urgent and
paramount necessity for the writ to issue in order to prevent
serious damage.—The denial was based on sound legal principles.
It is axiomatic that to be enti-

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* THIRD DIVISION.

155
 VOL. 556, JUNE 27, 2008 155

Corinthian Gardens Association, Inc. vs. Tanjangco

tled to the injunctive writ, one must show that there exists a right
to be protected which is directly threatened by the act sought to
be enjoined. Furthermore, there must be a showing that the
invasion of the right is material and substantial, that the right of
complainant is clear and unmistakable, and that there is an
urgent and paramount necessity for the writ to issue in order to
prevent serious damage.
Same; Same; Preliminary Injunctions; The applicants for the
issuance of writ of injunction must possess clear and unmistakable
legal right that merits protection through the writ of preliminary
injunction.—In the Cuasos’ case, their right to injunctive relief
had not been clearly and unmistakably demonstrated. They failed
to show proof that there is material and substantial invasion of
their right to warrant the issuance of an injunctive writ. Indeed,
the enforcement of the writ of execution, which would demolish
the Cuasos’ perimeter fence, is manifestly prejudicial to their
interest. However, they possess no clear and unmistakable legal
right that merits protection through the writ of preliminary
injunction. Their right to maintain the said fence had been
declared inferior to the Tanjangcos’ right to the demolition of the
fence, after the CA judgment had become final and executory as to
the Cuasos.
Appeals; It is a fundamental principle that a party who does
not appeal, or file a petition for certiorari, is not entitled to any
affirmative relief; An appellee who is not an appellant may assign
errors in his brief where his purpose is to maintain the judgment,
but he cannot seek modification or reversal of the judgment or
claim affirmative relief unless he has also appealed.—While it is
true that this Court noted the Memorandum and Supplemental
Memorandum filed by the Cuasos, such notation was made only
insofar as Corinthian made them respondents in this petition.
This Court cannot grant to the Cuasos any affirmative relief as
they did not file a petition questioning the CA ruling.
Consequently, the Decision of the CA holding that the Cuasos
acted in bad faith and that the perimeter fence may now be
demolished cannot be put in issue by the Cuasos. It is a
fundamental principle that a party who does not appeal, or file a
petition for certiorari, is not entitled to any affirmative relief. An
appellee who is not an appellant may assign errors in his brief
where his purpose is to maintain the judgment, but he cannot
seek modification or reversal of the judgment or claim affirmative
relief unless
 156

156 SUPREME COURT REPORTS ANNOTATED

Corinthian Gardens Association, Inc. vs. Tanjangco

he has also appealed. This applies to C.B. Paraz and Engr. De

Dios who likewise failed to assail the aforementioned CA
Decision.
Torts; Quasi-Delicts; Evidence; Damages; In every tort case
filed under Article 2176 of the Civil Code, plaintiff has to prove by
a preponderance of evidence: (1) the damages suffered by the
plaintiff; (2) the fault or negligence of the defendant or some other
person for whose act he must respond; and (3) the connection of
cause and effect between the fault or negligence and the damages
incurred.—The instant case is obviously one for tort, as governed
by Article 2176 of the Civil Code, which provides: ART. 2176.
Whoever by act or omission causes damage to another, there
being fault or negligence, is obliged to pay for the damage done.
Such fault or negligence, if there is no pre-existing contractual
relation between the parties, is called a quasi-delict and is
governed by the provisions of this Chapter. In every tort case filed
under this provision, plaintiff has to prove by a preponderance of
evidence: (1) the damages suffered by the plaintiff; (2) the fault or
negligence of the defendant or some other person for whose act he
must respond; and (3) the connection of cause and effect between
the fault or negligence and the damages incurred.
Same; Same; Negligence; Test to Determine Negligence; Words
and Phrases; “Negligent Act,” Defined—A negligent act is an
inadvertent act; it may be merely carelessly done from a lack of
ordinary prudence and may be one which creates a situation
involving an unreasonable risk to another because of the
expectable action of the other, a third person, an animal, or a
force of nature. A negligent act is one from which an ordinary
prudent person in the actor’s position, in the same or similar
circumstances, would foresee such an appreciable risk of harm to
others as to cause him not to do the act or to do it in a more
careful manner. The test to determine the existence of negligence
in a particular case may be stated as follows: Did the defendant in
committing the alleged negligent act use that reasonable care and
caution which an ordinary person would have used in the same
situation? If not, then he is guilty of negligence. The law, in effect,
adopts the standard supplied by the imaginary conduct of the
discreet paterfamilias in Roman law. The existence of negligence
in a given case is not determined by reference to the personal
judgment of the actor in the situation before him. The law
considers what would be reckless, blameworthy, or negligent in a
man of ordinary

157

VOL. 556, JUNE 27, 2008 157

Corinthian Gardens Association, Inc. vs. Tanjangco

intelligence and prudence, and determines liability according to

that standard.
Same; Same; It is not just or equitable to relieve a subdivision
association of any liability arising from the erection of a perimeter
fence which encroached upon another person’s lot when, by its very
own Manual of Rules and Regulations, it imposes its authority
over all its members to the end that “no new construction can be
started unless the plans are approved by the Association and the
appropriate cash bond and pre-construction fees are paid.”—By its
Manual of Rules and Regulations, it is reasonable to assume that
Corinthian, through its representative, in the approval of building
plans, and in the conduct of periodic inspections of on-going
construction projects within the subdivision, is responsible in
insuring compliance with the approved plans, inclusive of the
construction of perimeter walls, which in this case is the subject of
dispute between the Tanjangcos and the Cuasos. It is not just or
equitable to relieve Corinthian of any liability when, by its very
own rules, it imposes its authority over all its members to the end
that “no new construction can be started unless the plans are
approved by the Association and the appropriate cash bond and
pre-construction fees are paid.” Moreover, Corinthian can impose
sanctions for violating these rules. Thus, the proposition that the
inspection is merely a “table inspection” and, therefore, should
exempt Corinthian from liability, is unacceptable. After all, if the
supposed inspection is merely a “table inspection” and the
approval granted to every member is a mere formality, then the
purpose of the rules would be defeated. Compliance therewith
would not be mandatory, and sanctions imposed for violations
could be disregarded. Corinthian’s imprimatur on the
construction of the Cuasos’ perimeter wall over the property of the
Tanjangcos assured the Cuasos that everything was in order.
Lease; Judicial Notice; The reasonable amount of rent may not
be determined by judicial notice but by supporting evidence, such
as (1) the realty assessment of the land, (2) the increase in realty
taxes, and (3) the prevailing rate of rentals in the vicinity.—Our
ruling in Spouses Badillo v. Tayag, 400 SCRA 494 (2003) is
instructive: Citing Sia v. Court of Appeals [272 SCRA 141, May 5,
1997], petitioners argue that the MTC may take judicial notice of
the reasonable rental or the general price increase of land in order
to determine the amount of rent that may be awarded to them. In
that case, however, this Court relied on the CA’s factual findings,
which were based on

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158 SUPREME COURT REPORTS ANNOTATED

Corinthian Gardens Association, Inc. vs. Tanjangco

the evidence presented before the trial court. In determining

reasonable rent, the RTC therein took account of the following
factors: 1) the realty assessment of the land, 2) the increase in
realty taxes, and 3) the prevailing rate of rentals in the vicinity.
Clearly, the trial court relied, not on mere judicial notice, but on
the evidence presented before it. Indeed, courts may fix the
reasonable amount of rent for the use and occupation of a
disputed property. However, petitioners herein erred in assuming
that courts, in determining the amount of rent, could simply rely
on their own appreciation of land values without considering any
evidence. As we have said earlier, a court may fix the reasonable
amount of rent, but it must still base its action on the evidence
adduced by the parties. In Herrera v. Bollos [G.R. No. 138258,
January 18, 2002], the trial court awarded rent to the defendants
in a forcible entry case. Reversing the RTC, this Court declared
that the reasonable amount of rent could be determined not by
mere judicial notice, but by supporting evidence: x  x  x A court
cannot take judicial notice of a factual matter in controversy. The
court may take judicial notice of matters of public knowledge, or
which are capable of unquestionable demonstration, or ought to
be known to judges because of their judicial functions. Before
taking such judicial notice, the court must “allow the parties to be
heard thereon.” Hence, there can be no judicial notice on the
rental value of the premises in question without supporting
evidence.

PETITION for review on certiorari of a decision of the

Court of Appeals.
The facts are stated in the opinion of the Court.
    Ongkiko, Kalaw, Manhit & Acorda Law Offices for
petitioner.
    Feria, Feria, La’O, Tantoco for respondents Sps.
Reynaldo and Maria Luisa Tanjangco.
    Ponce Enrile, Reyes & Manalastas for respondents
Sps. Frank and Teresita Cuaso.

NACHURA, J.:
 Before this Court is a Petition for Review on Certiorari1

_______________

1 Rollo, pp. 8-53.

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VOL. 556, JUNE 27, 2008 159

Corinthian Gardens Association, Inc. vs. Tanjangco

under Rule 45 of the Rules of Civil Procedure seeking the

reversal of the Court of Appeals (CA) Decision2 dated
January 31, 2003 in CA-G.R. CV No. 43217, which reversed
and set aside the Decision3 of the Regional Trial Court
(RTC) of Quezon City, dated March 30, 1993.
The Antecedents:
Respondents-spouses Reynaldo and Maria Luisa
Tanjangco (the Tanjangcos) own Lots 68 and 69 covered by
Transfer Certificates of Title (TCT) No. 2422454 and
2829615 respectively, located at Corinthian Gardens
Subdivision, Quezon City, which is managed by petitioner
Corinthian Gardens Association, Inc. (Corinthian). On the
other hand, respondents-spouses Frank and Teresita Cuaso
(the Cuasos) own Lot 65 which is adjacent to the
Tanjangcos’ lots.
Before the Cuasos constructed their house on Lot 65, a
relocation survey was necessary. As Geodetic Engineer
Democrito De Dios (Engr. De Dios), operating under the
business name D.M. De Dios Realty and Surveying,
conducted all the previous surveys for the subdivision’s
developer, Corinthian referred Engr. De Dios to the
Cuasos. Before, during and after the construction of the
said house, Corinthian conducted periodic ocular
inspections in order to determine compliance with the
approved plans pursuant to the Manual of Rules and
Regulations of Corinthian.6 Unfortunately, after the
Cuasos constructed their house employing the services of
C.B. Paraz & Construction Co., Inc. (C.B. Paraz) as builder,
their perimeter fence encroached on the Tanjangcos’ Lot 69
by 87 square meters.

_______________

2  Penned by Associate Justice Renato C. Dacudao (now retired), with

Associate Justices Eugenio S. Labitoria (now retired) and Danilo B. Pine
(now retired), concurring; id., at pp. 56-108.
3 Particularly docketed as Civil Case No. Q-89-2706; id., at pp. 172-199.
 4 Rollo, pp. 148-149.
5 Id., at p. 150.
6 Id., at pp. 119-139.

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160 SUPREME COURT REPORTS ANNOTATED

Corinthian Gardens Association, Inc. vs. Tanjangco

No amicable settlement was reached between the

parties. Thus, the Tanjangcos demanded that the Cuasos
demolish the perimeter fence but the latter failed and
refused, prompting the Tanjangcos to file with the RTC a
suit against the Cuasos for Recovery of Possession with
Damages.7
Eventually, the Cuasos filed a Third-Party Complaint8
against Corinthian, C.B. Paraz and Engr. De Dios. The
Cuasos ascribed negligence to C.B. Paraz for its failure to
ascertain the proper specifications of their house, and to
Engr. De Dios for his failure to undertake an accurate
relocation survey, thereby, exposing them to litigation. The
Cuasos also faulted Corinthian for approving their
relocation survey and building plans without verifying
their accuracy and in making representations as to Engr.
De Dios’ integrity and competence. The Cuasos alleged that
had Corinthian exercised diligence in performing its duty,
they would not have been involved in a boundary dispute
with the Tanjangcos. Thus, the Cuasos opined that
Corinthian should also be held answerable for any damages
that they might incur as a result of such construction.
On March 30, 1993, the RTC rendered a Decision in
favor of the Tanjangcos. It ruled that the Cuasos’ perimeter
wall encroached on the land of the Tanjangos by 87 square
meters. It, however, ruled that the Cuasos were builders in
good faith, and gave the Tanjangcos the option to sell and
the Cuasos the option to buy the encroaching portion of the
land, at a price to be agreed upon by the parties within
sixty (60) days from receipt of the said Decision. In the
event that the Cuasos were unable and unwilling to
purchase the said portion, the perimeter wall should be
demolished at the latter’s expense. The RTC also ordered
the Cuasos to pay monthly rentals of P2,000.00
commencing from the time of the filing of the complaint.
The RTC likewise held that C.B. Paraz was grossly

_______________

7 Id., at pp. 143-147.

 8 Id., at pp. 153-164.

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VOL. 556, JUNE 27, 2008 161

Corinthian Gardens Association, Inc. vs. Tanjangco

negligent in not taking into account the correct boundaries

of Cuasos’ lot when it constructed the house. It, thus,
ordered C.B. Paraz to pay moral and exemplary damages
as well as attorney’s fees to the Tanjangcos and the Cuasos.
The third-party complaint against Corinthian and Engr. De
Dios, on the other hand, was dismissed for lack of cause of
action.
The Tanjangcos filed a Motion for Reconsideration9 of
the said RTC Decision which the RTC, however, denied in
its Order10 dated June 28, 1993.
Dissatisfied with the RTC ruling, the Tanjangcos, the
Cuasos, and C.B. Paraz all appealed to the CA.
On appeal, the CA reversed and set aside the RTC
Decision. It held that the Cuasos acted in bad faith in land-
grabbing the 87 square meter-portion of Lot 69 as of April
5, 1989. Correlatively, the CA allowed the Tanjangcos to
exercise the rights granted under Articles 449, 450, 451
and 549 of the New Civil Code, which include the right to
demand the demolition of the offending perimeter wall
after reimbursing the Cuasos the necessary expenses for
the preservation of the encroached area. The Cuasos were
ordered to pay monthly rentals of P10,000.00 for the use,
enjoyment and occupancy of the lot from 1989 up to the
time they vacate the property considering the location and
category of the same. They were, likewise, ordered to pay
the Tanjangcos P100,000.00, as moral damages, P50,000.00
as exemplary damages, and P150,000.00 as attorney’s fees.
The CA also imposed six percent (6%) interest per annum
on all the awards. The Cuasos’ appeal against the
Tanjangcos, on the other hand, was dismissed for lack of
merit. On the third-party complaints, Corinthian, C.B.
Paraz and Engr. De Dios were all found negligent in
performing their respective duties and so they were
ordered to contribute five percent (5%) each, or a total of
fifteen percent (15%) to all judgment sums and amounts
that the Cuasos

_______________

9  Id., at pp. 200-207.

10 Id., at p. 208.
 162

162 SUPREME COURT REPORTS ANNOTATED

Corinthian Gardens Association, Inc. vs. Tanjangco

shall eventually pay under the decision, also with interest

of six percent (6%) per annum.
Only Corinthian filed a Motion for Reconsideration11 of
the CA Decision within the 15-day reglementary period. No
motion for reconsideration was filed by the Cuasos, C.B.
Paraz and/or Engr. De Dios.
About six (6) months later, or on August 12, 2003, the
Cuasos filed a Comment/Manifestation12 praying that they
be allowed to adopt Corinthian’s Motion for
Reconsideration.
In its Resolution13 dated November 14, 2003, the CA
denied Corinthian’s Motion for Reconsideration.
Hence, Corinthian filed the instant Petition for Review
on Certiorari assailing the CA Decision and Resolution, and
impleading the Cuasos as one of the respondents being the
third-party plaintiffs in the RTC.
This Court gave due course to Corinthian’s petition and
required the parties to submit their respective
memorandum.14 In compliance, the Cuasos submitted their
Memorandum15 and Supplement to Memorandum,16 which
were both noted by this Court in its Resolutions dated
January 10, 200517 and February 2, 2005,18 respectively.
In the meantime, the Tanjangcos moved for partial entry
of judgment of the CA Decision which was granted by the
CA in its Resolution19 dated May 26, 2006, directing the
issuance of

_______________

11 Id., at pp. 209-216.

12 Id., at pp. 225-227.
13 Id., at pp. 110-115.
14 Resolution dated September 15, 2004; id., at p. 308.
15 Rollo, pp. 310-325.
16 Id., at pp. 419-433.
17 Id., at p. 450.
18 Id., at p. 452.
19 Penned by Associate Justice Renato C. Dacudao (now retired), with
Associate Justices Celia C. Librea-Leagogo and Mariflor Punzalan-
Castillo, concurring; id., at pp. 457-460.

163
 VOL. 556, JUNE 27, 2008 163
Corinthian Gardens Association, Inc. vs. Tanjangco

an Entry of Judgment and a Certification that its Decision

dated January 31 2003 has become final and executory
with respect to the Cuasos, C.B. Paraz and Engr. De Dios
for their failure to file an appeal assailing the said Decision
before this Court.
The Tanjangcos then moved for the execution of the
judgment against the Cuasos, specifically the demolition of
the perimeter fence,20 which was also granted by the RTC
in its Order21 dated December 18, 2006.
Other than the filing of an Opposition22 and a Motion for
Reconsideration23 before the RTC, the Cuasos prayed for
the issuance of a temporary restraining order (TRO) and/or
preliminary injunction before this Court to enjoin the
demolition of the perimeter fence. They averred that the
premature demolition of the alleged encroaching perimeter
wall and other improvements will cause grave and
irreparable damage to them, because what is sought to be
demolished is part of their residence. They claimed that no
amount of money will compensate for the damage they
stand to suffer should any demolition subsequently prove
to be wrongful. They argued that before any execution can
be carried out, it is necessary to first determine whether or
not Corinthian was negligent in approving the building
plan and whether or not it acted in good faith in doing so.
Such determination, according to the Cuasos, will in turn
determine whether or not they were in good faith in
constructing the house.24
The Tanjangcos opposed the Cuasos’ application for
TRO. They countered that the only pending matter with
this Court is the appeal by Corinthian; hence, the
implementation of the January 31, 2003 Decision of the CA
against the Cuasos will

_______________

20 Motion for Execution dated July 10, 2006; id., at pp. 493-501.
21 Rollo, pp. 509-511.
22 Id., at pp. 502-508.
23 Id., at pp. 517-529.
24  Application for a Temporary Restraining Order and/or Writ of
Preliminary Injunction dated May 4, 2007; id., at pp. 465-491.

164

164 SUPREME COURT REPORTS ANNOTATED

 Corinthian Gardens Association, Inc. vs. Tanjangco

not preempt the outcome of the said pending incidents.

Also, any action taken by this Court on Corinthian’s
petition would not benefit the Cuasos for they did not
appeal the adverse decision against them. Accordingly,
they cannot obtain affirmative relief from this Court by
reason or on account of the appeal taken by Corinthian.
The appeal, they added, is personal to Corinthian. Finally,
they argued that the Cuasos are now estopped from
questioning the enforcement of the CA Decision since they
issued a manager’s check to pay the money judgment.25
In this Court’s Resolution dated July 18, 2007, we
denied the Cuasos’ application for TRO and/or writ of
preliminary injunction for lack of merit.  
The denial was based on sound legal principles. It is
axiomatic that to be entitled to the injunctive writ, one
must show that there exists a right to be protected which is
directly threatened by the act sought to be enjoined.
Furthermore, there must be a showing that the invasion of
the right is material and substantial, that the right of
complainant is clear and unmistakable, and that there is
an urgent and paramount necessity for the writ to issue in
order to prevent serious damage.26
In the Cuasos’ case, their right to injunctive relief had
not been clearly and unmistakably demonstrated. They
failed to show proof that there is material and substantial
invasion of their right to warrant the issuance of an
injunctive writ. Indeed, the enforcement of the writ of
execution, which would demolish the Cuasos’ perimeter
fence, is manifestly prejudicial to their interest. However,
they possess no clear and unmistakable legal right that
merits protection through the writ

_______________

25 Opposition dated May 17, 2007; id., at pp. 556-574.

26 Almeida v. Court of Appeals, G.R. No. 159124, January 17, 2005, 448
SCRA 681, 694.

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VOL. 556, JUNE 27, 2008 165

Corinthian Gardens Association, Inc. vs. Tanjangco

of preliminary injunction.27 Their right to maintain the

said fence had been declared inferior to the Tanjangcos’
right to the demolition of the fence, after the CA judgment
had become final and executory as to the Cuasos.
It bears stressing that the Cuasos failed to appeal the
ruling of the CA. This failure to contest the CA decision
before this Court was fatal to their cause. It had the effect
of an admission that they indeed acted in bad faith, as they
accepted the CA ruling. The decision of the CA, therefore,
became binding and final as to them.28 As a matter of fact,
the CA already issued a partial entry of judgment against
the Cuasos.
An injunction to stay a final and executory decision is
unavailing except only after a showing that facts and
circumstances exist which would render execution unjust
or inequitable, or that a change in the situation of the
parties occurred. Here, no such exception exists as shown
by the facts earlier narrated.29

_______________

27  Philippine School of Business Administration-Quezon City v.

Tolentino-Genilo, G.R. No. 159277, December 21, 2004, 447 SCRA 442,
448.
28  In Government Service Insurance System v. Court of Appeals, 368
Phil. 36, 50; 308 SCRA 559, 573 (1999), citing Firestone Tire and Rubber
Company of the Philippines v. Tempongko, 27 SCRA 418, 424 (1969) and
Singapore Airlines Limited v. Court of Appeals, 243 SCRA 143, 148 (1995),
this Court held: The decision of the trial court as affirmed by the Court of
Appeals not having been appealed by the insurer (MIGC) of the Toyota
Tamaraw, the same is now final as far as that entity is concerned, and
may not be modified by this Court. Failure of any parties to appeal the
judgment as against him makes such judgment final and executory. By
the same token, an appeal by one party from such judgment does not
inure to the benefit of the other party who had not appealed nor can it be
deemed to be an appeal of such other party from the judgment against
him.
29 Philippine Sinter Corporation v. Cagayan Electric Power and Light
Co., Inc., 431 Phil. 324, 333; 381 SCRA 582, 590 (2002).

166

166 SUPREME COURT REPORTS ANNOTATED

Corinthian Gardens Association, Inc. vs. Tanjangco

While it is true that this Court noted the Memorandum

and Supplemental Memorandum filed by the Cuasos, such
notation was made only insofar as Corinthian made them
respondents in this petition. This Court cannot grant to the
Cuasos any affirmative relief as they did not file a petition
questioning the CA ruling. Consequently, the Decision of
the CA holding that the Cuasos acted in bad faith and that
the perimeter fence may now be demolished cannot be put
in issue by the Cuasos. It is a fundamental principle that a
party who does not appeal, or file a petition for certiorari, is
not entitled to any affirmative relief.30 An appellee who is
not an appellant may assign errors in his brief where his
purpose is to maintain the judgment, but he cannot seek
modification or reversal of the judgment or claim
affirmative relief unless he has also appealed.31 This
applies to C.B. Paraz and Engr. De Dios who likewise failed
to assail the aforementioned CA Decision.
With this matter put to rest, we now go to the main
issues raised by Corinthian, the sole petitioner in this case,
to wit:

“a) Whether or not there is legal basis for the Court of

Appeals to hold petitioner Corinthian Gardens Association, Inc.
liable to pay 5% of the judgment money to Sps. Tanjangco on
account of the encroachment made by Sps. Cuaso[; and]
b) Whether or not the Court of Appeals has legal basis to
increase unilaterally and without proof the amount prayed for in
the Complaint, i.e., P2,000.00, as reasonable compensation for the
use and enjoyment of the portion of the lot encroached upon, to
P10,000.00.”32

_______________

30  Alauya, Jr. v. Commission on Elections, 443 Phil.

893, 907; 395 SCRA 742, 752-753 (2003).
31  Acebedo Optical Company, Inc. v. Court of Appeals,
385 Phil. 956, 976; 329 SCRA 314, 334 (2000).
32  Corinthian’s Memorandum dated December 6, 2004,
Rollo, pp. 384-385.

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VOL. 556, JUNE 27, 2008 167

Corinthian Gardens Association, Inc. vs. Tanjangco

Corinthian claims that the approval of the building plan

of the Cuasos was not tainted with negligence as it did not
approve the survey relocation plan but merely the
architectural, structural and sanitary plans for Cuasos’
house; that the purpose of the said approval is not to
ensure that the house to be erected on a particular lot is
constructed within its boundaries but only to ensure
compliance with the Manual of Rules and Regulations; that
while Corinthian conducts actual site inspections, the
inspection and approval of the building plans are limited to
“table inspection” only; that the survey relocation plan was
never submitted for Corinthian’s approval; that the
acceptance of the builder’s bond did not make Corinthian
automatically liable for the encroachment and for damages;
and that Corinthian approved the building plan with the
good faith and due diligence required under the
circumstances. It, thus, concludes that it cannot be held
liable to pay five percent (5%) of the money judgment to the
Tanjangcos on account of the encroachment made by the
Cuasos. Likewise, it finds no legal basis for the CA to
unilaterally increase the amount of the adjudged rent from
P2,000.00 to P10,000.00 which was not prayed for by the
Tanjangcos in their complaint and in the absence of
evidence adduced by the parties.33
On the other hand, the Tanjangcos stand by the ruling
of the CA and opine that Corinthian was negligent in
approving the building plan of the Cuasos. They submit
that Corinthian’s claim that it merely conducts “table
inspections” of buildings further bolsters their argument
that Corinthian was negligent in conveniently and
unilaterally restricting and limiting the coverage of its
approval, contrary to its own Manual of Rules and
Regulations; that the acceptance of a builder’s bond does
not automatically make Corinthian liable but the same
affirms the fact that a homeowner can hold it liable for the
consequences of the approval of a building plan;

_______________

33 Id., at pp. 363-407.

168

168 SUPREME COURT REPORTS ANNOTATED

Corinthian Gardens Association, Inc. vs. Tanjangco

and that Corinthian, by regularly demanding and accepting

membership dues, must be wary of its responsibility to
protect the rights and interests of its members. Lastly, the
Tanjangcos contend that a court can take judicial notice of
the general increase in the rentals of real estate, as in this
case, where the CA considered the value of their lot in the
“posh-and-swank” Corinthian Gardens Subdivision and the
fact that they were deprived of it for almost two decades.
The Tanjangcos pray that this Court sustain the ruling of
the CA.34
The instant case is obviously one for tort, as governed by
Article 2176 of the Civil Code, which provides:

“ART. 2176. Whoever by act or omission causes damage to

another, there being fault or negligence, is obliged to pay for the
damage done. Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is called a quasi-delict
and is governed by the provisions of this Chapter.”

In every tort case filed under this provision, plaintiff has

to prove by a preponderance of evidence: (1) the damages
suffered by the plaintiff; (2) the fault or negligence of the
defendant or some other person for whose act he must
respond; and (3) the connection of cause and effect between
the fault or negligence and the damages incurred.35
Undeniably, the perimeter fence of the Cuasos
encroached on Lot 69 owned by the Tanjangcos by 87
square meters as duly found by both the RTC and the CA
in accordance with the evidence on record. As a result, the
Tanjangcos suffered damage in having been deprived of the
use of that portion of their lot encroached upon. Thus, the
primordial issue to be resolved in this case is whether
Corinthian was negligent

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34 Tanjangcos’ Memorandum dated November 29, 2004; id., at pp. 331-

361.
35 Child Learning Center, Inc. v. Tagorio, G.R. No. 150920, November
25, 2005, 476 SCRA 236, 242.

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under the circumstances and, if so, whether such

negligence contributed to the injury suffered by the
Tanjangcos.
A negligent act is an inadvertent act; it may be merely
carelessly done from a lack of ordinary prudence and may
be one which creates a situation involving an unreasonable
risk to another because of the expectable action of the
other, a third person, an animal, or a force of nature. A
negligent act is one from which an ordinary prudent person
in the actor’s position, in the same or similar
circumstances, would foresee such an appreciable risk of
harm to others as to cause him not to do the act or to do it
in a more careful manner.36
The test to determine the existence of negligence in a
particular case may be stated as follows: Did the defendant
in committing the alleged negligent act use that reasonable
care and caution which an ordinary person would have
used in the same situation? If not, then he is guilty of
negligence. The law, in effect, adopts the standard supplied
by the imaginary conduct of the discreet paterfamilias in
Roman law. The existence of negligence in a given case is
not determined by reference to the personal judgment of
the actor in the situation before him. The law considers
what would be reckless, blameworthy, or negligent in a
man of ordinary intelligence and prudence, and determines
liability according to that standard.37
By this test, we find Corinthian negligent.
While the issue of Corinthian’s alleged negligence is
factual in character,38 a review by this Court is proper
because the CA’s factual findings differ from those of the
RTC’s.39 Thus,

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36 Capili v. Cardaña, G.R. No. 157906, November 2, 2006, 506 SCRA

569, 575, citing 65 C.J.S. §1(14), p. 462.
37  Fernando v. Court of Appeals, G.R. No. 92087, May 8, 1992, 208
SCRA 714, 718, citing Picart v. Smith, 37 Phil. 809, 813 (1918).
38 Pestaño v. Sumayang, 400 Phil. 740, 749; 346 SCRA 870, 878 (2000).
39  Manila Electric Company v. Court of Appeals, 413 Phil. 338, 354;
361 SCRA 35, 49-50 (2001).

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170 SUPREME COURT REPORTS ANNOTATED

Corinthian Gardens Association, Inc. vs. Tanjangco

after a meticulous review of the evidence on record, we hold

that the CA committed no reversible error when it deviated
from the findings of fact of the RTC. The CA’s findings and
conclusions are substantiated by the evidence on record
and are more in accord with law and reason. Indeed, it is
clear that Corinthian failed to exercise the requisite
diligence in insuring that the Cuasos abide by its Manual
of Rules and Regulations, thereby resulting in the
encroachment on the Tanjangcos’ property.
We agree with the CA when it aptly held:
 “Corinthian cannot and should not be allowed to justify or
excuse its negligence by claiming that its approval of the Cuasos’
building plans was only limited to a so-called “table inspection;”
and not actual site measurement. To accept some such postulate
is to put a premium on negligence. Corinthian was not organized
solely for the defendants Cuasos. It is also the subdivision of the
plaintiffs-spouses Tanjangcos—and of all others who have their
dwelling units or abodes therein. Pertinently, its Manual of Rules
and Regulations stipulates in Section 3 thereof (under the
heading Construction), thus:
A. Rules and Regulations
No new construction can be started unless the building
plans are approved by the Association and the
appropriate Builder’s cash bond and pre-construction fees
are paid. The Association will not allow the entry of
construction materials and process identification cards for
workers if the above conditions are not complied with.
Likewise, all renovations, repairs, additions and
improvements to a finished house except electrical wiring,
will have to be approved by the Association. Water service
connection of a homeowner who undertakes construction
work without prior approval of the Association will be cut-
off in addition to the sanctions previously mentioned.
It goes without saying that this Manual of Rules and
Regulations applies to all—or it does not apply at all. To borrow a
popular expression, what is sauce for the gander is sauce for the
goose—or ought to be. To put it matter-of-factly and bluntly, thus,
its so-called “table inspection” approval of the Cuasos’ building
plans is no less of

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VOL. 556, JUNE 27, 2008 171

Corinthian Gardens Association, Inc. vs. Tanjangco

an approval, as approvals come and go. And since it is an

approval tainted with negligence, the necessary and inevitable
consequences which law and justice attach to such negligence
must, as a matter of law and justice, also necessarily attach to
Corinthian.
And then again third party defendant-appellee Corinthian
Garden required the posting of a builder’s cash bond (Exh. “5”-
Corinthian) from the defendants-appellants Cuasos and the third-
party defendant C.B. Paraz Construction to secure the
performance of their undertaking. Surely, Corinthian does not
imply that while it may take the benefits from the Builder’s cash
bond, it may, Pilate-like, wash its hands of any responsibility or
liability that would or might arise from the construction or
building of the structure for which the cash bond was in the first
place posted. That is not only unjust and immoral, but downright
unchristian and iniquitous.
Under the same parity of reasoning, the payment by the
appellants-Cuasos to the appellee Corinthian of pre-construction
and membership fees in the Association must necessarily entail
the creation of certain obligations on the part of Corinthian. For
duties and responsibilities always go hand in hand with rights
and privileges. That is the law of life — and that is the law of
every civilized society. It is an axiom of equity that he who
receives the benefits must share the burdens.”40

By its Manual of Rules and Regulations, it is reasonable

to assume that Corinthian, through its representative, in
the approval of building plans, and in the conduct of
periodic inspections of on-going construction projects
within the subdivision, is responsible in insuring
compliance with the approved plans, inclusive of the
construction of perimeter walls, which in this case is the
subject of dispute between the Tanjangcos and the
Cuasos.41 It is not just or equitable to relieve

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40 Rollo, pp. 104-105 (Citations omitted).

41 Art. IV, Section 3(d) of Corinthian’s Manual of Rules and
Regulations provides:
  All on-going construction shall be subject to inspection of the
Association’s representative for the purpose of determining compliance to
the approved plans. It shall be considered a violation if the contractor/lot
owner does not permit entry of the Association repre-

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172 SUPREME COURT REPORTS ANNOTATED

Corinthian Gardens Association, Inc. vs. Tanjangco

Corinthian of any liability when, by its very own rules, it

imposes its authority over all its members to the end that
“no new construction can be started unless the plans are
approved by the Association and the appropriate cash bond
and pre-construction fees are paid.” Moreover, Corinthian
can impose sanctions for violating these rules. Thus, the
proposition that the inspection is merely a “table
inspection” and, therefore, should exempt Corinthian from
liability, is unacceptable. After all, if the supposed
inspection is merely a “table inspection” and the approval
granted to every member is a mere formality, then the
purpose of the rules would be defeated. Compliance
therewith would not be mandatory, and sanctions imposed
for violations could be disregarded. Corinthian’s
imprimatur on the construction of the Cuasos’ perimeter
wall over the property of the Tanjangcos assured the
Cuasos that everything was in order.
In sum, Corinthian’s failure to prevent the
encroachment of the Cuasos’ perimeter wall into
Tanjangcos’ property—despite the inspection conducted—
constitutes negligence and, at the very least, contributed to
the injury suffered by the Tanjangcos.
On the second issue, our ruling in Spouses Badillo v.
Tayag42 is instructive:

“Citing Sia v. Court of Appeals [272 SCRA 141, May 5, 1997],

petitioners argue that the MTC may take judicial notice of the
reasonable rental or the general price increase of land in order to
de- 

_______________

sentative doing inspection works. Such violation will be subject to the sanctions
available to the Association such as (a) denial of entry of construction materials (b)
renovation of ID’s of construction workers and (c) cutting-off of water service. The
schedule of inspection shall be as follows:

 A. For original construction

 x x x
 2. When the perimeter walls are being constructed.
 x x x
42 448 Phil. 606, 623; 400 SCRA 494, 507-508 (2003).

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termine the amount of rent that may be awarded to them. In that

case, however, this Court relied on the CA’s factual findings,
which were based on the evidence presented before the trial court.
In determining reasonable rent, the RTC therein took account of
the following factors: 1) the realty assessment of the land, 2) the
increase in realty taxes, and 3) the prevailing rate of rentals in
the vicinity. Clearly, the trial court relied, not on mere judicial
notice, but on the evidence presented before it.
Indeed, courts may fix the reasonable amount of rent for the
use and occupation of a disputed property. However, petitioners
herein erred in assuming that courts, in determining the amount
of rent, could simply rely on their own appreciation of land values
without considering any evidence. As we have said earlier, a court
may fix the reasonable amount of rent, but it must still base its
action on the evidence adduced by the parties.
In Herrera v. Bollos [G.R. No. 138258, January 18, 2002, 374
SCRA 107], the trial court awarded rent to the defendants in a
forcible entry case. Reversing the RTC, this Court declared that
the reasonable amount of rent could be determined not by mere
judicial notice, but by supporting evidence:
x  x  x A court cannot take judicial notice of a factual
matter in controversy. The court may take judicial notice of
matters of public knowledge, or which are capable of
unquestionable demonstration, or ought to be known to
judges because of their judicial functions. Before taking
such judicial notice, the court must “allow the parties to be
heard thereon.” Hence, there can be no judicial notice on the
rental value of the premises in question without supporting
evidence.”

Truly, mere judicial notice is inadequate, because

evidence is required for a court to determine the proper
rental value. But contrary to Corinthian’s arguments, both
the RTC and the CA found that indeed rent was due the
Tanjangcos because they were deprived of possession and
use of their property. This uniform factual finding of the
RTC and the CA was based on the evidence presented
below. Moreover, in Spouses Catungal v. Hao,43 we
considered the increase in the award of

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43 407 Phil. 309, 323; 355 SCRA 29, 42 (2001).

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174 SUPREME COURT REPORTS ANNOTATED

Corinthian Gardens Association, Inc. vs. Tanjangco

rentals as reasonable given the particular circumstances of

each case. We noted therein that the respondent denied the
petitioners the benefits, including rightful possession, of
their property for almost a decade.
Similarly, in the instant case, the Tanjangcos were
deprived of possession and use of their property for more
than two decades through no fault of their own. Thus, we
find no cogent reason to disturb the monthly rental fixed by
the CA.
All told, the CA committed no reversible error.
 WHEREFORE, the petition is DENIED. The Decision of
the Court of Appeals is AFFIRMED. Costs against
petitioner.
SO ORDERED.

Ynares-Santiago (Chairperson), Austria-Martinez,

Chico-Nazario and Reyes, JJ., concur. 

Petition denied, judgment affirmed.

Notes.—It is a basic procedural postulate that a

preliminary injunction, which necessarily includes a
temporary restraining order, should not be used to transfer
the possession or control of a thing to a party who did not
have such possession or control at the inception of the case.
(Velasco vs. Court of Appeals, 329 SCRA 392 [2000])
A writ of preliminary injunction may only be issued
upon showing of an actual existing right to be protected
during the pendency of the principal action. (Lim vs. Court
of Appeals, 482 SCRA 326 [2006])

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