G.R. No. 89114. December 2, 1991.*

FRANCISCO S. TANTUICO, JR., petitioner, vs. REPUBLIC OF THE PHILIPPINES, PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT, MATEO A.T. CAPARAS, AND THE SANDIGANBAYAN, respondents.

Remedial Law; Pleadings and Practices; Nature of a complaint.A complaint is defined as a concise statement of the ultimate facts constituting the plaintiff s cause or causes of action. Like all other pleadings allowed by the Rules of Court, the complaint shall contain in a methodical and logical form a plain, concise and direct statement of the ultimate facts on which the plaintiff relies for his claim, omitting the statement of mere evidentiary facts. Its office, purpose or function is to inform the defendant clearly and definitely of the claims made against him so that he may be prepared to meet the issues at the trial. The complaint should inform the defendant of all the material facts on which the plaintiff relies to support his demand; it should state the theory of a cause of action which forms the bases of the plaintiffs claim of liability.

Same; Same; Same; Rules on pleading speak of two kinds of facts, the ultimate facts and the evidentiary facts.The rules on pleading speak of two (2) kinds of facts: the first, the ultimate facts, and the second, the evidentiary facts.

Same; Same; Same; Same; Ultimate facts and evidentiary facts defined."The term ultimate facts as used in Sec. 3, Rule 3 of the Rules of Court, means the essential facts constituting the plaintiffs cause of action. A fact is essential if it cannot be stricken out, without leaving the statement of the cause of action insufficient, x x x, (Moran, Rules of Court, Vol. 1,1963 ed., p. 213). Ultimate facts are important and substantial facts which either directly form the basis of the primary right and duty, or which directly make up the wrongful acts or omissions of the defendant. The term does not refer to the details of probative matter or particulars of evidence by which these material elements are to be established. It refers to principal, determinate, constitutive facts, upon the existence of which, the entire cause of action rests. while the term evidentiary fact has been denned in the following tenor: Those facts which are necessary for determination of the ultimate facts; they are the premises upon which conclusions of ultimate facts are based. Womack v. Industrial Comm., 168 Colo. 364, 451 P.2d 761, 764. Facts which furnish evidence of existence of some other fact.

Same; Same; Same; Bill of Particulars; Where the allegations of the complaint are vague, indefinite or in the form of conclusions, the proper recourse would be not a motion to dismiss but a motion for a bill of particulars.Where the complaint states ultimate facts that constitute the three (3) essential elements of a cause of action, namely: (1) the legal right of the plaintiff, (2) the correlative obligation of the defendant, and (3) the act or omission of the defendant in violation of said legal right, the complaint states a cause of action, otherwise, the complaint must succumb to a motion to dismiss on that ground of failure to state a cause of action. However, where the allegations of the complaint are vague, indefinite, or in the form of conclusions, the proper recourse would be, not a motion to dismiss, but a motion for a bill of particulars.

Same; Same; Same; Same; Allegations in the complaint are deficient in that they merely articulate conclusions of law and presumptions unsupported by factual premises.The allegations in the complaint, above-referred to, pertaining to petitioner are, therefore, deficient in that they merely articulate conclusions of law and presumptions unsupported by factual premises. Hence, without the particulars prayed for in petitioners motion for a bill of particulars, it can be said the petitioner can not intelligently prepare his responsive pleading and for trial.

Same; Same; Same; Same; Same; The particulars prayed for are not evidentiary in nature.Furthermore, the particulars prayed for, such as, names of persons, names of corporations, dates, amounts involved, a specification of property for identification purposes, the particular transactions involving withdrawals and disbursements, and a statement of other material facts as would support the conclusions and inferences in the complaint, are not evidentiary in nature. On the contrary, those particulars are material facts that should be clearly and definitely averred in the complaint in order that the defendant may, in fairness, be informed of the claims made against him to the end that he may be prepared to meet the issues at the trial.

Same; Same; Same; Same; Purpose or object of a bill of particulars.Thus, it has been held that the purpose or object of a bill of particulars is"x x x to amplify or limit a pleading, specify more minutely and particularly a claim or defense set up and pleaded in general terms, give information, not contained in the pleading, to the opposite party and the court as to the precise nature, character, scope, and extent of the cause of action or defense relied on by the pleader, and apprise the opposite party of the case which he has to meet, to the end that the proof at the trial may be limited to the matters specified, and in order that surprise at, and needless preparation for, the trial may be avoided, and that the opposite party may be aided in framing his answering pleading and preparing for trial. It has also been stated that it is the function or purpose of a bill of particulars to define, clarify, particularize, and limit or circumscribe the issues in the case, to expedite the trial, and assist the court. A general function or purpose of a bill of particulars is to prevent injustice or do justice in the case when that cannot be accomplished without the aid of such a bill.

Same; Same; Same; Same; In a motion for a bill of particulars the only question to be resolved is whether or not the allegations of the complaint are averred with sufficient definiteness or particularity to enable the movant properly to prepare his responsive pleading and to prepare for trial.Anent the contention of the Solicitor General that the petitioner is not entitled to a bill of particulars because the ultimate facts constituting the three (3) essential elements of a cause of action for recovery of ill-gotten wealth have been sufficiently alleged in the complaint, it would suffice to state that in a motion for a bill of particulars, the only question to be resolved is whether or not the allegations of the complaint are averred with sufficient definiteness or particularity to enable the movant properly to prepare his responsive pleading and to prepare for trial.

PETITION for certiorari, mandamus and prohibition to review the resolution of the Sandiganbayan.

The facts are stated in the opinion of the Court.

Kenny H. Tantuico for petitioner.

PADILLA, J.:

In this petition for certiorari, mandamus and prohibition with a prayer for the issuance of a writ of preliminary injunction and/or restraining order, the petitioner seeks to annul and set aside the resolution of the Sandiganbayan, dated 21 April 1989, denying his motion for a bill of particulars as well as its resolution, dated 29 May 1989, which denied his motion for reconsideration; to compel the respondent PCGG to prepare and file a bill of particulars, or that said respondent be ordered to exclude petitioner as defendant in Civil Case No. 0035 should they fail to submit the said bill of particulars; and to enjoin the respondent Sandiganbayan from further proceeding against petitioner until the bill of particulars is submitted, claiming that the respondent Sandiganbayan acted with grave abuse of discre-tion amounting to lack of jurisdiction in promulgating the aforesaid resolutions and that there is no appeal, nor any plain, speedy and adequate remedy for him in the ordinary course of law other than the present petition.

As prayed for, this Court issued on 1 August 1989 a temporary restraining order effective immediately and continuing until further orders from this Court, ordering the respondent Sandiganbayan to CEASE and DESIST from further proceeding in Civil Case No. 0035 (PCGG 35), entitled Republic of the Philippines vs. Benjamin (Kokoy) Romualdez, et al. pending before it.1

The antecedents are as follows:

On 31 July 1987, the Republic of the Philippines, represented by the PCGG, and assisted by the Office of the Solicitor General, filed with the Sandiganbayan Civil Case No. 0035, entitled Republic of the Philippines vs. Benjamin (Kokoy) Romualdez, et al. for reconveyance, reversion, accounting, restitution and damages.2

The principal defendants in the said Civil Case No. 0035 are Benjamin (Kokoy) Romualdez, Ferdinand E. Marcos and Imelda R. Marcos.

Petitioner Francisco S. Tantuico, Jr. was included as defendant in Civil Case No. 0035 on the theory that: (1) he acted in unlawful concert with the principal defendants in the misappropriation and theft of public funds, plunder of the nations wealth, extortion, blackmail, bribery, embezzlement and other acts of corruption, betrayal of public trust and brazen abuse of power;3 (2) he acted as dummy, nominee or agent, by allowing himself to be incorporator, director, board member and/or stockholder of corporations beneficially held and/or controlled by the principal defendants;4 (3) he acted singly or collectively, and/or in unlawful concert with one another, in flagrant breach of public trust and of their fiduciary obligations as public officers, with gross and scandalous abuse of right and power and in brazen violation of the Constitution and laws of the Philippines, embarked upon a systematic plan to accumulate ill-gotten wealth;5 (4) he (petitioner) taking undue advantage of his position as Chairman of the Commission on Audit and with grave failure to perform his constitutional duties as such Chairman, acting in concert with defendants Ferdinand E. Marcos and Imelda R. Marcos, facilitated and made possible the withdrawals, disbursements and questionable use of government funds;6 and (5) he acted as dummy, nominee and/or agent by allowing himself to be used as instrument in accumulating ill-gotten wealth through government concessions, orders and/or policies prejudicial to plaintiff, or to be incorporator, director, or member of corporations beneficially held and/or controlled by defendants Ferdinand E. Marcos, Imelda R. Marcos, Benjamin (Kokoy) Romualdez and Juliette Gomez Romualdez in order to conceal and prevent recovery of assets illegally obtained.7

On 11 April 1988, after his motion for production and inspection of documents8 was denied by respondent court in its resolution9 dated 9 March 1988, petitioner filed a Motion for a Bill of Particulars,10 alleging inter alia that he is sued for acts allegedly committed by him as (a) a public officer-Chairman of the Commission on Audit, (b) as a private individual, and (c) in both capacities, in a complaint couched in too general terms and shorn of particulars that would inform him of the factual and legal basis thereof, and that to enable him to understand and know with certainty the particular acts allegedly committed by him and which he is now charged with culpability, it is necessary that plaintiff furnish him the particulars sought therein relative to the averments in paragraphs 2, 9(a), 15, 7 and 17 of the Second Amended Complaint so that he can intelligently prepare his responsive pleading and prepare for trial. The particulars sought for in the said motion are as follows:

a. Relative to the averments in paragraphs 2, 9(a) and 15 of the Second Amended Complaint:

i) What are the dates of the resolutions (if on appeal) or the acts (if otherwise) issued or performed by herein defendant which allowed the facilitation of, and made possible the, withdrawals, disbursements and questionable use of government funds;

ii) What ministries or Departments, offices or agencies of the government were involved in these questionable use of government funds;

iii) What are the names of the auditors who had the original audit jurisdiction over the said withdrawals, disbursements and questionable use of government funds;

iv) How much government funds were involved in these questionable-disbursements, individually and in totally?

v) Were the disbursements brought to herein defendant for action on pre-audit, post-audit or otherwise or where they initiated and/or allowed release by herein defendant alone, without them undergoing usual governmental audit procedures, or in violation thereof?

vi) What were herein defendants other acts or omission or participation in the matter of allowing such disbursements and questionable use of government funds, if any?

b. Relative to paragraphs 7 and 17 of the Second Amended Complaint:

i) In what particular contract, dealing, transaction and/or relationship of any nature of Ferdinand E. Marcos, Imelda R. Marcos, Juliette Gomez Romualdez or Benjamin T. Romualdez did herein defendant act as dummy, nominee or agent? Please specify the dealings, the dates, the corporations or entities involved, the government offices involved and the private and public documents, if any, sho wing herein defendants complicity, since he is not aware of any such instance. More basically, please specify whether the defendant is a dummy or nominee or agent and of which corporation or transaction?

ii) What particular government concession, order and/or policy obtained by Ferdinand E. Marcos, or Imelda R. Marcos, or Juliette Gomez Romualdez and/or Benjamin T. Romualdez allowed them either singly or jointly to accumulate ill-gotten wealth by using herein defendant as instrument for their accomplishment, Likewise please identify the nature of the transactions, the dates and the document showing complicity on the part of herein defendant; he is not aware of any such instance.

iii) Please specify the name or denominate the particular government concession, order and/or policy prejudicial to the interest of the government which was obtained by either of the above-named four defendants through the participation of herein defendant as a dummy, nominee or agent of herein defendant, Please likewise identify the government office involved, the dates and other particulars, likewise defendant is not aware of any such instance.

iv) Please name and specify the corporation whether stock or non-stock, whether government or private, beneficially held and/or controlled by either of the four above defendants, where herein defendant is an incorporator, director or member and where his inclusion as such incorporator, director or member of the corporation was made in order to conceal and prevent recovery of assets illegally obtained by the aforementioned four defendants, how many shares are involved and what are their values, how and when have they been acquired.

The Solicitor General, for and in behalf of respondents (except the respondent Sandiganbayan), opposed the motion.11 After the petitioner had filed his reply12 thereto, the respondent Sandiganbayan promulgated on 21 April 1990 a resolution13 denying the petitioners motion for a bill of particulars on the ground that the particulars sought by petitioner are evidentiary in nature, the pertinent part of which resolution reads, as follows:

We are of the considered opinion that the allegations in the Expanded Complaint are quite clear and sufficient enough for defendant-movant to know the nature and scope of the causes of action upon which plaintiff seeks relief. They provide the factual scenario which, coupled with other allegations set forth in the Common Averments and further specified in the Specific Averments of herein defendantmovant and his co-defendants illegal acts which are within defendant-movants peculiar and intimate knowledge as a government official and corporate executive, will enable him to make the proper admission, denials or qualifications, set out affirmative and/or special defenses and thereafter prepare for trial. E videntiary facts or matters are not essential in the pleading of the cause of action, nor to details or probative value or particulars of evidence by which these material evidence are to be established (Remitere vs. Yulu, 6 SCRA 251). The matters which he seeks are evidentiary in nature and, being within his intimate or personal knowledge, may be denied or admitted by him or if deemed necessary, be the subject of other forms of discovery."14

Petitioner moved for reconsideration15 but this was denied by respondent Sandiganbayan in its resolution16 dated 29 May 1990.

Hence, petitioner filed the present petition.

The principal issue to be resolved in the case at bar is whether or not the respondent Sandiganbayan acted with grave abuse of discretion in issuing the disputed resolutions.

Petitioner argues that the allegations of the Second Amended Complaint in Civil Case No. 0035 (PCGG 35) pertaining to him state only conclusions of fact and law, inferences of facts from facts not pleaded and mere presumptions, not ultimate facts as required by the Rules of Court.

On the other hand, the respondent Sandiganbayan, by and through the Solicitor General, contends that the essential elements of an action for recovery of ill-gotten wealth are: (1) an accumulation of assets, properties and other possessions; (2) of former President Ferdinand E. Marcos, Mrs. Imelda Romualdez Marcos, their close relatives, subordinates, business associates, dummies, agents, or nominees; and (3) whose value is out of proportion to their known lawful income, and that the ultimate facts establishing these three (3) essential elements of an action for recovery of ill-gotten wealth are sufficiently alleged in the complaint. Hence, petitioner is not entitled to a bill of particulars.

A complaint is defined as a concise statement of the ultimate facts constituting the plaintiff s cause or causes of action.17 Like all other pleadings allowed by the Rules of Court,18 the complaint shall contain in a methodical and logical form a plain, concise and direct statement of the ultimate facts on which the plaintiff relies for his claim, omitting the statement of mere evidentiary facts.19 Its office, purpose or function is to inform the defendant clearly and definitely of the claims made against him so that he may be prepared to meet the issues at the trial. The complaint should inform the defendant of all the material facts on which the plaintiff relies to support his demand; it should state the theory of a cause of action which forms the bases of the plaintiffs claim of liability.20

The rules on pleading speak of two (2) kinds of facts: the first, the ultimate facts, and the second, the evidentiary facts. In Remitere vs. Vda. de Yulo,21 the term ultimate facts was defined and explained as follows:

The term ultimate facts as used in Sec. 3, Rule 3 of the Rules of Court, means the essential facts constituting the plaintiff s cause of action. A fact is essential if it cannot be stricken out without leaving the statement of the cause of action insufficient. x x x (Moran, Rules of Court, Vol. 1, 1963 ed., p. 213).

Ultimate facts are important and substantial facts which either directly form the basis of the primary right and duty, or which directly make up the wrongful acts or omissions of the defendant. The term does not refer to the details of probative matter or particulars of evidence by which these material elements are to be established. It refers to principal, determinate, constitutive facts, upon the existence of which, the entire cause of action rests.

while the term evidentiary fact has been defined in the follow-ing tenor:

Those facts which are necessary for determination of the ultimate facts; they are the premises upon which conclusions of ultimate facts are based. Womack v. Industrial Comm., 168 Colo. 364, 451 P.2d 761, 764. Facts which furnish evidence of existence of some other fact."22

Where the complaint states ultimate facts that constitute the three (3) essential elements of a cause of action, namely: (1) the legal right of the plaintiff, (2) the correlative obligation of the defendant, and (3) the act or omission of the defendant in violation of said legal right, the complaint states a cause of action, otherwise, the complaint must succumb to a motion to dismiss on that ground of failure to state a cause of action.23 However, where the allegations of the complaint are vague, indefinite, or in the form of conclusions, the proper recourse would be, not a motion to dismiss, but a motion for a bill of particulars.24 Thus, Section 1, Rule 12 of the Rules of Court provides:

Before responding to a pleading or, if no responsive pleading is permitted by these rules, within ten (10) days after service of the pleading upon him, a party may move for a more definite statement or for a bill of particulars of any matter which is not averred with sufficient definiteness or particularity to enable him properly to prepare his responsive pleading or to prepare for trial. Such motion shall point out the defects complained of and the details desired.

In this connection, the following allegations have been held as mere conclusions of law, inferences from facts not alleged or opinion of the pleader: (a) the allegations that defendantsappellees were actuated by ulterior motives, contrary to law and morals, with abuse of their advantageous position as employers, in gross and evident bad faith and without giving plaintiff. . . his due, wilfully, maliciously, unlawfully, and in summary and arbitrary manner, are conclusions of law, inferences from facts not alleged and expressions of opinion unsupported by factual premises;25 (b) an allegation of duty in terms unaccompanied by a statement of facts showing the existence of the duty, is a mere conclusion of law, unless there is a relation set forth from which the law raises the duty;26 (c) an averment . . . that an act was unlawful or wrongful is a mere legal conclusion or opinion of the pleader;27 (d) the allegation that there was a violation of trust was plainly a conclusion of law, for a mere allegation that it was the duty of a party to do this or that, or that he was guilty of a breach of duty, is a statement of a conclusion, not of a fact";28 (e) an allegation that a contract is valid or void, is a mere conclusion of law;29 (f) the averment in the complaint that defendant usurped the office of Senator of the Philippines is a conclusion of lawnot a statement of factinasmuch as the particular facts on which the alleged usurpation is predicated are not set forth therein;30 and (g) the averment that with intent of circumventing the constitutional prohibition that no officer or employee in the civil service shall be removed or suspended except for cause as provided by law, respondents maliciously and illegally for the purpose of political persecution and political vengeance, reverted the fund of the salary item x x x and furthermore eliminated or abolished the said position effective 1 July 1960" is a mere conclusion of law unsupported by factual premises.31

Bearing in mind the foregoing rules on pleading and case law, let us now examine the allegations of the Second Amended Complaint against the petitioner to determine whether or not they were averred with sufficient definiteness or particularity to enable him properly to prepare his responsive pleading or to prepare for trial. If the allegations of the said complaint are vague, indefinite or in the form of conclusions, then petitioner is entitled to a bill of particulars.

The allegations in the complaint pertaining to the alleged culpable and unlawful acts of herein petitioner are quoted hereunder as follows:

GENERAL AVERMENTS

OF

DEFENDANTS' ILLEGAL ACTS

9. (a) From the early years of his presidency, Defendant Ferdinand E. Marcos took undue advantage of his powers as President. All throughout the period from September 21, 1972 to February 25, 1986, he gravely abused his powers under martial law and ruled as Dictator under the 1973 Marcos-promulgated Constitution. Defendant Ferdinand E. Marcos, together with other Defendants, acting singly or collectively, and/or in unlawful concert with one another, in flagrant breach of public trust and of their fiduciary obligations as public officers, with gross and scandalous abuse of right and power and in brazen violation of the Constitution and laws of the Philippines, embarked upon a systematic plan to accumulate ill-gotten wealth;

(b) Upon his unfettered discretion, and sole authority, for the purpose of implementing the plan referred to above, Defendant Ferdinand E. Marcos ordered and caused, among others:

(b-i) the massive and unlawful withdrawal of funds, securities, reserves and other assets and property from the National Treasury, the Central Bank, the other financial institutions and depositories of Plaintiff;

(b-ii) the transfer of such funds, securities, reserves and other assets and property to payees or transferees of his choice and whether and in what manner such transactions should be recorded in the books and records of these institutions and other depositories of Plaintiff;

10. Among others, in furtherance of the plan and acting in the manner referred to above, in unlawful concerted with one another and with gross abuse of power and authority, Defendants Ferdinand E. Marcos and Imelda R. Marcos;

x x x x x x

b. Converted government-owned and controlled corporations into private enterprises and appropriated them and/or their assets for their own benefit and enrichment;

c. Awarded contracts with the Government to their relatives, business associates, dummies, nominees, agents or persons who were beholden to said Defendants, under terms and conditions grossly and manifestly disadvantageous to the Government;

d. Misappropriated, embezzled and/or converted to their own use funds of Government financial institutions, particularly those allocated to the Office of the President and other ministries and agencies of the Government including, those conveniently denominated as intelligence or counter-insurgency funds, as well as funds provided to Plaintiff by foreign countries, multinationals, public and private financial institutions;

e. Raided Government financial and banking institutions of billions of pesos in loans, guarantees and other types of financial accommodations to finance dubious and/or overpriced projects of favored corporations or individuals and misused and/or converted to their own use and benefit deposits found therein to the financial ruin of Plaintiff and the Filipino people;

x x x x x x

h. Sold, conveyed and/or transferred Government property, real and/or personal, to corporations beneficially held and/ or controlled by them or through third persons, under such terms and conditions grossly and manifestly disadvantageous to the Government;

i. Engaged in other illegal and improper acts and practices designed to defraud Plaintiff and the Filipino people, or otherwise misappropriated and converted to their own use, benefit and enrichment the lawful patrimony and revenues of Plaintiff and the Filipino people.

11.Among the assets acquired by Defendants in the manner above-described and discovered by the Commission in the exercise of its official responsibilities are funds and other property listed in Annex A' hereof and made an integral part of this Complaint.

12.Defendants, acting singly or collectively, and/or in unlawful concert with one another, for the purpose of preventing disclosure and avoiding discovery of their unmitigated plunder of the National Treasury and of their other illegal acts, and employing the services of prominent lawyers, accountants, financial experts, businessmen and other persons, deposited, kept and invested funds, securities and other assets estimated at billions of US dollars in various banks, financial institutions, trust or investment companies and with persons here and abroad.

V

SPECIFIC AVERMENTS

OF

DEFENDANTS' ILLEGAL ACTS

xxx xxx

14. Defendants Benjamin (Kokoy) Romualdez and Juliette Gomez Romualdez, acting by themselves and/or in unlawful concert with Defendants Ferdinand E. Marcos and Imelda R. Marcos, and taking undue advantage of their relationship, influence and connection with the latter Defendant spouses, engaged in devices, schemes and strategems to urjustly enrich themselves at the expense of Plaintiff and the Filipino people, among others:

(a) obtained, with the active collaboration of Defendants Senen J. Gabaldon, Mario D. Camacho, Mamerto Nepomuceno, Carlos J. Valdes, Delia Tantuico, Jovencio F. Cinco, Cesar C. Zalamea and Francisco Tantuico, control of some of the biggest business enterprises in the Philippines, such as, the Manila Electric Company (MERALCO), Benguet Consolidated Mining Corporation (BENGUET) and the Pilipinas Shell Corporation, by employing devious financial schemes and techniques calculated to require the massive infusion and hemmorrhage of government funds with minimum or negligible cashout from Defendant Benjamin Romualdez. The following are the general features of a classic take-over bid by Defendant Benjamin Romualdez:

x x x x x x

(ii) The shares were held in the name of corporations which were organized soldely (sic) for the purpose of holding title to them. These corporations did not have any operating history nor any financial track record. Projected cash flow consisted almost solely of future and contingent dividends on the shares held. In spite of these limitations, these companies enjoyed excellent credit lines from banks and other financial institutions, as evidenced by the millions of pesos in loan and guarantees outstanding in their books;

(iii) The seed money used to wrest control came from government and taxpayers money in the form of millions of pesos in loans, guarantees and standby L/Cs from government financial institutions, notably the DBP and PNB, which were in turn rediscounted with the Central Bank;

(iv) Additional funding was provided from the related interests; and

(v) This instricate (sic) skein of inter-corporate dealings was controlled and administered by an exclusive and closely knit group of interlocking directorate and officership.

x x x x x x

(g) Secured, in a veiled attempt to justify MERALCOs anomalous acquisition of the electric cooperatives, with the active collaborations of Defendants Cesar E.A. Virata, Juanito R. Remulla, Isidro Rodriguez, Jose C. Hernandez, Pedro Dumol, Ricardo C. Galing, Fran-cisco C. Gatmaitan, Mario D. Camacho and the rest of the Defendants, the approval by Defendant Ferdinand E. Marcos and his cabinet of the so-called Three-Year Program for the Extension of MERALCOs Services to Areas Within The 60-Kilometer Radius of Manila, which required government capital investment amounting to millions of pesos;

x x x x x x

(1) Caused the National Investment and Development Corporation (NIDC) to dispose of its interest in the oil plants located in Tanauan, Leyte, which were owned and operated by its subsidiary, the NIDC Oil Mills, Inc., in favor of the SOLOIL, Inc., a corporation beneficially held and controlled by Defendant Benjamin Romualdez, with the active collaboration of Defendants Jose Sandejas, Francisco Tantuico and Dominador G. Ingco, under terms and conditions grossly disadvantageous to NIDC, to the grave and irreparable damage of Plaintiff and the Filipino people.

15. Defendant Francisco Tantuico, taking undue advantage of his position as Chairman of the Commission on Audit and with grave failure to perform his constitutional duties as such Chairman, acting in concert with Defendants Ferdinand E. Marcos and Imelda R. Marcos, facilitated and made possible the withdrawals, disbursements and questionable use of government funds as stated in the foregoing paragraphs to the grave and irreparable damage and injury of Plaintiff and the entire Filipino people.

xxx xxx

17. The following Defendants acted as dummies, nominees and/ or agents by allowing themselves (i) to be used as instruments in accumulating ill-gotten wealth through government concessions, orders and/or policies prejudicial to Plaintiff, or (ii) to be incorporators, directors, or members of corporations held and/or controlled by Defendants Ferdinand E. Marcos, Imelda R. Marcos, Benjamin (Kokoy) Romualdez, and Juliette Gomez Romualdez in order conceal (sic) and prevent recovery of assets illegally obtained; Francisco Tantuico x x x.

17.a. THE NAMES OF SOME OF THE CORPORATIONS BENEFICALLY HELD AND/OR CONTROLLED BY THE DEFENDANTS BENJAMIN (KOKOY) ROMUALDEZ, FERDINAND E. MARCOS AND IMELDA R. MARCOS WHERE THE POSITIONS/PARTICIPATIONS AND/OR INVOLVEMENTS OF SOME OF THE DEFENDANTS AS DUMMIES, NOMINEES AND/OR AGENTS ARE INDICATED ARE LISTED IN ANNEX B' HEREOF AND MADE AN INTEGRAL PART OF THIS COMPLAINT. x x x x x x

18. The acts of Defendants, singly or collectively, and/or in un-lawful concert with one another, constitute gross abuse of official position and authority, flagrant breach of public trust and fiduciary obligations, acquisition of unexplained wealth, brazen abuse of official position and authority, flagrant breach of public trust and fiduciary obligations, acquisition of unexplained wealth, brazen abuse of right and power, unjust enrichment, violation of the Constitution and laws of the Republic of the Philippines, to the grave and irreparable damage of Plaintiff and the Filipino people. (Italics supplied)

Let us now analyze and discuss the allegations of the complaint in relation to which the petitioner pleads for a bill of particulars.

As quoted above, paragraph 9(a) of the complaint alleges that Defendant Ferdinand E. Marcos, together with other Defendants, acting singly or collectively, and/or in unlawful concert with one another, in flagrant breach of public trust and of their fiduciary obligations as public officers, with gross and scandalous abuse of right and power and in brazen violation of the Constitution and laws of the Philippines, embarked upon a systematic plan to accumulate ill-gotten wealth. In the light of the rules on pleading and case law cited above, the allegations that defendant Ferdinand E. Marcos, together with the other defendants embarked upon a systematic plan to accumulate ill-gotten wealth and that said defendants acted in flagrant breach of public trust and of their fiduciary obligations as public officers, with gross and scandalous abuse of right and in brazen violation of the Constitution and laws of the Philippines, are conclusions of law unsupported by factual premises.

Nothing is said in the complaint about the petitioners acts in execution of the alleged systematic plan to accumulate illgotten wealth, or which are supposed to constitute flagrant breach of public trust, gross and scandalous abuse of right and power, and violations of the Constitution and laws of the Philippines. The complaint does not even allege what duties the petitioner failed to perform, or the particular rights he abused.

Likewise, paragraph 15 avers that defendant Francisco Tantuico, taking undue advantage of his position as Chairman of the Commission on Audit and with grave failure to perform his constitutional duties as such Chairman, acting in concert with Defendants Ferdinand E. Marcos and Imelda R. Marcos facilitated and made possible the withdrawals, disbursements and questionable use of government funds as stated in the foregoing paragraphs to the grave and irreparable damage and injury of Plaintiff and the entire Filipino people. In like manner, the allegation that petitioner took undue advantage of his position as Chairman of the Commission on Audit, that he failed to perform his constitutional duties as such Chairman, and acting in concert with Ferdinand E. Marcos and Imelda R. Marcos, facilitated and made possible the withdrawals, disbursements, and questionable use of government funds as stated in the foregoing paragraphs, to the grave and irreparable damage and injury of plaintiff and the entire Filipino people, are mere conclusions of law, Nowhere in the complaint is there any allegation as to how such duty came about, or what petitioners duties were, with respect to the alleged withdrawals and disbursements or how petitioner facilitated the alleged withdrawals, disbursements, or conversion of public funds and properties, nor an allegation from where the withdrawals and disbursements came from, except for a general allegation that they came from the national treasury. On top of that, the complaint does not even contain any factual allegation which would show that whatever withdrawals, disbursements, or conversions were made, were indeed subject to audit by the COA.

In this connection, it may well be stated that the Commission on Audit (COA) is an independent, constitutional commission, which has no power or authority to withdraw, disburse, or use funds and property pertaining to other government offices or agencies. This is done by the agency or office itself, the chief or head of which is primarily and directly responsible for the funds and property pertaining to such office or agency.32 The COA is merely authorized to audit, examine and settle accounts of the various government offices or agencies, and this task is performed not by the Chairman of the COA but by the COA auditors assigned to the government office or agency subject to COA audit.

Thus, in each agency of the government there is an auditing unit headed by an auditor, whose duty is to audit and settle the accounts, funds, financial transactions, and resources of the agency under his audit jurisdiction.33 The decision of the auditor is appealable to the Regional Director,34 whose decision, is in turn, appealable to the COA Manager.35 Any party dissatisfied with the decision of the COA Manager may bring the matter on appeal to the Commission proper, a collegiate body exercising quasi-judicial functions, composed of three (3) COA Commissioners, with the COA Chairman as presiding officer.36 It is only at this stage that the COA Chairman would come to know of the matter and be called upon to act on the same, and only if an aggrieved party brings the matter on appeal.

In other words, the Chairman of the COA does not participate in or personally audit all disbursements and withdrawals of government funds, as well as transactions involving government property. The averments in the particular paragraph of the complaint merely assume that petitioner participated in or personally audited all disbursements and withdrawals of government funds, and all transactions involving government property. Hence, the alleged withdrawals, disbursements and questionable use of government funds could not have been, as held by respondent Sandiganbayan, within the peculiar and intimate knowledge of petitioner as Chairman of the COA."

The complaint further avers in paragraph 17 that "(t)he following Defendants acted as dummies, nominees and/or agents by allowing themselves (i) to be instruments in accumulating ill-gotten wealth through government concessions, order and/or policies prejudicial to Plaintiff, or (ii) to be incorporators, directors, or members of corporations beneficially held and/or controlled by Defendant Ferdinand E. Marcos, Imelda R. Marcos, Benjamin (Kokoy) T. Romualdez and Juliette Gomez Romualdez in order to conceal and prevent recovery of assets illegally obtained: Francisco Tantuico x x x."37 Again, the allegation that petitioner acted as dummy, nominee, or agent by allowing himself to be used as instrument in accumulating ill-gotten wealth through government concessions, orders and/or policies prejudicial to Plaintiff or to be (an) incorporator, director, or member of corporations beneficially held and/or controlled by the Marcoses and Romualdezes, is a conclusion of law without factual basis.

The complaint does not contain any allegation as to how petitioner became, or why he is perceived to be, a dummy, nominee or agent. Besides, there is no averment in the complaint how petitioner allowed himself to be used as instrument in the accumulation of ill-gotten wealth, what the concessions, orders and/or policies prejudicial to plaintiff are, why they are prejudicial, and what petitioner had to do with the granting, issuance, and or formulation of such concessions, orders, and/or policies. Moreover, Annex A" of the complaint lists down sixty-one (61) corporations which are supposed to be beneficially owned or controlled by the Marcoses and Romualdezes. However, the complaint does not state which corporations petitioner is supposed to be a stockholder, director, member, dummy, nominee and/or agent, More significantly, the petitioners name does not even appear in Annex B" of the complaint, which is a listing of the alleged Positions and Participations of Some Defendants.

The allegations in the complaint, above-referred to, pertaining to petitioner are, therefore, deficient in that they merely articulate conclusions of law and presumptions unsupported by factual premises. Hence, without the particulars prayed for in petitioners motion for a bill of particulars, it can be said the petitioner can not intelligently prepare his responsive pleading and for trial.

Furthermore, the particulars prayed for, such as, names of persons, names of corporations, dates, amounts involved, a specification of property for identification purposes, the particular transactions involving withdrawals and disbursements, and a statement of other material facts as would support the conclusions and inferences in the complaint, are not evidentiary in nature. On the contrary, those particulars are material facts that should be clearly and definitely averred in the complaint in order that the defendant may, in fairness, be informed of the claims made against him to the end that he may be prepared to meet the issues at the trial.

Thus, it has been held that the purpose or object of a bill of particulars is

x x x to amplify or limit a pleading, specify more minutely and particularly a claim or defense set up and pleaded in general terms, give information, not contained in the pleading, to the opposite party and the court as to the precise nature, character, scope, and extent of the cause of action or defense relied on by the pleader, and apprise the opposite party of the case which he has to meet, to the end that the proof at the trial may be limited to the matters specified, and in order that surprise at, and needless preparation for, the trial may be avoided, and that the opposite party may be aided in framing his answering pleading and preparing for trial. It has also been stated that it is the function or purpose of a bill of particulars to define, clarify, particular-ize, and limit or circumscribe the issues in the case, to expedite the trial, and assist the court. A general function or purpose of a bill of particulars is to prevent injustice or do justice in the case when that cannot be accomplished without the aid of such a bill."38

Anent the contention of the Solicitor General that the petitioner is not entitled to a bill of particulars because the ultimate facts constituting the three (3) essential elements of a cause of action for recovery of ill-gotten wealth have been sufficiently alleged in the complaint, it would suffice to state that in a motion for a bill of particulars, the only question to be resolved is whether or not the allegations of the complaint are averred with sufficient definiteness or particularity to enable the movant properly to prepare his responsive pleading and to prepare for trial. As already discussed, the allegations of the complaint pertaining to the herein petitioner are deficient because the averments therein are mere conclusions of law or presumptions, unsupported by factual premises.

In the light of the foregoing, the respondent Sandiganbayan acted with grave abuse of discretion amounting to lack or excess of jurisdiction in promulgating the questioned resolutions.

WHEREFORE, the petition is GRANTED and the resolutions dated 21 April 1989 and 29 May 1989 are hereby ANNULLED and SET ASIDE. The respondents are hereby ordered to PREPARE and FILE a Bill of Particulars containing the facts prayed for by petitioner within TWENTY (20) DAYS from notice, and should they fail to submit the said Bill of Particulars, respondent Sandiganbayan is ordered TO EXCLUDE the herein petitioner as defendant in Civil Case No. 0035.

SO ORDERED.

Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Bidin, Grio-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur.

Fernan (C.J.), On leave.

Romero, J., No part. Related to a PCGG Commissioner.

Petition granted. Resolutions annulled and set aside.

Hydro Resources Contractors Corp. vs. Court of Appeals

G.R. No. 85714. November 29, 1991.*

HYDRO RESOURCES CONTRACTORS CORPORATION, petitioner, vs. THE COURT OF APPEALS, THE PROVINCIAL GOVERNMENT OF ISABELA, THE MUNICIPALITY OF RAMON, ISABELA and THE NATIONAL IRRIGATION ADMINISTRATION, respondents.

Civil Procedure; Appeals; Court can review matters not assigned as error.It is to be observed that while the complaint in the case at bar is admittedly one for collection of realty taxes over certain real properties, filed against the petitioner, the complaint, however, does not allege the amount of taxes which the plaintiffs seek to collect from petitioner. There is thus a need to determine the effect of such failure of the complaint to state the aforesaid amount vis-a-vis plaintiffs cause of action. Although this issue is not raised in the present petition, it is basic that the Court can review matters not assigned as an error in the appeal.

Same; Action for collection of sum of money; Effect of failure to state amount collectible.While it may be true that petitioner-defendant did not move to question the failure of the complaint to plead the amount of tax sought to be collected, the court a quo, upon its own motion, may dismiss the complaint for failure of the plaintiffs to comply with Section 3, Rule 6 of the Rules of Court in relation to Section 3, Rule 17 thereof which provides that the action may be dismissed for failure to comply with the rules. This dismissal the court a quo did not order. The complaint being fatally defective, the questioned order, dated 6 August 1983, .* hich derived its life from the said complaint, is also without effect.

Same; Judgments; Interlocutory orders distinguished from final judgments.The dispositive part of said order states that petitionerdefendant is liable for the payment of real property taxes, but, it adds, further proceedings shall be held to determine the amount of real property taxes to be paid by petitioner-defendant. xxx As held in De la Cruz vs. Paras, a court order is final in character if it puts an end to the particular matter resolved or settles definitely the matter therein disposed of, such that no further questions can come before the court except the execution of the order; that on the other hand, a court order is merely interlocutory in character if it is provisional and leaves substantial proceeding to be had in connection with its subject. Clearly, the order of 6 August 1983 is interlocutory. We fail to see how it could or did put an end to the controversy when the court a quo still had to determine the amount of realty taxes to be collected by plaintiffs from petitioner-defendant, and to make findings of fact on certain issues, which could still affect the very liability to pay such taxes.

PETlTlON for review on certiorari of the decision of the Court of Appeals. Elbinias, J.

The facts are stated in the opinion of the Court.

G.E. Aragones & Associates for petitioner.

PADILLA, J.:

This is a petition for certiorari, treated as a petition for review on certiorari of the decision** of the Court of Appeals, dated 30 October 1987, in CA-G.R. SP Case No. 09196, affirming the Order dated 6 August 1983 of the Regional Trial Court of Echague, Isabela, Branch 24, in CV No. XXIV-0106 (re-docketed as Civil Case No. 0093, before the Regional Trial Court, Santiago, Isabela, Branch XXI).***

Public respondent National Irrigation Administration (or NIA") and petitioner Hydro Resources Contractors Corporation (or Hydro) entered into a contract whereby the latter undertook to construct for the former the Magat River MultiPurpose Project situated at Ramon, Isabela.1

In June 1982, the Provincial Government of Isabela, its provincial treasurer, the Municipality of Ramon, Isabela, and its assistant treasurer, as plaintiffs, filed a civil case against herein petitioner Hydro, docketed as Civil Case No. XXIV-0106, with the Regional Trial Court of Echague, Isabela, Branch 24, for collection of taxes over certain real properties which Hydro allegedly acquired, possessed and used in connection with the construction of the said Magat River Multi-Purpose Project.2

After hearing, the Regional Trial Court, Echague, Br. 24, on 6 August 1983, issued an order in favor of the plaintiffs, finding defendant Hydro (now petitioner) liable to pay realty taxes over the properties it had constructed in connection with the Magat River Multi-Purpose Project, but that the amount thereof was to be determined in further proceedings of the court a quo, dispositive part of which order reads:

WHEREFORE, in the light of the foregoing considerations, the court finds and so rules that under the pertinent provisions of Presidential Decree No. 464 as amended, the defendant, Hydro Resources Contractors Corporation, is liable to the payment of realty taxes over the real properties it constructed relative to the prosecution of the Magat River Multi-Purpose Project (MRMP) at Barangay Aguinaldo, Ramon, Isabela.

Accordingly, it is hereby ordered that further proceedings shall be held to determine the amount of real property taxes to be paid by the defendant corporation to the plaintiffs in accordance with this Order and to receive evidence on the questions of facts raised by the former.

However, by reason of the fact that pursuant to Administrative Order No. 7, dated February 11, 1983, of the Honorable Supreme Court, implementing the provisions of Section 18 of Batas Pambansa Blg. 129, cases which arise in the Municipality of Ramon, Isabela, among other municipalities, now fall within the administrative jurisdiction of the newly-created Regional Trial Court, Branch XXI, Santiago, Isabela and it appearing that this case is a proper case for transfer to said Branch XXI since its venue is the Municipality of Ramon, let the record of this case, consisting of 70 pages, be dropped from the civil docket of this Court and the same be forwarded to the Regional Trial Court, Branch XXI, Santiago, Isabela for further proceedings. x x x (Italics supplied)3

Civil Case No. XXIV-0106 was thereafter transferred to the Regional Trial Court, Branch XXI, of Santiago, Isabela, and redocketed as Civil Case No. 0093.

On 4 November 1983, now before the Regional Trial Court of Santiago, Isabela, Br. XXI, Hydro through counsel filed a motion for leave to file third-party complaint, dated 21 October 1983, against NIA, attaching to the motion the proposed thirdparty complaint (for reimbursement from the NIA); and a motion to admit amended answer, accompanying the same with the proposed amended answer.4 On the same date (4 November 1983), the Regional Trial Court, Santiago, Isabela admitted Hydros third-party complaint; however, as to its motion for leave to file amended answer, plaintiffs were given ten (10) days to file their opposition and Hydro was also given ten (10) days from receipt of such opposition to file its reply.5

On 12 December 1983, before the court a quo could resolve Hydros motion for leave to file amended answer, plaintiffs filed their reply to Hydros amended answer.6 NIA also filed its answer to Hydros third-party complaint.7

In an order of 7 February 1983, the court a quo then ordered the parties to file their respective memorandum, in this wise:

After several arguments made by counsels, three issues were submitted, namely:

1. Whether or not the Order of this Court dated 6 August 1983 was abandoned by the filing of the Amended Answer by the defendant;

2. Whether the Hydro Resources or the NIA is the beneficial user of the land under question and therefore the beneficial user will pay the taxes; and

3. Whether it is proper for the plaintiff to avoid multiplicity of suit, to amend its complaint and plead thereto the amount of P338,750.00 which was not included in the original complaint but was included in the third party complaint against the third party defendant.

This Court directed counsels of the parties to file their memoranda in support of their respective position simultaneously within thirty (30) days from today, after which the court, with or without the said memoranda will resolve the issues aforecited. (italics supplied)8

The parties did not file their memoranda except Hydro which complied.9 On 20 May 1985, the court a quo ruled that the order dated 6 August 1983 (issued by the Regional Trial Court, Echague, Isabela) was final and executory, disposing that:

WHEREFORE, the Court hereby rules the Order of this Court dated August 6, 1983 to be final and executory. The Orders of the Court dated October 14, 198310 and November 4, 1983, being devoid of legal basis are hereby SET aside and the Third-party Complaint dated October 21, 1983 filed against the National Irrigation Administration is hereby DISMISSED." (Italics supplied)11

On 14 October 1985, the court a quo denied Hydros motion for reconsideration of the order dated 20 May 1985:12

WHEREFORE, for lack of merit, defendant and third-party plaintiffs motion for reconsideration is hereby Denied.

Defendant and third-party plaintiff is granted a period of twenty (20) days from receipt of this order within which to file whatever pleading it may deem appropriate under the circumstances.

On 16 January 1986, Hydro filed with the Supreme Court a Petition, docketed G.R. No. 72849,13 which (petition) was referred by this Court (First Division) to the Court of Appeals for proper action and disposition. In a resolution dated 21 May 198614 said petition was re-docketed in the Court of Appeals as CA-G.R. SP No. 09196.

On 30 October 1987, the Court of Appeals rendered a decision (now assailed) denying (dismissing) the petition, dispositive portion of which reads:

WHEREFORE, the writ of certiorari prayed for by petitioner is denied; and the court a quo is hereby ordered to receive evidence only for the purpose of determining the amount of realty taxes which petitioner was adjudged liable to pay respondents Provincial Government of Isabela and Municipality of Ramon, Isabela, pursuant to the order dated August 6, 1983 issued by the Regional Trial Court, Branch XXIV, Echague. Isabela in Civil Case No. XXIV-0106, where said respondents were the plaintiffs and petitioner was the defendant, prior to the transfer of the case to the Regional Trial Court, Branch XIV (sic,) Santiago Isabela, and there re-docketed as Civil Case No. Br. XIV-0093, the same being the court and case a quo in this petition. Costs against petitioner."15

On 2 November 1988, the Court of Appeals denied petitioners motion for reconsideration of the said decision. Hence, the present petition for review, raising the following issues:

I. Whether or not the appellate court has acted without or in excess of its jurisdiction or with grave abuse of discretion in not finding that the order issued by the court a quo on August 6, 1983 is merely interlocutory and/or provisional in character and could not be considered as a final determination of the merits of Civil Case No. 0093.

II. Whether or not the appellate court has acted without or in excess of its jurisdiction or with grave abuse of discretion in not finding that the said order of August 6, 1983 was abandoned or set aside through the issuance of the order of November 4, 1983 which admitted herein petitioners third-party complaint against respondent NIA.

III. Whether or not the appellate court has acted without or in excess of its jurisdiction or with grave abuse of discretion in not finding that the court a quo, in issuing the order of May 20, 1985 went beyond the issues presented by the parties, which act is legally impermissible, irregular and invalid."16

We grant the petition.

Both the petitioner and the respondents agree that the main issue in the case at bar is whether or not the assailed order of the court a quo, dated 6 August 1983, is interlocutory in nature or a final judgment.

It is to be observed that while the complaint in the case at bar is admittedly one for collection of realty taxes over certain real properties,17 filed against the petitioner, the complaint, however, does not allege the amount of taxes which the plaintiffs seek to collect from petitioner.18 There is thus a need to determine the effect of such failure of the complaint to state the aforesaid amount vis-a-vis plaintiffs cause of action. Although this issue is not raised in the present petition, it is basic that the Court can review matters not assigned as an error in the appeal.19

We hold that the complaint at bar has failed to state the ultimate facts,20 which failure is violative of Section 3, Rule 17 of the Rules of Court.21

As admitted by the respondents, this case is one for collection of realty taxes. Section 82 of the Presidential Decree No. 464 (Real Property Tax Code) states that the delinquent real property tax shall constitute a lawful indebtedness of the taxpayer to the province or city. Under P.D. 464, the process of collecting real property taxes involve the acts or methods of appraisal and assessment of the real property subject to tax;22 the imposition of real property tax23 and the collection thereof.24

The amount of taxes sought to be collected is therefore determinable, yet, the complaint at bar did not plead the same. In the order of the court a quo, dated 7 February 1984, one of the issues submitted was whether it was proper for the plaintiffs to amend their complaint and plead therein the amount of tax sought to be collected.25 But this issue was deemed abandoned when the court a quo issued an order dated 20 May 1985, which held that the order dated 6 August 1983 was final and executory.

As in any case for collection of a sum of money, stating the amount of tax sought to be collected in a complaint for collection of realty taxes is part of the ultimate facts constituting the plaintiffs cause of action, as provided under Section 3, Rule 6 of the Rules of Court, supra. In the instant case, there is failure to state in the complaint the ultimate facts because the amount of tax sought to be collected is not pleaded or alleged.

It can not be overlooked that the subject matter26 of the complaint filed before the court a quo is the amount of the real estate taxes to be collected. Section 82 of P.D. 464 provides that the collection of delinquent real property taxes may be enforced in any court of competent jurisdiction. In the present case, as the complaint did not plead the amount of tax intended to be collected, how could the court a quo ascertain, in the first place, in relation to the amount of the demand, whether it was the proper forum to try the case?27 The fact that the third party complaint filed by petitioner-defendant against the National Irrigation Administration pleaded the amount of P338,750.00 as reimbursible to it by the latter, is of no moment now, as the said third-party complaint was also ordered dismissed in the order of 20 May 1985.28 Hence, it can be said that the complaint (in chief) was never amended.

While it may be true that petitioner-defendant did not move to question the failure of the complaint to plead the amount of tax sought to be collected, the court a quo, upon its own motion, may dismiss the complaint for failure of the plaintiffs to comply with Section 3, Rule 6 of the Rules of Court in relation to Section 3, Rule 17 thereof29 which provides that the action may be dismissed for failure to comply with the rules. This dismissal the court a quo did not order.

The complaint being fatally defective, the questioned order, dated 6 August 1983, which derived its life from the said complaint, is also without effect. But assuming arguendo that the filing of the complaint at bar complied with the rules thereby making the order of 6 August 1983 valid, the nature of said order is interlocutory. It is not a final judgment.

The dispositive part of said order states that petitioner-defendant is liable for the payment of real property taxes, but, it adds, further proceedings shall be held to determine the amount of real property taxes to be paid by petitioner-defendant. Furthermore, the same order of 6 August 1983 states:

The defendant corporation also invoked the ground of no cause of action in asking for the dismissal of the complaint. In so doing. it adopted the stand that it was denied due process by the fact that the notice of assessment was never served upon it nor was it furnished copies of any Tax Declarations Nos. 032101 to 032113 mentioned in the fifth paragraph of the complaint and by the fact that it was never served of any notice of delinquency in the payment of real property tax nor was there any demand made upon it for payment thereof. To the Court, these are matters or questions of facts which necessitate presentation of evidence to prove or disprove them. At this stage of the proceedings, the Court can not resolve them one way or the other. (Italics supplied.)" (Rollo, p. 12)

As held in De la Cruz vs. Paros,30 a court order is final in character if it puts an end to the particular matter resolved or settles definitely the matter therein disposed of, such that no further questions can come before the court except the execution of the order; that on the other hand, a court order is merely interlocutory in character if it is provisional and leaves substantial proceeding to be had in connection with its subject.

Clearly, the order of 6 August 1983 is interlocutory. We fail to see how it could or did put an end to the controversy when the court a quo still had to determine the amount of realty taxes to be collected by plaintiffs from petitioner-defendant, and to make findings of fact on certain issues, which could still affect the very liability to pay such taxes.

WHEREFORE, petition is GRANTED, the decision of the Court of Appeals, dated 30 October 1987 in CA-G.R. SP. No. 09196 is hereby SET ASIDE, and a new one entered ordering the complaint in Civil Case No. 0093 before the Regional Trial Court of Santiago, Isabela, Branch XXI, DISMISSED without prejudice. Without pronouncement as to costs.

SO ORDERED.

Paras and Regalado, JJ., concur.

Melencio-Herrera (Chairman), J., See separate opinion.

MELENCIO-HERRERA, J., Separate opinion

I concur with the legal aspects of the majority opinion particularly with the conclusion that the Complaint is defective as it failed to state ultimate facts.

However, considering that (1) the case has proceeded to trial and judgment with no objection having been interposed by petitioner-defendant to the absence of specification regarding the amount of taxes; (2) petitioner-defendant has been adjudged liable for the payment of realty taxes by the Regional Trial Court of Echague, Isabela, Branch 24, on 6 August 1983, which judgment has been affirmed by the Court of Appeals in CA-G.R. SP No. 09196; (3) the dismissal of the case without prejudice would only result in multiplicity of suits and the prolongation of the controversy, which has been pending since 1982, it is my view that the judgment of the Court of Appeals ordering the reception of evidence only for the purpose of determining the amount of realty taxes which petitioner was adjudged liable to pay respondents should be affirmed. The practicality of the situation justifies a departure from the strict mandate of procedural rules.

The Order of the Regional Trial Court of Echague, Isabela, Branch 24, dismissing the Third-Party Complaint should also be set aside and the said Complaint reinstated. The determination of the liability of the NIA to reimburse HYDRO for whatever taxes the latter would pay to respondents could then be included in the proceedings to be conducted by the Regional Trial Court of Santiago, Isabela, as decreed by the Court of Appeals.

The foregoing procedure would settle all issues in one and the same case and obviate the need for another litigation with its corresponding inherent delays.

Petition granted. Decision set aside.

Note.An order is interlocutory when it does not terminate or finally dispose of the case, because it leaves something to be done by the Court before the case is finally decided on the merit. (Nepomuceno vs. Salazar, 173 SCRA 366.) [Hydro Resources Contractors Corp. vs. Court of Appeals, 204 SCRA 309(1991)]

SEA-LAND SERVICE, INC. petitioner, vs. COURT OF APPEALS and PHILIPPINE HOME ASSURANCE CORPORATION, respondents.

Remedial Law; Civil Procedure; Pleadings; Under the rules on pleading, a party is not required to specify the provisions of the law or contract relied upon by the pleader. The rules only require the allegations of the ultimate facts.It is true that petitioner did not specifically cite the provisions of Section 15 of the Bill of Lading (Exh. 1-D, Sea-Land) as the authority to support its right to devan the insured cargo, but under the rules on pleading, a party is not required to specify the provisions of the law or contract relied upon by the pleader. The rules only require the allegations of the ultimate facts. The rules on appellate procedure do not even require the parties to adhere to their position in minute detail but only to abide by the general position adopted by them in the trial court (Fisk v. Honario, 14 Ore, 29). Neither do the rules prevent the parties from putting up additional grounds to support their position (Sons v. Yangco Steamship Co., 34 Phil. 597).

Same; Same; Same; When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects, as if they had been raised in the pleadings.Assuming arguendo that the issue of the right of petitioner to devan was not raised by it in the trial court, the fact remains that Assurance failed to object when the Bill of Lading (Exhibit 1-D, See Land) was presented in evidence. As a matter of fact, Assurance admitted the genuineness and due execution of said document in the partial stipulation of facts submitted to the trial court (Record on Appeal, p. 50; Rollo, p. 37). Likewise, Assurance did not object to the admissions of the evidence proving the steps taken by petitioner before removing the cargo from the container van. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects, as if they had been raised in the pleadings (Rule 10, Sec. 5, Revised Rules of Court; Lizarraga Hermanos v. Yap Tico, 24 Phil. 504; Molina v. Somes, 24 Phil. 49).

PETITION for certiorari of the decision of the Court of Appeals.

The facts are stated in the opinion of the Court.

Sofronio A. Larcia for petitioner.

De Lara, De Luna & Associates for private respondent.

QUIASON, J.:

This is an appeal by certiorari under Rule 45 of the Revised Rules of Court of the decision of the Court of Appeals in CA-G.R. No. 64514-R, entitled Philippine Home Assurance Corporation vs. Donmac Corporation (Rollo, pp. 10-36).

On June 7, 1975, private respondent Philippine Home Assurance Corporation, (Assurance), filed an action in the Court of First Instance of Manila (Civil Case No. 98127) as subrogee of the assured-consignee, Republic Flour Mills (RFM) to recover from the defendants, Donmac Corporation (Donmac), E. Razon, Inc., (E. Razon), Reyma Brokerage, Inc. (Reyma), and Sea-Land Services, Inc. (Sea-Land) petitioner, herein, the sum of P66,289.29, which it paid to RFM, after the defendants had refused to pay the claim for the loss or damage suffered by REMs shipment, consisting of three units of Smokehouse Airconditioning System and one unit of Mepaco Smoke Generator (Record on Appeal, pp. 6-10, Rollo, p. 37).

Donmac was the carrier; Sea-Land, the ship agent of Donmac; E. Razon, the arrastre contractor in the Port of Manila; and Reyma, the consignees broker (Record on Appeal, pp. 6-7, Rollo, p. 37). During the pendency of the case in the trial court, the original claim was reduced to P30,980.04 because some of the items claimed to have been lost were found by the consignee and their value refunded to the insurer (Brief for the Petitioner, p. 1; Rollo, p. 104).

After trial, the Court of First Instance rendered a decision, the dispositive portion of which reads:

WHEREFORE, the Court hereby renders judgment as follows:

(a) Ordering the defendants Donmac Corporation and Sea Land Services, Inc., jointly and severally, to pay the plaintiff the sum of P20,253.36 with interest at the legal rate of 6% per annum from the date of the filing of the complaint on June 7, 1975 up to the date said amount is fully paid;

(b) Ordering the dismissal of the counterclaim of defendant Sea Land Services, Inc.

(c) Without pronouncement as to costs:

SO ORDERED (Record on Appeal, pr-77; Rollo, p. 37).

Sea-Land appealed from the decision of the Court of First Instance to the Court of Appeals (CA-G.R. No. 64514-R), which affirmed the said decision but added cost against the appellant (Rollo, pp. 40-64).

Hence, this petition.

The findings of fact of the trial court, adopted by the Court of Appeals, are as follows:

On May 5, 1975 the Sea-Land Services, Inc. received at its LVRR Elizabeth Terminal in New Jersey, U.S.A. one (1) H to H container, marked SEAU 17605, STC 3 complete units food processing machinery, with gross weight of 36,000 measuring 2097 cubic feet from the shipper, Julian Engineering Co., thru its forwarding agent Interport Company of Chicago, Illinois. On the same date, the Sea-Land Services Inc. issued on board Bill of Lading No. 901-029162 covering the said shipment (Exhibits B-plaintiff; 21 Sea-Land) and the shipment was finally received by Sea-Land on May 8, 1974 in apparent good order and condition (id. 1-B Sea-land). The shipment has an invoice value of US$71,635.00 CLF Manila and was sold to RFM Corporation (Meat Processing Division), consignee, Rizal Philippines, which insured the said shipment on May 14, 1974 with plaintiff Philippine Home Assurance Corporation against all risk including wars and strikes for CAF US$71,635.00 plus 2; MU Exchange Rate of P6.50 to $1.00 or for P591,346.93 (Exhibit C). The shipment was loaded at the Port of Oakland, U.S.A. on board the vessel TRADE or SS SEALAND COMMERCE and subsequently transhipped at the port of Hongkong by the SS Fairland, which was owned by the defendant Donmac Corporation of Wilmington, Delaware, U.S.S. per Lloyds Register of Ships, 1974-75 edition, page 1153, Identity No. 511160 (tsn., Nov. 15, 1976, p. 3). The SS Fairland, which was the agency of Sea-Land Services, Inc. (Exhibit O) arrived at and docked alongside Pier 3, Manila, South Harbor, on June 6, 1974 under Customs Registry No. 935 (Exhibit 4, Sea-Land). On June 5, 1974 Sea-land (Phils.) notified the consignee RFM Corporation that the latters shipment aboard the S.S. Fairland would arrive at the port of Manila on June 6, 1974, which notice was received by the consignee on the same date (exhibit 8 Sea-Land). Cargo Sea Van No. SEAU No. 17605, containing the shipment, was discharged from the carrying vessel on June 6, 1974 in apparent good order and condition, with its seal intact. Its content, however, were not turned over to the arrastre operator. The cargo sea van was brought to the container terminal of Sea-Land at Pier 3. On July 1, 1974 defendant Sea-Land notified the consignee in writing that if the containerized shipment was not taken within 36 hours from receipt of the notice, the container with its contents would be brought to a bonded warehouse designated by the Bureau of Customs (Exhibit 5 Sea-Land). This notice was received by the consignee on the same date, July 1, 1974 (Exhibit 5-A Sea-Land). As the consignee failed to pick up its containerized shipment from the container terminal, Pier 3, the same was transferred, after a clean gate pass was issued on July 4, 1974 (Exhibit 1 Razon), to the bonded warehouse of the Luzon Brokerage Corporation at Otis St., Paco, Manila, (Exhibit 6 Sea-Land) but later transferred unopened to the LBC bonded warehouse No. 2-A located at Shaw Boulevard, Pasig, Rizal (Exhibit 4 Sea-Land)

On July 13, 1974, Domingo Javier, the checker of defendant Sea-Land went to the LBC Compound at Shaw Boulevard, Pasig, and without securing permission from Bureau of Customs and the consignee, broke the seal of the container in the presence of one in charge of the LBC compound. With the help of the LBC stevedors, he removed the contents of the container and checked them on July 13, and 14, 1974. His checking and examinations are contained in five (5) Good Order Tally sheets No. 8251 (Exhibit 7 Sea-Land), No. 8252 (Exhibit 7-A Sea-Land), No. 8255 (Exhibit 7-B Sea-Land), No. 8256 (Exhibit 7-C Sea-Land), and No. 8259 (Exhibit 7-D Sea-Land); and in one Bad Order Tally Sheet, No. 8258 (Exhibits 2 and 2-A Sea-Land). He found that all the contents of the Good Order Tally Sheets were in good condition with the exception of the radiator of the engine which was dented in some parts (see Tally Sheet No. 8252) and of the aluminum sheets which were dented in some parts (see Tally Sheet No. 8256). One case (Bad Order Tally Sheet No. 8258) contained various items in cartons and pieces. One (1) carton of Browning (Big) was in bad order and so with two (2) cartons of Browning (Small) as well as one (1) carton containing 1 gallon Carbit Paint. All the rest were in good order. No representative of the consignee or of the Bureau of Customs was present during the checking.

The evidence of record does not disclose in what particular place is the LBC Compound where the itemized pieces of the shipment stored pending their transfer to the plant of the consignee at Bo. Pulo, Cabuyao, Laguna. On July 24, 1974 the defendant Reyma Brokerage, Inc. brought the itemized contents of the van or container from the LBC compound to the plant of the consignee at Cabuyao, Laguna and delivered them to the consignee thereat (Exhs. K, K-1 and K-2). Noted on the Delivery Receipt No. 15715 (Exhibit K-1) were three (3) cartons which were water-damaged and in Delivery Receipt No. 15716 (Exhibit K-2) was noted one (1) plywood case which was in bad order.

On the same date, July 24, 1974, the Manila Adjusters and Surveyors Co., on request of the consignee, sent its surveyor, Jesus Victa, to the plant of the consignee at Cabuyao, Laguna to survey the imported articles delivered thereat. The Certified Adjusters, Inc., upon request of defendant Sea-Land Services, Inc., also sent its surveyors, and they with the surveyor of the Manila Adjusters and Surveyors Co., inventoried and checked the shipment. The findings of Victa, which are contained in the Certificate of Survey dated August 29, 1974 submitted by the Manila Adjusters and Surveyors Co. (Exhibit E), are as follows:

2 pcs. fresh air dampercut on one side approximately 3 long.

1 pc. coil support frame assembly for 1 blower casing BC-17slightly dented/cut approximately 10" long x 4" wide.

3 pcs. duct sleeve SL-1not accounted for.6 pcs. duct sleeve SL-2not accounted for.

3 pcs. steam coil, 42" x 50"not accounted for.

18 rolls block butyl rubber tapenot accounted for.

The surveyors of the Certified Adjusters, Inc. had the same findings (Exhibit 4 Sea-Land). The rest of the items were found in good order condition and accepted by the consignee. The surveyors of the Manila Adjusters and Surveyors Co. gave the opinion that the damages sustained by the two (2) fresh air dampers and one (1) coil support frame assembly apparently occurred while the shipment was in transit from port of origin to destination. However, the surveyors could not state where and when the losses (not accounted for items) could have occurred because they were not present during the stripping of the container of its contents (Exhibit E, p. 4). The surveyors of the Certified Adjusters, Inc. did state their opinion on the cause and place of damage/loss. The Manila Adjusters and Surveyors Co. computed the damages (dentings) and losses (not accounted for items) to have a claimable value of P66,289.29 (Exh. F). The consignee filed its claim for the said amount with the defendants Sea-Land Services, Inc. and E. Razon, Inc. but both defendants declined to pay the same, alleging that they are not responsible for the damages/losses suffered by the cargo (Exhibit G). The consignee thereupon demanded payment from the plaintiff an insurer of the cargo and the latter complied by issuing on June 5, 1975 a check in favor of the consignee for the amount of P66,289.29. The consignee signed and delivered to the plaintiff a subrogation receipt dated June 5, 1975 for the amount of P66,289.29 (Exhibits M and N). The plaintiff as subrogee demanded payment from defendants Sea-Land Services, Inc. and E. Razon, Inc., but both refused to pay for, according to them, they are not responsible for the damages/losses suffered by the cargo (Exhibits I and J). On August 19, 1975 the consignee returned the check in the amount of P66,289.29 issued to it by the plaintiff, informing the latter that the unaccounted for items with a value of P35,909.25 were found and accounted for, and therefore, the said amount should be deducted from the original claim of P66,289.29, thus making the corrected claim to be in the amount of P30,380.04 (Exhibit L). The plaintiff paid the consignee the said amount of P30,380.04; and the plaintiff likewise reduced its claim against the defendants from P66,289.29 to P36,380.04 (Partial Stipulation of Facts) (Decision, CA-G.R. No. 64514-R, pp. 3-7, Rollo, pp. 42-46).

In the Court of Appeals, petitioner invoked the provisions of Section 15 of the Bill of Lading, (Exh. 1-D, Sea-Land) in support of its claim that there was a constructive delivery of the shipment to the consignee and that it had been discharged of its responsibility over the shipment before July 13, 1974 when it opened the sealed container van. The Court of Appeals, however, dismissed this claim of petitioner on the ground that it was raised for the first time on appeal; therefore, it was considered as having been waived by petitioner (Decision, p. 9; Rollo, p. 48).

In appellate procedure, parties are not allowed to change theories or shift positions in the appellate court. On appeal, the parties must keep within the issues stated in their pleadings or the theories on which their causes of action in the trial court were predicated (American Express Co. v. Natividad, 46 Phil. 207; Toribio v. Decasa, 55 Phil. 461).

The complaint filed by Assurance as a subrogee in Civil Case No. 98127 was to collect damages from the defendants therein, including petitioner, for the short-landing of and damages to the cargo while in the custody of the defendants (Complaint, par. 6; Record on Appeal, p. 8; Rollo, p. 37). The answer of petitioner claimed that the devanning of the insured cargo in July 13 and 14, 1974 took place after due notice was given to the consignee and only after the latter failed to claim the cargo.

Paragraph 26 of the Answer of Sea-Land states: Despite notice to consignee, the latter failed to take delivery of the container for almost one (1) month. Consequently, the subject container was transferred to the Luzon Brokerage Customs Bonded Warehouse for devanning. The devanning took place on July 13 and 14, 1974. Upon devanning, only one case was found in bad condition. The box consisted of 149 packages, but only 4 packages were noted with exceptions (Record on Appeal, pp. 31-32; Rollo, p. 37).

It is true that petitioner did not specifically cite the provisions of Section 15 of the Bill of Lading (Exh. 1-D, Sea-Land) as the authority to support its right to devan the insured cargo, but under the rules on pleading, a party is not required to specify the provisions of the law or contract relied upon by the pleader. The rules only require the allegations of the ultimate facts.

The rules on appellate procedure do not even require the parties to adhere to their position in minute detail but only to abide by the general position adopted by them in the trial court (Fisk v. Honario, 14 Ore, 29). Neither do the rules prevent the parties from putting up additional grounds to support their position (Sons v. Yangco Steamship Co., 34 Phil. 597).

Assuming arguendo that the issue of the right of petitioner to devan was not raised by it in the trial court, the fact remains that Assurance failed to object when the Bill of Lading (Exhibit 1-D, See Land) was presented in evidence. As a matter of fact, Assurance admitted the genuineness and due execution of said document in the partial stipulation of facts submitted to the trial court (Record on Appeal, p. 50; Rollo, p. 37). Likewise, Assurance did not object to the admissions of the evidence proving the steps taken by petitioner before removing the cargo from the container van. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects, as if they had been raised in the pleadings (Rule 10, Sec. 5, Revised Rules of Court; Lizarraga Hermanos v. Yap Tico, 24 Phil. 504; Molina v. Somes, 24 Phil. 49).

This brings us to the issue as to whether petitioner had been relieved of its obligations under the Bill of Lading when it devaned the cargo on July 13, 1974.

Section 15 of the Bill of Lading Exh. 1-D Sea-Land provides:

The carrier or master may appoint a stevedore or any other persons to unload and take delivery of the goods and such delivery from ships tackle shall be considered complete and all responsibility of the carrier shall then terminate.

It is agreed that when possession of the goods is received or taken by the customs or other authorities or by any operator of any lighter, craft, dock, pier, store, warehouse, refrigerator, elevator or other facilities whether selected by the carrier or master, shipper or consignee, whether public or private, such authority or person shall be considered as having received possession and delivery of the goods solely as agent of and on behalf of the shipper and consignee, at the risk of the goods and subject to any lien of the carrier thereon. Also if the consignee does not take possession or delivery of the goods as soon as the goods are at the disposal of the consignee for removal, the goods shall be at their own risk and expense, delivery shall be considered complete and the carrier may, subject to carriers liens, send the goods to store, warehouse, put them on lighters or other craft, put them in possession of authorities, dump, permit to lie where landed or otherwise dispose of them, always at the risk and expense of the goods, and the shipper and consignee shall pay and indemnify the carrier for any loss, damage, fine, charge or expense whatsoever suffered or incurred in so dealing with or disposing of the goods, or by reason of the consignees failure or delay in taking possession and delivery as provided herein (Rollo, p. 14; Italics supplied).

The SS Fairland, carrying the container van SEAU 17605, STC 3, arrived in the Port of Manila on June 6, 1974. On the same day, the said container was unloaded and discharged from the carrying vessel. The day before the arrival of the vessel, petitioner notified RFM, the consignee, that the latters shipment would be arriving on June 6, 1974.

Petitioner notified RFM in a letter dated July 1, 1974 (Exh. 5) that the shipment in the container van No. 17605 would be transferred to a customs bonded warehouse. In a follow-up letter dated July 12, 1974 (Exh. 6), petitioner again informed RFM that the said container van had been transferred to the bonded warehouse of the Luzon Brokerage Corporation and asked RFM to take immediate delivery of the cargo (Decision, p. 9; Rollo, p.48).

The bonded warehouse of Luzon Brokerage Corporation is located in Pasig, Metro Manila and in the vicinity of the offices of RFM.

For the third time, petitioner sent a notice to RFM on July 12, 1974 that the cargo had been transferred to the Luzon Brokerage Corporation (Exh. 6, Sea-Land).

The cargo was unloaded from the container van on July 13, 1974 in the presence of the Luzon Brokerage Corporation personnel. It was at this time that portions of the shipment were found to be in bad order. It was only on July 24, 1974 that RFM took delivery of the shipment from the Luzon Brokerage Corporation bonded warehouse and transferred the same to its plant in Cabuyao, Laguna. A survey conducted at the consignees plant showed that the fresh air damper and the coil support frame assembly had been damaged while several pieces of parts of the food processing machinery were missing. By this time, Sea-Land had been relieved of responsibility over the cargo under Section 15 of the Bill of Lading.

There is no dispute that the cargo was shipped H to H container STC 3 complete units food processing machinery, meaning that the shipper itself loaded the cargo into the van, which was sealed before its delivery to the carrying vessel.

There was no evidence presented by Assurance as to the actual condition of the cargo when it was loaded into the container van by Julian Engineering Co., the shipper. Assurance issued the insurance policy without prior inspection of the cargo on the assumption that the cargo loaded into the container van was complete and in good order. The insurance policy was issued when the cargo was inside the sealed container van. Assurance was aware that the carrying vessel had not accepted the cargo as complete and in good order as shown by its qualified receipt as appearing in the bill of lading (Exh. 1, Sea-land).

Under the provisions of Section 15 of the Bill of Lading, the carriers can send the goods to store, warehouse, put them on lighters or other craft, put them in possession of the authorities, dump, permit to lie where landed or otherwise dispose of them, always at the risk and expenses of the goods xxx after the constructive delivery of the goods. The carriers can devan the goods from the container without the prior consent of the consignee or the Bureau of Customs (Decision, p. 17; Rollo, p. 56).

WHEREFORE, the petition for certiorari is GRANTED and the decision of the Court of Appeals appealed from is REVERSED. The complaint in Civil Case No. 98127 of the Court of First Instance of Manila is DISMISSED, with cost against plaintiff therein.

SO ORDERED.

Cruz (Chairman), Grio-Aquino and Bellosillo, JJ., concur.

Petition granted. Appealed decision reversed.

Note.A pleading should state the ultimate facts essential to the rights of action or defense asserted as distinguished from mere conclusions of fact or conclusions of law (Abad vs. Court of First Instance of Pangasinan, Br. VIII, 206 SCRA 567). [Sea-Land Service, Inc. vs. Court of Appeals, 223 SCRA 316(1993)]

G.R. Nos. 88075-77. December 20, 1989.*

MAXIMO TACAY, PONCIANO PANES and ANTONIA NOEL, petitioners, vs. REGIONAL TRIAL COURT OF TAGUM, Davao del Norte, Branches 1 and 2, Presided by Hon. Marcial Fernandez and Hon. Jesus Matas, respectively, PATSITA GAMUTAN, Clerk of Court, and GODOFREDO PINEDA, respondents.

Remedial Law; Civil Procedure; Judgment; Dismissal of petition for failure to comply with Circular No. 1-88; Copies of challenged orders were not certified by the clerk of court or his duly authorized representative but by petitioners counsel which is not allowed.It should be dismissed for failure to comply with this Courts Circular No. 1-88 (effective January 1, 1989). The copies of the challenged Orders thereto attached were not certified by the proper Clerk of Court or his duly authorized representative. Certification was made by the petitioners counsel, which is not allowed.

Same; Same; Actions; Jurisdiction; Determinative of the courts jurisdiction in actions for recovery of possession of real property is the nature thereof, not the amount of the damages allegedly arising from or connected with the issue of title or possession, and regardless of the value of the property.It is true that the complaints do not state the amounts being claimed as actual, moral an