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[G.R. No. 129499.December 15, 1999]

DIAZ vs. CA, et al .

FIRST DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated DEC 15, 1999.

G.R. 129499(Antonio G. Diaz vs. Court of Appeals and Energy Regulatory Board and Davao Light & Power Co., Inc.)

This is a petition for review of the decision of the Court of Appeals promulgated on March 18, 1997 in CA-G.R. SP No. 38667, ¹ Justice Artemon D. Luna, ponente, Justices Ramon A. Barcelona and Hilarion L. Aquino, concurring. Rollo, pp. 333-354.and its resolution dated May 6, 1997, denying reconsideration. ² Rollo , p. 437.

On January 23, 1991, Davao Light and Power Co., Inc. (DALIGHT) filed with the Energy Regulatory Board (ERB) an application for approval of the sound value appraisal of its property and equipment as of March 12, 1990. ³ Docketed as ERB Case No. 91-16.After due hearing, on December 6, 1991, the ERB rendered decision approving a lower amount of the sound value appraisal.

On June 3, 1992, petitioner Antonio G. Diaz and Konsumo Dabaw moved for reconsideration of the ERB decision. Petitioner Diaz and Dabaw contended that ERB did not acquire jurisdiction over the case for failure to comply with jurisdictional requirements, particularly the required posting of the ERB Order and notice of hearing in designated areas. On June 3, 1992, ERB denied the motion. On July 1992, petitioner Diaz and Dabaw filed with this Court a petition for review ⁴ Docketed as G.R. No 105807.of the above decision.

On September 8, 1992, this Court issued a resolution referring the case to the Court of Appeals for proper disposition. On November 27, 1992, the Court of Appeals dismissed the petition. ⁵ Docketed as CA-G.R. SP No. 29054.The Court of Appeals held that: 1) filing a petition for review with the Supreme Court was a wrong mode of appeal; and 2) that the petition failed to comply with Supreme Court Circular 1-88 regarding the inclusion of substantial dates in the petition.

On December 18, 1992, petitioner Diaz and Dabaw filed a motion for reconsideration, which the Court of Appeals denied for lack of merit on March 24, 1993. On April 22 , 1993, Diaz and Dabaw filed a petition for review with this Court, assailing the decision of the Court of Appeals.

On December 5, 1994, this Court issued a resolution dismissing the petition. On May 17, 1995, this Court denied with finality the motion for reconsideration filed by Diaz and Dabaw.

Still undaunted, on September 9, 1995, petitioner Diaz filed a complaint with the Court of Appeals, ⁶ Docketed as CA-G.R. SP No. 38667.for the annulment of the ERB decision in Case No. 91-16. Petitioner again raised the ground that the ERB decision is void for failure of DALIGHT to comply with the jurisdictional requirement of publication and posting of notices of hearing. On October 10, 1995, Konsumo Dabaw filed with the Court of Appeals a motion for intervention, ⁷ In CA-G.R. SP No. 38667.which the appellate court granted in a resolution dated February 6, 1996. Subsequently, Dabaw filed his complaint-in-intervention.

On March 18, 1997, the Court of Appeals dismissed both the complaint and complaint-in-intervention for lack of merit. The Court of Appeals held that DALIGHT properly complied with the ERB Order regarding the posting of notices of hearing and jurisdictional requirement of publication. The Court of Appeals ruled that the allegation of fraud in DALIGHT's appraisal application is a collateral attack on a judgment that has already become final and executory. At any rate, the Court of Appeals held that it involves intrinsic fraud, which is not a ground in a petition for annulment of judgment.

Hence, this petition.

Petitioner maintains that the present petition for annulment or nullity of judgment of the ERB decision is a direct attack on the ERB's jurisdiction over the case, hence different from the appeal earlier filed with the Court of Appeals. Petitioner again raises the issue that ERB has no jurisdiction to appraise or value DALIGHT's property due to the jurisdictional defects in posting the notices and publication of the notices of hearing.

The question of ERB's jurisdiction has been raised on appeal to the Court of Appeals, which the latter court dismissed in its decision promulgated on November 27, 1992. In fact, petitioner filed a petition with this Court questioning said decision, which we dismissed with finality in a resolution dated May 17, 1995 . Petitioner practically raises the same issue of lack of jurisdiction of the ERB to appraise or value DLPC's property due to some jurisdictional defect.

In filing this petition despite the ruling of both the Court of Appeals and this Court regarding the issue of ERB's jurisdiction, petitioner clearly engaged in multiplicity of suit which is barred by "the law of the case."

IN VIEW WHEREOF, we DENY the petition.

Very truly yours,

(Sgd.) VIRGINIA ANCHETA-SORIANO

Clerk of Court

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