CHANGE OF THEORY ON APPEAL NOT ALLOWED

As a rule, a party who deliberately adopts a certain theory upon which the case is tried and decided by the lower court will not be permitted to change the theory on appeal. (Lianga Lumber Co. v. Lianga Timber Co., Inc., No. L-38685, March 31, 1977, 76 SCRA 197).

In other words, points of law, theories, issues and arguments not brought to the attention of the lower court need not be, and ordinarily will not be, considered by a reviewing court, as these cannot be raised for the first time at such late stage. It would be unfair to the adverse party who would have no opportunity to present further evidence material to the new theory, which it could have done had it been aware of it at the time of the hearing before the trial court. (China Airlines Ltd. v. CA, et al., G.R. Nos. 45985 & 46036, May 18, 1990, 185 SCRA 449).

Accordingly, to permit the petitioners in a case to change their theory on appeal would thus be unfair to the respondent and offend the basic rules of fair play, justice and due process (Siredy Enterprises, Inc. v. CA, et al., G.R. No. 129039, September 17, 2002, 389 SCRA 34 cited in SPOUSES ERNESTO and VICENTA TOPACIO vs. BANCO FILIPINO SAVINGS and MORTGAGE BANK, G.R. No. 157644, November 17, 2010, BRION J.).