Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 193707 December 10, 2014

NORMA A. DEL SOCORRO, for and in behalf of her minor child RODERIGO
NORJO VAN WILSEM,Petitioner,
vs.
ERNST JOHAN BRINKMAN VAN WILSEM, Respondent.

DECISION

PERALTA, J.:

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court
seeking to reverse and set aside the Orders 1 dated February 19, 2010 and September 1,
2010, respectively, of the Regional Trial Court of Cebu City (RTC-Cebu), which
dismissed the criminal case entitled People of the Philippines v. Ernst Johan Brinkman
Van Wilsem, docketed as Criminal Case No. CBU-85503, for violation of Republic Act
(R.A.) No. 9262, otherwise known as the Anti-Violence Against Women and Their
Children Act of 2004.

The following facts are culled from the records:

Petitioner Norma A. Del Socorro and respondent Ernst Johan Brinkman Van Wilsem
contracted marriage in Holland on September 25, 1990.2 On January 19, 1994, they
were blessed with a son named Roderigo Norjo Van Wilsem, who at the time of the filing
of the instant petition was sixteen (16) years of age.3

Unfortunately, their marriage bond ended on July 19, 1995 by virtue of a Divorce Decree
issued by the appropriate Court of Holland. 4 At that time, their son was only eighteen
(18) months old.5 Thereafter, petitioner and her son came home to the Philippines.6

According to petitioner, respondentmade a promise to provide monthly support to their

son in the amount of Two Hundred Fifty (250) Guildene (which is equivalent to
Php17,500.00 more or less).7 However, since the arrival of petitioner and her son in the
Philippines, respondent never gave support to the son, Roderigo.8

Not long thereafter, respondent cameto the Philippines and remarried in Pinamungahan,
Cebu, and since then, have been residing thereat. 9 Respondent and his new wife
established a business known as Paree Catering, located at Barangay Tajao,
Municipality of Pinamungahan, Cebu City.10 To date, all the parties, including their son,
Roderigo, are presently living in Cebu City.11

On August 28, 2009, petitioner, through her counsel, sent a letter demanding for support
from respondent. However, respondent refused to receive the letter.12

Because of the foregoing circumstances, petitioner filed a complaint affidavit with the
Provincial Prosecutor of Cebu City against respondent for violation of Section 5,
paragraph E(2) of R.A. No. 9262 for the latters unjust refusal to support his minor child
with petitioner.13 Respondent submitted his counter-affidavit thereto, to which petitioner
also submitted her reply-affidavit.14 Thereafter, the Provincial Prosecutor of Cebu City
issued a Resolution recommending the filing of an information for the crime charged
against herein respondent.

The information, which was filed with the RTC-Cebu and raffled to Branch 20 thereof,
states that:

That sometime in the year 1995 and up to the present, more or less, in the Municipality
of Minglanilla, Province of Cebu, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, did then and there wilfully, unlawfully and deliberately
deprive, refuse and still continue to deprive his son RODERIGO NORJO VAN WILSEM,
a fourteen (14) year old minor, of financial support legally due him, resulting in economic
abuse to the victim. CONTRARY TO LAW.15

Upon motion and after notice and hearing, the RTC-Cebu issued a Hold Departure
Order against respondent.16Consequently, respondent was arrested and, subsequently,
posted bail.17 Petitioner also filed a Motion/Application of Permanent Protection Order to
which respondent filed his Opposition.18 Pending the resolution thereof, respondent was
arraigned.19 Subsequently, without the RTC-Cebu having resolved the application of the
protection order, respondent filed a Motion to Dismiss on the ground of: (1) lack of
jurisdiction over the offense charged; and (2) prescription of the crime charged.20

On February 19, 2010, the RTC-Cebu issued the herein assailed Order,21 dismissing the
instant criminal case against respondent on the ground that the facts charged in the
information do not constitute an offense with respect to the respondent who is analien,
the dispositive part of which states:

WHEREFORE, the Court finds that the facts charged in the information do not constitute
an offense with respect to the accused, he being an alien, and accordingly, orders this
case DISMISSED.

The bail bond posted by accused Ernst Johan Brinkman Van Wilsem for his provisional
liberty ishereby cancelled (sic) and ordered released.

SO ORDERED.

Cebu City, Philippines, February 19, 2010.22

Thereafter, petitioner filed her Motion for Reconsideration thereto reiterating

respondents obligation to support their child under Article 19523 of the Family Code,
thus, failure todo so makes him liable under R.A. No. 9262 which "equally applies to all
persons in the Philippines who are obliged to support their minor children regardless of
the obligors nationality."24

On September 1, 2010, the lower court issued an Order 25 denying petitioners Motion for
Reconsideration and reiterating its previous ruling. Thus:

x x x The arguments therein presented are basically a rehash of those advanced earlier
in the memorandum of the prosecution. Thus, the court hereby reiterates its ruling that
since the accused is a foreign national he is not subject to our national law (The Family
Code) in regard to a parents duty and obligation to givesupport to his child.
Consequently, he cannot be charged of violating R.A. 9262 for his alleged failure to
support his child. Unless it is conclusively established that R.A. 9262 applies to a
foreigner who fails to give support tohis child, notwithstanding that he is not bound by
our domestic law which mandates a parent to give such support, it is the considered
opinion of the court that no prima faciecase exists against the accused herein, hence,
the case should be dismissed.

WHEREFORE, the motion for reconsideration is hereby DENIED for lack of merit.

SO ORDERED.

Cebu City, Philippines, September 1, 2010.26

Hence, the present Petition for Review on Certiorari raising the following issues:

1. Whether or not a foreign national has an obligation to support his minor child
under Philippine law; and

2. Whether or not a foreign national can be held criminally liable under R.A. No.
9262 for his unjustified failure to support his minor child.27

At the outset, let it be emphasized that We are taking cognizance of the instant petition
despite the fact that the same was directly lodged with the Supreme Court, consistent
with the ruling in Republic v. Sunvar Realty Development Corporation,28 which lays down
the instances when a ruling of the trial court may be brought on appeal directly to the
Supreme Court without violating the doctrine of hierarchy of courts, to wit:

x x x Nevertheless, the Rules do not prohibit any of the parties from filing a Rule 45
Petition with this Court, in case only questions of law are raised or involved. This latter
situation was one that petitioners found themselves in when they filed the instant Petition
to raise only questions of law. In Republic v. Malabanan, the Court clarified the three
modes of appeal from decisions of the RTC, to wit: (1) by ordinary appeal or appeal by
writ of error under Rule 41, whereby judgment was rendered in a civil or criminal action
by the RTC in the exercise of its original jurisdiction; (2) by a petition for review under
Rule 42, whereby judgment was rendered by the RTC in the exercise of its appellate
jurisdiction; and (3) by a petition for review on certiorari before the Supreme Court under
Rule 45. "The first mode of appeal is taken to the [Court of Appeals] on questions of fact
or mixed questions of fact and law. The second mode of appeal is brought to the CA on
questions of fact, of law, or mixed questions of fact and law. The third mode of appealis
elevated to the Supreme Court only on questions of law." (Emphasis supplied)

There is a question of law when the issue does not call for an examination of the
probative value of the evidence presented or of the truth or falsehood of the facts being
admitted, and the doubt concerns the correct application of law and jurisprudence on the
matter. The resolution of the issue must rest solely on what the law provides on the
given set of circumstances.29

Indeed, the issues submitted to us for resolution involve questions of law the response
thereto concerns the correct application of law and jurisprudence on a given set of facts,
i.e.,whether or not a foreign national has an obligation to support his minor child under
Philippine law; and whether or not he can be held criminally liable under R.A. No. 9262
for his unjustified failure to do so.

It cannot be negated, moreover, that the instant petition highlights a novel question of
law concerning the liability of a foreign national who allegedly commits acts and
omissions punishable under special criminal laws, specifically in relation to family rights
and duties. The inimitability of the factual milieu of the present case, therefore, deserves
a definitive ruling by this Court, which will eventually serve as a guidepost for future
cases. Furthermore, dismissing the instant petition and remanding the same to the CA
would only waste the time, effort and resources of the courts. Thus, in the present case,
considerations of efficiency and economy in the administration of justice should prevail
over the observance of the hierarchy of courts.

Now, on the matter of the substantive issues, We find the petition meritorious.
Nonetheless, we do not fully agree with petitioners contentions.

To determine whether or not a person is criminally liable under R.A. No. 9262, it is
imperative that the legal obligation to support exists.

Petitioner invokes Article 19530 of the Family Code, which provides the parents
obligation to support his child. Petitioner contends that notwithstanding the existence of
a divorce decree issued in relation to Article 26 of the Family Code, 31 respondent is not
excused from complying with his obligation to support his minor child with petitioner.

On the other hand, respondent contends that there is no sufficient and clear basis
presented by petitioner that she, as well as her minor son, are entitled to financial
support.32 Respondent also added that by reason of the Divorce Decree, he is not
obligated topetitioner for any financial support.33

On this point, we agree with respondent that petitioner cannot rely on Article 195 34 of the
New Civil Code in demanding support from respondent, who is a foreign citizen, since
Article 1535 of the New Civil Code stresses the principle of nationality. In other words,
insofar as Philippine laws are concerned, specifically the provisions of the Family Code
on support, the same only applies to Filipino citizens. By analogy, the same principle
applies to foreigners such that they are governed by their national law with respect to
family rights and duties.36

The obligation to give support to a child is a matter that falls under family rights and
duties. Since the respondent is a citizen of Holland or the Netherlands, we agree with
the RTC-Cebu that he is subject to the laws of his country, not to Philippinelaw, as to
whether he is obliged to give support to his child, as well as the consequences of his
failure to do so.37

In the case of Vivo v. Cloribel,38 the Court held that

Furthermore, being still aliens, they are not in position to invoke the provisions of the
Civil Code of the Philippines, for that Code cleaves to the principle that family rights and
duties are governed by their personal law, i.e.,the laws of the nation to which they
belong even when staying in a foreign country (cf. Civil Code, Article 15).39

It cannot be gainsaid, therefore, that the respondent is not obliged to support petitioners
son under Article195 of the Family Code as a consequence of the Divorce Covenant
obtained in Holland. This does not, however, mean that respondent is not obliged to
support petitioners son altogether.

In international law, the party who wants to have a foreign law applied to a dispute or
case has the burden of proving the foreign law.40 In the present case, respondent hastily
concludes that being a national of the Netherlands, he is governed by such laws on the
matter of provision of and capacity to support. 41 While respondent pleaded the laws of
the Netherlands in advancing his position that he is not obliged to support his son, he
never proved the same.
It is incumbent upon respondent to plead and prove that the national law of the
Netherlands does not impose upon the parents the obligation to support their child
(either before, during or after the issuance of a divorce decree), because Llorente v.
Court of Appeals,42 has already enunciated that:

True, foreign laws do not prove themselves in our jurisdiction and our courts are not
authorized to takejudicial notice of them. Like any other fact, they must be alleged and
proved.43

In view of respondents failure to prove the national law of the Netherlands in his favor,
the doctrine of processual presumption shall govern. Under this doctrine, if the foreign
law involved is not properly pleaded and proved, our courts will presume that the foreign
law is the same as our local or domestic or internal law.44 Thus, since the law of the
Netherlands as regards the obligation to support has not been properly pleaded and
proved in the instant case, it is presumed to be the same with Philippine law, which
enforces the obligation of parents to support their children and penalizing the non-
compliance therewith.

Moreover, while in Pilapil v. Ibay-Somera,45 the Court held that a divorce obtained in a
foreign land as well as its legal effects may be recognized in the Philippines in view of
the nationality principle on the matter of status of persons, the Divorce Covenant
presented by respondent does not completely show that he is notliable to give support to
his son after the divorce decree was issued. Emphasis is placed on petitioners
allegation that under the second page of the aforesaid covenant, respondents obligation
to support his child is specifically stated,46which was not disputed by respondent.

We likewise agree with petitioner that notwithstanding that the national law of
respondent states that parents have no obligation to support their children or that such
obligation is not punishable by law, said law would still not find applicability,in light of the
ruling in Bank of America, NT and SA v. American Realty Corporation,47 to wit:

In the instant case, assuming arguendo that the English Law on the matter were
properly pleaded and proved in accordance with Section 24, Rule 132 of the Rules of
Court and the jurisprudence laid down in Yao Kee, et al. vs. Sy-Gonzales, said foreign
law would still not find applicability.

Thus, when the foreign law, judgment or contract is contrary to a sound and established
public policy of the forum, the said foreign law, judgment or order shall not be applied.

Additionally, prohibitive laws concerning persons, their acts or property, and those which
have for their object public order, public policy and good customs shall not be rendered
ineffective by laws or judgments promulgated, or by determinations or conventions
agreed upon in a foreign country.

The public policy sought to be protected in the instant case is the principle imbedded in
our jurisdiction proscribing the splitting up of a single cause of action.

Section 4, Rule 2 of the 1997 Rules of Civil Procedure is pertinent

If two or more suits are instituted on the basis of the same cause of action, the filing of
one or a judgment upon the merits in any one is available as a ground for the dismissal
of the others. Moreover, foreign law should not be applied when its application would
work undeniable injustice to the citizens or residents of the forum. To give justice is the
most important function of law; hence, a law, or judgment or contract that is obviously
unjust negates the fundamental principles of Conflict of Laws.48

Applying the foregoing, even if the laws of the Netherlands neither enforce a parents
obligation to support his child nor penalize the noncompliance therewith, such obligation
is still duly enforceable in the Philippines because it would be of great injustice to the
child to be denied of financial support when the latter is entitled thereto.

We emphasize, however, that as to petitioner herself, respondent is no longer liable to

support his former wife, in consonance with the ruling in San Luis v. San Luis,49 to wit:

As to the effect of the divorce on the Filipino wife, the Court ruled that she should no
longerbe considered marriedto the alien spouse. Further, she should not be required to
perform her marital duties and obligations. It held:

To maintain, as private respondent does, that, under our laws, petitioner has to be
considered still married to private respondent and still subject to a wife's obligations
under Article 109, et. seq. of the Civil Code cannot be just. Petitioner should not be
obliged to live together with, observe respect and fidelity, and render support to private
respondent. The latter should not continue to be one of her heirs with possible rights to
conjugal property. She should not be discriminated against in her own country if the
ends of justice are to be served. (Emphasis added)50

Based on the foregoing legal precepts, we find that respondent may be made liable
under Section 5(e) and (i) of R.A. No. 9262 for unjustly refusing or failing to give support
topetitioners son, to wit:

SECTION 5. Acts of Violence Against Women and Their Children.- The crime of violence
against women and their children is committed through any of the following acts:

xxxx

(e) Attempting to compel or compelling the woman or her child to engage in conduct
which the woman or her child has the right to desist from or desist from conduct which
the woman or her child has the right to engage in, or attempting to restrict or restricting
the woman's or her child's freedom of movement or conduct by force or threat of force,
physical or other harm or threat of physical or other harm, or intimidation directed
against the woman or child. This shall include, butnot limited to, the following acts
committed with the purpose or effect of controlling or restricting the woman's or her
child's movement or conduct:

xxxx

(2) Depriving or threatening to deprive the woman or her children of financial support
legally due her or her family, or deliberately providing the woman's children insufficient
financial support; x x x x

(i) Causing mental or emotional anguish, public ridicule or humiliation to the woman or
her child, including, but not limited to, repeated verbal and emotional abuse, and denial
of financial support or custody of minor childrenof access to the woman's child/children.51

Under the aforesaid special law, the deprivation or denial of financial support to the child
is considered anact of violence against women and children.
In addition, considering that respondent is currently living in the Philippines, we find
strength in petitioners claim that the Territoriality Principle in criminal law, in relation to
Article 14 of the New Civil Code, applies to the instant case, which provides that: "[p]enal
laws and those of public security and safety shall be obligatory upon all who live and
sojourn in Philippine territory, subject to the principle of public international law and to
treaty stipulations." On this score, it is indisputable that the alleged continuing acts of
respondent in refusing to support his child with petitioner is committed here in the
Philippines as all of the parties herein are residents of the Province of Cebu City. As
such, our courts have territorial jurisdiction over the offense charged against respondent.
It is likewise irrefutable that jurisdiction over the respondent was acquired upon his
arrest.

Finally, we do not agree with respondents argument that granting, but not admitting, that
there is a legal basis for charging violation of R.A. No. 9262 in the instant case, the
criminal liability has been extinguished on the ground of prescription of crime 52 under
Section 24 of R.A. No. 9262, which provides that:

SECTION 24. Prescriptive Period. Acts falling under Sections 5(a) to 5(f) shall
prescribe in twenty (20) years. Acts falling under Sections 5(g) to 5(I) shall prescribe in
ten (10) years.

The act of denying support to a child under Section 5(e)(2) and (i) of R.A. No. 9262 is a
continuing offense,53which started in 1995 but is still ongoing at present. Accordingly, the
crime charged in the instant case has clearly not prescribed.

Given, however, that the issue on whether respondent has provided support to
petitioners child calls for an examination of the probative value of the evidence
presented, and the truth and falsehood of facts being admitted, we hereby remand the
determination of this issue to the RTC-Cebu which has jurisdiction over the case.

WHEREFORE, the petition is GRANTED. The Orders dated February 19, 2010 and
September 1, 2010, respectively, of the Regional Trial Court of the City of Cebu are
hereby REVERSED and SET ASIDE. The case is REMANDED to the same court to
conduct further proceedings based on the merits of the case.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 205136 December 2, 2014

OLIVIA DA SILVA CERAFICA, Petitioner,

vs.
COMMISSION ON ELECTIONS, Respondent.

DECISION
PEREZ, J.:

For the consideration of the Court is the Special Civil Action for Certiorari under Rule 64
of the Revised Rules of Court, assailing the ruling of respondent Commission on
Elections (Comelec) which cancelled the Certificate of Candidacy (COC) of Kimberly Da
Silva Cerafica (Kimberly) and denied the substitution of Kimberly by petitioner Olivia Da
Silva Cerafica (Olivia).

On 1 October 2012, Kimberly filed her COC for Councilor, City of Taguig for the 2013
Elections. Her COC stated that she was born on 29 October 1992, or that she will be
twenty (20) years of age on the day of the elections,1 in contravention of the requirement
that one must be at least twenty-three (23) years of age on the day of the elections as
set out in Sec. 9 (c) of Republic Act (R.A.) No. 8487 (Charter of the City of Taguig). 2 As
such, Kimberly was summoned to a clarificatory hearing due to the age qualification.

Instead of attending the hearing,Kimberly opted to file a sworn Statement of Withdrawal

of COC on 17 December 2012. 3 Simultaneously, Olivia filed her own COC as a
substitute of Kimberly. Owing to these events, the clarificatory hearing no longer pushed
through.

In a Memorandum dated 18 December 2012, Director Esmeralda Amora-Ladra (Director

Amora-Ladra) of the Comelec Law Department recommended the cancellation of
Kimberlys COC, and consequently, the denial of the substitution of Kimberly by Olivia.
Relying on Comelec Resolution No. 9551,4 Director Amora-Ladra opined that it is as if
no COC was filed by Kimberly; thus, she cannot be substituted.

In a Special En Banc Meeting of the Comelec on 3 January 2013, 5 the Comelec adopted
the recommendation of Director Amora-Ladra, cancelled Kimberlys COC, and denied
the substitution of Kimberly by Olivia as an effect of the cancellation of Kimberlys COC,
viz:6

The Commission RESOLVED, as it hereby RESOLVES, to approve the foregoing

recommendation of Director Esmeralda-AmoraLadra, Law Department, as follows:

1. To cancelthe Certificate of Candidacy (COC) of aspirant Kimberly Da Silva

Cerafica without prejudice to any civil, criminal or administrative liability that she
may have incurred pursuant to Section 14 of COMELEC Resolution 9518; and

2. To deny the substitution of Kimberly Da Silva Cerafica by Olivia Da Silva

Cerafica as an effect of the cancellation of the COC of Kimberly.

Let the Law Department implement this resolution.

SO ORDERED.

Olivia then filed the present petition for certiorari with Prayer for the Issuance of a
Temporary Restraining Order, Status Quo AnteOrder, and/or Writ of Preliminary
Mandatory Injunction, raising the following issues:7

I.

WHETHER PUBLIC RESPONDENT COMMISSION ON ELECTIONS ACTED WITH

GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION AND CONTRARY TO LAW AND JURISPRUDENCE IN ISSUING THE
ASSAILED MINUTE RESOLUTION RESULTING IN THE CANCELLATION OF THE
CERTIFICATE OF CANDIDACY (COC) OF ASPIRANT KIMBERLY DA SILVA
CERAFICA AND THE DENIAL OF THE SUBSTITUTION OF KIMBERLY DA SILVA
CERAFICA BY OLIVIA DA SILVA CERAFICA AS AN EFFECT OF THE CANCELLATION
OF THE COC OF KIMBERLY.

II.

WHETHER PUBLIC RESPONDENT COMMISSION ON ELECTIONS ACTED WITH

GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION AND CONTRARY TO LAW AND JURISPRUDENCE WHEN IT RULED
THAT THERE WAS NO VALID SUBSTITUTION BY PETITIONER FOR KIMBERLY
RESULTING IN THE MOTU PROPRIO DENIAL OF PETITIONERS CERTIFICATE OF
CANDIDACY.

III.

WHETHER PUBLIC RESPONDENT COMMISSION ON ELECTIONS ACTED WITH

GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION AND CONTRARY TO LAW AND JURISPRUDENCE IN ISSUING THE
ASSAILED RESOLUTION WITHOUT GIVING PETITIONER AN OPPORTUNITY TO BE
HEARD, THEREBY RESULTING IN THE MOTU PROPRIODENIAL OF THE
SUBSTITUTION OF KIMBERLY DA SILVA CERAFICA BY OLIVIA DA SILVA CERAFICA.

In its Comment8 filed on 22 April 2013, respondent Comelec argued that Olivia cannot
substitute Kimberly as the latter was never an official candidate because she was not
eligible for the post by reason of her age, and that, moreover, the COC that Kimberly
filed was invalid because it contained a material misrepresentation relating to her
eligibility for the office she seeks to be elected to.9 The Comelec further averred that it
can cancel Kimberlys COC motu proprioas it may look into patent defects in the COCs,
such as Kimberlys failure to comply with the age requirement.10

In her Reply11 filed on 10 May 2013, Oliviacountered that although Kimberly may not be
qualified to run for election because of her age, it cannot be denied that she still filed a
valid COC and was, thus, an official candidate who may be substituted. 12 Olivia also
claimed that there was no ground to cancel or deny Kimberlys COC on the ground of
lack of qualification and material misrepresentation because she did not misrepresent
her birth dateto qualify for the position of councilor, and as there was no deliberate
attempt to mislead the electorate, which is precisely why she withdrew her COC upon
learning that she was not qualified.13

At the outset, we note that a verification with the Comelec database yields the finding
that Olivia was not among the official candidates 14 for the 2013 Elections and, thus, was
not voted for.15 As such, a ruling on the present petition would no longer be of practical
use or value. Even if we were to resolve the petition for the purpose of determining
Olivias legal status as a legitimate and qualified candidate for public office, such
purpose has been rendered inconsequential as a result of the proclamation of the
winning councilors for the 2013 elections.16

Be that as it may, the Court deems it opportune to address the merits of the case, if only
to caution the Comelec against the precipitate cancellation of COCs.

In Albaa v. Comelec,17 we held that where the issues have become moot and
academic, there is no justiciable controversy, thereby rendering the resolution of the
same of no practical use or value. Nonetheless, courts will decide a question otherwise
moot and academic if it is capable of repetition, yet evading review. In this case, we find
it necessary to resolve the issues raised in the petition in order to prevent a repetition
thereof and, thus, enhance free, orderly, and peaceful elections.

VALID SUBSTITUTION

In declaring that Kimberly, being under age, could not be considered to have filed a valid
COC and, thus, could not be validly substituted by Olivia, we find that the Comelec
gravely abused its discretion.

Firstly, subject to its authority over nuisance candidates18 and its power to deny due
course to or cancel COCs under Sec. 78, Batas Pambansa (B.P.) Blg. 881, the Comelec
has the ministerial duty to receive and acknowledge receipt of COCs.19

In Cipriano v. Comelec,20 we ruled that the Comelec has no discretion to give or not to
give due couse to COCs. We emphasized that the duty of the Comelec to give due
course to COCs filed in due form is ministerial in character, and that whilethe Comelec
may look into patent defects in the COCs, it may not go into matters not appearing on
their face. The question of eligibility or ineligibility of a candidate is thus beyond the
usual and proper cognizance of the Comelec.

Section 77 of the Omnibus Election Code (B.P. Blg. 881) provides for the procedure of
substitution of candidates, to wit:

Sec. 77. Candidates in case of death, disqualification or withdrawal of another. If after

the last day for the filing of certificates of candidacy, an official candidate of a registered
or accredited political party dies, withdraws or is disqualified for any cause, only a
person belonging to, and certified by, the same political party may file a certificate of
candidacy to replace the candidate who died, withdrew or was disqualified. The
substitute candidate nominated by the political party concerned may file his certificate of
candidacy for the office affected in accordance with the preceding sections not later than
mid-day of election day of the election.

If the death, withdrawal or disqualification should occur between the day before the
election and mid-day of election day, said certificate may be filed with any board of
election inspectors in the political subdivision where he is candidate or, in case of
candidates to be voted for by the entire electorate of the country, with the Commission.

Under the express provision of Sec. 77 of B. P. Blg. 881, not just any person, but only
"an official candidate of a registered or accredited political party" may be substituted. 21 In
the case at bar, Kimberly was an official nominee of the Liberal Party; 22 thus, she can be
validly substituted.

The next question then is whether Olivia complied with all of the requirements for a valid
substitution; we answer in the affirmative. First, there was a valid withdrawal of
Kimberlys COC after the last day for the filing of COCs; second, Olivia belongs to and is
certified to by the same political party to which Kimberly belongs; 23 and third, Olivia filed
her COC not later than mid-day of election day.24

In Luna v. Comelec,25 where the candidate, who was also under age, withdrew his COC
before election day and was substituted by a qualified candidate, we declared that
suchsubstitution was valid. The Court eloquently explained:

Substitution of Luna for Hans Roger was Valid

Luna contends that Hans Roger filed a valid certificate of candidacy and, subsequently,
upon Hans Rogers withdrawal of his certificate of candidacy, there was a valid
substitution by Luna. On the other hand, the COMELEC ruled that Hans Roger, being
under age, could not be considered tohave filed a valid certificate of candidacy and,
therefore, is not a valid candidate who could be substituted by Luna.

When a candidate files his certificate of candidacy, the COMELEC has a ministerial duty
to receive and acknowledge its receipt. Section 76 of the Omnibus Election
Code(Election Code) provides:

Sec. 76. Ministerial duty of receiving and acknowledging receipt. The Commission,
provincial election supervisor, election registrar or officer designated by the Commission
or the board of election inspectors under the succeeding section shall have the
ministerial duty to receive and acknowledge receipt of the certificate of candidacy.

In this case, when Hans Roger filed his certificate of candidacy on 5 January 2004, the
COMELEC had the ministerial duty to receive and acknowledge receipt of Hans Rogers
certificate of candidacy. Thus, the COMELEC had the ministerial duty to give due course
to Hans Rogers certificate of candidacy.

On 15 January 2004, Hans Roger withdrew his certificate of candidacy. The Election
Code allows a person who has filed a certificate of candidacy to withdraw the same prior
to the election by submitting a written declaration under oath. There is no provision of
law which prevents a candidate from withdrawing his certificate of candidacy before the
election.

On the same date, Luna filed her certificate of candidacy as substitute for Hans Roger.
Section 77 of the Election Code prescribes the rules on substitution of an official
candidate of a registered political party who dies, withdraws, or is disqualified for any
cause after the last day for the filing of certificate of candidacy. Section 77 of the Election
Code provides:

Sec. 77. Candidates in case of death, disqualification or withdrawal of another. If after

the last day for the filing of certificates of candidacy, an official candidate of a registered
or accredited politicalparty dies, withdraws or is disqualified for any cause, only a person
belonging to, and certified by, the same political party may file a certificate of candidacy
to replace the candidate who died, withdrew or was disqualified. The substitute
candidate nominated by the political party concerned may file his certificate of candidacy
for the office affected in accordance with the preceding sections not later thanmid-day of
election day of the election. If the death, withdrawal or disqualification should occur
between the day before the election and midday of election day, said certificate may be
filed with any board of election inspectors in the political subdivision where he is
candidate or, in case of candidates to be voted for by the entire electorate of the country,
with the Commission.

Since Hans Roger withdrew his certificate of candidacy and the COMELEC found that
Luna complied with all the procedural requirements for a valid substitution, Luna can
validly substitute for Hans Roger.

The COMELEC acted with grave abuse of discretion amounting to lack or excess of
jurisdiction in declaring that Hans Roger, being under age, could not be considered to
have filed a valid certificate of candidacy and, thus, could not be validly substituted by
Luna. The COMELEC may not, by itself, without the proper proceedings, deny due
course to or cancel a certificate of candidacy filed in due form. In Sanchez vs. Del
Rosario, the Court ruled that the question of eligibility or ineligibility of a candidate for
non-age is beyond the usual and proper cognizance of the COMELEC.

Section 74 of the Election Code provides that the certificate of candidacy shall state,
among others, the date of birth of the person filing the certificate. Section 78 of the
Election Code provides that in case a person filing a certificate of candidacy has
committed false material representation, a verified petition to deny due course to or
cancel the certificate of candidacy of said person may be filed at any time not later than
25 days from the time of filing of the certificate of candidacy.

If Hans Roger made a material misrepresentation as to his date of birth or age in his
certificate of candidacy, his eligibility may only be impugned through a verified petition to
deny due course to or cancel such certificate of candidacy under Section 78 of the
Election Code.

In this case, there was no petition to deny due course to or cancel the certificate of
candidacyof Hans Roger. The COMELEC only declared that Hans Roger did not file a
valid certificate of candidacy and, thus, was not a valid candidate in the petition to deny
due course to or cancel Lunas certificate of candidacy. In effect, the COMELEC, without
the proper proceedings, cancelled Hans Rogers certificate of candidacy and declared
the substitution by Luna invalid.

It would have been different if there was a petition to deny due course to or cancel Hans
Rogers certificate of candidacy.1wphi1 For if the COMELEC cancelled Hans Rogers
certificate of candidacy after the proper proceedings, then he is no candidate at all and
there can be no substitution of a person whose certificate of candidacy has been
cancelled and denied due course. However, Hans Rogers certificate of candidacy was
never cancelled or denied due course by the COMELEC.

Moreover, Hans Roger already withdrew his certificate of candidacy before the
COMELEC declared that he was not a valid candidate. Therefore, unless Hans Rogers
certificate of candidacy was denied due course or cancelled in accordance with Section
78 of the Election Code, Hans Rogers certificate of candidacy was valid and he may be
validly substituted by Luna.26 (Emphases supplied.)

LACK OF DUE PROCESS

Moreover, in simply relying on the Memorandum of Director Amora Ladra in cancelling

Kimberlys COC and denying the latters substitution by Olivia, and absent any petition to
deny due course to or cancel said COC, the Court finds that the Comelec once more
gravely abused its discretion. The Court reminds the Comelec that, inthe exercise of it
adjudicatory or quasi-judicial powers, the Constitution27 mandates it to hear and decide
cases first by Division and, upon motion for reconsideration, by the En Banc.

Where a power rests in judgment or discretion, so that it is of judicial nature or character,

but does not involve the exercise of functions of a judge, or is conferred upon an officer
other than a judicial officer, it is deemed quasi-judicial. 28 As cancellation proceedings
involve the exercise of quasi judicial functions of the Comelec, the Comelec in Division
should have first decided this case.

In Bautista v. Comelec, et al.,29 where the Comelec Law Department recommended the
cancellation of a candidates COC for lack of qualification, and which recommendation
was affirmed by the Comelec En Banc, the Court held that the Comelec En Banc cannot
short cut the proceedings by acting on the case without a prior action by a division
because it denies due process to the candidate. The Court held:
A division of the COMELEC should have first heard this case. The COMELEC en banc
can only act on the case if there is a motion for reconsideration of the decision of the
COMELEC division. Hence, the COMELEC en banc acted without jurisdiction when it
ordered the cancellation of Bautistas certificate of candidacy without first referring the
case to a division for summary hearing.

xxxx

Under Section 3, Rule 23 of the 1993 COMELEC Rules of Procedure, a petition for the
denial or cancellation of a certificate of candidacy must be heard summarily after due
notice. It isthus clear that cancellation proceedings involve the exercise of the quasi-
judicial functions of the COMELEC which the COMELEC in divisionshould first decide.
More so in this case where the cancellation proceedings originated not from a petition
but from a report of the election officer regarding the lack of qualification of the candidate
in the barangay election. The COMELEC en bane cannot short cut the proceedings by
acting on the case without a prior action by a division because it denies due process to
the candidate.30 (Emphasis supplied.)

The determination of whether a candidate is eligible for the position he is seeking

involves a determination of fact where parties must be allowed to adduce evidence in
support of their contentions.31 We thus caution the Comelec against its practice of
impetuous cancellation of COCs via minute resolutions adopting the recommendations
of its Law Department when the situation properly calls for the case's referral to a
Division for summary hearing.

WHEREFORE, premises considered, with the cautionary counsel that cancellation of

certificate of candidacy is a quasi-judicial process, and accordingly is heard by the
Commission on Elections in Division and En Banc on appeal, we DISMISS the present
petition for being moot and academic.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 206004 February 24, 2015

JOSEPH B. TIMBOL, Petitioner,

vs.
COMMISSION ON ELECTIONS, Respondent.

RESOLUTION

LEONEN, J.:

The power of the Commission on Elections (COMELEC) to restrict a citizen's right of

suffrage should not be arbitrarily exercised. The COMELEC cannot motu proprio deny
due course to or cancel an alleged nuisance candidates certificate of candidacy without
providing the candidate his opportunity to be heard.

This is a Petition1 for Certiorari with prayer for issuance of preliminary mandatory
injunction against the following issuances of the COMELEC: first, Resolution No.
96102 dated January 11, 2013, declaring petitioner Joseph B. Timbol (Timbol) a
nuisance candidate and ordering the removal of his name from the certified list of
candidates;3and second, Minute Resolution4 dated February 5, 2013, denying his
Petition to have his name listed in the certified list of candidates and printed on the
ballots for the May 13, 2013 elections.5

On October 5, 2012, Timbol filed a Certificate of Candidacy 6 for the position of Member
of the Sangguniang Panlungsod of the Second District of Caloocan City. On January 15,
2013, he received a Subpoena7 from COMELEC Election Officer Dinah A. Valencia
(Election Officer Valencia), ordering him to appear before her office on January 17, 2013
for a clarificatory hearing in connection with his Certificate of Candidacy.8
Timbol, together with his counsel, appeared before Election Officer Valencia. During the
clarificatory hearing, Timbol argued that he was not a nuisance candidate. He contended
that in the 2010 elections, he ranked eighth among all the candidates who ran for
Member of the Sangguniang Panlungsod of the Second District of Caloocan City. He
allegedly had sufficient resources to sustain his campaign.9

He pointed out before the clarificatory hearing panel that his name already appeared in
the list of nuisance candidates posted in the COMELEC website pursuant to Resolution
No. 9610 dated January 11, 2013. The clarificatory hearing panel allegedly assured him
that his name would be deleted from the list and that his Certificate of Candidacy would
be given due course.10

In the Memorandum11 dated January 17, 2013, Election Officer Valencia recommended
that Timbols Certificate of Candidacy be given due course.12

Despite Election Officer Valencias favorable recommendation, Timbols name was not
removed from the list of nuisance candidates posted in the COMELECs website. With
the printing of ballots for the automated elections set on February 4, 2013, Timbol filed
on February 2, 2013 a Petition13 praying that his name be included in the certified list of
candidates for the May 13, 2013 elections.14

In the Minute Resolution dated February 5, 2013, the COMELEC denied the Petition for
being moot, considering that the printing of ballots had already begun.15

On March 15, 2013,16 Timbol filed his Petition for Certiorari with this court, arguing that
the COMELEC gravely abused its discretion in declaring him a nuisance
candidate.17 According to Timbol, the COMELEC deprived him of due process of law
when he was declared a nuisance candidate even before Election Officer Valencia
conducted the clarificatory hearing.18 He prayed for a preliminary mandatory injunction
ordering the COMELEC to include his name in the certified list of candidates for the
position of Member of Sangguniang Panlungsod of the Second District of Caloocan
City.19

In the Resolution20 dated April 16, 2013, this court ordered the Office of the Solicitor
General to comment on behalf of the COMELEC.

In its Comment,21 the COMELEC argued that the Petition was already moot and
academic, considering that the May 13, 2013 elections had already been conducted.22

Even assuming that the Petition was not moot and academic, the COMELEC maintained
that it did not gravely abuse its discretion. Contrary to Timbols argument, he was given
an opportunity to be heard when Election Officer Valencia heard him during the
clarificatory hearing. He even admitted that he attended the clarificatory hearing with his
counsel.23

Moreover, the COMELEC did not gravely abuse its discretion in denying Timbols
Petition to be included in the certified list of candidates, considering that the printing of
ballots had already started.24

With these arguments, the COMELEC prayed that this court deny the Petition for lack of
merit.25

In the Resolution26 dated August 6, 2013, this court ordered Timbol to file a reply. When
Timbol failed to file his reply despite receipt of the order, 27 we required Atty. Jose Ventura
Aspiras (Atty. Aspiras), counsel for Timbol, to show cause why he should not be
disciplinarily dealt with for failing to file a reply on behalf of his client in the
Resolution28 dated September 2, 2014. We likewise reiterated our order for Atty. Aspiras
to file a reply for Timbol.29 Still, Atty. Aspiras failed to comply with our show cause
resolution.

We dispense with the filing of the reply and resolve to decide this case based on the
Petition and the Comment.

The issues for this courts resolution are the following:

First, whether this case is moot and academic; and

Second, whether respondent COMELEC gravely abused its discretion in denying

petitioner Timbols Petition for inclusion in the certified list of candidates.

We deny the Petition.

This case is moot and academic.

A case is moot and academic if it "ceases to present a justiciable controversy because of

supervening events so that a declaration thereon would be of no practical use or
value."30 When a case is moot and academic, this court generally declines jurisdiction
over it.31

There are recognized exceptions to this rule. This court has taken cognizance of moot
and academic cases when:

(1) there was a grave violation of the Constitution; (2) the case involved a situation of
exceptional character and was of paramount public interest; (3) the issues raised
required the formulation of controlling principles to guide the Bench, the Bar and the
public; and (4) the case was capable of repetition yet evading review.32 (Citation omitted)

We may no longer act on petitioners prayer that his name be included in the certified list
of candidates and be printed on the ballots as a candidate for Member of the
Sangguniang Panlungsod. Petitioner filed with this court his Petition for Certiorari on
March 15,2013, 39 days after respondent began printing the ballots on February 4,
2013. Also, the May 13, 2013 elections had been concluded, with the winners already
proclaimed.

That this case is moot and academic, however, does not preclude us from setting forth
"controlling and authoritative doctrines"33 to be observed by respondent in motu proprio
denying due course to or cancelling certificates of candidacy of alleged nuisance
candidates. This motu proprio authority is always subject to the alleged nuisance
candidates opportunity to be heard34 an essential element of procedural due
process.35

II

Respondents power to motu proprio deny due course to a certificate of candidacy is

subject to the candidates opportunity to be heard.

Under Article II, Section 26 of the Constitution, "[t]he State shall guarantee equal access
to opportunities for public service[.]" This, however, does not guarantee "a constitutional
right to run for or hold public office[.]" 36 To run for public office is a mere "privilege subject
to limitations imposed by law."37 Among these limitations is the prohibition on nuisance
candidates. Nuisance candidates are persons who file their certificates of candidacy "to
put the election process in mockery or disrepute or to cause confusion among the voters
by the similarity of the names of the registered candidates or by other circumstances or
acts which clearly demonstrate that the candidate has no bona fide intention to run for
the office for which the certificate of candidacy has been filed and thus prevent a faithful
determination of the true will of the electorate." 38 In Pamatong v. Commission on
Elections,39 this court explained why nuisance candidates are prohibited from running for
public office:

. . . The State has a compelling interest to ensure that its electoral exercises are rational,
objective, and orderly. Towards this end, the State takes into account the practical
considerations in conducting elections. Inevitably, the greater the number of candidates,
the greater the opportunities for logistical confusion, not to mention the increased
allocation of time and resources in preparation for the election. These practical
difficulties should, of course, never exempt the State from the conduct of a mandated
electoral exercise. At the same time, remedial actions should be available to alleviate
these logistical hardships, whenever necessary and proper. Ultimately, a disorderly
election is not merely a textbook example of inefficiency, but a rot that erodes faith in our
democratic institutions. . . .

....

. . . The organization of an election with bona fide candidates standing is onerous

enough.1wphi1 To add into the mix candidates with no serious intentions or capabilities
to run a viable campaign would actually impair the electoral process. This is not to
mention the candidacies which are palpably ridiculous so as to constitute a one-note
joke. The poll body would be bogged by irrelevant minutiae covering every step of the
electoral process, most probably posed at the instance of these nuisance candidates. It
would be a senseless sacrifice on the part of the State.40

To minimize the logistical confusion caused by nuisance candidates, their certificates of

candidacy may be denied due course or cancelled by respondent. This denial or
cancellation may be "motu proprio or upon a verified petition of an interested
party,"41 "subject to an opportunity to be heard."42

The opportunity to be heard is a chance "to explain ones side or an opportunity to seek
a reconsideration of the action or ruling complained of." 43 In election cases, due process
requirements are satisfied "when the parties are afforded fair and reasonable opportunity
to explain their side of the controversy at hand."44

In Cipriano v. Commission on Elections,45 this court explained:

[T]he determination whether a candidate is eligible for the position he is seeking involves
a determination of fact where both parties must be allowed to adduce evidence in
support of their contentions. Because the resolution of such fact may result to a
deprivation of ones right to run for public office, or, as in this case, ones right to hold
public office, it is only proper and fair that the candidate concerned be notified of the
proceedings against him and that he be given the opportunity to refute the allegations
against him. It should be stressed that it is not sufficient, as the COMELEC claims, that
the candidate be notified of the Commissions inquiry into the veracity of the contents of
his certificate of candidacy, but he must also be allowed to present his own evidence to
prove that he possesses the qualifications for the office he seeks.46 Respondent commits
grave abuse of discretion if it denies due course to or cancels a certificate of candidacy
without affording the candidate an opportunity to be heard.47

Respondent declared petitioner a nuisance candidate without giving him a chance to

explain his bona fide intention to run for office. Respondent had already issued
Resolution No. 9610on January 11, 2013 when petitioner appeared before Election
Officer Valencia in a clarificatory hearing on January 17, 2013. This was an ineffective
opportunity to be heard.

That petitioner was able to file a Petition for inclusion in the certified list of candidates did
not cure the defect in the issuance of Resolution No. 9610. First, he would not have to
file the Petition had he been given an opportunity to be heard in the first place. Second,
in the Minute Resolution dated February 5, 2013, respondent denied petitioners Petition
on the sole ground that the printing of ballots had already begun on February 4, 2013.

We understand the "insurmountable and tremendous operational constraints and costs

implications"48 of reprinting ballots had respondent ordered the inclusion of petitioners
name in the certified list of candidates. The ballots already printed would have to be
recalled, leading to the waste of the ballots previously printed. It should be noted that
these ballots are special as they have the capability of being optically scanned by
Precinct Count Optical Scan machines. Reprinting another batch of ballots would,
indeed, be costly.

Still, "automation is not the end-all and be-all of an electoral process." 49 Respondent
should also balance its duty "to ensure that the electoral process is clean, honest,
orderly, and peaceful"50 with the right of a candidate to explain his or her bona fide
intention to run for public office before he or she is declared a nuisance candidate.

III

Counsel for petitioner must be fined for failure to comply with the Show Cause
Resolution dated September 2, 2014.

Atty. Aspiras, counsel for petitioner, failed to obtain the injunctive reliefs prayed for in
time for the May 13, 2013 elections. However, this was no reason for him to defy our
orders to file a reply on behalf of his client. For such contumacious acts, he should be
ordered to show cause why he should not be proceeded with administratively.

WHEREFORE, this Petition for Certiorari is DENIED for being moot and academic.

Moreover, Atty. Jose Ventura Aspiras is ORDERED to show cause within a non-
extendible period of ten (10) days from receipt of this Resolution why he should not be
the subject of administrative actions for his contumacious attitude towards repeated
orders of this court, specifically, for his failure to comply with the Resolutions dated
August 6, 2013 and September 2, 2014. The action against Atty. Jose Ventura Aspiras
will be docketed as a new and separate administrative case.

Let a copy of this decision be given to the Office of the Bar Confidant for the initiation of
the proper disciplinary action against Atty. Jose Ventura Aspiras.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 205867 February 23, 2015

MARIFLOR T. HORTIZUELA, represented by JOVIER TAGUFA, Petitioner,

vs.
GREGORIA TAGUFA, ROBERTO TAGUFA and ROGELIO LUMABAN, Respondents.
DECISION

MENDOZA, J.:

This is a petition for review on certiorari under Rule 45 of the Rules of Court assailing
the September 13, 2012 Decision and the January 25, 2013 Resolution 2 of the Court of
1

Appeals (CA) in CA-G.R. SP No. 122648 which reversed and set aside the July 1, 2011
Decision 3 of the Regional Trial Court, Branch 22, Cabagan, Isabela (RTC), in an action
for reconveyance and recovery of possession.

The Facts:

The undisputed facts were succinctly summarized in the August 31, 2010 Decision of 4

the 3rd Municipal Circuit Trial Court, Tumauini-Delfin Albano, Tumauini, Isabela (MCTC)
before which a complaint for Reconveyance and Recovery of Possession with Damages
5

was filed by petitioner Mariflor Tagufa Hortizuela (Hortizuela)represented by Jovier

Tagufa against respondents Gregoria Tagufa, Roberto Tagufa and Rogelio Lumaban
(respondents). As quoted by the CA, said undisputed facts are:

Gleaned from the joint testimonies of R[u]nsted Tagufa xxx and Jovier Tagufa xxx are the
following facts:

The property involved in this case is a parcel of land located at District IV, Tumauini,
Isabela containing an area of 539 square meters, more or less, and covered by OCT No.
P-84609 of the Registry of Deeds of Isabela. By virtue of the special power of attorney
xxx executed by Mariflor Tagufa Hortizuela, Jovier Tagufa instituted this case against
herein defendants praying for the peaceful surrender of the above-described property
unto them and further ordering defendant Gregoria Tagufa to reconvey in plaintiffs favor
the same property which was titled under her name via fraud.

Before it was titled in the name of Defendant Tagufa, said property was originally owned
by plaintiffs parents, Spouses Epifanio Tagufa and Godofreda Jimenez. Although
untitled, the spouses mortgaged the property with the Development Bank of the
Philippines (DBP, for brevity). For failure to redeem the property, DBP foreclosed the
same and sold it to Atty. Romulo Marquez xxx who, in turn, sold it back to Runsted
Tagufa, husband of defendant Gregoria Tagufa, on April 4, 2002 xxx using the fund sent
by plaintiff Hortizuela who was in America and with the agreement that Runsted will
reconvey the said property to her sister when demanded. However, plaintiff discovered
that the same unregistered property was titled in the name of Gregoria Tagufa under
OCT No. P-84609 of the Registry of Deeds of Isabela xxx. Investigating further, plaintiff
discovered that Gregoria Tagufa was able to title the said property by virtue of a free
patent application before the Department of Environment and Natural Resources
(DENR) and the execution of a Deed of Extrajudicial Settlement of the Estate of the late
Spouses Leandro Tagufa and Remedios Talosig dated May 9,2003 xxx. Plaintiff now
seeks to recover possession of the said property which is presently occupied by
Gregoria Tagufa and her co-defendants and have the same be reconveyed unto them. 6

In its Order, dated May 5, 2010,the MCTC granted the motion to declare defendants in
default and allowed Hortizuela to present her evidence ex parte. Thereafter, on August
31, 2010, the MCTC dismissed the complaint for lack of merit ruling that "in the judicious
analysis by this court, plaintiffs have resorted to a wrong cause of action."
7

Not in conformity, Hortizuela appealed to the RTC. In its July 1, 2011 Decision, the RTC
reversed the MCTC ruling. The decretal portion of the RTC decision reads as follows:
WHEREFORE, premises considered, the appeal is hereby granted and the Decision
dated August 31, 2010, is hereby REVERSED and judgment is hereby rendered as
follows:

1. Ordering the defendant Gregorio Tagufa to reconvey to the plaintiff Mariflor

Tagufa Hortizuela the land described in paragraph 4 of the complaint;

2. Ordering the defendants to vacate the same land and to surrender the
peaceful possession thereof to the plaintiff;

3. Ordering the defendants to pay to the plaintiff the following amounts, jointly
and severally:

a) Fifty Thousand (P50,000.00) Pesos as Moral Damages;

b) Twenty Thousand (P20,000.00) Pesos as Attorneys Fees.

SO DECIDED. 8

Respondents filed a motion for reconsideration, but it was denied by the RTC.

The reversal being unacceptable to them, respondents filed a petition for review before
the CA questioning the RTC decision. This time, the case was disposed in their favor.
According to the CA, although Hortizuela filed with the MCTC a complaint for
reconveyance and recovery of possession of the subject lot, she was also questioning
the validity of the Torrens title, Original Certificate of Title (OCT)No. P-846609. The CA
9

pointed out that this was in contravention of Section 48 of Presidential Decree (P.D.)No.
1529 which provides:

Sec. 48. Certificate not subject to collateral attack.- A certificate of title shall not be
subject to collateral attack. It cannot be altered, modified, or cancelled except in a direct
proceeding in accordance with law

It cited the well-settled rule that a Torrens title could not be collaterally attacked; that the
issue of whether or not the title was fraudulently issued, could only be raised in an action
expressly instituted for that purpose; and that an action for reconveyance and recovery
of possession was not the direct action contemplated by law. Hence, the dispositive
10

portion of the CA decision reads in this wise:

WHEREFORE, premises considered, the Decision dated July 1, 2011 rendered by the
Regional Trial Court of Cabagan, Isabela, is hereby REVERSED and SET ASIDE. The
present Complaint for reconveyance and recovery of possession with damages is
DISMISSED.

SO ORDERED. 11

Hortizuela filed a motion for reconsideration, but it was denied in a Resolution, dated 12

January 25, 2013.

Hence, this petition.

ISSUE

WHETHER OR NOT AN ACTIONFOR RECONVEYANCE AND RECOVERY OF

POSSESSION CONSTITUTES AN INDIRECT OR COLLATERAL ATTACK ON THE
VALIDITY OF THE SUBJECT CERTIFICATE OF TITLE WHICH IS PROSCRIBED BY
LAW.

Hortizuela claims that respondent Gregoria Tagufa (Gregoria),being the wife of Runsted,
was certainly aware that the subject land was actually sold by Atty. Romulo Marquez
(Atty. Marquez) to her (Hortizuela). Runsted, only acted as attorney-in-fact in the sale
transaction. Thus, the action for reconveyance was not a collateral attack on the said
title because Hortizuela was not seeking the nullification of the title, but rather the
reconveyance of the property, covered by the said title, which Gregoria was holding in
trust for her benefit as the real owner. Gregoria should, therefore, reconvey the property
and its title to her, being the rightful owner.

Position of Respondents

Respondents counter that although Hortizuelas complaint was denominated as one for
reconveyance and recovery of possession, its main objective was to nullify the title held
by Gregoria over the subject property. For said reason, the complaint would amount to a
collateral attack on the title which was proscribed under the principle of indefeasibility of
a Torrens title. To rule that the action for reconveyance was not a collateral one would
result in the nullity of the decree of registration.

Another argument that respondents want this Court to consider in resolving the subject
petition is the fact that the overriding reason why Hortizuela chose to file a complaint for
reconveyance and recovery of possession was that she failed to avail of the remedy
provided under Section 38 of Act 496 within the prescribed period of one (1) year,
13

counted from the issuance of the free patent by the government.

Finally, granting that the title over the property would be nullified and the property be
reconveyed to Hortizuela, still the latter would be ineligible to own the same pursuant to
Batas Pambansa (B.P.) Blg. 223 which requires, among others, that an applicant for a
free patent must be a Filipino citizen. Hortizuela, by her own admission, is an American
citizen who has been residing in Las Vegas, Nevada.

The Courts Ruling

The Court finds the petition meritorious.

The Court is not unmindful of the principle of indefeasibility of a Torrens title and Section
48 of P.D. No. 1528 where it is provided that a certificate of title shall not be subject to
collateral attack. A Torrens title cannot be altered, modified or cancelled except in a
14

direct proceeding in accordance with law. When the Court says direct attack, it means
that the object of an action is to annul or set aside such judgment, or enjoin its
enforcement. On the other hand, the attack is indirect or collateral when, in an action to
obtain a different relief, an attack on the judgment or proceeding is nevertheless made
as an incident thereof. In its decision, the MCTC wrote:
15

Obviously, the bone of contention in this case are the deed of sale by and between
Romulo Marquez and Runsted Tagufa, the estranged husband of defendant Gregoria
Tagufa, and OCT No. P-84609 registered in the name of Gregoria Tagufa who,
according to the plaintiff, fraudulently caused the titling of the same.

In their lamentations, plaintiff pointed out the following indicia of fraud committed by
GregoriaTagufa that would allegedly justify reconveyance:
First, Gregoria Tagufa made it appear in the extrajudicial settlement of the estate of
spouses Leandro Tagufa and Remedios Talosig that she is an heir when, in truth, she is
only a grand daughter-in-law,

Second, she already knew when she applied for free patent that plaintiff was already the
owner of the land she was applying for;

Third, she already knew that when she applied for free patent that plaintiffs parents
were not anymore the owners of the land as the same was mortgaged with the DBP;
and

Fourth, defendant has never been in actual possession of the property when she applied
for it.

All in all, plaintiff argued, Gregoria Tagufa never acquired any valid right or legal title over
the property.

Studying the merits of this case and removing all its superfluities, plaintiffs plainly
question the title generated in the name of defendant Gregoria Tagufa having been
obtained by fraud and misrepresentation. However, in the judicious analysis by this
court, plaintiffs have resorted to a wrong cause of action. 16

From the foregoing, it can be deduced that the MCTC was convinced that fraud was
attendant in the registration of the land but was not convinced that reconveyance was an
accepted remedy. Contrary to the pronouncements of the MCTC and the CA, however,
the complaint of Hortizuela was not a collateral attack on the title warranting dismissal.
As a matter of fact, an action for reconveyance is a recognized remedy, an action in
personam, available to a person whose property has been wrongfully registered under
the Torrens system in anothers name. In an action for reconveyance, the decree is not
sought to be set aside. It does not seek to set aside the decree but, respecting it as
incontrovertible and no longer open to review, seeks to transfer or reconvey the land
from the registered owner to the rightful owner. Reconveyance is always available as
long as the property has not passed to an innocent third person for value. There is no
17

quibble that a certificate of title, like in the case at bench, can only be questioned
through a direct proceeding. The MCTC and the CA, however, failed to take into account
that in a complaint for reconveyance, the decree of registration is respected as
incontrovertible and is not being questioned. What is being sought is the transfer of the
property wrongfully or erroneously registered in another's name to its rightful owner or to
the one with a better right. If the registration of the land is fraudulent, the person in
whose name the land is registered holds it as a mere trustee, and the real owner is
entitled to file an action for reconveyance of the property. 18

The fact that Gregoria was able to secure a title in her name does not operate to vest
ownership upon her of the subject land. "Registration of a piece of land under the
Torrens System does not create or vest title, because it is not a mode of acquiring
ownership. A certificate of title is merely an evidence of ownership or title over the
particular property described therein. It cannot be used to protect a usurper from the true
owner; nor can it be used as a shield for the commission of fraud; neither does it permit
one to enrich himself at the expense of others. Its issuance in favor of a particular
person does not foreclose the possibility that the real property may be co-owned with
persons not named in the certificate, or that it may be held in trust for another person by
the registered owner." 19

Furthermore, respondents argument that the overriding reason why Hortizuela chose to
file a complaint for reconveyance and recovery of possession was that she failed to avail
of the remedy provided under Section 38 of Act 496 within the prescribed period of one
(1) year, counted from the issuance of the patent by the government, is weak. As was
similarly held in Cervantes v. CA, with the land obtained by respondent Gregoria
20

through fraudulent machinations by means of which a free patent and a title were issued
in her name, she was deemed to have held it in trust for the benefit of Hortizuela who
was prejudiced by her actions. Article 1456 provides: ARTICLE 1456. If property is
acquired through mistake or fraud, the person obtaining it is, by force of law, considered
a trustee of an implied trust for the benefit of the person from whom the property comes.

The remedy of reconveyance, based on Section 53 of P.D. No. 1529 and Article 1456,
prescribes in ten (10) years from the issuance of the Torrens title over the property.

The Court is not unaware of the rule that a fraudulently acquired free patent may only be
assailed by the government in an action for reversion pursuant to Section 101 of the
Public Land Act. In Sherwill Development Corporation v. Sitio Sto. Nio Residents
21

Association, Inc., this Court pointed out that:

22

x x x It is to the public interest that one who succeeds in fraudulently acquiring title to a
public land should not be allowed to benefit therefrom, and the State should, therefore,
have an even existing authority, thru its duly-authorized officers, to inquire into the
circumstances surrounding the issuance of any such title, to the end that the Republic,
thru the Solicitor General or any other officer who may be authorized by law, may file the
corresponding action for the reversion of the land involved to the public domain, subject
thereafter to disposal to other qualified persons in accordance with law. In other words,
the indefeasibility of a title over land previously public is not a bar to an investigation by
the Director of Lands as to how such title has been acquired, if the purpose of such
investigation is to determine whether or not fraud had been committed in securing such
title in order that the appropriate action for reversion may be filed by the Government. 23

An action for reconveyance is proper

The foregoing rule is, however, not without exception. A recognized exception is that
situation where plaintiff-claimant seeks direct reconveyance from defendant of
publicland unlawfully and in breach of trust titled by him, on the principle of enforcement
of a constructive trust. This was the ruling in Larzano v. Tabayag, Jr., where it was
24

written:

A private individual may bring an action for reconveyance of a parcel of land even if the
title thereof was issued through a free patent since such action does not aim or purport
to re-open the registration proceeding and set aside the decree of registration, but only
to show that the person who secured the registration of the questioned property is not
the real owner thereof.

In Roco, et al. v. Gimeda, we stated that if a patent had already been issued through
fraud or mistake and has been registered, the remedy of a party who has been injured
by the fraudulent registration is an action for reconveyance, thus:

It is to be noted that the petition does not seek for a reconsideration of the granting of
the patent or of the decree issued in the registration proceeding. The purpose is not to
annul the title but to have it conveyed to plaintiffs. Fraudulent statements were made in
the application for the patent and no notice thereof was given to plaintiffs, nor knowledge
of the petition known to the actual possessors and occupants of the property. The action
is one based on fraud and under the law, it can be instituted within four years from the
discovery of the fraud. (Art. 1146, Civil Code, as based on Section 3, paragraph 43 of
Act No. 190.) It is to be noted that as the patent here has already been issued, the land
has the character of registered property in accordance with the provisions of Section 122
of Act No. 496, as amended by Act No. 2332, and the remedy of the party who has been
injured by the fraudulent registration is an action for reconveyance. (Director of Lands
vs. Registered of Deeds, 92 Phil., 826; 49 Off. Gaz. [3] 935; Section 55 of Act No. 496.)

In the same vein, in Quiiano, et al. v. Court of Appeals, et al., we stressed that:

The controlling legal norm was set forth in succinct language by Justice Tuason in a
1953 decision, Director of Lands v. Register of Deeds of Rizal. Thus: "The sole remedy
of the land owner whose property has been wrongfully or erroneously registered in
another's name is, after one year from the date of the decree, not to set aside the
decree, as was done in the instant case, but, respecting the decree as incontrovertible
and no longer open to review, to bring an ordinary action in the ordinary court of justice
for reconveyance or, if the property has passed into the hands of an innocent purchaser
for value, for damages." Such a doctrine goes back to the 1919 landmark decision of
Cabanos v. Register of Deeds of Laguna. If it were otherwise the institution of
registration would, to quote from Justice Torres, serve "as a protecting mantle to cover
and shelter bad faith ...." In the language of the then Justice, later Chief Justice,
Bengzon: "A different view would encourage fraud and permit one person unjustly to
enrich himself at the expense of another." It would indeed be a signal failing of any legal
system if under the circumstances disclosed, the aggrieved party is considered as
having lost his right to a property to which he is entitled. It is one thing to protect an
innocent third party; it is entirely a different matter, and one devoid of justification, if
[deceit] would be rewarded by allowing the perpetrator to enjoy the fruits of his nefarious
deed. As clearly revealed by the undeviating line of decisions coming from this Court,
such an undesirable eventuality is precisely sought to be guarded against. So it has
been before; so it should continue to be. (Citations omitted)

In this case, in filing the complaint for reconveyance and recovery of possession,
Hortizuela was not seeking a reconsideration of the granting of the patent or the decree
issued in the registration proceedings. What she was seeking was the reconveyance of
the subject property on account of the fraud committed by respondent Gregoria. An
action for reconveyance is a legal and equitable remedy granted to the rightful
landowner, whose land was wrongfully or erroneously registered in the name of another,
to compel the registered owner to transfer or reconvey the land to him. Thus, the RTC
25

did not err in upholding the right of Hortizuela to ask for the reconveyance of the subject
property. To hold otherwise would be to make the Torrens system a shield for the
commission of fraud. To reiterate,

The fact that petitioner was able to secure a title in her name did not operate to vest
ownership upon her of the subject land. Registration of a piece of land under the
1wphi1

Torrens System does not create or vest title, because it is not a mode of acquiring
ownership. A certificate of title is merely an evidence of ownership or title over the
particular property described therein. It cannot be used to protect a usurper from the true
owner; nor can it be used as a shield for the commission of fraud; neither does it permit
one to enrich himself at the expense of others. Its issuance in favor of a particular
person does not foreclose the possibility that the real property may be co-owned with
persons not named in the certificate, or that it may be held in trust for another person by
the registered owner. 26

Finally, respondents' supposition that Hortizuela was ineligible to own the subject
property pursuant to B.P. Blg. 223 because she was no longer a Filipino citizen cannot
be considered for having been raised only for the first time on appeal. It must be noted
that points of law, theories, issues, and arguments not brought to the attention of the trial
court ought not to be considered by a reviewing court, as these cannot be raised for the
first time on appeal. The reason therefor is due process.
27

WHEREFORE, the petition is GRANTED. The September 13, 2012 Decision and the
January 25, 2013 Resolution of the Court of Appeals in CA-G.R. SP No. 122648 are
hereby REVERSED and SET ASIDE. The July 1, 2011 Decision of the Regional Trial
Court, Branch 22, Cabagan, Isabela, is hereby RE INST A TED.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 206832 January 21, 2015

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
ALFREDO MORALES Y LAM, Accused-Appellant.

RESOLUTION

PEREZ, J.:

Before the Court is an Appeal filed by accused-appellant Alfredo Morales y Lam

1

(Morales) assailing the Decision of the Court of Appeals dated 14 August 2012 in CA-
2

G.R. CR-H.C. No. 04287.

The Decision of the Court of Appeals is an affirmance of the Decision of the Regional
Trial Court (RTC) of San Mateo, Rizal, Branch 76 in Criminal Case Nos. 7534-7535,
finding the accused Morales guilty beyond reasonable doubt for violation of Sections 5
and 11, Article II of Republic Act No. 9165 entitled "An Act Instituting the Comprehensive
Dangerous Drugs Act of 2002."

In the Criminal Case No. 7534, Morales was charged with illegal sale of shabu as
follows:
That on or about the 14th day of April 2004, in the Municipality or Rodriguez, Province of
Rizal, Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, did then and there wilfully, unlawfully and knowingly sell, deliver and give away
to another person one (1) heat scaled transparent plastic sachet containing 0.02 gram of
white crystalline substance, which gave positive result to the test for Methamphetamine
Hydrochloride, also known as shabu, a dangerous drug, in violation orthc above-cited
law.3

In the Criminal Case No. 7535, Morales was charged with illegal possession of shabu as
follows:

That on or about the 14th day of April 2004, in the Municipality of Rodriguez, Province of
Rizal, Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, did then and there wilfully, unlawfully and knowingly have in his possession,
direct custody and control three (3) heat-scaled transparent sachets each containing
0.02 gram of white crystalline substance, which gave positive results to the test for
Methamphetamine Hydrochloride, also known as shabu, a dangerous drug, in violation
of the above-cited law.4

When arraigned, the accused pleaded not guilty of the crimes charged. 5

The RTC held that the prosecution successfully discharged the burden of proof in the
cases of illegal sale and illegal possession of dangerous drugs. The trial court relied on
the categorical statements of the prosecution witnesses as against the bare denials of
the accused. The presumption or regularity of performance of duties was upheld in the
absence of any improper motive on their part to testify falsely against the accused. The
dispositive portion reads:

WHEREFORE, judgment is hereby rendered, to wit:

(1) In Criminal Case No. 7534, finding the accused Alfredo Morales y Lam
GUILTY beyond reasonable doubt of the crime or Sale or Dangerous Drug
(Violation of Section 5, 1st par., Article II, R.A. 9165) and sentencing him to suffer
the penalty of Life Imprisonment and a fine of Five Hundred Thousand Pesos
(P500, 000.00).

(2) In Criminal Case No. 7535, finding the accused Alfredo Morales y Lam
GUILTY beyond reasonable doubt of the crime of POSSESSION of
DANGEROUS DRUG (Violation of Section 11, 2nct par., No. 3, Article II, R.A.
9165) and sentencing him to suffer the penalty of imprisonment of Twelve Years
(12) years and one (1) day to Twenty (20) years and a fine of Three Hundred
Thousand Pesos (P300,000.00). 6

Upon appeal, the appellate court affirmed the findings of the trial court. It upheld the
presence of all the elements of the offenses of illegal sale and illegal possession of
drugs, and preservation of the corpus delicti of the crime from the time they were seized
and presented in court. The procedural steps required by Section 21 of Republic Act No.
9165 were liberally construed in favor of the prosecution in view of the preservation of
integrity and identity of the corpus delicti. Conformably, the finding on the presumption of
regularity of performance of duties was affirmed in the absence of ill-motive on the part
of the police officers.

On 29 August 2012, a Notice of Appeal was filed by Morales through counsel before the
7

Supreme Court.
While this case is pending appeal, the Inmate Documents and Processing Division
Officer-in-Charge Emerenciana M. Divina informed the Court that accused-appellant
8

Morales died while committed at the Bureau of Corrections on 2 November 2013 as

evidenced by a copy of Death Report signed by New Bilibid Prison Hospital's Medical
9

Officer Ursicio D. Cenas. The death of accused-appellant Morales pending appeal of his
conviction, extinguishes his civil and criminal liabilities.

Under Article 89(1) of the Revised Penal Code:

Criminal liability is totally extinguished:

1. By the death of the convict, as to the personal penalties; and as to pecuniary

penalties, liability therefor is extinguished only when the death of the offender occurs
before final judgment. x x x x

Ordinarily, both the civil and criminal liabilities are extinguished upon the death of the
accused pending appeal of his conviction by the lower courts.

However, a violation of Republic Act No. 9165 does not entail any civil liability. No civil
1wphi1

liability needs extinguishment.

WHEREFORE, in view of his death on 2 November 2013, the appeal of accused-

appellant Alfredo Morales y Lam from the Decision of the Court of Appeals dated 14
August 2012 in CA-G.R. CR-H.C. No. 04287 affirming the Decision of the Regional Trial
Court of San Mateo, Rizal, Branch 76 in Criminal Case Nos. 7534-7535 convicting him
of violation of Sections 5 and 11, Article II of Republic Act No. 9165 is hereby declared
MOOT and ACADEMIC.

SO ORDERED.