G.R. No.
160922 February 27, 2006 On July 1, 2002, the BID Prosecutor filed a Charge Sheet 7 against "Javed
JEANY-VI G. KIANI, Petitioner,
vs.
THE BUREAU OF IMMIGRATION and DEPORTATION (BID); EDGARDO
CABRERA, ELISEO EXCONDE and JOSE VALE, JR., Respondents.
DECISION
CALLEJO, SR., J.:
This is a Petition for Review on Certiorari for the nullification of the
decision1 of the Court of Appeals (CA) in CA-G.R. No. 74484, dismissing the
appeal of Jeany-Vi G. Kiani, which assailed the Order of the Regional Trial
Court (RTC) of Manila, Branch 8, in Special Proceedings (Sp. Proc.) No. 02-
103935, dismissing her Petition for Habeas Corpus.
On June 19, 2002, Javed Kiani, a British national but a Pakistani by
birth2 reported to the Rodriguez, Rizal Police Station that his friends, Iqbal
Singh and Balbir Singh, had been forcibly taken by four (4) armed men from
their residence at Balita, Rodriguez, Rizal.3 A couple of days later, then
Commissioner Andrea D. Domingo of the Bureau of Immigration and
Deportation (BID) issued Mission Order No. ADD-02-203 based on Executive
Order No. 287 of former President Joseph Estrada. In said Order,
appropriate officers of the Bureau were directed to conduct
verification/validation of the admission status and activities of Javed Kiani,
and, if found to have violated the Philippine Immigration Act of 1940, as
amended, to immediately place him under arrest. 4 Per records of the BID,
Javed Kiani was married to a Filipina, Jeany-Vi Kiani, on July 27, 1988. He
was admitted as an immigrant and was issued a permanent resident visa on
March 17, 1993.5
A week later, on June 27, 2002, Javed Kiani was arrested at Felicidad
Village, Montalban, Rizal. The arresting officers, Eduardo Cabrera, Eliseo
Exconde and Jose Vale, Jr., operatives of the Bureau of Intelligence of the
BID, relied on information from Iqbal and Balbir Singh, who pointed to Javed
Kiani as the one who had furnished them with fake Alien Certificate
Registration (ACR) and Immigrant Certificate Registration (ICR). Apparently,
the forms used were not official BID forms.6
Kiani alias Ahmad Singh" before the Board of Special Inquiry (BSI) for
violation of the Philippine Immigration Act of 1940, as amended, particularly
Section 37(a)(7) and Section 45 thereof. The case was docketed as D.C. No.
ADD-02-080. The Charge Sheet reads:
Records show that the above-named subject was arrested on June 27, 2002
by Bureaus Intelligence operatives at Felicidad Village, Montalban, Rizal,
pursuant to Mission Order No. ADD-02-203, dated June 20, 2002.
Records also show that subject national was positively identified by Indian
nationals Balbir Singh and Iqbal Singh when they were arrested by the same
operatives on June 18, 2002 as the person who gave them spurious
immigration documents and as their protector evidenced by copies of the
ACRs and ICRs of Balbir and Iqbal Singh, which were certified by Mr.
Reynaldo Joson as "fake." Additionally, Mr. Joson certified that the forms
used in the forgery/falsification are not official forms of this Bureau.
Contrary to law.8
On the same day, July 1, 2002, the Board of Commissioners (BOC)
conducted a summary proceeding and issued a Summary Deportation Order
revoking the visa issued to Javed Kiani. The Order reads in part:
Considering the seriousness of the charge/s and the evidence in support
thereof, respondent, whose Temporary Residence Visa is hereby ordered
cancelled and revoked, is hereby ordered summarily deported to his country
of origin, subject to PNP, Court and NBI clearances and payment of an
administrative fine in the amount of P50,000.00.9
The next day, July 2, 2002, Javed Kianis wife, Jeany-Vi, filed a Petition for a
Writ of Habeas Corpus10 for and in behalf of her husband before the RTC of
Manila, naming the BID and its intelligence officers as Respondents. She
prayed that the court issue a writ of habeas corpus directing respondents to
produce the person of Javed Kiani before it "in the soonest time possible and
to show the cause or legal justification for the latters detention and
imprisonment, if any; and for such other or further reliefs as may be deemed
just and equitable under the premises." She further alleged that her husband
had intervened in the arrest of Iqbal and Balbir Singh, and that the arresting
officers resented such intervention. She insisted that the arrest and detention
of her husband were bereft of factual and legal basis, since at the time, no
deportation order had yet been issued against him. Citing the ruling of this
Court in Board of Commissioners v. Dela Rosa,11 she alleged that the
Mission Order issued by the Immigration Commissioner was void. The case
was docketed as Sp. Proc. No. 02-103935.12 Javed Kiani had been detained
at the BID Detention Center, Camp Bagong Diwa, Taguig, Metro Manila since
July 3, 2002.13
On July 18, 2002, the RTC issued an Order14 granting bail for Javed Kiani on
a bond of P50,000.00, and ordered respondent BID Intelligence Officers to
file their return on the writ. The respondents complied, and alleged in their
return that Javed Kiani had already been charged before the BOC and
ordered deported; hence, the petition had become moot and academic. They
refused to release Kiani although the bond had already been
posted.15Instead, the respondents, through the Office of the Solicitor General
(OSG), filed an Omnibus Motion16 for the reconsideration of the Order on the
following grounds: (1) under Section 37(9)(e) of Commonwealth Act 613, as
amended, it is the Commissioner of Immigration, and not the court, who has
authority to grant bail in a deportation proceeding; (2) the court has no
authority to grant the petition considering that Javed Kiani was lawfully
charged with violation of the Philippine Immigration Act of 1940, as amended,
before the BSI; and (3) the BOC has subsequently issued a Summary
Deportation Order.
On October 28, 2002, the RTC issued an Order 17 granting the motion and
setting aside its July 18, 2002 Order. In dismissing the petition, it ruled that
Jeany-Vi was barred from questioning the legality of the arrest and detention
of her husband, following the filing of the Charge Sheet with the BSI; as
such, there was no justification for the issuance of a writ of habeas corpus. It
declared that, as gleaned from the return of the writ filed by the respondents,
Javed Kiani was lawfully charged with violation of the Philippine Immigration
Act of 1940, as amended; hence, the Summary Deportation Order issued by
the BOC was valid.
The RTC also ruled that the proper remedy of Javed Kiani from the Summary
Deportation Order of the BOC was to file a petition for review with the CA
under Rule 43 of the Rules of Court (and not a petition for a writ of habeas
corpus before it), as it had no jurisdiction to take cognizance of and reverse
the Summary Deportation Order issued by the BOC.
Jeany-Vi appealed the RTCs Order of July 18, 2002 to the CA, in which she
raised the following issues:
A. WHETHER OR NOT THE ARREST OF JAVED KIANI ON 27 JUNE 2002
AND HIS SUBSEQUENT DETENTION BY THE RESPONDENTS-
APPELLEES WERE VALID AND/OR LEGAL.
B. WHETHER OR NOT THE SUPPOSED ISSUANCE OF A SUMMARY
DEPORTATION ORDER AGAINST JAVED KIANI HAS THE EFFECT OF
LEGALIZING AND/OR VALIDATING HIS CONTINUED DETENTION,
THEREBY RENDERING THE HABEAS CORPUS PETITION
DISMISSIBLE.18
On May 8, 2003 the CA rendered judgment dismissing the appeal. 19 The CA
declared that a Petition for a Writ of Habeas Corpus can no longer be
allowed since the party sought to be released had been charged before the
BSI. Assuming that Javed Kianis detention or his arrest was illegal, any
incipient infirmity thereon was cured by the filing of the Charge Sheet against
him. The appellate court cited the ruling of this Court in Velasco v. Court of
Appeals.20 It likewise affirmed the ruling of the RTC that it had no jurisdiction
to take cognizance of and reverse the Summary Deportation Order of the
BOC, that the remedy of petitioner from the Summary Deportation Order of
the BOC was to file a petition for review with the CA under Rule 43 of the
1997 Rules of Civil Procedure, and that her failure to do so rendered said
Order final and executory.
Jeany-Vi received a copy of the CA Decision on May 22, 2003, and filed a
Motion for Reconsideration thereof on June 6, 2003. She alleged that since
the Summary Deportation Order of the BOC had not yet been promulgated
by the BSI, the period to appeal was yet to commence, and as such, said
order could not become final and executory. Even assuming that such order
had become final and executory, her husband was entitled to a writ of
habeas corpus since he was deprived of his right to due process.
On November 21, 2003, the appellate court resolved to deny the
motion.21 Jeany-Vi received a copy of the Resolution on December 1, 2003.
On January 15, 2004, petitioner filed the instant petition for review on
certiorari under Rule 45 of the Revised Rules of Court, alleging that:
A. THE COURT OF APPEALS ERRED IN FAILING TO NULLIFY
AND TO DECLARE AS ILLEGAL THE ACTUAL ARREST AND
SUBSEQUENT DETENTION OF JAVED KIANI.
 B. THE COURT OF APPEALS ERRED IN FAILING TO DECLARE
AS NULL AND VOID AB INITIO THE PUTATIVE SUMMARY
DEPORTATION ORDER AGAINST JAVED KIANI.
C. THE COURT OF APPEALS ERRED IN CONCLUDING THAT THE
SUMMARY DEPORTATION ORDER AGAINST JAVED KIANI HAS
ALREADY BECOME FINAL AND EXECUTORY.
D. THE COURT OF APPEALS ERRED IN CONCLUDING THAT
HABEAS CORPUS IS NOT THE CORRECT OR PROPER REMEDY
AVAILABLE TO THE HEREIN PETITIONER.22
Petitioner avers that the Mission Order issued by the Immigration
Commissioner for the investigation and arrest of her husband, Javed Kiani, is
null and void. She points out that when said Order was issued, the BOC had
not yet made a determination as to the existence of a lawful ground for his
deportation. She further avers that the Immigration Commissioner has no
power to issue a Mission Order or Warrant of Arrest solely for the purpose of
investigation, and before a final order for deportation is issued by the BOC.
She insists that an order of arrest is proper only if the BOC has already
issued an Order of deportation. She cites the rulings of this Court in Qua
Chee Gan v. Deportation Board,23 Ang Ngo Chiong v. Galang,24 and Board of
Commissioners v. Dela Rosa.25
Petitioner further maintains that the filing of the Charge Sheet against Javed
Kiani by the BOC did not render the issue of the illegality of arrest and
detention moot and academic. She asserts that there is no factual and legal
basis for the deportation of her husband because he had been issued a
permanent visa and his passport is yet to expire. She avers that a warrant for
the arrest of her husband may be issued only after a Summary Deportation
Order shall have become final and executory. Considering that there was no
showing in the records that said Order had already been promulgated by the
BSI, it could not have become final and executory. She avers that the ruling
of this Court in Velasco v. Court of Appeals26 is not applicable in this case.
In its Comment on the petition filed on December 10, 2004, the Office of the
Solicitor General (OSG) avers that it agrees with the ruling of the CA and
prays that it be affirmed. Citing the ruling of this Court in Dwikarna v.
Domingo,27 the OSG posits that the remedy of petitioner from the Summary
Deportation Order of the BOC was to appeal to the CA via a petition for
review under Rule 43 of the Revised Rules of Court. It maintains that it was
inappropriate for petitioner to assail the arrest and detention of her husband
after the filing of the Charge Sheet with the BSI.
The OSG also alleges that Javed Kiani had filed an Omnibus Motion Ad
Cautelam28 dated March 19, 2004 in the BID, presumably with the BOC,
wherein he prayed that the Summary Deportation Order issued by the BOC
against him be set aside, and that he be released in the meantime. The OSG
also asserts that in said motion, Javed Kiani alleged that his arrest and
detention was illegal because there had been as yet no determination by the
BOC of any ground for his deportation; in effect, he pursued the same reliefs
he seeks from this Court in his motion with the BOC, that is, to declare as
illegal his continued detention and order his release. The OSG avers that this
is a classic example of forum shopping which is prohibited under the Rules.
In reply, petitioner asserts that during the pendency of this case, Immigration
Commissioner Alipio F. Fernandez, Jr. granted her husbands Omnibus
Motion Ad Cautelam in an Order29 dated June 22, 2004, and ordered his
provisional release on a cash bond of P50,000.00. The Commissioner also
declared that the Summary Deportation Order against her husband had been
improvidently issued, and ruled that there was no factual and legal basis for
his summary deportation. Moreover, Javed Kiani was deprived of his right to
due process when the Order was issued on the same day the Charge Sheet
was filed with the BSI.
The Court is posed to resolve the following issues: (1) whether petitioner
engaged in forum shopping; and (2) whether the CA erred in (a) holding that
the Petition for a Writ of Habeas Corpus before the RTC was not the proper
remedy of petitioner; (b) upholding the validity of the Summary Deportation
Order issued by the BOC; and (c) declaring that such Order had become
final and executory.
On the first issue, we agree with the contention of the OSG that the petitioner
indulged in forum shopping. Forum shopping is the institution of two or more
actions or proceedings grounded on the same cause on the supposition that
one or the other court would make a favorable disposition. Section 6, Rule 43
of the Revised Rules of Court provides that a petition for review on certiorari
must contain a sworn certification against forum shopping as provided in the
last paragraph of Section 2, Rule 42 of said Rules, to wit:
The petitioner shall also submit together with the petition a certification under
oath that he has not theretofore commenced any other action involving the
same issues in the Supreme Court, the Court of Appeals or different divisions
thereof, or any other tribunal or agency; if there is such other action or
proceeding, he must state the status of the same; and if he should thereafter
learn that a similar action or proceeding has been filed or is pending before
the Supreme Court, the Court of Appeals, or different divisions thereof, or
any other tribunal or agency, he undertakes to promptly inform the aforesaid
courts and other tribunal or agency thereof within five (5) days
therefrom.lawphil.net
Under Section 5, Rule 45 of said Rules, the failure of the petitioner to comply
with any of the foregoing requirements shall be sufficient ground for the
dismissal of the petition.
In Balite v. Court of Appeals,30 the Court held that there is forum shopping
when a party seeks to obtain remedies in an action in one court, which had
already been solicited, and in other courts and other proceedings in other
tribunals. While a party may avail of the remedies prescribed by the Rules of
Court, such party is not free to resort to them simultaneously or at his/her
pleasure or caprice. A party should not be allowed to present simultaneous
remedies in two different forums, for it degrades and wreaks havoc to the
rule on orderly procedure. A party must follow the sequence and hierarchical
order in availing such remedies and not resort to shortcuts in procedure or
playing fast and loose with the said rules. Forum shopping, an act of
malpractice, is considered as trifling with the courts and abusing their
processes. It is improper conduct and degrades the administration of justice.
In this case, petitioner seeks not only the reversal of the Order of the RTC
dismissing her Petition for a Writ of Habeas Corpus filed in behalf of her
husband (where it was also declared that he had been legally deported), as
well as the decision of the CA affirming the RTCs Order; she also prays that
the Court render judgment nullifying the Summary Deportation Order of the
BOC and order her husbands release from detention. However, Javed Kiani
himself, during the pendency of this case, filed an Omnibus Motion Ad
Cautelam with the BID, seeking the same reliefs, which his wife prayed for in
this case. By filing said motion, Javed Kiani sought to preempt the decision of
this Court. Petitioner and her husband even failed to inform the Court of the
filing of such motion, and did so only after the OSG had already informed the
Court of such petition, and after petitioner had been ordered to reply to the
Comment of the OSG.
Petitioner and her husband were represented by the same law firm, the Cruz
Cruz and Neria Law Offices. The instant petition and said motion were signed
by the same lawyer, Atty. Marlon Alexandre C. Cruz. That the instant petition
was filed by Jeany-Vi Kiani while the Omnibus Motion was filed by Javed
Kiani himself is of no moment; after all, the petition was filed for and in behalf
of the latter, who is the real party-in-interest.31 In effect, the Petition for Writ of
Habeas Corpus was filed by him, as the beneficiary, through his wife as his
representative. Worse, the Immigration Commissioner took cognizance of
and granted the same, despite the pendency of the instant petition, thereby
preempting the ruling of this Court.
The Immigration Commissioner and Atty. Marlon Alexandre C. Cruz ought to
be reprimanded for their acts.
On the merits of the petition, we find and so rule that the CA acted in accord
with jurisprudence when it affirmed the assailed Order of the RTC dismissing
the Petition for Habeas Corpus. As the Court held in Caballes v. Court of
Appeals,32
Habeas corpus is not in the nature of a writ of error; nor intended as
substitute for the trial courts function. It cannot take the place of appeal,
certiorari or writ of error. The writ cannot be used to investigate and consider
questions of error that might be raised relating to procedure or on the merits.
The inquiry in a habeas corpus proceeding is addressed to the question of
whether the proceedings and the assailed order are, for any reason, null and
void. The writ is not ordinarily granted where the law
provides for other remedies in the regular course, and in the absence of
exceptional circumstances. Moreover, habeas corpus should not be granted
in advance of trial. The orderly course of trial must be pursued and the usual
remedies exhausted before resorting to the writ where exceptional
circumstances are extant. In another case, it was held that habeas corpus
cannot be issued as a writ of error or as a means of reviewing errors of law
and irregularities not involving the questions of jurisdiction occurring during
the course of the trial, subject to the caveat that constitutional safeguards of
human life and liberty must be preserved, and not destroyed. It has also
been held that where restraint is under legal process, mere errors and
irregularities, which do not render the proceedings void, are not grounds for
relief by habeas corpus because in such cases, the restraint is not illegal. 33
In this case, when petitioner filed her Petition for Habeas Corpus with the
RTC in behalf of her husband, a Charge Sheet had already been filed
against him for violation of Section 37(a)(7) and Section 45 of the Philippine
Immigration Act of 1940, as amended. The filing of the Charge Sheet before
the BSI cured whatever irregularities or infirmities were attendant to his
arrest. The remedy of petitioner was to file a motion for the dismissal of the
Charge Sheet and the Mission Order of the Immigration Commissioner, not a
petition for a writ of habeas corpus before the RTC. The RTC had no
authority to nullify the Mission Order issued by the Immigration
Commissioner, much less set aside the arrest of Javed Kiani. As held by this
Court in Commissioner Rodriguez v. Judge Bonifacio:34
Be that as it may, there was a valid judicial process justifying Ma Jings
detention even before respondent judge rendered his decision as shown by
the Return of the Writ which averred, among others, that a Charge Sheet
was filed against Ma Jing. Even granting that the arrest of Ma Jing was
initially illegal, the filing of the Charge Sheet cured whatever incipient infirmity
there was in her arrest. Respondent judge therefore had no authority to
release the party who was thus committed. Section 4, Rule 102 of the Rules
of Court provides:
SEC. 4. When writ not allowed or discharge authorized. If it appears that
the person to be restrained of his liberty is in the custody of an officer under
process issued by a court or judge; or by virtue of a judgment or order of a
court of record, and that court or judge had jurisdiction to issue the process,
render the judgment, or make the order, the writ shall not be allowed; or if the
jurisdiction appears after the writ is allowed, the person shall not be
discharged by reason of any informality or defect in the process, judgment or
order. Nor shall anything in this rule be held to authorize the discharge of a
person charged with or convicted of an offense in the Philippines, or of a
person suffering imprisonment under lawful judgment.
Once a person detained is duly charged in court, he may no longer question
his detention through a petition for issuance of a writ of habeas corpus. His
remedy would be to quash the information and/or the warrant of arrest duly
issued. The writ of habeas corpus should not be allowed after the party
sought to be released had been charged before any court. The term "court"
includes quasi-judicial bodies like the Deportation Board of the Bureau of
Immigration.35
The CA acted in accord with jurisprudence when it affirmed the ruling of the
RTC declaring that it had no jurisdiction over petitioners plea to set aside the
Summary Deportation Order issued by the BOC against her husband Javed
Kiani. Under Section 8, Chapter 3, Title I, Book III of Executive Order No.
292, the power to deport aliens is vested on the President of the Philippines,
subject to the requirements of due process. The Immigration Commissioner
is vested with authority to deport aliens under Section 37 of the Philippine
Immigration Act of 1940, as amended. Thus, a party aggrieved by a
Deportation Order issued by the BOC is proscribed from assailing said Order
in the RTC even via a petition for a writ of habeas corpus. Conformably with
ruling of the Court in Domingo v. Scheer,36 such party may file a motion for
the reconsideration thereof before the BOC. The Court ruled therein that
"there is no law or rule which provides that a Summary Deportation Order
issued by the BOC in the exercise of its authority becomes final after one
year from its issuance, or that the aggrieved party is barred from filing a
motion for a reconsideration of any order or decision of the BOC." The Court,
likewise, declared that in deportation proceedings, the Rules of Court may be
applied in a suppletory manner and that the aggrieved party may file a
motion for reconsideration of a decision or final order under Rule 37 of said
Rules.37
In case such motion for reconsideration is denied by the BOC, the aggrieved
party may appeal to the Secretary of Justice38 and, if the latter denies the
appeal, to the Office of the President of the Philippines. The party may also
choose to file a petition for certiorari with the CA under Rule 65 of the Rules
of Court, on the ground that the Secretary of Justice acted with grave abuse
of discretion amounting to excess or lack of jurisdiction in dismissing the
appeal, the remedy of appeal not being adequate and speedy remedy.39 In
case the Secretary of Justice dismisses the appeal, the aggrieved party may
resort to filing a petition for review under Rule 43 of the Rules of Court, as
amended.40
In this case, the petitioner did not file any motion with the BOC for
reconsideration of the Summary Deportation Order or appeal therefrom;
neither did she appeal to the Secretary of Justice or to the Office of the
President or file a petition for certiorari under Rule 65.
We note that under Section 3, Rule XIII41 of the Rules of Procedure to
Govern Deportation Proceedings, the decision of the BOC shall be returned
to the BSI for promulgation, and shall become final and executory after thirty
(30) days from promulgation unless within such period, the President of the
Philippines shall order the contrary.
This rule, however, is not applicable in this case. What the petitioner assailed
before the RTC was a Summary Deportation Order of the BOC, not a BOC
decision based on the recommendation of the BSI after due hearing as
mandated by Rule IX of the said Rules of Procedure.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of
merit. Costs against the petitioner.
SO ORDERED.
 The instant petition assails the Decision [1] dated November 10,
2003 of the Court of Appeals in CA-G.R. SP No. 75680, which dismissed the
petition for certiorari against the orders of the Regional Trial Court in Special
Proceedings No. 03-004. Likewise assailed is the Court of Appeals
Resolution[2] dated March 19, 2004 denying reconsideration.

The facts of the case are as follows:

Private respondent Loran S.D. Abanilla and petitioner
Marie Antonette Abigail C. Salientes are the parents of the minor Lorenzo
Emmanuel S. Abanilla. They lived with Marie Antonettes parents, petitioners
Orlando B. Salientes and Rosario C. Salientes. Due to in-laws problems,
private respondent suggested to his wife that they transfer to their own
house, but Marie Antonette refused. So, he alone left the house of
the Salientes. Thereafter, he was prevented from seeing his son.

Later, Loran S.D. Abanilla in his personal capacity and as the

representative of his son, filed a Petition for Habeas Corpus and Custody,
[3]
docketed as Special Proceedings No. 03-004 before
the Regional Trial Court of Muntinlupa City. On January 23, 2003, the trial
court issued the following order:
Upon verified Petition for a Writ of Habeas Corpus
by Petitioners, the Respondents Marie Antonette Abigail
C. Salientes, Orlando B. Salientes and Rosario
C. Salientes are hereby directed to produce and bring before
this Court the body of minor Lorenzo
Emmanuel Salientes Abanilla on January 31, 2003 at 1:00
oclock in the afternoon and to show cause why the said child
should not be discharged from restraint.
MARIE ANTONETTE ABIGAIL C. G.R. No. 162734 Let this Writ be served by the Sheriff or any
SALIENTES, ORLANDO B. SALIENTES, and authorized representative of this Court, who is directed to
ROSARIO C. SALIENTES, Present: immediately make a return.
Petitioners, QUISUMBING, J., Chairperson, SO ORDERED.[4]
CARPIO, Petitioners moved for reconsideration which the court
CARPIO MORALES, denied.
- versus - TINGA, and
VELASCO, JR., JJ. Consequently, petitioners filed a petition for certiorari with the Court
of Appeals, but the same was dismissed on November 10, 2003. The
LORAN S.D. ABANILLA, HONORABLE appellate court affirmed the February 24, 2003 Order of the trial court holding
JUDGE PEDRO SABUNDAYO, JR., that its January 23, 2003 Order did not award the custody of the 2-year-old
REGIONAL TRIAL COURT, BRANCH Promulgated: child to any one but was simply the standard order issued for the production
203, MUNTINLUPA CITY, of restrained persons. The appellate court held that the trial court was still
Respondents. August 29, 2006 about to conduct a full inquiry, in a summary proceeding, on the cause of the
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x minors detention and the matter of his custody. The Court of Appeals ruled
DECISION thus:
QUISUMBING, J.: WHEREFORE, the petition is hereby DISMISSED
for lack of merit.
 SO ORDERED.[5]
Petitioners moved for reconsideration, which was denied on March
19, 2004.
Hence, petitioners interposed this appeal by certiorari anchored on
the following grounds:
1. The Court of Appeals erred in not pronouncing
the respondent judge gravely abused his discretion,
amounting to lack or in excess of jurisdiction in
issuing an order for the petitioner-mother to first
show cause why her own three-year old child in her
custody should not be discharged from a so-called
restraint despite no evidence at all of restraint and
no evidence of compelling reasons of maternal
unfitness to deprive the petitioner-mother of her
minor son of tender years. The assailed orders,
resolutions and decisions of the lower court and the
Court of Appeals are clearly void;
2. The Court of Appeals erred in not pronouncing
that the respondent judge gravely abused his
discretion in issuing a writ of habeas corpus which
clearly is not warranted considering that there is no
unlawful restraint by the mother and considering
further that the law presumes the fitness of the
mother, thereby negating any notion of such mother
illegally restraining or confining her very own son of
tender years. The petition is not even sufficient in
substance to warrant the writ. The assailed orders
are clearly void.
3. Contrary to the Court of Appeals decision,
the Sombong vs. CA case supports rather than
negates the position of the petitioners.
4. Contrary to the Court of Appeals decision,
summary proceeding does violence to the tender-
years-rule
5. The Court of Appeals failed to consider that the
private respondent failed to present prima facie proof
of any compelling reason of the unfitness of the
petitioner-mother;
6. The Court of Appeals failed to see that the New
Rules on Custody SUFFICES AS REMEDY.[6]
Plainly put, the issue is: Did the Court of Appeals err when it
dismissed the petition for certiorari against the trial courts orders
dated January 23, 2003 and February 24, 2003?
Petitioners contend that the order is contrary to Article 213 [7] of the
Family Code, which provides that no child under seven years of age shall be
separated from the mother unless the court finds compelling reasons to order
otherwise. They maintain that herein respondent Loran had the burden of
showing any compelling reason but failed to present even a prima facie proof
thereof.
Petitioners posit that even assuming that there were compelling
reasons, the proper remedy for private respondent was simply an action for
custody, but not habeas corpus.Petitioners assert that habeas corpus is
unavailable against the mother who, under the law, has the right of custody
of the minor. They insist there was no illegal or involuntary restraint of the
minor by his own mother. There was no need for the mother to show cause
and explain the custody of her very own child.
Private respondent counters that petitioners argument based on
Article 213 of the Family Code applies only to the second part of his petition
regarding the custody of his son. It does not address the first part, which
pertains to his right as the father to see his son. He asserts that the writ
of habeas corpus is available against any person who restrains the minors
right to see his father and vice versa. He avers that the instant petition is
merely filed for delay, for had petitioners really intended to bring the child
before the court in accordance with the new rules on custody of minors, they
would have done so on the dates specified in the January 23, 2003 and
the February 24, 2003 orders of the trial court.
Private respondent maintains that, under the law, he and petitioner
Marie Antonette have shared custody and parental authority over their
son. He alleges that at times when petitioner Marie Antonette is out of the
country as required of her job as an international flight stewardess, he, the
father, should have custody of their son and not the maternal grandparents.
As correctly pointed out by the Court of Appeals, the assailed
January 23, 2003 Order of the trial court did not grant custody of the minor to
any of the parties but merely directed petitioners to produce the minor in
court and explain why they are restraining his liberty. The assailed order was
an interlocutory order precedent to the trial courts full inquiry into the issue of
custody, which was still pending before it.
Under Rule 41, Section 1[8] of the Rules of Court, an interlocutory
order is not appealable but the aggrieved party may file an appropriate
special action under Rule 65.The aggrieved party must show that the court
gravely abused its discretion in issuing the interlocutory order. In the present
case, it is incumbent upon petitioners to show that the trial court gravely
abused its discretion in issuing the order.
Habeas corpus may be resorted to in cases where rightful custody is
withheld from a person entitled thereto.[9] Under Article 211[10] of the Family
Code, respondent Loran and petitioner Marie Antonette have joint parental
authority over their son and consequently joint custody. Further, although the
couple is separated de facto, the issue of custody has yet to be adjudicated
by the court. In the absence of a judicial grant of custody to one parent, both
parents are still entitled to the custody of their child. In the present case,
private respondents cause of action is the deprivation of his right to see his
child as alleged in his petition. [11] Hence, the remedy of habeas corpus is
available to him.

In a petition for habeas corpus, the childs welfare is the supreme

consideration. The Child and Youth Welfare Code[12] unequivocally provides
that in all questions regarding the care and custody, among others, of the
child, his welfare shall be the paramount consideration. [13]

Again, it bears stressing that the order did not grant custody of the
minor to any of the parties but merely directed petitioners to produce the
minor in court and explain why private respondent is prevented from seeing
his child. This is in line with the directive in Section 9 [14] of A.M. 03-04-04-
SC[15] that within fifteen days after the filing of the answer or the expiration of
the period to file answer, the court shall issue an order requiring the
respondent (herein petitioners) to present the minor before the court. This
was exactly what the court did.

Moreover, Article 213 of the Family Code deals with the judicial
adjudication of custody and serves as a guideline for the proper award of
custody by the court. Petitioners can raise it as a counter argument for
private respondents petition for custody. But it is not a basis for preventing
the father to see his own child. Nothing in the said provision disallows a
father from seeing or visiting his child under seven years of age.

In sum, the trial court did not err in issuing the orders dated January
23, 2003 and February 24, 2003. Hence, the Court of Appeals properly
dismissed the petition for certiorari against the said orders of the trial court.
WHEREFORE, the petition
is DENIED. The Decision dated November 10, 2003 and the
Resolution dated March 19, 2004 of the Court of Appeals in CA-G.R. SP No.
75680 are AFFIRMED. Costs against petitioners.

SO ORDERED.
 CARPIO MORALES, J.:

Challenged via petition for review on certiorari is the October 27,

2005 Decision[1] of the Court of Appeals (CA) in CA-G.R. CV No. 78124
which affirmed the September 4, 2002 Decision [2] of the Regional Trial Court
(RTC) of Butuan City, Branch 5 granting the prayer of respondents Carlito I.
Kho (Carlito), Michael Kho, Mercy Nona Kho-Fortun, and Heddy Moira Kho-
Serrano for the correction of entries in their birth certificates as well as those
of Carlitos minor children Kevin and Kelly Dogmoc Kho.

The undisputed facts are as follows:

On February 12, 2001, Carlito and his siblings Michael, Mercy Nona and
Heddy Moira filed before the RTC of Butuan City a verified petition for
correction of entries in the civil registry of Butuan City to effect changes in
their respective birth certificates. Carlito also asked the court in behalf of his
minor children, Kevin and Kelly, to order the correction of some entries in
their birth certificates.

In the case of Carlito, he requested the correction in his birth certificate of the
citizenship of his mother to Filipino instead of Chinese, as well as the
deletion of the word married opposite the phrase Date of marriage of parents
because his parents, Juan Kho and Epifania Inchoco (Epifania), were
allegedly not legally married.

REPUBLIC OF THE PHILIPPINES, G.R. No. 170340 The same request to delete the married status of their parents from
Petitioner, their respective birth certificates was made by Carlitos siblings Michael,
Present: Mercy Nona, and Heddy Moira.

QUISUMBING,* J., Chairperson With respect to the birth certificates of Carlitos children, he prayed that the
- versus - CARPIO,** date of his and his wifes marriage be corrected from April 27,
CARPIO MORALES, 1989 to January 21, 2000, the date appearing in their marriage certificate.
TINGA, and
VELASCO, JR., JJ. The Local Civil Registrar of Butuan City was impleaded as
respondent.
CARLITO I. KHO, MICHAEL KHO, MERCY
NONA KHO-FORTUN, HEDDY MOIRA PROMULGATED: On April 23, 2001, Carlito et al. filed an Amended Petition [3] in which it was
KHO-SERRANO, KEVIN DOGMOC KHO additionally prayed that Carlitos second name of John be deleted from his
(Minor), and KELLY DOGMOC KHO record of birth; and that the name and citizenship of Carlitos father in his
(Minor), (Carlitos) marriage certificate be corrected from John Kho to Juan Kho and
Respondents. June 29, 2007 Filipino to Chinese, respectively.

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x As required, the petition was published for three consecutive

weeks[4] in Mindanao Daily Patrol-CARAGA, a newspaper of general
DECISION circulation, after which it was set for hearing on August 9, 2001.

In a letter of June 18, 2001 addressed to the trial court, the city civil
registrar[5] stated her observations and suggestions to the proposed
corrections in the birth records of Carlito and his siblings but interposed no
objections to the other amendments.
On the scheduled hearing of the petition on August 9, 2001, only the
counsel for respondents appeared as the Office of the Solicitor General
(OSG) had yet to enter its appearance for the city civil registrar. The trial
court thus reset the hearing to October 9, 2001.[6] On September 14, 2001,
[7]
the OSG entered its appearance with an authorization to the city
prosecutor of Butuan City to appear in the case and render assistance to it
(the OSG).
On January 31, 2002, respondents presented documentary evidence
showing compliance with the jurisdictional requirements of the petition. They
also presented testimonial evidence consisting of the testimonies of Carlito
and his mother, Epifania. During the same hearing, an additional correction in
the birth certificates of Carlitos children was requested to the effect that the
first name of their mother be rectified from Maribel to Marivel.
By Decision[8] of September 4, 2002, the trial court directed the local
civil registrar of Butuan City to correct the entries in the record of birth of
Carlito, as follows: (1) change the citizenship of his mother from Chinese to
Filipino; (2) delete John from his name; and (3) delete the word married
opposite the date of marriage of his parents. The last correction was ordered
to be effected likewise in the birth certificates of respondents Michael, Mercy
Nona, and Heddy Moira.
Additionally, the trial court ordered the correction of the birth
certificates of the minor children of Carlito to reflect the date of marriage of
Carlito and Marivel Dogmoc (Marivel) as January 21, 2000, instead of April
27, 1989, and the name Maribel as Marivel.
With respect to the marriage certificate of Carlito and Marivel, the
corrections ordered pertained to the alteration of the name of Carlitos father
from John Kho to Juan Kho and the latters citizenship from Filipino to
Chinese.
Petitioner, Republic of the Philippines, appealed the RTC Decision to
the CA, faulting the trial court in granting the petition for correction of entries
in the subject documents despite the failure of respondents to implead the
minors mother, Marivel, as an indispensable party and to offer sufficient
evidence to warrant the corrections with regard to the questioned married
status of Carlito and his siblings parents, and the latters citizenship.
Petitioner also faulted the trial court for ordering the change of the
name Carlito John Kho to Carlito Kho for non-compliance with jurisdictional
requirements for a change of name under Rule 103 of the Rules of Court.
By the assailed Decision of October 27, 2005, the CA denied
petitioners appeal and affirmed the decision of the trial court.
The CA found that Rule 108 of the Revised Rules of Court, which
outlines the proper procedure for cancellation or correction of entries in the
civil registry, was observed in the case.
Regarding Carlitos minor children Kevin and Kelly, the appellate
court held that the correction of their mothers first name from Maribel to
Marivel was made to rectify an innocuous error.
As for the change in the date of the marriage of Carlito and Marivel,
albeit the CA conceded that it is a substantial alteration, it held that the date
would not affect the minors filiation from legitimate to illegitimate considering
that at the time of their respective births in 1991 and 1993, their father
Carlitos first marriage was still subsisting as it had been annulled only in
1999.
In light of Carlitos legal impediment to marry Marivel at the time they
were born, their children Kevin and Kelly were illegitimate. It followed, the CA
went on to state, that Marivel was not an indispensable party to the case, the
minors having been represented by their father as required under Section 5
of Rule 3[9] of the Revised Rules of Court.
Further, the CA ruled that although Carlito failed to observe the
requirements of Rule 103 of the Rules of Court, he had complied
nonetheless with the jurisdictional requirements for correction of entries in
the civil registry under Rule 108 of the Rules of Court. The petition for
correction of entry in Carlitos birth record, it noted, falls under letter o of the
enumeration under Section 2 of Rule 108.
In the present petition, petitioner contends that since the changes
sought by respondents were substantial in nature, they could only be granted
through an adversarial proceeding in which indispensable parties, such as
Marivel and respondents parents, should have been notified or impleaded.
Petitioner further contends that the jurisdictional requirements to
change Carlitos name under Section 2 of Rule 103 of the Rules of Court
were not satisfied because the Amended Petition failed to allege Carlitos
prior three-year bona fide residence in Butuan City, and that the title of the
petition did not state Carlitos aliases and his true name as Carlito John I.
Kho. Petitioner concludes that the same jurisdictional defects attached to the
change of name of Carlitos father.
The petition fails.
It can not be gainsaid that the petition, insofar as it sought to change
the citizenship of Carlitos mother as it appeared in his birth certificate and
delete the married status of Carlitos parents in his and his siblings respective
birth certificates, as well as change the date of marriage of Carlito and
Marivel involves the correction of not just clerical errors of a harmless and
innocuous nature.[10] Rather, the changes entail substantial and controversial
amendments.
For the change involving the nationality of Carlitos mother as
reflected in his birth certificate is a grave and important matter that has a
bearing and effect on the citizenship and nationality not only of the parents,
but also of the offspring.[11]
Further, the deletion of the entry that Carlitos and his siblings parents
were married alters their filiation from legitimate to illegitimate, with significant
implications on their successional and other rights.
Clearly, the changes sought can only be granted in an adversary
proceeding. Labayo-Rowe v. Republic[12] explains the raison d etre:
x x x. The philosophy behind this requirement lies in the fact
that the books making up the civil register and all documents
relating thereto shall be prima facie evidence of the facts
therein contained. If the entries in the civil register could
be corrected or changed through mere summary
proceedings and not through appropriate action wherein
all parties who may be affected by the entries are
notified or represented, the door to fraud or other
mischief would be set open, the consequence of which
might be detrimental and far reaching. x x x (Emphasis
supplied)
In Republic v. Valencia,[13] however, this Court ruled, and has since
repeatedly ruled, that even substantial errors in a civil registry may be
corrected through a petition filed under Rule 108.[14]
It is undoubtedly true that if the subject matter of a
petition is not for the correction of clerical errors of a
harmless and innocuous nature, but one involving nationality
or citizenship, which is indisputably substantial as well as
controverted, affirmative relief cannot be granted in a
proceeding summary in nature. However, it is also true
that a right in law may be enforced and a wrong may be
remedied as long as the appropriate remedy is used.
This Court adheres to the principle that even substantial
errors in a civil registry may be corrected and the true
facts established provided the parties aggrieved by the
error avail themselves of the appropriate adversary
proceeding.
xxxx
What is meant by appropriate adversary proceeding? Blacks
Law Dictionary defines adversary proceeding[] as follows:
One having opposing parties; contested, as
distinguished from an ex parte application, one of which the
party seeking relief has given legal warning to the other
party, and afforded the latter an opportunity to contest it. x x
x [15] (Emphasis, italics and underscoring supplied)
The enactment in March 2001 of Republic Act No. 9048, otherwise known
as AN ACT AUTHORIZING THE CITY OR MUNICIPAL CIVIL REGISTRAR
OR THE CONSUL GENERAL TO CORRECT A CLERICAL OR
TYPOGRAPHICAL ERROR IN AN ENTRY AND/OR CHANGE OF FIRST
NAME OR NICKNAME IN THE CIVIL REGISTER WITHOUT NEED OF
JUDICIAL ORDER, has been considered to lend legislative affirmation to the
judicial precedence that substantial corrections to the civil status of persons
recorded in the civil registry may be effected through the filing of a petition
under Rule 108.[16]
Thus, this Court in Republic v. Benemerito[17] observed that the
obvious effect of Republic Act No. 9048 is to make possible the
administrative correction of clerical or typographical errors or change of first
name or nickname in entries in the civil register, leaving to Rule 108 the
correction of substantial changes in the civil registry in appropriate
adversarial proceedings.
When all the procedural requirements under Rule 108 are thus
followed, the appropriate adversary proceeding necessary to effect
substantial corrections to the entries of the civil register is satisfied. [18] The
pertinent provisions of Rule 108 of the Rules of Court read:
SEC. 3. Parties. When cancellation or correction of
an entry in the civil registrar is sought, the civil registrar
and all persons who have or claim any interest which
 would be affected thereby shall be made parties to the
proceeding.
SEC. 4. Notice and publication. Upon the filing of the
petition, the court shall, by an order, fix the time and place
for the hearing of the same, and cause reasonable notice
thereof to be given to the persons named in the petition. The
court shall also cause the order to be published once in a
week for three (3) consecutive weeks in a newspaper of
general circulation in the province.
SEC. 5. Opposition. The civil registrar and any
person having or claiming any interest under the entry
whose cancellation or correction is sought may, within fifteen
(15) days from notice of the petition, or from the last date of
publication of such notice, file his opposition thereto.
(Emphasis and underscoring supplied)
There is no dispute that the trial courts Order [19] setting the petition
for hearing and directing any person or entity having interest in the petition to
oppose it was posted[20] as well as published for the required period; that
notices of hearings were duly served on the Solicitor General, the city
prosecutor of Butuan and the local civil registrar; and that trial was conducted
on January 31, 2002 during which the public prosecutor, acting in behalf of
the OSG, actively participated by cross-examining Carlito and Epifania.
What surfaces as an issue is whether the failure to implead Marivel
and Carlitos parents rendered the trial short of the required adversary
proceeding and the trial courts judgment void.
A similar issue was earlier raised in Barco v. Court of Appeals.
[21]
That case stemmed from a petition for correction of entries in the birth
certificate of a minor, June Salvacion Maravilla, to reflect the name of her real
father (Armando Gustilo) and to correspondingly change her surname. The
petition was granted by the trial court.
Barco, whose minor daughter was allegedly fathered also by Gustilo,
however, sought to annul the trial courts decision, claiming that she should
have been made a party to the petition for correction. Failure to implead her
deprived the RTC of jurisdiction, she contended.
In dismissing Barcos petition, this Court held that the publication of
the order of hearing under Section 4 of Rule 108 cured the failure to implead
an indispensable party.
The essential requisite for allowing substantial
corrections of entries in the civil registry is that the true facts
be established in an appropriate adversarial
proceeding. This is embodied in Section 3, Rule 108 of the
Rules of Court, which states:
Section 3. Parties. When cancellation or correction
of an entry in the civil register is sought, the civil registrar
and all persons who have or claim any interest which would
be affected thereby shall be made parties to the proceeding.
xxxx
Undoubtedly, Barco is among the parties referred to
in Section 3 of Rule 108. Her interest was affected by the
petition for correction, as any judicial determination that June
was the daughter of Armando would affect her wards share
in the estate of her father. x x x.
Yet, even though Barco was not impleaded in the
petition, the Court of Appeals correctly pointed out that the
defect was cured by compliance with Section 4, Rule 108,
which requires notice by publication x x x.
xxxx
The purpose precisely of Section 4, Rule 108 is to
bind the whole world to the subsequent judgment on the
petition. The sweep of the decision would cover even parties
who should have been impleaded under Section 3, Rule
108, but were inadvertently left out. x x x
xxxx
Verily, a petition for correction is an action in rem, an
action against a thing and not against a person. The decision
on the petition binds not only the parties thereto but the
whole world. An in rem proceeding is validated essentially
through publication. Publication is notice to the whole world
that the proceeding has for its object to bar indefinitely all
who might be minded to make an objection of any sort
against the right sought to be established. It is the
publication of such notice that brings in the whole world as a
party in the case and vests the court with jurisdiction to hear
and decide it.[22]
Given the above ruling, it becomes unnecessary to rule on whether Marivel
or respondents parents should have been impleaded as parties to the
proceeding. It may not be amiss to mention, however, that during the hearing
on January 31, 2002, the city prosecutor who was acting as representative of
the OSG did not raise any objection to the non-inclusion of Marivel and
Carlitos parents as parties to the proceeding.
Parenthetically, it seems highly improbable that Marivel was unaware
of the proceedings to correct the entries in her childrens birth certificates,
especially since the notices, orders and decision of the trial court were all
sent to the residence[23] she shared with Carlito and the children.
It is also well to remember that the role of the court in hearing a
petition to correct certain entries in the civil registry is to ascertain the truth
about the facts recorded therein.[24]
With respect to the date of marriage of Carlito and Marivel, their
certificate of marriage[25] shows that indeed they were married on January 21,
2000, not on April 27, 1989. Explaining the error, Carlito declared that the
date April 27, 1989 was supplied by his helper, adding that he was not
married to Marivel at the time his sons were born because his previous
marriage was annulled only in 1999.[26] Given the evidence presented by
respondents, the CA observed that the minors were illegitimate at birth,
hence, the correction would bring about no change at all in the nature of their
filiation.
With respect to Carlitos mother, it bears noting that she declared at
the witness stand that she was not married to Juan Kho who died in 1959.
[27]
Again, that testimony was not challenged by the city prosecutor.
The documentary evidence supporting the deletion from Carlitos and
his siblings birth certificates of the entry Married opposite the date of
marriage of their parents, moreover, consisted of a certification issued on
November 24, 1973 by St. Joseph (Butuan City) Parish priest Eugene van
Vught stating that Juan Kho and Epifania had been living together as
common law couple since 1935 but have never contracted marriage legally.
[28]
A certification from the office of the city registrar, which was
appended to respondents Amended Petition, likewise stated that it has no
record of marriage between Juan Kho and Epifania.[29] Under the
circumstances, the deletion of the word Married opposite the date of
marriage of parents is warranted.
With respect to the correction in Carlitos birth certificate of his name
from Carlito John to Carlito, the same was properly granted under Rule 108
of the Rules of Court. As correctly pointed out by the CA, the cancellation or
correction of entries involving changes of name falls under letter o of the
following provision of Section 2 of Rule 108:[30]
Section 2. Entries subject to cancellation or
correction. Upon good and valid grounds, the following
entries in the civil register may be cancelled or corrected: (a)
births; (b) marriages; (c) deaths; (d) legal separation; (e)
judgments of annulment of marriage; (f) judgments declaring
marriages void from the beginning; (g) legitimations; (h)
adoptions; (i) acknowledgments of natural children; (j)
naturalization; (k) election, loss or recovery of citizenship; (l)
civil interdiction; (m) judicial determination of filiation; (n)
voluntary emancipation of a minor; and
(o) changes of name. (Emphasis and underscoring
supplied)
Hence, while the jurisdictional requirements of Rule 103 (which
governs petitions for change of name) were not complied with, observance of
the provisions of Rule 108 suffices to effect the correction sought for.
More importantly, Carlitos official transcript of record from
the Urious College in Butuan City,[31] certificate of eligibility from the Civil
Service Commission,[32] and voter registration record[33] satisfactorily show
that he has been known by his first name only. No prejudice is thus likely to
arise from the dropping of the second name.
The correction of the mothers citizenship from Chinese to Filipino as
appearing in Carlitos birth record was also proper. Of note is the fact that
during the cross examination by the city prosecutor of Epifania, he did not
deem fit to question her citizenship. Such failure to oppose the correction
prayed for, which certainly was not respondents fault, does not in any way
change the adversarial nature of the proceedings.
Also significant to note is that the birth certificates of Carlitos siblings
uniformly stated the citizenship of Epifania as Filipino. To disallow the
correction in Carlitos birth record of his mothers citizenship would perpetuate
an inconsistency in the natal circumstances of the siblings who are
unquestionably born of the same mother and father.
Outside the ambit of substantial corrections, of course, is the
correction of the name of Carlitos wife from Maribel to Marivel. The mistake
is clearly clerical or typographical, which is not only visible to the eyes, but is
also obvious to the understanding [34] considering that the name reflected in
the marriage certificate of Carlito and his wife is Marivel.

Apropos is Yu v. Republic[35] which held that changing the appellants
Christian name of Sincio to Sencio amounts merely to the righting of a
clerical error. The change of name from Beatriz Labayo/Beatriz Labayu to
Emperatriz Labayo was also held to be a mere innocuous alteration, which
can be granted through a summary proceeding. [36] The same ruling holds true
with respect to the correction in Carlitos marriage certificate of his fathers
name from John Kho to Juan Kho. Except in said marriage certificate, the
name Juan Kho was uniformly entered in the birth certificates of Carlito and
of his siblings.[37]
WHEREFORE, the Petition is DENIED. The Decision of the Court of
Appeals is AFFIRMED.
SO ORDERED.
IN RE: PETITION FOR CHANGE OF NAME AND/OR
CORRECTION/CANCELLATION OF ENTRY IN CIVIL REGISTRY
OF JULIAN LIN CARULASAN WANG also known as JULIAN LIN
WANG, to be amended/corrected as JULIAN LIN WANG, JULIAN
LIN WANG, duly represented by his mother ANNA LISA
WANG, petitioner, vs. CEBU CITY CIVIL REGISTRAR, duly
represented by the Registrar OSCAR B. MOLO, respondent.
DECISION
TINGA, J.:
I will not blot out his name out of the book of life.
Revelation 3:5
On 22 September 2002, petitioner Julian Lin Carulasan Wang, a minor,
represented by his mother Anna Lisa Wang, filed a petition dated 19
September 2002 for change of name and/or correction/cancellation of entry
in the Civil Registry of Julian Lin Carulasan Wang. Petitioner sought to drop
his middle name and have his registered name changed from Julian Lin
Carulasan Wang to Julian Lin Wang.
The petition was docketed as Special Proceedings Case No. 11458
CEB and raffled to the Regional Trial Court (RTC) of Cebu City, Branch 57.
The RTC established the following facts:
Julian Lin Carulasan Wang was born in Cebu City on February 20, 1998 to
parents Anna Lisa Wang and Sing-Foe Wang who were then not yet married
to each other. When his parents subsequently got married on September 22,
1998, ...they executed a deed of legitimation of their son so that the childs
name was changed from Julian Lin Carulasan to Julian Lin Carulasan Wang.
The parents of Julian Lin Carulasan Wang plan to stay in Singapore for a
long time because they will let him study there together with his sister named
Wang Mei Jasmine who was born in Singapore. Since in Singapore middle
names or the maiden surname of the mother are not carried in a persons
name, they anticipate that Julian Lin Carulasan Wang will be discriminated
against because of his current registered name which carries a middle name.
Julian and his sister might also be asking whether they are brother and sister
since they have different surnames. Carulasan sounds funny in Singapores
Mandarin language since they do not have the letter R but if there is, they
pronounce it as L. It is for these reasons that the name of Julian Lin
Carulasan Wang is requested to be changed to Julian Lin Wang. [1]
On 30 April 2003, the RTC rendered a decision denying the petition.
[2]
The trial court found that the reason given for the change of name sought
in the petitionthat is, that petitioner Julian may be discriminated against when
studies in Singapore because of his middle namedid not fall within the
grounds recognized by law. The trial court ruled that the change sought is
merely for the convenience of the child. Since the State has an interest in the
name of a person, names cannot be changed to suit the convenience of the
bearers. Under Article 174 of the Family Code, legitimate children have the
right to bear the surnames of the father and the mother, and there is no
reason why this right should now be taken from petitioner Julian, considering
that he is still a minor. The trial court added that when petitioner Julian
reaches the age of majority, he could then decide whether he will change his
name by dropping his middle name.[3]
Petitioner filed a motion for reconsideration of the decision but this was
denied in a resolution dated 20 May 2004. [4] The trial court maintained that
the Singaporean practice of not carrying a middle name does not justify the
dropping of the middle name of a legitimate Filipino child who intends to
study there. The dropping of the middle name would be tantamount to giving
due recognition to or application of the laws of Singapore instead of
Philippine law which is controlling. That the change of name would not
prejudice public interest or would not be for a fraudulent purpose would not
suffice to grant the petition if the reason for the change of name is itself not
reasonable.[5]
Petitioner then filed this Petition for Review on Certiorari (Under Rule
45)[6] arguing that the trial court has decided a question of substance not
theretofore determined by the Court, that is: whether or not dropping the
middle name of a minor child is contrary to Article 174 [7] of the Family Code.
Petitioner contends that [W]ith globalization and mixed marriages, there is a
need for the Supreme Court to rule on the matter of dropping of family name
for a child to adjust to his new environment, for consistency and harmony
among siblings, taking into consideration the best interest of the child. [8] It is
argued that convenience of the child is a valid reason for changing the name
as long as it will not prejudice the State and others. Petitioner points out that
the middle name Carulasan will cause him undue embarrassment and the
difficulty in writing or pronouncing it will be an obstacle to his social
acceptance and integration in the Singaporean community. Petitioner also
alleges that it is error for the trial court to have denied the petition for change
of name until he had reached the age of majority for him to decide the name
to use, contrary to previous cases [9] decided by this Court that allowed a
minor to petition for change of name.[10]
The Court required the Office of the Solicitor General (OSG) to
comment on the petition. The OSG filed its Comment[11] positing that the trial
court correctly denied the petition for change of name. The OSG argues that
under Article 174 of the Family Code, legitimate children have the right to
bear the surnames of their father and mother, and such right cannot be
denied by the mere expedient of dropping the same. According to the OSG,
there is also no showing that the dropping of the middle name Carulasan is in
the best interest of petitioner, since mere convenience is not sufficient to
support a petition for change of name and/or cancellation of entry. [12] The
OSG also adds that the petitioner has not shown any compelling reason to
justify the change of name or the dropping of the middle name, for that
matter. Petitioners allegation that the continued use of the middle name may
result in confusion and difficulty is allegedly more imaginary than real. The
OSG reiterates its argument raised before the trial court that the dropping of
the childs middle name could only trigger much deeper inquiries regarding
the true parentage of petitioner. Hence, while petitioner Julian has a sister
named Jasmine Wei Wang, there is no confusion since both use the
surname of their father, Wang. Even assuming that it is customary in
Singapore to drop the middle name, it has also not been shown that the use
of such middle name is actually proscribed by Singaporean law.[13]
We affirm the decision of the trial court. The petition should be denied.
The Court has had occasion to express the view that the State has an
interest in the names borne by individuals and entities for purposes of
identification, and that a change of name is a privilege and not a right, so that
before a person can be authorized to change his name given him either in his
certificate of birth or civil registry, he must show proper or reasonable cause,
or any compelling reason which may justify such change. Otherwise, the
request should be denied.[14]
The touchstone for the grant of a change of name is that there be proper
and reasonable cause for which the change is sought. [15] To justify a request
for change of name, petitioner must show not only some proper or
compelling reason therefore but also that he will be prejudiced by the use of
his true and official name. Among the grounds for change of name which
have been held valid are: (a) when the name is ridiculous, dishonorable or
extremely difficult to write or pronounce; (b) when the change results as a
legal consequence, as in legitimation; (c) when the change will avoid
confusion; (d) when one has continuously used and been known since
childhood by a Filipino name, and was unaware of alien parentage; (e) a
sincere desire to adopt a Filipino name to erase signs of former alienage, all
in good faith and without prejudicing anybody; and (f) when the surname
causes embarrassment and there is no showing that the desired change of
name was for a fraudulent purpose or that the change of name would
prejudice public interest.[16]
In granting or denying petitions for change of name, the question of
proper and reasonable cause is left to the sound discretion of the court. The
evidence presented need only be satisfactory to the court and not all the best
evidence available. What is involved is not a mere matter of allowance or
disallowance of the request, but a judicious evaluation of the sufficiency and
propriety of the justifications advanced in support thereof, mindful of the
consequent results in the event of its grant and with the sole prerogative for
making such determination being lodged in the courts. [17]
The petition before us is unlike other petitions for change of name, as it
does not simply seek to change the name of the minor petitioner and adopt
another, but instead seeks to drop the middle name altogether. Decided
cases in this jurisdiction involving petitions for change of name usually deal
with requests for change of surname. There are only a handful of cases
involving requests for change of the given name [18] and none on requests for
changing or dropping of the middle name. Does the law allow one to drop the
middle name from his registered name? We have to answer in the negative.
A discussion on the legal significance of a persons name is relevant at
this point. We quote, thus:
For all practical and legal purposes, a man's name is the designation by
which he is known and called in the community in which he lives and is best
known. It is defined as the word or combination of words by which a person
is distinguished from other individuals and, also, as the label or appellation
which he bears for the convenience of the world at large addressing him, or
in speaking of or dealing with him. Names are used merely as one method of
indicating the identity of persons; they are descriptive of persons for
identification, since, the identity is the essential thing and it has frequently
been held that, when identity is certain, a variance in, or misspelling of, the
name is immaterial.
The names of individuals usually have two parts: the given name or proper
name, and the surname or family name. The given or proper name is that
which is given to the individual at birth or baptism, to distinguish him from
other individuals. The name or family name is that which identifies the family
to which he belongs and is continued from parent to child. The given name
may be freely selected by the parents for the child; but the surname to which
the child is entitled is fixed by law.
A name is said to have the following characteristics: (1) It is absolute,
intended to protect the individual from being confused with others. (2) It is
obligatory in certain respects, for nobody can be without a name. (3) It is
fixed, unchangeable, or immutable, at least at the start, and may be changed
only for good cause and by judicial proceedings. (4) It is outside the
commerce of man, and, therefore, inalienable and intransmissible by
act inter vivos or mortis causa. (5) It is imprescriptible.[19]
This citation does not make any reference to middle names, but this
does not mean that middle names have no practical or legal significance.
Middle names serve to identify the maternal lineage or filiation of a person as
well as further distinguish him from others who may have the same given
name and surname as he has.
Our laws on the use of surnames state that legitimate and legitimated
children shall principally use the surname of the father.[20] The Family Code
gives legitimate children the right to bear the surnames of the father and the
mother,[21] while illegitimate children shall use the surname of their mother,
unless their father recognizes their filiation, in which case they may bear the
fathers surname.[22]
Applying these laws, an illegitimate child whose filiation is not
recognized by the father bears only a given name and his mothers surname,
and does not have a middle name. The name of the unrecognized illegitimate
child therefore identifies him as such. It is only when the illegitimate child is
legitimated by the subsequent marriage of his parents or acknowledged by
the father in a public document or private handwritten instrument that he
bears both his mothers surname as his middle name and his fathers
surname as his surname, reflecting his status as a legitimated child or an
acknowledged illegitimate child.
Accordingly, the registration in the civil registry of the birth of such
individuals requires that the middle name be indicated in the certificate. The
registered name of a legitimate, legitimated and recognized illegitimate child
thus contains a given or proper name, a middle name, and a surname.
Petitioner theorizes that it would be for his best interest to drop his
middle name as this would help him to adjust more easily to and integrate
himself into Singaporean society. In support, he cites Oshita v.
Republic[23] and Calderon v. Republic,[24] which, however, are not apropos
both.
In Oshita, the petitioner therein, a legitimate daughter of a Filipino
mother, Buena Bartolome, and a Japanese father, Kishimatsu Oshita, sought
to change her name from Antonina B. Oshita to Antonina Bartolome. The
Court granted her petition based on the following considerations: she had
elected Philippine citizenship upon reaching the age of majority; her other
siblings who had also elected Philippine citizenship have been using their
mothers surname; she was embarrassed to bear a Japanese surname there
still being ill feeling against the Japanese due to the last World War; and
there was no showing that the change of name was motivated by a
fraudulent purpose or that it will prejudice public interest.
In Calderon, the Court allowed petitioner Gertrudes Josefina del Prado,
an illegitimate minor child acting through her mother who filed the petition in
her behalf, to change her name to Gertudes Josefina Calderon, taking the
surname of her stepfather, Romeo C. Calderon, her mothers husband. The
Court held that a petition for change of name of an infant should be granted
where to do is clearly for the best interest of the child. The Court took into
consideration the opportunity provided for the minor petitioner to eliminate
the stigma of illegitimacy which she would carry if she continued to use the
surname of her illegitimate father. The Court pronounced that justice dictates
that every person be allowed to avail of any opportunity to improve his social
standing as long as doing so he does not cause prejudice or injury to the
interests of the State or of other people.
Calderon, on the other hand, granted the petition for change of name
filed by a mother in behalf of her illegitimate minor child. Petitioner cites this
case to buttress his argument that he does not have to reach the age of
majority to petition for change of name. However, it is manifest
in Calderon that the Court, in granting the petition for change of name, gave
paramount consideration to the best interests of the minor petitioner therein.

Petitioner cites Alfon v. Republic,[25] in arguing that although Article 174
of the Family Code gives the legitimate child the right to use the surnames of
the father and the mother, it is not mandatory such that the child could use
only one family name, even the family name of the mother. In Alfon, the
petitioner therein, the legitimate daughter of Filomeno Duterte and Estrella
Alfon, sought to change her name from Maria Estrella Veronica Primitiva
Duterte (her name as registered in the Local Civil Registry) to Estrella S.
Alfon (the name she had been using since childhood, in her school records
and in her voters registration). The trial court denied her petition but this
Court overturned the denial, ruling that while Article 364 of the Civil Code
states that she, as a legitimate child, should principally use the surname of
her father, there is no legal obstacle for her to choose to use the surname of
herm other to which she is entitled. In addition, the Court found that there
was ample justification to grant her petition, i.e., to avoid confusion.
Weighing petitioners reason of convenience for the change of his name
against the standards set in the cases he cites to support his contention
would show that his justification is amorphous, to say the least, and could not
warrant favorable action on his petition.
In the case at bar, the only reason advanced by petitioner for the
dropping his middle name is convenience. However, how such change of
name would make his integration into Singaporean society easier and
convenient is not clearly established. That the continued use of his middle
name would cause confusion and difficulty does not constitute proper and
reasonable cause to drop it from his registered complete name.
In addition, petitioner is only a minor. Considering the nebulous
foundation on which his petition for change of name is based, it is best that
the matter of change of his name be left to his judgment and discretion when
he reaches the age of majority.[26] As he is of tender age, he may not yet
understand and appreciate the value of the change of his name and granting
of the same at this point may just prejudice him in his rights under our laws.
WHEREFORE, in view of the foregoing, the Petition for Review on
Certiorari is DENIED.
SO ORDERED.

The factual antecedents and unique circumstances of the cited cases

are not at all analogous to the case at bar. The instant case is clearly
distinguishable from the cases of Oshita and Alfon, where the petitioners
were already of age when they filed their petitions for change of name. Being
of age, they are considered to have exercised their discretion and judgment,
fully knowing the effects of their decision to change their surnames. It can
also be unmistakably observed that the reason for the grant of the petitions
for change of name in these two cases was the presence of reasonable or
compelling grounds therefore. The Court, in Oshita, recognized the tangible
animosity most Filipinos had during that time against the Japanese as a
result of World War II, in addition to the fact of therein petitioners election of
Philippine citizenship. In Alfon, the Court granted the petition since the
petitioner had been known since childhood by a name different from her
registered name and she had not used her registered name in her school
records and voters registration records; thus, denying the petition would only
result to confusion.
G.R. No. 206248 February 18, 2014

GRACE M. GRANDE, Petitioner,

vs.
PATRICIO T. ANTONIO, Respondent.

DECISION

VELASCO, JR., J.:

Before this Court is a Petition for Review on Certiorari under Rule 45,
assailing the July 24, 2012 Decision1 and March 5, 2013 Resolution2 of the
Court of Appeals (CA) in CA-G.R. CV No. 96406.

As culled from the records, the facts of this case are:

Petitioner Grace Grande (Grande) and respondent Patricio Antonio (Antonio)

for a period of time lived together as husband and wife, although Antonio was
at that time already married to someone else.3 Out of this illicit relationship,
two sons were born: Andre Lewis (on February 8, 1998) and Jerard Patrick
(on October 13, 1999).4The children were not expressly recognized by
respondent as his own in the Record of Births of the children in the Civil
Registry. The parties relationship, however, eventually turned sour, and
Grande left for the United States with her two children in May 2007. This
prompted respondent Antonio to file a Petition for Judicial Approval of
Recognition with Prayer to take Parental Authority, Parental Physical
Custody, Correction/Change of Surname of Minors and for the Issuance of
Writ of Preliminary Injunction before the Regional Trial Court, Branch 8 of
Aparri, Cagayan (RTC), appending a notarized Deed of Voluntary
Recognition of Paternity of the children.5
On September 28, 2010, the RTC rendered a Decision in favor of herein
respondent Antonio, ruling that "[t]he evidence at hand is overwhelming that
the best interest of the children can be promoted if they are under the sole
parental authority and physical custody of [respondent Antonio]." 6 Thus, the
court a quo decreed the following:
WHEREFORE, foregoing premises considered, the Court hereby grants
[Antonios] prayer for recognition and the same is hereby judicially approved.
x x x Consequently, the Court forthwith issues the following Order granting
the other reliefs sought in the Petition, to wit:
a. Ordering the Office of the City Registrar of the City of Makati to
cause the entry of the name of [Antonio] as the father of the
aforementioned minors in their respective Certificate of Live Birth
and causing the correction/change and/or annotation of the
surnames of said minors in their Certificate of Live Birth from Grande
to Antonio;
b. Granting [Antonio] the right to jointly exercise Parental Authority
with [Grande] over the persons of their minor children, Andre Lewis
Grande and Jerard Patrick Grande;
c. Granting [Antonio] primary right and immediate custody over the
parties minor children Andre Lewis Grandre and Jerard Patrick
Grande who shall stay with [Antonios] residence in the Philippines
from Monday until Friday evening and to [Grandes] custody from
Saturday to Sunday evening;
d. Ordering [Grande] to immediately surrender the persons and
custody of minors Andre Lewis Grande and Jerard Patrick Grande
unto [Antonio] for the days covered by the Order;
e. Ordering parties to cease and desist from bringing the aforenamed
minors outside of the country, without the written consent of the other
and permission from the court.
f. Ordering parties to give and share the support of the minor children
Andre Lewis Grande and Jerard Patrick Grande in the amount
of P30,000 per month at the rate of 70% for [Antonio] and 30% for
[Grande].7(Emphasis supplied.)
Aggrieved, petitioner Grande moved for reconsideration. However, her
motion was denied by the trial court in its Resolution dated November 22,
20108 for being pro forma and for lack of merit.
Petitioner Grande then filed an appeal with the CA attributing grave error on
the part of the RTC for allegedly ruling contrary to the law and jurisprudence
respecting the grant of sole custody to the mother over her illegitimate
children.9 In resolving the appeal, the appellate court modified in part the
Decision of the RTC. The dispositive portion of the CA Decision reads:
WHEREFORE, the appeal is partly GRANTED. Accordingly, the appealed
Decision of the Regional Trial Court Branch 8, Aparri Cagayan in SP Proc.
Case No. 11-4492 is MODIFIED in part and shall hereinafter read as follows:
a. The Offices of the Civil Registrar General and the City Civil
Registrar of Makati City are DIRECTED to enter the surname
Antonio as the surname of Jerard Patrick and Andre Lewis, in their
respective certificates of live birth, and record the same in the
Register of Births;
b. [Antonio] is ORDERED to deliver the minor children Jerard Patrick
and Andre Lewis to the custody of their mother herein appellant,
Grace Grande who by virtue hereof is hereby awarded the full or sole
custody of these minor children;
c. [Antonio] shall have visitorial rights at least twice a week, and may
only take the children out upon the written consent of [Grande]; and
d. The parties are DIRECTED to give and share in support of the
minor children Jerard Patrick and Andre Lewis in the amount
of P30,000.00 per month at the rate of 70% for [Antonio] and 30% for
[Grande]. (Emphasis supplied.)
In ruling thus, the appellate court ratiocinated that notwithstanding the
fathers recognition of his children, the mother cannot be deprived of her sole
parental custody over them absent the most compelling of reasons. 10Since
respondent Antonio failed to prove that petitioner Grande committed any act
that adversely affected the welfare of the children or rendered her unsuitable
to raise the minors, she cannot be deprived of her sole parental custody over
their children.
The appellate court, however, maintained that the legal consequence of the
recognition made by respondent Antonio that he is the father of the minors,
taken in conjunction with the universally protected "best-interest-of-the-child"
clause, compels the use by the children of the surname "ANTONIO." 11
As to the issue of support, the CA held that the grant is legally in order
considering that not only did Antonio express his willingness to give support,
it is also a consequence of his acknowledging the paternity of the minor
children.12 Lastly, the CA ruled that there is no reason to deprive respondent
Antonio of his visitorial right especially in view of the constitutionally inherent
and natural right of parents over their children.13
Not satisfied with the CAs Decision, petitioner Grande interposed a partial
motion for reconsideration, particularly assailing the order of the CA insofar
as it decreed the change of the minors surname to "Antonio." When her
motion was denied, petitioner came to this Court via the present petition. In it,
she posits that Article 176 of the Family Codeas amended by Republic Act
No. (RA) 9255, couched as it is in permissive languagemay not be invoked
by a father to compel the use by his illegitimate children of his surname
without the consent of their mother.
We find the present petition impressed with merit.
The sole issue at hand is the right of a father to compel the use of his
surname by his illegitimate children upon his recognition of their filiation.
Central to the core issue is the application of Art. 176 of the Family Code,
originally phrased as follows:
Illegitimate children shall use the surname and shall be under the parental
authority of their mother, and shall be entitled to support in conformity with
this Code. The legitime of each illegitimate child shall consist of one-half of
the legitime of a legitimate child. Except for this modification, all other
provisions in the Civil Code governing successional rights shall remain in
force.
This provision was later amended on March 19, 2004 by RA 9255 14 which
now reads:
Art. 176. Illegitimate children shall use the surname and shall be under the
parental authority of their mother, and shall be entitled to support in
conformity with this Code. However, illegitimate children may use the
surname of their father if their filiation has been expressly recognized by their
father through the record of birth appearing in the civil register, or when an
admission in a public document or private handwritten instrument is made by
the father. Provided, the father has the right to institute an action before the
regular courts to prove non-filiation during his lifetime. The legitime of each
illegitimate child shall consist of one-half of the legitime of a legitimate child.
(Emphasis supplied.)
From the foregoing provisions, it is clear that the general rule is that an
illegitimate child shall use the surname of his or her mother. The exception
provided by RA 9255 is, in case his or her filiation is expressly recognized by
the father through the record of birth appearing in the civil register or when
an admission in a public document or private handwritten instrument is made
by the father. In such a situation, the illegitimate child may use the surname
of the father.
In the case at bar, respondent filed a petition for judicial approval of
recognition of the filiation of the two children with the prayer for the correction
or change of the surname of the minors from Grande to Antonio when a
public document acknowledged before a notary public under Sec. 19, Rule
132 of the Rules of Court15 is enough to establish the paternity of his
children. But he wanted more: a judicial conferment of parental authority,
parental custody, and an official declaration of his childrens surname as
Antonio.
Parental authority over minor children is lodged by Art. 176 on the mother;
hence, respondents prayer has no legal mooring. Since parental authority is
given to the mother, then custody over the minor children also goes to the
mother, unless she is shown to be unfit.
Now comes the matter of the change of surname of the illegitimate children.
Is there a legal basis for the court a quo to order the change of the surname
to that of respondent?
Clearly, there is none. Otherwise, the order or ruling will contravene the
explicit and unequivocal provision of Art. 176 of the Family Code, as
amended by RA 9255.
Art. 176 gives illegitimate children the right to decide if they want to use the
surname of their father or not. It is not the father (herein respondent) or the
mother (herein petitioner) who is granted by law the right to dictate the
surname of their illegitimate children.
Nothing is more settled than that when the law is clear and free from
ambiguity, it must be taken to mean what it says and it must be given its
literal meaning free from any interpretation.16 Respondents position that the
court can order the minors to use his surname, therefore, has no legal basis.
On its face, Art. 176, as amended, is free from ambiguity. And where there is
no ambiguity, one must abide by its words. The use of the word "may" in the
provision readily shows that an acknowledged illegitimate child is under no
compulsion to use the surname of his illegitimate father. The word "may" is
permissive and operates to confer discretion17 upon the illegitimate children.
It is best to emphasize once again that the yardstick by which policies
affecting children are to be measured is their best interest. On the matter of
childrens surnames, this Court has, time and again, rebuffed the idea that
the use of the fathers surname serves the best interest of the minor child. In
Alfon v. Republic,18 for instance, this Court allowed even a legitimate child to
continue using the surname of her mother rather than that of her legitimate
father as it serves her best interest and there is no legal obstacle to prevent
her from using the surname of her mother to which she is entitled. In fact, in
Calderon v. Republic,19 this Court, upholding the best interest of the child
concerned, even allowed the use of a surname different from the surnames
of the childs father or mother. Indeed, the rule regarding the use of a childs
surname is second only to the rule requiring that the child be placed in the
best possible situation considering his circumstances.
In Republic of the Philippines v. Capote,20 We gave due deference to the
choice of an illegitimate minor to use the surname of his mother as it would
best serve his interest, thus:
The foregoing discussion establishes the significant connection of a persons
name to his identity, his status in relation to his parents and his successional
rights as a legitimate or illegitimate child. For sure, these matters should not
be taken lightly as to deprive those who may, in any way, be affected by the
right to present evidence in favor of or against such change.
The law and facts obtaining here favor Giovannis petition. Giovanni availed
of the proper remedy, a petition for change of name under Rule 103 of the
Rules of Court, and complied with all the procedural requirements. After
hearing, the trial court found (and the appellate court affirmed) that the
evidence presented during the hearing of Giovannis petition sufficiently
established that, under Art. 176 of the Civil Code, Giovanni is entitled to
change his name as he was never recognized by his father while his mother
has always recognized him as her child. A change of name will erase the
impression that he was ever recognized by his father. It is also to his best
interest as it will facilitate his mothers intended petition to have him join her
in the United States. This Court will not stand in the way of the reunification
of mother and son. (Emphasis supplied.)
An argument, however, may be advanced advocating the mandatory use of
the fathers surname upon his recognition of his illegitimate children, citing
the Implementing Rules and Regulations (IRR) of RA 9255, 21 which states:
Rule 7. Requirements for the Child to Use the Surname of the Father
7.1 For Births Not Yet Registered
7.1.1 The illegitimate child shall use the surname of the father if a public
document is executed by the father, either at the back of the Certificate of
Live Birth or in a separate document.
7.1.2 If admission of paternity is made through a private instrument, the child
shall use the surname of the father, provided the registration is supported by
the following documents:
xxxx
7.2. For Births Previously Registered under the Surname of the Mother
7.2.1 If filiation has been expressly recognized by the father, the child shall
use the surname of the father upon the submission of the accomplished
AUSF [Affidavit of Use of the Surname of the Father].
7.2.2 If filiation has not been expressly recognized by the father, the child
shall use the surname of the father upon submission of a public document or
a private handwritten instrument supported by the documents listed in Rule
7.1.2.
7.3 Except in Item 7.2.1, the consent of the illegitimate child is required if
he/she has reached the age of majority. The consent may be contained in a
separate instrument duly notarized.
xxxx
Rule 8. Effects of Recognition
8.1 For Births Not Yet Registered
8.1.1 The surname of the father shall be entered as the last name of the child
in the Certificate of Live Birth. The Certificate of Live Birth shall be recorded
in the Register of Births.
xxxx
8.2 For Births Previously Registered under the Surname of the Mother
8.2.1 If admission of paternity was made either at the back of the Certificate
of Live Birth or in a separate public document or in a private handwritten
document, the public document or AUSF shall be recorded in the Register of
Live Birth and the Register of Births as follows:
"The surname of the child is hereby changed from (original surname) to (new
surname) pursuant to RA 9255."
The original surname of the child appearing in the Certificate of Live Birth
and Register of Births shall not be changed or deleted.
8.2.2 If filiation was not expressly recognized at the time of registration, the
public document or AUSF shall be recorded in the Register of Legal
Instruments. Proper annotation shall be made in the Certificate of Live Birth
and the Register of Births as follows:
"Acknowledged by (name of father) on (date). The surname of the child is
hereby changed from (original surname) on (date) pursuant to RA 9255."
(Emphasis supplied.)
Nonetheless, the hornbook rule is that an administrative issuance cannot
amend a legislative act. In MCC Industrial Sales Corp. v. Ssangyong
Corporation,22 We held:
After all, the power of administrative officials to promulgate rules in the
implementation of a statute is necessarily limited to what is found in the
legislative enactment itself. The implementing rules and regulations of a law
cannot extend the law or expand its coverage, as the power to amend or
repeal a statute is vested in the Legislature. Thus, if a discrepancy occurs
between the basic law and an implementing rule or regulation, it is the former
that prevails, because the law cannot be broadened by a mere administrative
issuance an administrative agency certainly cannot amend an act of
Congress.
Thus, We can disregard contemporaneous construction where there is no
ambiguity in law and/or the construction is clearly erroneous. 23 What is more,
this Court has the constitutional prerogative and authority to strike down and
declare as void the rules of procedure of special courts and quasi- judicial
bodies24 when found contrary to statutes and/or the Constitution. 25 Section
5(5), Art. VIII of the Constitution provides:
Sec. 5. The Supreme Court shall have the following powers:
xxxx
(5) Promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice and procedure in all courts, the
admission to the practice of law, the Integrated Bar, and legal assistance to
the underprivileged. Such rules shall provide a simplified and inexpensive
procedure for the speedy disposition of cases, shall be uniform for all courts
of the same grade, and shall not diminish, increase, or modify substantive
rights. Rules of procedure of special courts and quasi-judicial bodies shall
remain effective unless disapproved by the Supreme Court. (Emphasis
supplied.)
Thus, We exercise this power in voiding the above-quoted provisions of the
IRR of RA 9255 insofar as it provides the mandatory use by illegitimate
children of their fathers surname upon the latters recognition of his paternity.
To conclude, the use of the word "shall" in the IRR of RA 9255 is of no
moment. The clear, unambiguous, and unequivocal use of "may" in Art. 176
rendering the use of an illegitimate fathers surname discretionary controls,
and illegitimate children are given the choice on the surnames by which they
will be known.
At this juncture, We take note of the letters submitted by the children, now
aged thirteen (13) and fifteen (15) years old, to this Court declaring their
opposition to have their names changed to "Antonio." 26 However, since these
letters were not offered before and evaluated by the trial court, they do not
provide any evidentiary weight to sway this Court to rule for or against
petitioner.27 A proper inquiry into, and evaluation of the evidence of, the
children's choice of surname by the trial court is necessary.
WHEREFORE, the instant petition is PARTIALLY GRANTED. The July 24,
2012 Decision of the Court of Appeals in CA-G.R. CV No. 96406 is
MODIFIED, the dispositive portion of which shall read:
WHEREFORE, the appeal is partly GRANTED. Accordingly. the appealed
Decision of the Regional Trial Court Branch 8, Aparri Cagayan in SP Proc.
Case No. 11-4492 is MODIFIED in part and shall hereinafter read as follows:

a. [Antonio] is ORDERED to deliver the minor children Jerard Patrick

and Andre Lewis to the custody of their mother herein appellant,
Grace Grande who by virtue hereof is hereby awarded the full or sole
custody of these minor children;

b. [Antonio] shall have visitation rights28 at least twice a week, and

may only take the children out upon the written consent of [Grande]:

c. The parties are DIRECTED to give and share in support of the

minor children Jerard Patrick and Andre Lewis in the amount
of P30,000.00 per month at the rate of 70% for [Antonio] and 30% for
[Grande]; and

d. The case is REMANDED to the Regional Trial Court, Branch 8 of

Aparri, Cagayan for the sole purpose of determining the surname to
be chosen by the children Jerard Patrick and Andre Lewis.

Rule 7 and Rule 8 of the Office of the Civil Registrar General Administrative
Order No. 1, Series of 2004 are DISAPPROVED and hereby declared NULL
and VOID.

SO ORDERED.

REPUBLIC OF THE PHILIPPINES, G.R. No. 189476

Petitioner,
Present:

- versus - CARPIO MORALES, J., Chairper

BRION,
JULIAN EDWARD EMERSON COSETENG- BERSAMIN, and
MAGPAYO (A.K.A. JULIAN EDWARD VILLARAMA, JR., and
EMERSON MARQUEZ-LIM COSETENG), SERENO, JJ.
Respondent.
Promulgated:
February 2, 2011

CARPIO MORALES, J.:

 Born in Makati on September 9, 1972, Julian Edward 3. Delete the entry COSETENG in the space
Emerson Coseteng Magpayo (respondent) is the son of Fulvio M. Magpayo for Middle Name of the [respondent]; and
Jr. and Anna Dominique Marquez-Lim Coseteng who, as respondents
certificate of live birth[1] shows, contracted marriage on March 26, 1972. 4. Delete the entry Fulvio Miranda Magpayo,
Jr. in the space for FATHER of the [respondent]
Claiming, however, that his parents were never legally married, (emphasis and underscoring supplied; capitalization in
respondent filed on July 22, 2008 at the Regional Trial Court (RTC) the original)
of Quezon City a Petition to change his name to Julian Edward
Emerson Marquez Lim Coseteng. The petition, docketed as SPP No. Q-
0863058, was entitled IN RE PETITION FOR CHANGE OF NAME OF The Republic of the Philippines (Republic) filed a motion for
JULIAN EDWARD EMERSON COSETENG MAGPAYO TO JULIAN reconsideration but it was denied by the trial court by Order of July 2, 2009,
[11]
EDWARD EMERSON MARQUEZ-LIM COSETENG. hence, it, thru the OSG, lodged the present petition for review to the Court
on pure question of law.
In support of his petition, respondent submitted a certification from
the National Statistics Office stating that his mother Anna Dominique does The Republic assails the decision in this wise:
not appear in [its] National Indices of Marriage. [2] Respondent also submitted
his academic records from elementary up to college[3] showing that he carried I. . . . THE PETITION FOR CHANGE OF
the surname Coseteng, and the birth certificate of his child where Coseteng NAMEINVOLVES THE CHANGE
appears as his surname.[4] In the 1998, 2001 and 2004 Elections, respondent OF [RESPONDENTS] CIVIL STATUS FROM
ran and was elected as Councilor of Quezon Citys 3 rd District using the name LEGITIMATE TO ILLEGITIMATE AND,
JULIAN M.L. COSETENG.[5] THEREFORE, SHOULD BE MADE THROUGH
APPROPRIATE ADVERSARIAL PROCEEDINGS
On order of Branch 77 of the Quezon City RTC, [6] respondent
amended his petition by alleging therein compliance with the 3-year II. THE TRIAL COURT EXCEEDED ITS
residency requirement under Section 2, Rule 103 of the Rules of Court.[7] JURISDICTION WHEN IT DIRECTED THE
DELETION OF THE NAME OF RESPONDENTS
The notice setting the petition for hearing on November 20, 2008 FATHER FROM HIS BIRTH CERTIFICATE.
[12]
was published in the newspaper Broadside in its issues of October 31- (emphasis and underscoring supplied)
November 6, 2008, November 7-13, 2008, and November 14-20, 2008. [8] And
a copy of the notice was furnished the Office of the Solicitor General (OSG).
No opposition to the petition having been filed, an order of general
default was entered by the trial court which then allowed respondent The Republic contends that the deletion of the entry on the date and
to present evidence ex parte.[9] place of marriage of respondents parents from his birth certificate has the
effect of changing his civil status from legitimate to illegitimate, hence, any
change in civil status of a person must be effected through
By Decision of January 8, 2009,[10] the trial court granted respondents an appropriate adversary proceeding.[13]
petition and directed the Civil Registrar of Makati City to:
The Republic adds that by ordering the deletion of
1. Delete the entry March 26, 1972 in Item 24 respondents parents date of marriage and the name of respondents
for DATE AND PLACE OF MARRIAGE OF father from the entries in respondents birth certificate, [14] the trial court
PARTIES [in herein respondents Certificate of live Birth]; exceeded its jurisdiction, such order not being in accord with respondents
prayer reading:
2. Correct the entry MAGPAYO in the space for
the Last Name of the [respondent] to COSETENG; WHEREFORE, premises considered, it is most
respectfully prayed that the Honorable Court issue an
order allowing the change of name of petitioner from JULIAN
 EDWARD EMERSON COSETENG MAGPAYO to JULIAN
EDWARD EMERSON MARQUEZ-LIM COSETENG, and
that the Honorable Court order the Local Civil Registrar and
all other relevant government agencies to reflect the said
change of name in their records.
Petitioner prays for other reliefs deemed proper
under the premises.[15] (underscoring supplied)
Respondent counters that the proceeding before the trial court was
adversarial in nature. He cites the serving of copies of the petition and its
annexes upon the Civil Registrar of Makati, the Civil Registrar General, and
the OSG; the posting of copies of the notice of hearing in at least four public
places at least ten days before the hearing; the delegation to the OSG by the
City Prosecutor of Quezon City to appear on behalf of the Republic; the
publication of the notice of hearing in a newspaper of general circulation for
three consecutive weeks; and the fact that no oppositors appeared on the
scheduled hearing.[16]
The petition is impressed with merit.
A person can effect a change of name under Rule 103 (CHANGE OF
NAME) using valid and meritorious grounds including (a) when the name is
ridiculous, dishonorable or extremely difficult to write or pronounce; (b) when
the change results as a legal consequence such as legitimation; (c) when the
change will avoid confusion; (d) when one has continuously used and been
known since childhood by a Filipino name, and was unaware of alien
parentage; (e) a sincere desire to adopt a Filipino name to erase signs of
former alienage, all in good faith and without prejudicing anybody; and (f)
when the surname causes embarrassment and there is no showing that the
desired change of name was for a fraudulent purpose or that the change of
name would prejudice public interest.[17] Respondents reason for changing
his name cannot be considered as one of, or analogous to, recognized
grounds, however.
The present petition must be differentiated from Alfon v. Republic of
the Philippines.[18] In Alfon, the Court allowed the therein petitioner, Estrella
Alfon, to use the name that she had been known since childhood in order to
avoid confusion. Alfon did not deny her legitimacy, however. She merely
sought to use the surname of her mother which she had been using since
childhood. Ruling in her favor, the Court held that she was lawfully entitled to
use her mothers surname, adding that the avoidance of confusion was
justification enough to allow her to do so. In the present case, however,
respondent denies his legitimacy.
The change being sought in respondents petition goes so far as to
affect his legal status in relation to his parents. It seeks to change his
legitimacy to that of illegitimacy.Rule 103 then would not suffice to grant
respondents supplication.
Labayo-Rowe v. Republic[19] categorically holds that changes which
may affect the civil status from legitimate to illegitimate . . . are substantial
and controversial alterations which can only be allowed after appropriate
adversary proceedings . . .
Since respondents desired change affects his civil status from
legitimate to illegitimate, Rule 108 applies. It reads:
SECTION 1. Who may file petition.Any person
interested in any act, event, order or decree concerning
the civil status of persons which has been recorded in the
civil register, may file a verified petition for the cancellation or
correction of any entry relating thereto, with the [RTC] of
the province where the corresponding civil registry is
located.
xxxx
SEC. 3. Parties.When cancellation or correction of
an entry in the civil register is sought, the civil
registrar and all persons who have or claim any interest
which would be affected thereby shall be made parties
to the proceeding.
SEC. 4. Notice and publication. Upon the filing of the
petition, the court shall, by an order, fix the time and place
for the hearing of the same, and cause reasonable notice
thereof to be given to the persons named in the
petition. The court shall also cause the order to be
published once a week for three (3) consecutive weeks in a
newspaper of general circulation in the province. (emphasis,
italics and underscoring supplied)
Rule 108 clearly directs that a petition which concerns ones civil
status should be filed in the civil registry in which the entry is sought to be
cancelled or corrected that of Makati in the present case, and all persons
who have or claim any interest which would be affected thereby should be
made parties to the proceeding.
 As earlier stated, however, the petition of respondent was filed not
in Makati where his birth certificate was registered but in Quezon City. And
as the above-mentioned title of the petition filed by respondent before the
RTC shows, neither the civil registrar of Makati nor his father and mother
were made parties thereto.
Respondent nevertheless cites Republic v. Capote[20] in support of
his claim that his change of name was effected through an appropriate
adversary proceeding.
Republic v. Belmonte,[21] illuminates, however:
The procedure recited in Rule 103 regarding change
of name and in Rule 108 concerning the cancellation or
correction of entries in the civil registry are separate and
distinct. They may not be substituted one for the other
for the sole purpose of expediency. To hold otherwise
would render nugatory the provisions of the Rules of Court
allowing the change of ones name or the correction of
entries in the civil registry only upon meritorious grounds. . . .
(emphasis, capitalization and underscoring supplied)
Even assuming arguendo that respondent had simultaneously
availed of these two statutory remedies, respondent cannot be said to
have sufficiently complied with Rule 108. For, as reflected above, aside
from improper venue, he failed to implead the civil registrar
of Makati and all affected parties as respondents in the case.
Republic v. Labrador[22] mandates that a petition for
a substantial correction or change of entries in the civil registry should
have as respondents the civil registrar, as well as all other persons who have
or claim to have any interest that would be affected thereby. It cannot be
gainsaid that change of status of a child in relation to his parents is a
substantial correction or change of entry in the civil registry.
Labayo-Rowe[23] highlights the necessity of impleading indispensable
parties in a petition which involves substantial and controversial
alterations. In that case, the therein petitioner Emperatriz Labayo-Rowe
(Emperatriz) filed a petition for the correction of entries in the birth certificates
of her children, Vicente Miclat, Jr. and Victoria Miclat, in the Civil Registry of
San Fernando, Pampanga. Emperatriz alleged that her name appearing in
the birth certificates is Beatriz, which is her nickname, but her full name is
Emperatriz; and her civil status appearing in the birth certificate of her
daughter Victoria as married on 1953 Bulan are erroneous because she was
not married to Vicente Miclat who was the one who furnished the data in said
birth certificate.
The trial court found merit in Emperatrizs petition and accordingly
directed the local civil registrar to change her name appearing in her
childrens birth certificates from Beatriz to Emperatriz; and to correct her civil
status in Victorias birth certificate from married to single and the date and
place of marriage to no marriage.
On petition before this Court after the Court of Appeals found that the
order of the trial court involved a question of law, the Court nullified the trial
courts order directing the change of Emperatriz civil status and the filiation of
her child Victoria in light of the following observations:
x x x x Aside from the Office of the Solicitor
General, all other indispensable parties should have
been made respondents. They include not only
the declared father of the child but the child as well,
together with the paternal grandparents, if any, as their
hereditary rights would be adversely affected thereby. All
other persons who may be affected by the change should
be notified or represented. The truth is best ascertained
under an adversary system of justice.
The right of the child Victoria to inherit from her
parents would be substantially impaired if her status
would be changed from legitimate to
illegitimate. Moreover, she would be exposed to
humiliation and embarrassment resulting from the stigma
of an illegitimate filiation that she will bear thereafter. The
fact that the notice of hearing of the petition was
published in a newspaper of general circulation and
notice thereof was served upon the State will not change
the nature of the proceedings taken. Rule 108, like all the
other provisions of the Rules of Court, was promulgated
by the Supreme Court pursuant to its rule-making
authority under Section 13, Article VIII of the 1973
Constitution, which directs that such rules shall not
diminish, increase or modify substantive rights. If Rule
108 were to be extended beyond innocuous or harmless
changes or corrections of errors which are visible to the
eye or obvious to the understanding, so as to
comprehend substantial and controversial alterations
concerning citizenship, legitimacy of
paternity or filiation, or legitimacy of marriage, without
 observing the proper proceedings as earlier mentioned,
said rule would thereby become
an unconstitutional exercise which would tend to
increase or modify substantive rights. This situation is
not contemplated under Article 412 of the Civil Code.
[24]
(emphasis, italics and underscoring supplied)
As for the requirement of notice and publication, Rule 108 provides:
SEC. 4. Notice and publication.Upon the filing of
the petition, the court shall, by an order, fix the time
and place for the hearing of the same, and
cause reasonable notice thereof to be given to the
persons named in the petition. The court shall
also cause the order to be published once a week for
three (3) consecutive weeks in a newspaper of general
circulation in the province.
SEC. 5. Opposition.The civil registrar and any
person having or claiming any interest under the
entry whose cancellation or correction is sought may,
within fifteen (15) days from notice of the
petition, or from the last date of publication of such
notice, file his opposition thereto. (emphasis and
underscoring supplied)
A reading of these related provisions readily shows that Rule 108
clearly mandates two sets of notices to different potential
oppositors. The first notice is that given to the persons named in the petition
and the second (which is through publication) is that given to other persons
who are not named in the petition but nonetheless may be considered
interested or affected parties, such as creditors. That two sets of notices are
mandated under the above-quoted Section 4 is validated by the subsequent
Section 5, also above-quoted, which provides for two periods (for the two
types of potential oppositors) within which to file an opposition (15 days from
notice or from the last date of publication).
This is the overriding principle laid down in Barco v. Court of
Appeals.[25] In that case, Nadina Maravilla (Nadina) filed a petition for
correction of entries in the birth certificate of her daughter June from June
Salvacion Maravilla to June Salvacion Gustilo, Armando Gustilo being,
according to Nadina, her daughters real father. Gustilo in fact filed before the
trial court a CONSTANCIA wherein he acknowledged June as his
daughter. The trial court granted the petition.
After Gustilo died, his son Jose Vicente Gustilo filed with the Court of
Appeals a petition for annulment of the Order of the trial court granting the
change of Junes family name to Gustilo.
Milagros Barco (Barco), natural guardian of her minor daughter Mary
Joy Ann Gustilo, filed before the appellate court a motion for intervention,
alleging that Mary Joy had a legal interest in the annulment of the trial courts
Order as Mary Joy was, by Barcos claim, also fathered by Gustilo.
The appellate court dismissed the petition for annulment and
complaint-in-intervention.
On appeal by Barco, this Court ruled that she should have been
impleaded in Nadinas petition for correction of entries of the birth certificate
of Mary Joy. But since a petitioner, like Nadina, is not expected to
exhaustively identify all the affected parties, the subsequent publication of
the notice cured the omission of Barco as a party to the case.Thus the Court
explained:
Undoubtedly, Barco is among the parties referred
to in Section 3 of Rule 108. Her interest was affected by
the petition for correction, as any judicial determination
that June was the daughter of Armando would affect her
wards share in the estate of her father. It cannot be
established whether Nadina knew of Mary Joys existence
at the time she filed the petition for
correction. Indeed, doubt may always be cast as to
whether a petitioner under Rule 108 would know of all
the parties whose interests may be affected by the
granting of a petition.For example, a petitioner
cannot be presumed to be aware of all the legitimate
or illegitimate offsprings of his/her spouse or
paramour. x x x x.
xxxx
The purpose precisely of Section 4, Rule 108 is
to bind the whole world to the subsequent judgment on
the petition. The sweep of the decision would cover
even parties who should have been impleaded under
Section 3, Rule 108 but were inadvertently left out. x x
x x.[26] (emphasis, italics and underscoring supplied)
Meanwhile, in Republic v. Kho,[27] Carlito Kho (Carlito) and his siblings named WHEREFORE, the petition is, in light of the foregoing
the civil registrar as the sole respondent in the petition they filed for the discussions, GRANTED. The January 8, 2009 Decision of Branch 77 of the
correction of entries in their respective birth certificates in the civil registry Regional Trial Court of Quezon City in SP Proc. No. Q-0863058 is
of Butuan City, and correction of entries in the birth certificates of Carlitos NULLIFIED.
minor children. Carlito and his siblings requested the correction in their birth
certificates of the citizenship of their mother Epifania to Filipino, instead of SO ORDERED.
Chinese, and the deletion of the word married opposite the phrase Date of
marriage of parents because their parents Juan and Epifania were not
married. And Carlito requested the correction in the birth certificates of their
children of his and his wifes date of marriage to reflect the actual date of their
marriage as appearing in their marriage certificate. In the course of the
hearing of the petition, Carlito also sought the correction of the name of his
wife from Maribel to Marivel.

The Khos mother Epifania took the witness stand where she
declared that she was not married to Juan who died before the filing of the
Khos petition.

The trial court granted the petition.

On the issue of whether the failure to implead Marivel and the Khos
parents rendered the trial of the petition short of the required adversary
proceedings and the trial courts judgment void, this Court held that when all
the procedural requirements under Rule 108 are followed, the publication of
the notice of hearing cures the failure to implead an indispensable party. In
so ruling, the Court noted that the affected parties were already notified of
the proceedings in the case since the petitioner-siblings Khos were the ones
who initiated the petition respecting their prayer for correction of their
citizenship, and Carlito respecting the actual date of his marriage to his wife;
and, with respect to the Khos petition for change of their civil status from
legitimate to illegitimate, their mother Epifania herself took the witness stand
declaring that she was not married to their father.
What is clear then in Barco and Kho is the mandatory directive under
Section 3 of Rule 108 to implead the civil registrar and the parties who would G.R. No. 157043 February 2, 2007
naturally and legally be affected by the grant of a petition for correction or
cancellation of entries. Non-impleading, however, as party-respondent of one
REPUBLIC OF THE PHILIPPINES, Petitioner,
who is inadvertently left out or is not established to be known by the
petitioner to be affected by the grant of the petition or actually participates in vs.
the proceeding is notified through publication. TRINIDAD R.A. CAPOTE, Respondent.

IN FINE, when a petition for cancellation or correction of an entry in the
civil register involves substantial and controversial alterations including those
on citizenship, legitimacy of paternity or filiation, or legitimacy of marriage, a
strict compliance with the requirements of Rule 108 of the Rules of Court is
mandated.
This petition for review on certiorari1 seeks to set aside the Court of Appeals
(CA) decision2 dated January 13, 2003 in CA-G.R. CV No. 66128, which
affirmed the decision of the Regional Trial Court (RTC), Branch 23 of San
Juan, Southern Leyte dated September 14, 1999 granting a petition for
change of name.
Respondent Trinidad R. A. Capote filed a petition for change of name of her
ward from Giovanni N. Gallamaso to Giovanni Nadores on September 9,
1998. In Special Proceeding No. R-481,3 Capote as Giovannis guardian ad
litem averred:
xxx xxx xxx
1. [Respondent] is a Filipino citizen, of legal age, married, while
minor GIOVANNI N. GALLAMASO, is also a Filipino citizen, sixteen
(16) years old and both are residents of San Juan, Southern Leyte
where they can be served with summons and other court processes;
2. [Respondent] was appointed guardian [ad litem] of minor Giovanni
N. Gallamaso by virtue of a court order in Special [Proc.] No. R-459,
dated [August 18, 1998] xxx xxx authorizing her to file in court a
petition for change of name of said minor in accordance with the
desire of his mother [who is residing and working abroad];
3. Both [respondent] and minor have permanently resided in San
Juan, Southern Leyte, Philippines for more than fifteen (15) years
prior to the filing of this instant petition, the former since 1970 while
the latter since his birth [in 1982];
4. The minor was left under the care of [respondent] since he was yet
nine (9) years old up to the present;
5. Minor GIOVANNI N. GALLAMASO is the illegitimate natural child
of Corazon P. Nadores and Diosdado Gallamaso. [He] was born on
July 9, 1982 [,] prior to the effectivity of the New Family Code and as
such, his mother used the surname of the natural father despite the
absence of marriage between them; and [Giovanni] has been known
by that name since birth [as per his birth certificate registered at the
Local Civil Register of San Juan, Southern Leyte];
6. The father, Diosdado Gallamaso, from the time [Giovanni] was
born and up to the present, failed to take up his responsibilities [to
him] on matters of financial, physical, emotional and spiritual
concerns. [Giovannis pleas] for attention along that line [fell] on deaf
ears xxx xxx xxx;
7. [Giovanni] is now fully aware of how he stands with his father and
he desires to have his surname changed to that of his mothers
surname;
8. [Giovannis] mother might eventually petition [him] to join her in the
United States and [his] continued use of the surname Gallamaso, the
surname of his natural father, may complicate [his] status as natural
child; and
9. The change of name [from] GIOVANNI N. GALLAMASO to
GIOVANNI NADORES will be for the benefit of the minor.
xxx xxx xxx4
Respondent prayed for an order directing the local civil registrar to effect the
change of name on Giovannis birth certificate. Having found respondents
petition sufficient in form and substance, the trial court gave due course to
the petition.5 Publication of the petition in a newspaper of general circulation
in the province of Southern Leyte once a week for three consecutive weeks
was likewise ordered.6 The trial court also directed that the local civil registrar
be notified and that the Office of the Solicitor General (OSG) be sent a copy
of the petition and order.7
Since there was no opposition to the petition, respondent moved for leave of
court to present her evidence ex parte before a court-appointed
commissioner. The OSG, acting through the Provincial Prosecutor, did not
object; hence, the lower court granted the motion.
After the reception of evidence, the trial court rendered a decision ordering
the change of name from Giovanni N. Gallamaso to Giovanni Nadores. 8
From this decision, petitioner Republic of the Philippines, through the OSG,
filed an appeal with a lone assignment of error: the court a quo erred in
granting the petition in a summary proceeding.
Ruling that the proceedings were sufficiently adversarial in nature as
required, the CA affirmed the RTC decision ordering the change of name. 9
In this petition, the Republic contends that the CA erred in affirming the trial
courts decision which granted the petition for change of name despite the
non-joinder of indispensable parties.10 Petitioner cites Republic of the
Philippines v. Labrador11 and claims that the purported parents and all other
persons who may be adversely affected by the childs change of name
should have been made respondents to make the proceeding adversarial. 12
We deny the petition.
"The subject of rights must have a fixed symbol for individualization which
serves to distinguish him from all others; this symbol is his
name."13 Understandably, therefore, no person can change his name or
surname without judicial authority.14 This is a reasonable requirement for
those seeking such change because a persons name necessarily affects his
identity, interests and interactions. The State must be involved in the process
and decision to change the name of any of its citizens.
The Rules of Court provides the requirements and procedure for change of
name. Here, the appropriate remedy is covered by Rule 103, 15 a separate
and distinct proceeding from Rule 108 on mere cancellation and correction of
entries in the civil registry (usually dealing only with innocuous or clerical
errors thereon).16
The issue of non-joinder of alleged indispensable parties in the action before
the court a quo is intertwined with the nature of the proceedings there. The
point is whether the proceedings were sufficiently adversarial.
Summary proceedings do not extensively address the issues of a case since
the reason for their conduct is expediency. This, according to petitioner, is not
sufficient to deal with substantial or contentious issues allegedly resulting
from a change of name, meaning, legitimacy as well as successional
rights.17 Such issues are ventilated only in adversarial proceedings wherein
all interested parties are impleaded and due process is observed. 18
When Giovanni was born in 1982 (prior to the enactment and effectivity of
the Family Code of the Philippines),19the pertinent provision of the Civil Code
then as regards his use of a surname, read:
Art. 366. A natural child acknowledged by both parents shall principally use
the surname of the father. If recognized by only one of the parents, a natural
child shall employ the surname of the recognizing parent. (emphasis
ours)
Based on this provision, Giovanni should have carried his mothers surname
from birth. The records do not reveal any act or intention on the part of
Giovannis putative father to actually recognize him. Meanwhile, according to
the Family Code which repealed, among others, Article 366 of the Civil Code:
Art. 176. Illegitimate children shall use the surname and shall be under
the parental authority of their mother, and shall be entitled to support in
conformity with this Code. xxx xxx xxx (emphasis ours)
Our ruling in the recent case of In Re: Petition for Change of Name and/or
Correction/Cancellation of Entry in Civil Registry of Julian Lin Carulasan
Wang20 is enlightening:
Our laws on the use of surnames state that legitimate and legitimated
children shall principally use the surname of the father. The Family Code
gives legitimate children the right to bear the surnames of the father and the
mother, while illegitimate children shall use the surname of their mother,
unless their father recognizes their filiation, in which case they may bear the
fathers surname.
Applying these laws, an illegitimate child whose filiation is not
recognized by the father bears only a given name and his mother
surname, and does not have a middle name. The name of the
unrecognized illegitimate child therefore identifies him as such. It is only
when the illegitimate child is legitimated by the subsequent marriage of his
parents or acknowledged by the father in a public document or private
handwritten instrument that he bears both his mothers surname as his
middle name and his fathers surname as his surname, reflecting his status
as a legitimated child or an acknowledged child.1awphi1.net21
The foregoing discussion establishes the significant connection of a persons
name to his identity, his status in relation to his parents and his successional
rights as a legitimate or illegitimate child. For sure, these matters should not
be taken lightly as to deprive those who may, in any way, be affected by the
right to present evidence in favor of or against such change.
The law and facts obtaining here favor Giovannis petition. Giovanni availed
of the proper remedy, a petition for change of name under Rule 103 of the
Rules of Court, and complied with all the procedural requirements. After
hearing, the trial court found (and the appellate court affirmed) that the
evidence presented during the hearing of Giovannis petition sufficiently
established that, under Art. 176 of the Civil Code, Giovanni is entitled to
change his name as he was never recognized by his father while his mother
has always recognized him as her child. A change of name will erase the
impression that he was ever recognized by his father. It is also to his best
interest as it will facilitate his mothers intended petition to have him join her
in the United States. This Court will not stand in the way of the reunification
of mother and son.
Moreover, it is noteworthy that the cases cited by petitioner22 in support of its
position deal with cancellation or correction of entries in the civil registry, a
proceeding separate and distinct from the special proceedings for change of
name. Those cases deal with the application and interpretation of Rule 108
of the Rules of Court while this case was correctly filed under Rule 103.
Thus, the cases cited by petitioner are irrelevant and have no bearing on
respondents case. While the OSG is correct in its stance that the
proceedings for change of name should be adversarial, the OSG cannot void
the proceedings in the trial court on account of its own failure to participate
therein. As the CA correctly ruled:
whole world considered bound by the judgment therein. In addition, the trial
court gave due notice to the OSG by serving a copy of the petition on it.
Thus, all the requirements to make a proceeding adversarial were satisfied
when all interested parties, including petitioner as represented by the OSG,
were afforded the opportunity to contest the petition.
WHEREFORE, the petition is hereby DENIED and the January 13, 2003
decision of the Court of Appeals in CA-G.R. CV No. 66128 AFFIRMED.
SO ORDERED.
RENATO C. CORONA
Associate Justice

The OSG is correct in stating that a petition for change of name must be
heard in an adversarial proceeding. Unlike petitions for the cancellation or
correction of clerical errors in entries in the civil registry under Rule 108 of
the Rules of Court, a petition for change of name under Rule 103 cannot be
decided through a summary proceeding. There is no doubt that this petition
does not fall under Rule 108 for it is not alleged that the entry in the civil
registry suffers from clerical or typographical errors. The relief sought clearly
goes beyond correcting erroneous entries in the civil registry, although by
granting the petition, the result is the same in that a corresponding change in
the entry is also required to reflect the change in name. In this regard,
[appellee] Capote complied with the requirement for an adversarial
proceeding by posting in a newspaper of general circulation notice of
the filing of the petition. The lower court also furnished the OSG a copy
thereof. Despite the notice, no one came forward to oppose the petition
including the OSG. The fact that no one opposed the petition did not
deprive the court of its jurisdiction to hear the same nor does it make
the proceeding less adversarial in nature. The lower court is still expected
to exercise its judgment to determine whether the petition is meritorious or
not and not merely accept as true the arguments propounded. Considering
that the OSG neither opposed the petition nor the motion to present its
evidence ex parte when it had the opportunity to do so, it cannot now
complain that the proceedings in the lower court were not adversarial
enough.23 (emphasis supplied)

A proceeding is adversarial where the party seeking relief has given legal
warning to the other party and afforded the latter an opportunity to contest
it.24 Respondent gave notice of the petition through publication as required by
the rules.25 With this, all interested parties were deemed notified and the

G.R. No. 76873 October 26, 1989
DOROTEA, VIRGILIO, APOLINARIO, JR., SULPICIO & DOMINADOR, all
surnamed UYGUANGCO, petitioners,
vs.
COURT OF APPEALS, Judge SENEN PENARANDA and GRACIANO
BACJAO UYGUANGCO, respondents.
Constantino G. Jaraula for petitioners.
Anthony Santos for respondents.
CRUZ, J.:
The issue before the Court is not the status of the private respondent, who
has been excluded from the family and inheritance of the petitioners. What
we are asked to decide is whether he should be allowed to prove that he is
an illegitimate child of his claimed father, who is already dead, in the absence
of the documentary evidence required by the Civil Code.
The trial court said he could and was sustained by the respondent Court of
Appeals. 1 The latter court held that the trial judge had not committed any
grave abuse of discretion or acted without jurisdiction in allowing the private
respondent to prove his filiation. Moreover, the proper remedy was an
ordinary appeal and not a petition for prohibition. The petitioners ask for a
reversal of these rulings on the ground that they are not in accordance with
law and jurisprudence.
Apolinario Uyguangco died intestate in 1975, leaving his wife, Dorotea, four
legitimate children (her co-petitioners herein), and considerable properties
which they divided among themselves. 2 Claiming to be an illegitimate son of
the deceased Apolinario, and having been left out in the extrajudicial
settlement of his estate, Graciano Bacjao Uyguangco filed a complaint for
partition against all the petitioners. 3
Graciano alleged that he was born in 1952 to Apolinario Uyguangco and
Anastacia Bacjao and that at the age of 15 he moved to his father's
hometown at Medina, Misamis Oriental, at the latter's urging and also of
Dorotea and his half-brothers. Here he received support from his father while
he was studying at the Medina High School, where he eventually graduated.
He was also assigned by his father, without objection from the rest of the
family, as storekeeper at the Uyguangco store in Mananom from 1967 to
1973. 4
In the course of his presentation of evidence at the trial, the petitioners
elicited an admission from Graciano that he had none of the documents
mentioned in Article 278 to show that he was the illegitimate son of Apolinario
Uyguangco. 5 These are "the record of birth, a will, a statement before a court
of record, or (in) any authentic writing." The petitioners thereupon moved for
the dismissal of the case on the ground that the private respondent could no
longer prove his alleged filiation under the applicable provisions of the Civil
Code. 6
Specifically, the petitioners argued that the only evidence allowed under
Article 278 to prove the private respondent's claim was not available to him
as he himself had admitted. Neither could he now resort to the provisions of
Article 285 because he was already an adult when his alleged father died in
1975, and his claim did not come under the exceptions. The said article
provides as follows:
ART. 285. The action for the recognition of natural children
may be brought only during the lifetime of the presumed
parents, except in the following cases:
(1) If the father or mother died during the minority of the
child, in which case the latter may file the action before the
expiration of four years from the attainment of his majority;
(2) If after the death of the father or of the mother a
document should appear of which nothing had been heard
and in which either or both parents recognize the child.
In this case, the action must be commenced within four
years from the finding of the document.
As earlier related, the motion to dismiss was denied, prompting the
petitioners to seek relief in vain from the respondent court. In the case now
before us, the petitioners reiterate and emphasize their position that allowing
the trial to proceed would only be a waste of time and effort. They argue that
the complaint for partition is actually an action for recognition as an
illegitimate child, which, being already barred, is a clear attempt to
circumvent the said provisions. The private respondent insists, on the other
hand, that he has a right to show under Article 283 that he is "in continuous
possession of the status of a child of his alleged father by the direct acts of
the latter or of his family."
We find that this case must be decided under a new if not entirely dissimilar
set of rules because the parties have been overtaken by events, to use the
popular phrase. The Civil Code provisions they invoke have been
superseded, or at least modified, by the corresponding articles in the Family
Code, which became effective on August 3,1988.
Under the Family Code, it is provided that:
Art. 175. Illegitimate children may establish their illegitimate
filiation in the same way and on the same evidence as
legitimate children.
The following provision is therefore also available to the private respondent in
proving his illegitimate filiation:
Art. 172. The filiation of legitimate children is established by
any of the following:
(1) The record of birth appearing in the civil
register or a final judgment; or
(2) An admission of legitimate filiation in a
public document or a private handwritten
instrument and signed by the parent
concerned.
In the absence of the foregoing evidence,
the legitimate filiation shall be proved by:
(1) The open and continuous possession of
the status of a legitimate child; or
(2) Any other means allowed by the Rules of
Court and special laws.
While the private respondent has admitted that he has none of the
documents mentioned in the first paragraph (which are practically the same
documents mentioned in Article 278 of the Civil Code except for the "private
handwritten instrument signed by the parent himself'''), he insists that he has
nevertheless been "in open and continuous possession of the status of an
illegitimate child," which is now also admissible as evidence of filiation.
Thus, he claims that he lived with his father from 1967 until 1973, receiving
support from him during that time; that he has been using the surname
Uyguangco without objection from his father and the petitioners as shown in
his high school diploma, a special power of attorney executed in his favor by
Dorotea Uyguangco, and another one by Sulpicio Uyguangco; that he has
shared in the profits of the copra business of the Uyguangcos, which is a
strictly family business; that he was a director, together with the petitioners,
of the Alu and Sons Development Corporation, a family corporation; and that
in the addendum to the original extrajudicial settlement concluded by the
petitioners he was given a share in his deceased father's estate. 7
It must be added that the illegitimate child is now also allowed to establish his
claimed filiation by "any other means allowed by the Rules of Court and
special laws," like his baptismal certificate, a judicial admission, a family Bible
in which his name has been entered, common reputation respecting his
pedigree, admission by silence, the testimonies of witnesses, and other kinds
of proof admissible under Rule 130 of the Rules of Court. 8
The problem of the private respondent, however, is that, since he seeks to
prove his filiation under the second paragraph of Article 172 of the Family
Code, his action is now barred because of his alleged father's death in 1975.
The second paragraph of this Article 175 reads as follows:
The action must be brought within the same period specified
in Article 173, except when the action is based on the
second paragraph of Article 172, in which case the action
may be brought during the lifetime of the alleged
parent. (Italics supplied.)
It is clear that the private respondent can no longer be allowed at this time to
introduce evidence of his open and continuous possession of the status of an
illegitimate child or prove his alleged filiation through any of the means
allowed by the Rules of Court or special laws. The simple reason is that
Apolinario Uyguangco is already dead and can no longer be heard on the
claim of his alleged son's illegitimate filiation.
In her Handbook on the Family Code of the Philippines, Justice Alicia
Sempio-Diy explains the rationale of the rule, thus: "It is a truism that unlike
legitimate children who are publicly recognized, illegitimate children are
usually begotten and raised in secrecy and without the legitimate family
being aware of their existence. Who then can be sure of their filiation but the
parents themselves? But suppose the child claiming to be the illegitimate
child of a certain person is not really the child of the latter? The putative
parent should thus be given the opportunity to affirm or deny the child's
filiation, and this, he or she cannot do if he or she is already dead." 9
Finally, it must be observed that the provisions invoked by the parties are
among those affected by the following articles in the Family Code:
Art. 254. Titles III, IV, V, VI VII, VIII, IX, XI and XV of Book I of
Republic Act No. 386, otherwise known as the Civil Code of
the Philippines, as amended, and Articles 17,18,19, 27, 28,
29, 30, 31, 39, 40, 41 and 42 of Presidential Decree No. 603,
otherwise known as the Child and Youth Welfare Code, as
amended, and all laws, decrees, executive orders,
proclamations, rules and regulations, or parts thereof,
inconsistent herewith are hereby repealed.
Art. 256. This Code shall have retroactive effect insofar as it
does not prejudice or impair vested or acquired rights in
accordance with the Civil Code or other laws.
Graciano's complaint is based on his contention that he is the illegitimate
child of Apolinario Uyguangco, whose estate is the subject of the partition
sought. If this claim can no longer be proved in an action for recognition, with
more reason should it be rejected in the said complaint, where the issue of
Graciano's filiation is being raised only collaterally. The complaint is indeed a
circumvention of Article 172, which allows proof of the illegitimate child's
filiation under the second paragraph thereof only during the lifetime of the
alleged parent.
Considering that the private respondent has, as we see it, established at
least prima facie proof of his alleged filiation, we find it regrettable that his
action should be barred under the said article. But that is the law and we
have no choice but to apply it. Even so, the Court expresses the hope that
the parties will arrive at some kind of rapprochement, based on fraternal and
moral ties if not the strict language of the law, that will allow the private
respondent an equitable share in the disputed estate. Blood should tell.
WHEREFORE, the petition is GRANTED, and Civil Case No. 9067 in the
Regional Trial Court of Misamis Oriental, Branch 20, is hereby DISMISSED.
It is so ordered.