ARTICLE 2 EFFECTIVITY OF LAWS
Laws shall take effect after fifteen days
a.) Tanada vs Tuvera
Due process was invoked by the petitioners in
demanding the disclosure of a number of presidential
decrees which they claimed had not been published as
required by law. The government argued that while
publication was necessary as a rule, it was not so
when it was "otherwise provided," as when the decrees
themselves declared that they were to become
effective immediately upon their approval. In the
decision of this case on April 24, 1985, the Court
affirmed the necessity for the publication of some of
these decrees, declaring in the dispositive portion as
follows:
WHEREFORE, the Court hereby orders respondents
to publish in the Official Gazette all unpublished
presidential issuances which are of general application,
and unless so published, they shall have no binding
force and effect.
The petitioners are now before us again, this time to
move for reconsideration/clarification of that decision. 1
Specifically, they ask the following questions:
1. What is meant by "law of public nature" or "general
applicability"?
2. Must a distinction be made between laws of general
applicability and laws which are not?
3. What is meant by "publication"?
4. Where is the publication to be made?
5. When is the publication to be made?
Resolving their own doubts, the petitioners suggest
that there should be no distinction between laws of
general applicability and those which are not; that
publication means complete publication; and that the
publication must be made forthwith in the Official
Gazette. 2
In the Comment 3 required of the then Solicitor
General, he claimed first that the motion was a request
for an advisory opinion and should therefore be
dismissed, and, on the merits, that the clause "unless it
is otherwise provided" in Article 2 of the Civil Code
meant that the publication required therein was not
always imperative; that publication, when necessary,
did not have to be made in the Official Gazette; and
that in any case the subject decision was concurred in
only by three justices and consequently not binding.
This elicited a Reply 4 refuting these arguments. Came
next the February Revolution and the Court required
the new Solicitor General to file a Rejoinder in view of
the supervening events, under Rule 3, Section 18, of
the Rules of Court. Responding, he submitted that
issuances intended only for the internal administration
of a government agency or for particular persons did
not have to be 'Published; that publication when
necessary must be in full and in the Official Gazette;
and that, however, the decision under reconsideration
was not binding because it was not supported by eight
members of this Court. 5
The subject of contention is Article 2 of the Civil Code
providing as follows:
ART. 2.
following the completion of their publication in the
Official Gazette, unless it is otherwise provided. This
Code shall take effect one year after such publication.
After a careful study of this provision and of the
arguments of the parties, both on the original petition
and on the instant motion, we have come to the
conclusion and so hold, that the clause "unless it is
otherwise provided" refers to the date of effectivity and
not to the requirement of publication itself, which
cannot in any event be omitted. This clause does not
mean that the legislature may make the law effective
immediately upon approval, or on any other date,
without its previous publication.
Publication is indispensable in every case, but the
legislature may in its discretion provide that the usual
fifteen-day period shall be shortened or extended. An
example, as pointed out by the present Chief Justice in
his separate concurrence in the original decision, 6 is
the Civil Code which did not become effective after
fifteen days from its publication in the Official Gazette
but "one year after such publication." The general rule
did not apply because it was "otherwise provided. "
It is not correct to say that under the disputed clause
publication may be dispensed with altogether. The
reason. is that such omission would offend due
process insofar as it would deny the public knowledge
of the laws that are supposed to govern the legislature
could validly provide that a law e effective immediately
upon its approval notwithstanding the lack of
publication (or after an unreasonably short period after
publication), it is not unlikely that persons not aware of
it would be prejudiced as a result and they would be so
not because of a failure to comply with but simply
because they did not know of its existence,
Significantly, this is not true only of penal laws as is
commonly supposed. One can think of many non-penal
measures, like a law on prescription, which must also
be communicated to the persons they may affect
before they can begin to operate.
We note at this point the conclusive presumption that
every person knows the law, which of course
presupposes that the law has been published if the
presumption is to have any legal justification at all. It is
no less important to remember that Section 6 of the Bill
of Rights recognizes "the right of the people to
information on matters of public concern," and this
certainly applies to, among others, and indeed
especially, the legislative enactments of the
government.
The term "laws" should refer to all laws and not only to
those of general application, for strictly speaking all
laws relate to the people in general albeit there are
some that do not apply to them directly. An example is
a law granting citizenship to a particular individual, like
a relative of President Marcos who was decreed
instant naturalization. It surely cannot be said that such
a law does not affect the public although it
unquestionably does not apply directly to all the
people. The subject of such law is a matter of public
interest which any member of the body politic may
question in the political forums or, if he is a proper
party, even in the courts of justice. In fact, a law
without any bearing on the public would be invalid as
an intrusion of privacy or as class legislation or as an
ultra vires act of the legislature. To be valid, the law
must invariably affect the public interest even if it might
be directly applicable only to one individual, or some of
the people only, and t to the public as a whole.
We hold therefore that all statutes, including those of
local application and private laws, shall be published
as a condition for their effectivity, which shall begin
fifteen days after publication unless a different
effectivity date is fixed by the legislature.
Covered by this rule are presidential decrees and
executive orders promulgated by the President in the
exercise of legislative powers whenever the same are
validly delegated by the legislature or, at present,
directly conferred by the Constitution. administrative
rules and regulations must a also be published if their
purpose is to enforce or implement existing law
pursuant also to a valid delegation.
Interpretative regulations and those merely internal in
nature, that is, regulating only the personnel of the
administrative agency and not the public, need not be
published. Neither is publication required of the so-
called letters of instructions issued by administrative
superiors concerning the rules or guidelines to be
followed by their subordinates in the performance of
their duties.
Accordingly, even the charter of a city must be
published notwithstanding that it applies to only a
portion of the national territory and directly affects only
the inhabitants of that place. All presidential decrees
must be published, including even, say, those naming
a public place after a favored individual or exempting
him from certain prohibitions or requirements. The
circulars issued by the Monetary Board must be
published if they are meant not merely to interpret but
to "fill in the details" of the Central Bank Act which that
body is supposed to enforce.
However, no publication is required of the instructions
issued by, say, the Minister of Social Welfare on the
case studies to be made in petitions for adoption or the
rules laid down by the head of a government agency
on the assignments or workload of his personnel or the
wearing of office uniforms. Parenthetically, municipal
ordinances are not covered by this rule but by the
Local Government Code.
We agree that publication must be in full or it is no
publication at all since its purpose is to inform the
public of the contents of the laws. As correctly pointed
out by the petitioners, the mere mention of the number
of the presidential decree, the title of such decree, its
whereabouts (e.g., "with Secretary Tuvera"), the
supposed date of effectivity, and in a mere supplement
of the Official Gazette cannot satisfy the publication
requirement. This is not even substantial compliance.
This was the manner, incidentally, in which the General
Appropriations Act for FY 1975, a presidential decree
undeniably of general applicability and interest, was
"published" by the Marcos administration. 7 The
evident purpose was to withhold rather than disclose
information on this vital law.
Coming now to the original decision, it is true that only
four justices were categorically for publication in the
Official Gazette 8 and that six others felt that
publication could be made elsewhere as long as the
people were sufficiently informed. 9 One reserved his
vote 10 and another merely acknowledged the need for
due publication without indicating where it should be
made. 11 It is therefore necessary for the present
membership of this Court to arrive at a clear
consensus on this matter and to lay down a binding
decision supported by the necessary vote.
There is much to be said of the view that the
publication need not be made in the Official Gazette,
considering its erratic releases and limited readership.
Undoubtedly, newspapers of general circulation could
better perform the function of communicating, the laws
to the people as such periodicals are more easily
available, have a wider readership, and come out
regularly. The trouble, though, is that this kind of
publication is not the one required or authorized by
existing law. As far as we know, no amendment has
been made of Article 2 of the Civil Code. The Solicitor
General has not pointed to such a law, and we have no
information that it exists. If it does, it obviously has not
yet been published.
At any rate, this Court is not called upon to rule upon
the wisdom of a law or to repeal or modify it if we find it
impractical. That is not our function. That function
belongs to the legislature. Our task is merely to
interpret and apply the law as conceived and approved
by the political departments of the government in
accordance with the prescribed procedure.
Consequently, we have no choice but to pronounce
that under Article 2 of the Civil Code, the publication of
laws must be made in the Official Gazett and not
elsewhere, as a requirement for their effectivity after
fifteen days from such publication or after a different
period provided by the legislature.
We also hold that the publication must be made
forthwith or at least as soon as possible, to give effect
to the law pursuant to the said Article 2. There is that
possibility, of course, although not suggested by the
parties that a law could be rendered unenforceable by
a mere refusal of the executive, for whatever reason, to
cause its publication as required. This is a matter,
however, that we do not need to examine at this time.
Finally, the claim of the former Solicitor General that
the instant motion is a request for an advisory opinion
is untenable, to say the least, and deserves no further
comment.
The days of the secret laws and the unpublished
decrees are over. This is once again an open society,
with all the acts of the government subject to public
scrutiny and available always to public cognizance.
This has to be so if our country is to remain
democratic, with sovereignty residing in the people and
all government authority emanating from them.
Although they have delegated the power of legislation,
they retain the authority to review the work of their
delegates and to ratify or reject it according to their
lights, through their freedom of expression and their
right of suffrage. This they cannot do if the acts of the
legislature are concealed.
Laws must come out in the open in the clear light of the
sun instead of skulking in the shadows with their dark,
deep secrets. Mysterious pronouncements and
rumored rules cannot be recognized as binding unless
their existence and contents are confirmed by a valid
publication intended to make full disclosure and give
proper notice to the people. The furtive law is like a
scabbarded saber that cannot feint parry or cut unless
the naked blade is drawn.
WHEREFORE, it is hereby declared that all laws as
above defined shall immediately upon their approval,
or as soon thereafter as possible, be published in full in
the Official Gazette, to become effective only after
fifteen days from their publication, or on another date
specified by the legislature, in accordance with Article
2 of the Civil Code. SO ORDERED.
b.) De Roy vs Court of Appeals
This special civil action for certiorari seeks to declare
null and void two (2) resolutions of the Special First
Division of the Court of Appeals in the case of Luis
Bernal, Sr., et al. v. Felisa Perdosa De Roy, et al., CA-
G.R. CV No. 07286. The first resolution promulgated
on 30 September 1987 denied petitioners' motion for
extension of time to file a motion for reconsideration
and directed entry of judgment since the decision in
said case had become final; and the second
Resolution dated 27 October 1987 denied petitioners'
motion for reconsideration for having been filed out of
time.
At the outset, this Court could have denied the petition
outright for not being verified as required by Rule 65
section 1 of the Rules of Court. However, even if the
instant petition did not suffer from this defect, this
Court, on procedural and substantive grounds, would
still resolve to deny it.
The facts of the case are undisputed. The firewall of a
burned-out building owned by petitioners collapsed and
destroyed the tailoring shop occupied by the family of
private respondents, resulting in injuries to private
respondents and the death of Marissa Bernal, a
daughter. Private respondents had been warned by
petitioners to vacate their shop in view of its proximity
to the weakened wall but the former failed to do so. On
the basis of the foregoing facts, the Regional Trial
Court. First Judicial Region, Branch XXXVIII, presided
by the Hon. Antonio M. Belen, rendered judgment
finding petitioners guilty of gross negligence and
awarding damages to private respondents. On appeal,
the decision of the trial court was affirmed in toto by the
Court of Appeals in a decision promulgated on August
17, 1987, a copy of which was received by petitioners
on August 25, 1987. On September 9, 1987, the last
day of the fifteen-day period to file an appeal,
petitioners filed a motion for extension of time to file a
motion for reconsideration, which was eventually
denied by the appellate court in the Resolution of
September 30, 1987. Petitioners filed their motion for
reconsideration on September 24, 1987 but this was
denied in the Resolution of October 27, 1987.
This Court finds that the Court of Appeals did not
commit a grave abuse of discretion when it denied
petitioners' motion for extension of time to file a motion
for reconsideration, directed entry of judgment and
denied their motion for reconsideration. It correctly
applied the rule laid down in Habaluyas Enterprises,
Inc. v. Japzon, [G.R. No. 70895, August 5, 1985,138
SCRA 461, that the fifteen-day period for appealing or
for filing a motion for reconsideration cannot be
extended. In its Resolution denying the motion for
reconsideration, promulgated on July 30, 1986 (142
SCRA 208), this Court en banc restated and clarified
the rule, to wit:
Beginning one month after the promulgation of this
Resolution, the rule shall be strictly enforced that no
motion for extension of time to file a motion for
reconsideration may be filed with the Metropolitan or
Municipal Trial Courts, the Regional Trial Courts, and
the Intermediate Appellate Court. Such a motion may
be filed only in cases pending with the Supreme Court
as the court of last resort, which may in its sound
discretion either grant or deny the extension requested.
(at p. 212)
Lacsamana v. Second Special Cases Division of the
intermediate Appellate Court, [G.R. No. 73146-53,
August 26, 1986, 143 SCRA 643], reiterated the rule
and went further to restate and clarify the modes and
periods of appeal.
Bacaya v. Intermediate Appellate Court, [G.R. No.
74824, Sept. 15, 1986,144 SCRA 161],stressed the
prospective application of said rule, and explained the
operation of the grace period, to wit:
In other words, there is a one-month grace period from
the promulgation on May 30, 1986 of the Court's
Resolution in the clarificatory Habaluyas case, or up to
June 30, 1986, within which the rule barring extensions
of time to file motions for new trial or reconsideration is,
as yet, not strictly enforceable.
Since petitioners herein filed their motion for extension
on February 27, 1986, it is still within the grace period,
which expired on June 30, 1986, and may still be
allowed.
This grace period was also applied in Mission v.
Intermediate Appellate Court [G.R. No. 73669, October
28, 1986, 145 SCRA 306].]
In the instant case, however, petitioners' motion for
extension of time was filed on September 9, 1987,
more than a year after the expiration of the grace
period on June 30, 1986. Hence, it is no longer within
the coverage of the grace period. Considering the
length of time from the expiration of the grace period to
the promulgation of the decision of the Court of
Appeals on August 25, 1987, petitioners cannot seek
refuge in the ignorance of their counsel regarding said
rule for their failure to file a motion for reconsideration
within the reglementary period.
Petitioners contend that the rule enunciated in the
Habaluyas case should not be made to apply to the
case at bar owing to the non-publication of the
Habaluyas decision in the Official Gazette as of the
time the subject decision of the Court of Appeals was
promulgated. Contrary to petitioners' view, there is no
law requiring the publication of Supreme Court
decisions in the Official Gazette before they can be
binding and as a condition to their becoming effective.
It is the bounden duty of counsel as lawyer in active
law practice to keep abreast of decisions of the
Supreme Court particularly where issues have been
clarified, consistently reiterated, and published in the
advance reports of Supreme Court decisions (G. R. s)
and in such publications as the Supreme Court
Reports Annotated (SCRA) and law journals.
This Court likewise finds that the Court of Appeals
committed no grave abuse of discretion in affirming the
trial court's decision holding petitioner liable under
Article 2190 of the Civil Code, which provides that "the
proprietor of a building or structure is responsible for
the damage resulting from its total or partial collapse, if
it should be due to the lack of necessary repairs.
Nor was there error in rejecting petitioners argument
that private respondents had the "last clear chance" to
avoid the accident if only they heeded the. warning to
vacate the tailoring shop and , therefore, petitioners
prior negligence should be disregarded, since the
doctrine of "last clear chance," which has been applied
to vehicular accidents, is inapplicable to this case.
WHEREFORE, in view of the foregoing, the Court
Resolved to DENY the instant petition for lack of merit.
ARTICLE 4 PROSPECTIVITY OF LAWS
a.) Atienza vs Brillantes
This is a complaint by Lupo A. Atienza for Gross
Immorality and Appearance of Impropriety against
Judge Francisco Brillantes, Jr., Presiding Judge of the
Metropolitan Trial Court, Branch 20, Manila.
Complainant alleges that he has two children with
Yolanda De Castro, who are living together at No. 34
Galaxy Street, Bel-Air Subdivision, Makati, Metro
Manila. He stays in said house, which he purchased in
1987, whenever he is in Manila.
In December 1991, upon opening the door to his
bedroom, he saw respondent sleeping on his
(complainant's) bed. Upon inquiry, he was told by the
houseboy that respondent had been cohabiting with De
Castro. Complainant did not bother to wake up
respondent and instead left the house after giving
instructions to his houseboy to take care of his
children.
Thereafter, respondent prevented him from visiting his
children and even alienated the affection of his children
for him.
Complainant claims that respondent is married to one
Zenaida Ongkiko with whom he has five children, as
appearing in his 1986 and 1991 sworn statements of
assets and liabilities. Furthermore, he alleges that
respondent caused his arrest on January 13, 1992,
after he had a heated argument with De Castro inside
the latter's office.
For his part, respondent alleges that complainant was
not married to De Castro and that the filing of the
administrative action was related to complainant's
claim on the Bel-Air residence, which was disputed by
De Castro.
Respondent denies that he caused complainant's
arrest and claims that he was even a witness to the
withdrawal of the complaint for Grave Slander filed by
De Castro against complainant. According to him, it
was the sister of De Castro who called the police to
arrest complainant.
Respondent also denies having been married to
Ongkiko, although he admits having five children with
her. He alleges that while he and Ongkiko went
through a marriage ceremony before a Nueva Ecija
town mayor on April 25, 1965, the same was not a
valid marriage for lack of a marriage license. Upon the
request of the parents of Ongkiko, respondent went
through another marriage ceremony with her in Manila
on June 5, 1965. Again, neither party applied for a
marriage license. Ongkiko abandoned respondent 17
years ago, leaving their children to his care and
custody as a single parent.
Respondent claims that when he married De Castro in
civil rites in Los Angeles, California on December 4,
1991, he believed, in all good faith and for all legal
intents and purposes, that he was single because his
first marriage was solemnized without a license.
Under the Family Code, there must be a judicial
declaration of the nullity of a previous marriage before
a party thereto can enter into a second marriage.
Article 40 of said Code provides:
The absolute nullity of a previous marriage may be
invoked for the purposes of remarriage on the basis
solely of a final judgment declaring such previous
marriage void.
Respondent argues that the provision of Article 40 of
the Family Code does not apply to him considering that
his first marriage took place in 1965 and was governed
by the Civil Code of the Philippines; while the second
marriage took place in 1991 and governed by the
Family Code.
Article 40 is applicable to remarriages entered into
after the effectivity of the Family Code on August 3,
1988 regardless of the date of the first marriage.
Besides, under Article 256 of the Family Code, said
Article is given "retroactive effect insofar as it does not
prejudice or impair vested or acquired rights in
accordance with the Civil Code or other laws." This is
particularly true with Article 40, which is a rule of
procedure. Respondent has not shown any vested
right that was impaired by the application of Article 40
to his case.
The fact that procedural statutes may somehow affect
the litigants' rights may not preclude their retroactive
application to pending actions. The retroactive
application of procedural laws is not violative of any
right of a person who may feel that he is adversely
affected (Gregorio v. Court of Appeals, 26 SCRA 229
[1968]). The reason is that as a general rule no vested
right may attach to, nor arise from, procedural laws
(Billones v. Court of Industrial Relations, 14 SCRA 674
[1965]).
Respondent is the last person allowed to invoke good
faith. He made a mockery of the institution of marriage
and employed deceit to be able to cohabit with a
woman, who beget him five children.
Respondent passed the Bar examinations in 1962 and
was admitted to the practice of law in 1963. At the time
he went through the two marriage ceremonies with
Ongkiko, he was already a lawyer. Yet, he never
secured any marriage license. Any law student would
know that a marriage license is necessary before one
can get married. Respondent was given an opportunity
to correct the flaw in his first marriage when he and
Ongkiko were married for the second time. His failure
to secure a marriage license on these two occasions
betrays his sinister motives and bad faith.
It is evident that respondent failed to meet the standard
of moral fitness for membership in the legal profession.
While the deceit employed by respondent existed prior
to his appointment as a Metropolitan Trial Judge, his
immoral and illegal act of cohabiting with De Castro
began and continued when he was already in the
judiciary.
The Code of Judicial Ethics mandates that the conduct
of a judge must be free of a whiff of impropriety, not
only with respect to his performance of his judicial
duties but also as to his behavior as a private
individual. There is no duality of morality. A public
figure is also judged by his private life. A judge, in
order to promote public confidence in the integrity and
impartiality of the judiciary, must behave with propriety
at all times, in the performance of his judicial duties
and in his everyday life. These are judicial guideposts
too self-evident to be overlooked. No position exacts a
greater demand on moral righteousness and
uprightness of an individual than a seat in the judiciary
(Imbing v. Tiongzon, 229 SCRA 690 [1994]).
WHEREFORE, respondent is DISMISSED from the
service with forfeiture of all leave and retirement
benefits and with prejudice to reappointment in any
branch, instrumentality, or agency of the government,
including government-owned and controlled
corporations. This decision is immediately executory.
SO ORDERED.
b.) Carlos vs Sandoval
ONLY a spouse can initiate an action to sever the
marital bond for marriages solemnized during the
effectivity of the Family Code, except cases
commenced prior to March 15, 2003. The nullity and
annulment of a marriage cannot be declared in a
judgment on the pleadings, summary judgment, or
confession of judgment.
We pronounce these principles as We review on
certiorari the Decision[1] of the Court of Appeals (CA)
which reversed and set aside the summary
judgment[2] of the Regional Trial Court (RTC) in an
action for declaration of nullity of marriage, status of a
child, recovery of property, reconveyance, sum of
money, and damages.
The Facts
The events that led to the institution of the instant suit
are unveiled as follows:
Spouses Felix B. Carlos and Felipa Elemia died
intestate. They left six parcels of land to their
compulsory heirs, Teofilo Carlos and petitioner Juan
De Dios Carlos. The lots are particularly described as
follows:
Parcel No. 1
Lot No. 162 of the MUNTINLUPA ESTATE
SUBDIVISION, Case No. 6137 of the Court of Land
Registration. Exemption from the provisions of Article
567 of the Civil Code is specifically reserved. Area: 1
hectare, 06 ares, 07 centares.
Parcel No. 2
A parcel of land (Lot No. 159-B), being a portion of Lot
159, situated in the Bo. of Alabang, Municipality of
Muntinlupa, Province of Rizal, x x x containing an area
of Thirteen Thousand Four Hundred Forty One
(13,441) square meters.
Parcel No. 3
A parcel of land (Lot 159-B-2 of the subd. plan [LRC]
Psd-325903, approved as a non-subd. project), being a
portion of Lot 159-B [LRC] Psd- Alabang, Mun. of
Muntinlupa, Metro Manila, Island of Luzon. Bounded
on the NE, points 2 to 4 by Lot 155, Muntinlupa Estate;
on the SE, point 4 to 5 by Lot 159-B-5; on the S, points
5 to 1 by Lot 159-B-3; on the W, points 1 to 2 by Lot
159-B-1 (Road widening) all of the subd. plan,
containing an area of ONE HUNDRED THIRTY (130)
SQ. METERS, more or less.
PARCEL No. 4
A parcel of land (Lot 28-C of the subd. plan Psd-13-
007090, being a portion of Lot 28, Muntinlupa Estate,
L.R.C. Rec. No. 6137), situated in the Bo. of Alabang,
Mun. of Muntinlupa, Metro Manila. Bounded on the NE,
along lines 1-2 by Lot 27, Muntinlupa Estate; on the
East & SE, along lines 2 to 6 by Mangangata River;
and on the West., along line 6-1, by Lot 28-B of the
subd. plan x x x containing an area of ONE THUSAND
AND SEVENTY-SIX (1,076) SQUARE METERS.
PARCEL No. 5
PARCELA DE TERRENO No. 50, Manzana No. 18,
de la subd. de Solocan. Linda por el NW, con la
parcela 49; por el NE, con la parcela 36; por el SE, con
la parcela 51; y por el SW, con la calle Dos Castillas.
Partiendo de un punto marcado 1 en el plano, el cual
se halla a S. gds. 01'W, 72.50 mts. Desde el punto 1
de esta manzana, que es un mojon de concreto de la
Ciudad de Manila, situado on el esquina E. que forman
las Calles Laong Laan y Dos. Castillas, continiendo un
extension superficial de CIENTO CINCUENTA (150)
METROS CUADRADOS.
PARCEL No. 6
PARCELA DE TERRENO No. 51, Manzana No. 18,
de la subd. De Solocon. Linda por el NW, con la
parcela 50; por el NE, con la parcela 37; por el SE, con
la parcela 52; por el SW, con la Calle Dos Castillas.
Partiendo de un punto Marcado 1 en el plano, el cual
se halla at S. 43 gds. 01'E, 82.50 mts. Desde el punto
1 de esta manzana, que es un mojon de concreto de la
Ciudad de Manila, situado on el esquina E. que forman
las Calles Laong Laan y Dos. Castillas, continiendo
una extension superficial de CIENTO CINCUENTA
(150) METROS CUADRADOS.[3]
During the lifetime of Felix Carlos, he agreed to
transfer his estate to Teofilo. The agreement was
made in order to avoid the payment of inheritance
taxes. Teofilo, in turn, undertook to deliver and turn
over the share of the other legal heir, petitioner Juan
De Dios Carlos.
Eventually, the first three (3) parcels of land were
transferred and registered in the name of Teofilo.
These three (3) lots are now covered by Transfer
Certificate of Title (TCT) No. 234824 issued by the
Registry of Deeds of Makati City; TCT No. 139061
issued by the Registry of Deeds of Makati City; and
TCT No. 139058 issued by the Registry of Deeds of
Makati City.
Parcel No. 4 was registered in the name of petitioner.
The lot is now covered by TCT No. 160401 issued by
the Registry of Deeds of Makati City.
On May 13, 1992, Teofilo died intestate. He was
survived by respondents Felicidad and their son,
Teofilo Carlos II (Teofilo II). Upon Teofilos death,
Parcel Nos. 5 & 6 were registered in the name of
respondent Felicidad and co-respondent, Teofilo II.
The said two (2) parcels of land are covered by TCT
Nos. 219877 and 210878, respectively, issued by the
Registry of Deeds of Manila.
In 1994, petitioner instituted a suit against respondents
before the RTC in Muntinlupa City, docketed as Civil
Case No. 94-1964. In the said case, the parties
submitted and caused the approval of a partial
compromise agreement. Under the compromise, the
parties acknowledged their respective shares in the
proceeds from the sale of a portion of the first parcel of
land. This includes the remaining 6,691-square-meter
portion of said land.
On September 17, 1994, the parties executed a deed
of extrajudicial partition, dividing the remaining land of
the first parcel between them.
Meanwhile, in a separate case entitled Rillo v.
Carlos,[4] 2,331 square meters of the second parcel of
land were adjudicated in favor of plaintiffs Rillo. The
remaining 10,000-square meter portion was later
divided between petitioner and respondents.
The division was incorporated in a supplemental
compromise agreement executed on August 17, 1994,
with respect to Civil Case No. 94-1964. The parties
submitted the supplemental compromise agreement,
which was approved accordingly.
Petitioner and respondents entered into two more
contracts in August 1994. Under the contracts, the
parties equally divided between them the third and
fourth parcels of land.
In August 1995, petitioner commenced an action,
docketed as Civil Case No. 95-135, against
respondents before the court a quo with the following
causes of action: (a) declaration of nullity of marriage;
(b) status of a child; (c) recovery of property; (d)
reconveyance; and (e) sum of money and damages.
The complaint was raffled to Branch 256 of the RTC in
Muntinlupa.
In his complaint, petitioner asserted that the marriage
between his late brother Teofilo and respondent
Felicidad was a nullity in view of the absence of the
required marriage license. He likewise maintained that
his deceased brother was neither the natural nor the
adoptive father of respondent Teofilo Carlos II.
Petitioner likewise sought the avoidance of the
contracts he entered into with respondent Felicidad
with respect to the subject real properties. He also
prayed for the cancellation of the certificates of title
issued in the name of respondents. He argued that the
properties covered by such certificates of title,
including the sums received by respondents as
proceeds, should be reconveyed to him.
Finally, petitioner claimed indemnification as and by
way of moral and exemplary damages, attorneys fees,
litigation expenses, and costs of suit.
On October 16, 1995, respondents submitted their
answer. They denied the material averments of
petitioners complaint. Respondents contended that the
dearth of details regarding the requisite marriage
license did not invalidate Felicidads marriage to
Teofilo. Respondents declared that Teofilo II was the
illegitimate child of the deceased Teofilo Carlos with
another woman.
On the grounds of lack of cause of action and lack of
jurisdiction over the subject matter, respondents
prayed for the dismissal of the case before the trial
court. They also asked that their counterclaims for
moral and exemplary damages, as well as attorneys
fees, be granted.
But before the parties could even proceed to pre-trial,
respondents moved for summary judgment. Attached
to the motion was the affidavit of the justice of the
peace who solemnized the marriage. Respondents
also submitted the Certificate of Live Birth of
respondent Teofilo II. In the certificate, the late Teofilo
Carlos and respondent Felicidad were designated as
parents.
On January 5, 1996, petitioner opposed the motion for
summary judgment on the ground of irregularity of the
contract evidencing the marriage. In the same breath,
petitioner lodged his own motion for summary
judgment. Petitioner presented a certification from the
Local Civil Registrar of Calumpit, Bulacan, certifying
that there is no record of birth of respondent Teofilo II.
Petitioner also incorporated in the counter-motion for
summary judgment the testimony of respondent
Felicidad in another case. Said testimony was made in
Civil Case No. 89-2384, entitled Carlos v. Gorospe,
before the RTC Branch 255, Las Pias. In her
testimony, respondent Felicidad narrated that co-
respondent Teofilo II is her child with Teofilo.[5]
Subsequently, the Office of the City Prosecutor of
Muntinlupa submitted to the trial court its report and
manifestation, discounting the possibility of collusion
between the parties.
RTC and CA Dispositions
On April 8, 1996, the RTC rendered judgment,
disposing as follows:
WHEREFORE, premises considered, defendants
(respondents) Motion for Summary Judgment is hereby
denied. Plaintiffs (petitioners) Counter-Motion for
Summary Judgment is hereby granted and summary
judgment is hereby rendered in favor of plaintiff as
follows:
1. Declaring the marriage between defendant Felicidad
Sandoval and Teofilo Carlos solemnized at Silang,
Cavite on May 14, 1962, evidenced by the Marriage
Certificate submitted in this case, null and void ab initio
for lack of the requisite marriage license;
2. Declaring that the defendant minor, Teofilo S. Carlos
II, is not the natural, illegitimate, or legally adopted
child of the late Teofilo E. Carlos;
3. Ordering defendant Sandoval to pay and restitute to
plaintiff the sum of P18,924,800.00 together with the
interest thereon at the legal rate from date of filing of
the instant complaint until fully paid;
4. Declaring plaintiff as the sole and exclusive owner of
the parcel of land, less the portion adjudicated to
plaintiffs in Civil Case No. 11975, covered by TCT No.
139061 of the Register of Deeds of Makati City, and
ordering said Register of Deeds to cancel said title and
to issue another title in the sole name of plaintiff herein;
5. Declaring the Contract, Annex K of complaint,
between plaintiff and defendant Sandoval null and
void, and ordering the Register of Deeds of Makati City
to cancel TCT No. 139058 in the name of Teofilo
Carlos, and to issue another title in the sole name of
plaintiff herein;
6. Declaring the Contract, Annex M of the complaint,
between plaintiff and defendant Sandoval null and
void;
7. Ordering the cancellation of TCT No. 210877 in the
names of defendant Sandoval and defendant minor
Teofilo S. Carlos II and ordering the Register of Deeds
of Manila to issue another title in the exclusive name of
plaintiff herein;
8. Ordering the cancellation of TCT No. 210878 in the
name of defendant Sandoval and defendant Minor
Teofilo S. Carlos II and ordering the Register of Deeds
of Manila to issue another title in the sole name of
plaintiff herein.
Let this case be set for hearing for the reception of
plaintiffs evidence on his claim for moral damages,
exemplary damages, attorneys fees, appearance fees,
and litigation expenses on June 7, 1996 at 1:30 o'clock
in the afternoon.
SO ORDERED.[6]
Dissatisfied, respondents appealed to the CA. In the
appeal, respondents argued, inter alia, that the trial
court acted without or in excess of jurisdiction in
rendering summary judgment annulling the marriage of
Teofilo, Sr. and Felicidad and in declaring Teofilo II as
not an illegitimate child of Teofilo, Sr.
On October 15, 2002, the CA reversed and set aside
the RTC ruling, disposing as follows:
WHEREFORE, the summary judgment appealed from
is REVERSED and SET ASIDE and in lieu thereof, a
new one is entered REMANDING the case to the court
of origin for further proceedings. SO ORDERED.[7]
The CA opined:
We find the rendition of the herein appealed summary
judgment by the court a quo contrary to law and public
policy as ensconced in the aforesaid safeguards. The
fact that it was appellants who first sought summary
judgment from the trial court, did not justify the grant
thereof in favor of appellee. Not being an action to
recover upon a claim or to obtain a declaratory relief,
the rule on summary judgment apply (sic) to an action
to annul a marriage. The mere fact that no genuine
issue was presented and the desire to expedite the
disposition of the case cannot justify a
misinterpretation of the rule. The first paragraph of
Article 88 and 101 of the Civil Code expressly prohibit
the rendition of decree of annulment of a marriage
upon a stipulation of facts or a confession of judgment.
Yet, the affidavits annexed to the petition for summary
judgment practically amount to these methods explicitly
proscribed by the law.
We are not unmindful of appellees argument that the
foregoing safeguards have traditionally been applied to
prevent collusion of spouses in the matter of
dissolution of marriages and that the death of Teofilo
Carlos on May 13, 1992 had effectively dissolved the
marriage herein impugned. The fact, however, that
appellees own brother and appellant Felicidad
Sandoval lived together as husband and wife for thirty
years and that the annulment of their marriage is the
very means by which the latter is sought to be deprived
of her participation in the estate left by the former call
for a closer and more thorough inquiry into the
circumstances surrounding the case. Rather that the
summary nature by which the court a quo resolved the
issues in the case, the rule is to the effect that the
material facts alleged in the complaint for annulment of
marriage should always be proved. Section 1, Rule 19
of the Revised Rules of Court provides:
Section 1. Judgment on the pleadings. Where an
answer fails to tender an issue, or otherwise admits the
material allegations of the adverse party's pleading, the
court may, on motion of that party, direct judgment on
such pleading. But in actions for annulment of marriage
or for legal separation, the material facts alleged in the
complaint shall always be proved. (Underscoring
supplied)
Moreover, even if We were to sustain the applicability
of the rules on summary judgment to the case at
bench, Our perusal of the record shows that the finding
of the court a quo for appellee would still not be
warranted. While it may be readily conceded that a
valid marriage license is among the formal requisites of
marriage, the absence of which renders the marriage
void ab initio pursuant to Article 80(3) in relation to
Article 58 of the Civil Code the failure to reflect the
serial number of the marriage license on the marriage
contract evidencing the marriage between Teofilo
Carlos and appellant Felicidad Sandoval, although
irregular, is not as fatal as appellee represents it to be.
Aside from the dearth of evidence to the contrary,
appellant Felicidad Sandovals affirmation of the
existence of said marriage license is corroborated by
the following statement in the affidavit executed by
Godofredo Fojas, then Justice of the Peace who
officiated the impugned marriage, to wit:
That as far as I could remember, there was a marriage
license issued at Silang, Cavite on May 14, 1962 as
basis of the said marriage contract executed by Teofilo
Carlos and Felicidad Sandoval, but the number of said
marriage license was inadvertently not placed in the
marriage contract for the reason that it was the Office
Clerk who filled up the blanks in the Marriage Contract
who in turn, may have overlooked the same.
Rather than the inferences merely drawn by the trial
court, We are of the considered view that the veracity
and credibility of the foregoing statement as well as the
motivations underlying the same should be properly
threshed out in a trial of the case on the merits.
If the non-presentation of the marriage contract the
primary evidence of marriage is not proof that a
marriage did not take place, neither should appellants
non-presentation of the subject marriage license be
taken as proof that the same was not procured. The
burden of proof to show the nullity of the marriage, it
must be emphasized, rests upon the plaintiff and any
doubt should be resolved in favor of the validity of the
marriage.
Considering that the burden of proof also rests on the
party who disputes the legitimacy of a particular party,
the same may be said of the trial courts rejection of the
relationship between appellant Teofilo Carlos II and his
putative father on the basis of the inconsistencies in
appellant Felicidad Sandovals statements. Although it
had effectively disavowed appellants prior claims
regarding the legitimacy of appellant Teofilo Carlos II,
the averment in the answer that he is the illegitimate
son of appellees brother, to Our mind, did not
altogether foreclose the possibility of the said
appellants illegitimate filiation, his right to prove the
same or, for that matter, his entitlement to inheritance
rights as such.
Without trial on the merits having been conducted in
the case, We find appellees bare allegation that
appellant Teofilo Carlos II was merely purchased from
an indigent couple by appellant Felicidad Sandoval, on
the whole, insufficient to support what could well be a
minors total forfeiture of the rights arising from his
putative filiation. Inconsistent though it may be to her
previous statements, appellant Felicidad Sandovals
declaration regarding the illegitimate filiation of Teofilo
Carlos II is more credible when considered in the light
of the fact that, during the last eight years of his life,
Teofilo Carlos allowed said appellant the use of his
name and the shelter of his household. The least that
the trial court could have done in the premises was to
conduct a trial on the merits in order to be able to
thoroughly resolve the issues pertaining to the filiation
of appellant Teofilo Carlos II.[8]
On November 22, 2006, petitioner moved for
reconsideration and for the inhibition of the ponente,
Justice Rebecca De Guia-Salvador. The CA denied the
twin motions.
Issues
In this petition under Rule 45, petitioner hoists the
following issues:
1. That, in reversing and setting aside the Summary
Judgment under the Decision, Annex A hereof, and in
denying petitioners Motion for reconsideration under
the Resolution, Annex F hereof, with respect to the
nullity of the impugned marriage, petitioner respectfully
submits that the Court of Appeals committed a grave
reversible error in applying Articles 88 and 101 of the
Civil Code, despite the fact that the circumstances of
this case are different from that contemplated and
intended by law, or has otherwise decided a question
of substance not theretofore decided by the Supreme
Court, or has decided it in a manner probably not in
accord with law or with the applicable decisions of this
Honorable Court;
2. That in setting aside and reversing the Summary
Judgment and, in lieu thereof, entering another
remanding the case to the court of origin for further
proceedings, petitioner most respectfully submits that
the Court of Appeals committed a serious reversible
error in applying Section 1, Rule 19 (now Section 1,
Rule 34) of the Rules of Court providing for judgment
on the pleadings, instead of Rule 35 governing
Summary Judgments;
3. That in reversing and setting aside the Summary
Judgment and, in lieu thereof, entering another
remanding the case to the court of origin for further
proceedings, petitioner most respectfully submits that
the Court of Appeals committed grave abuse of
discretion, disregarded judicial admissions, made
findings on ground of speculations, surmises, and
conjectures, or otherwise committed misapplications of
the laws and misapprehension of the facts.[9]
(Underscoring supplied)
Essentially, the Court is tasked to resolve whether a
marriage may be declared void ab initio through a
judgment on the pleadings or a summary judgment and
without the benefit of a trial. But there are other
procedural issues, including the capacity of one who is
not a spouse in bringing the action for nullity of
marriage.
Our Ruling
I. The grounds for declaration of absolute nullity of
marriage must be proved. Neither judgment on the
pleadings nor summary judgment is allowed. So is
confession of judgment disallowed.
Petitioner faults the CA in applying Section 1, Rule
19[10] of the Revised Rules of Court, which provides:
SECTION 1. Judgment on the pleadings. Where an
answer fails to tender an issue, or otherwise admits the
material allegations of the adverse partys pleading, the
court may, on motion of that party, direct judgment on
such pleading. But in actions for annulment of marriage
or for legal separation, the material facts alleged in the
complaint shall always be proved.
He argues that the CA should have applied Rule 35 of
the Rules of Court governing summary judgment,
instead of the rule on judgment on the pleadings.
Petitioner is misguided. The CA did not limit its finding
solely within the provisions of the Rule on judgment on
the pleadings. In disagreeing with the trial court, the
CA likewise considered the provisions on summary
judgments, to wit:
Moreover, even if We are to sustain the applicability of
the rules on summary judgment to the case at bench,
Our perusal of the record shows that the finding of the
court a quo for appellee would still not be warranted. x
x x[11]
But whether it is based on judgment on the pleadings
or summary judgment, the CA was correct in reversing
the summary judgment rendered by the trial court. Both
the rules on judgment on the pleadings and summary
judgments have no place in cases of declaration of
absolute nullity of marriage and even in annulment of
marriage.
With the advent of A.M. No. 02-11-10-SC, known as
Rule on Declaration of Absolute Nullity of Void
Marriages and Annulment of Voidable Marriages, the
question on the application of summary judgments or
even judgment on the pleadings in cases of nullity or
annulment of marriage has been stamped with clarity.
The significant principle laid down by the said Rule,
which took effect on March 15, 2003[12] is found in
Section 17, viz.:
SEC. 17. Trial. (1) The presiding judge shall personally
conduct the trial of the case. No delegation of evidence
to a commissioner shall be allowed except as to
matters involving property relations of the spouses.
(2) The grounds for declaration of absolute nullity or
annulment of marriage must be proved. No judgment
on the pleadings, summary judgment, or confession of
judgment shall be allowed. (Underscoring supplied)
Likewise instructive is the Courts pronouncement in
Republic v. Sandiganbayan.[13] In that case, We
excluded actions for nullity or annulment of marriage
from the application of summary judgments.
Prescinding from the foregoing discussion, save for
annulment of marriage or declaration of its nullity or for
legal separation, summary judgment is applicable to all
kinds of actions.[14] (Underscoring supplied)
By issuing said summary judgment, the trial court has
divested the State of its lawful right and duty to
intervene in the case. The participation of the State is
not terminated by the declaration of the public
prosecutor that no collusion exists between the parties.
The State should have been given the opportunity to
present controverting evidence before the judgment
was rendered.[15]
Both the Civil Code and the Family Code ordain that
the court should order the prosecuting attorney to
appear and intervene for the State. It is at this stage
when the public prosecutor sees to it that there is no
suppression of evidence. Concomitantly, even if there
is no suppression of evidence, the public prosecutor
has to make sure that the evidence to be presented or
laid down before the court is not fabricated.
To further bolster its role towards the preservation of
marriage, the Rule on Declaration of Absolute Nullity of
Void Marriages reiterates the duty of the public
prosecutor, viz.:
SEC. 13. Effect of failure to appear at the pre-trial. (a) x
xx
(b) x x x If there is no collusion, the court shall require
the public prosecutor to intervene for the State during
the trial on the merits to prevent suppression or
fabrication of evidence. (Underscoring supplied)
Truly, only the active participation of the public
prosecutor or the Solicitor General will ensure that the
interest of the State is represented and protected in
proceedings for declaration of nullity of marriages by
preventing the fabrication or suppression of
evidence.[16]
II. A petition for declaration of absolute nullity of void
marriage may be filed solely by the husband or wife.
Exceptions: (1) Nullity of marriage cases commenced
before the effectivity of A.M. No. 02-11-10-SC; and (2)
Marriages celebrated during the effectivity of the Civil
Code.
Under the Rule on Declaration of Absolute Nullity of
Void Marriages and Annulment of Voidable Marriages,
the petition for declaration of absolute nullity of
marriage may not be filed by any party outside of the
marriage. The Rule made it exclusively a right of the
spouses by stating:
SEC. 2. Petition for declaration of absolute nullity of
void marriages.
(a) Who may file. A petition for declaration of absolute
nullity of void marriage may be filed solely by the
husband or the wife. (Underscoring supplied)
Section 2(a) of the Rule makes it the sole right of the
husband or the wife to file a petition for declaration of
absolute nullity of void marriage. The rationale of the
Rule is enlightening, viz.:
Only an aggrieved or injured spouse may file a petition
for annulment of voidable marriages or declaration of
absolute nullity of void marriages. Such petition cannot
be filed by compulsory or intestate heirs of the spouses
or by the State. The Committee is of the belief that they
do not have a legal right to file the petition. Compulsory
or intestate heirs have only inchoate rights prior to the
death of their predecessor, and, hence, can only
question the validity of the marriage of the spouses
upon the death of a spouse in a proceeding for the
settlement of the estate of the deceased spouse filed in
the regular courts. On the other hand, the concern of
the State is to preserve marriage and not to seek its
dissolution.[17] (Underscoring supplied)
The new Rule recognizes that the husband and the
wife are the sole architects of a healthy, loving,
peaceful marriage. They are the only ones who can
decide when and how to build the foundations of
marriage. The spouses alone are the engineers of their
marital life. They are simultaneously the directors and
actors of their matrimonial true-to-life play. Hence, they
alone can and should decide when to take a cut, but
only in accordance with the grounds allowed by law.
The innovation incorporated in A.M. No. 02-11-10-SC
sets forth a demarcation line between marriages
covered by the Family Code and those solemnized
under the Civil Code. The Rule extends only to
marriages entered into during the effectivity of the
Family Code which took effect on August 3, 1988.[18]
The advent of the Rule on Declaration of Absolute
Nullity of Void Marriages marks the beginning of the
end of the right of the heirs of the deceased spouse to
bring a nullity of marriage case against the surviving
spouse. But the Rule never intended to deprive the
compulsory or intestate heirs of their successional
rights.
While A.M. No. 02-11-10-SC declares that a petition for
declaration of absolute nullity of marriage may be filed
solely by the husband or the wife, it does not mean that
the compulsory or intestate heirs are without any
recourse under the law. They can still protect their
successional right, for, as stated in the Rationale of the
Rules on Annulment of Voidable Marriages and
Declaration of Absolute Nullity of Void Marriages,
compulsory or intestate heirs can still question the
validity of the marriage of the spouses, not in a
proceeding for declaration of nullity but upon the death
of a spouse in a proceeding for the settlement of the
estate of the deceased spouse filed in the regular
courts.[19]
It is emphasized, however, that the Rule does not
apply to cases already commenced before March 15,
2003 although the marriage involved is within the
coverage of the Family Code. This is so, as the new
Rule which became effective on March 15, 2003[20] is
prospective in its application. Thus, the Court held in
Enrico v. Heirs of Sps. Medinaceli,[21] viz.:
As has been emphasized, A.M. No. 02-11-10-SC
covers marriages under the Family Code of the
Philippines, and is prospective in its application.[22]
(Underscoring supplied)
Petitioner commenced the nullity of marriage case
against respondent Felicidad in 1995. The marriage in
controversy was celebrated on May 14, 1962. Which
law would govern depends upon when the marriage
took place.[23]
The marriage having been solemnized prior to the
effectivity of the Family Code, the applicable law is the
Civil Code which was the law in effect at the time of its
celebration.[24] But the Civil Code is silent as to who
may bring an action to declare the marriage void. Does
this mean that any person can bring an action for the
declaration of nullity of marriage?
We respond in the negative. The absence of a
provision in the Civil Code cannot be construed as a
license for any person to institute a nullity of marriage
case. Such person must appear to be the party who
stands to be benefited or injured by the judgment in the
suit, or the party entitled to the avails of the suit.[25]
Elsewise stated, plaintiff must be the real party-in-
interest. For it is basic in procedural law that every
action must be prosecuted and defended in the name
of the real party-in-interest.[26]
Interest within the meaning of the rule means material
interest or an interest in issue to be affected by the
decree or judgment of the case, as distinguished from
mere curiosity about the question involved or a mere
incidental interest. One having no material interest to
protect cannot invoke the jurisdiction of the court as
plaintiff in an action. When plaintiff is not the real party-
in-interest, the case is dismissible on the ground of
lack of cause of action.[27]
Illuminating on this point is Amor-Catalan v. Court of
Appeals,[28] where the Court held:
True, under the New Civil Code which is the law in
force at the time the respondents were married, or
even in the Family Code, there is no specific provision
as to who can file a petition to declare the nullity of
marriage; however, only a party who can demonstrate
proper interest can file the same. A petition to declare
the nullity of marriage, like any other actions, must be
prosecuted or defended in the name of the real party-
in-interest and must be based on a cause of action.
Thus, in Nial v. Badayog, the Court held that the
children have the personality to file the petition to
declare the nullity of marriage of their deceased father
to their stepmother as it affects their successional
rights.
xxxx
In fine, petitioners personality to file the petition to
declare the nullity of marriage cannot be ascertained
because of the absence of the divorce decree and the
foreign law allowing it. Hence, a remand of the case to
the trial court for reception of additional evidence is
necessary to determine whether respondent Orlando
was granted a divorce decree and whether the foreign
law which granted the same allows or restricts
remarriage. If it is proved that a valid divorce decree
was obtained and the same did not allow respondent
Orlandos remarriage, then the trial court should
declare respondents marriage as bigamous and void
ab initio but reduced the amount of moral damages
from P300,000.00 to P50,000.00 and exemplary
damages from P200,000.00 to P25,000.00. On the
contrary, if it is proved that a valid divorce decree was
obtained which allowed Orlando to remarry, then the
trial court must dismiss the instant petition to declare
nullity of marriage on the ground that petitioner
Felicitas Amor-Catalan lacks legal personality to file
the same.[29] (Underscoring supplied)
III. The case must be remanded to determine whether
or not petitioner is a real-party-in-interest to seek the
declaration of nullity of the marriage in controversy.
In the case at bench, the records reveal that when
Teofilo died intestate in 1992, his only surviving
compulsory heirs are respondent Felicidad and their
son, Teofilo II. Under the law on succession,
successional rights are transmitted from the moment of
death of the decedent and the compulsory heirs are
called to succeed by operation of law.[30]
Upon Teofilos death in 1992, all his property, rights
and obligations to the extent of the value of the
inheritance are transmitted to his compulsory heirs.
These heirs were respondents Felicidad and Teofilo II,
as the surviving spouse and child, respectively.
Article 887 of the Civil Code outlined who are
compulsory heirs, to wit:
(1) Legitimate children and descendants, with respect
to their legitimate parents and ascendants;
(2) In default of the foregoing, legitimate parents and
ascendants, with respect to their legitimate children
and descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural children
by legal fiction;
(5) Other illegitimate children referred to in Article 287
of the Civil Code.[31]
Clearly, a brother is not among those considered as
compulsory heirs. But although a collateral relative,
such as a brother, does not fall within the ambit of a
compulsory heir, he still has a right to succeed to the
estate. Articles 1001 and 1003 of the New Civil Code
provide:
ART. 1001. Should brothers and sisters or their
children survive with the widow or widower, the latter
shall be entitled to one-half of the inheritance and the
brothers and sisters or their children to the other half.
ART. 1003. If there are no descendants, ascendants,
illegitimate children, or a surviving spouse, the
collateral relatives shall succeed to the entire estate of
the deceased in accordance with the following articles.
(Underscoring supplied)
Indeed, only the presence of descendants, ascendants
or illegitimate children excludes collateral relatives from
succeeding to the estate of the decedent. The
presence of legitimate, illegitimate, or adopted child or
children of the deceased precludes succession by
collateral relatives.[32] Conversely, if there are no
descendants, ascendants, illegitimate children, or a
surviving spouse, the collateral relatives shall succeed
to the entire estate of the decedent.[33]
If respondent Teofilo II is declared and finally proven
not to be the legitimate, illegitimate, or adopted son of
Teofilo, petitioner would then have a personality to
seek the nullity of marriage of his deceased brother
with respondent Felicidad. This is so, considering that
collateral relatives, like a brother and sister, acquire
successional right over the estate if the decedent dies
without issue and without ascendants in the direct line.
The records reveal that Teofilo was predeceased by
his parents. He had no other siblings but petitioner.
Thus, if Teofilo II is finally found and proven to be not a
legitimate, illegitimate, or adopted son of Teofilo,
petitioner succeeds to the other half of the estate of his
brother, the first half being allotted to the widow
pursuant to Article 1001 of the New Civil Code. This
makes petitioner a real-party-interest to seek the
declaration of absolute nullity of marriage of his
deceased brother with respondent Felicidad. If the
subject marriage is found to be void ab initio, petitioner
succeeds to the entire estate.
It bears stressing, however, that the legal personality of
petitioner to bring the nullity of marriage case is
contingent upon the final declaration that Teofilo II is
not a legitimate, adopted, or illegitimate son of Teofilo.
If Teofilo II is proven to be a legitimate, illegitimate, or
legally adopted son of Teofilo, then petitioner has no
legal personality to ask for the nullity of marriage of his
deceased brother and respondent Felicidad. This is
based on the ground that he has no successional right
to be protected, hence, does not have proper interest.
For although the marriage in controversy may be found
to be void from the beginning, still, petitioner would not
inherit. This is because the presence of descendant,
illegitimate,[34] or even an adopted child[35] excludes
the collateral relatives from inheriting from the
decedent.
Thus, the Court finds that a remand of the case for trial
on the merits to determine the validity or nullity of the
subject marriage is called for. But the RTC is strictly
instructed to dismiss the nullity of marriage case for
lack of cause of action if it is proven by evidence that
Teofilo II is a legitimate, illegitimate, or legally adopted
son of Teofilo Carlos, the deceased brother of
petitioner.
IV. Remand of the case regarding the question of
filiation of respondent Teofilo II is proper and in order.
There is a need to vacate the disposition of the trial
court as to the other causes of action before it.
Petitioner did not assign as error or interpose as issue
the ruling of the CA on the remand of the case
concerning the filiation of respondent Teofilo II. This
notwithstanding, We should not leave the matter
hanging in limbo.
This Court has the authority to review matters not
specifically raised or assigned as error by the parties, if
their consideration is necessary in arriving at a just
resolution of the case.[36]
We agree with the CA that without trial on the merits
having been conducted in the case, petitioners bare
allegation that respondent Teofilo II was adopted from
an indigent couple is insufficient to support a total
forfeiture of rights arising from his putative filiation.
However, We are not inclined to support its
pronouncement that the declaration of respondent
Felicidad as to the illegitimate filiation of respondent
Teofilo II is more credible. For the guidance of the
appellate court, such declaration of respondent
Felicidad should not be afforded credence. We remind
the CA of the guaranty provided by Article 167 of the
Family Code to protect the status of legitimacy of a
child, to wit:
ARTICLE 167. The child shall be considered legitimate
although the mother may have declared against its
legitimacy or may have been sentenced as an
adulteress. (Underscoring supplied)
It is stressed that Felicidads declaration against the
legitimate status of Teofilo II is the very act that is
proscribed by Article 167 of the Family Code. The
language of the law is unmistakable. An assertion by
the mother against the legitimacy of her child cannot
affect the legitimacy of a child born or conceived within
a valid marriage.[37]
Finally, the disposition of the trial court in favor of
petitioner for causes of action concerning
reconveyance, recovery of property, and sum of money
must be vacated. This has to be so, as said disposition
was made on the basis of its finding that the marriage
in controversy was null and void ab initio.
WHEREFORE, the appealed Decision is MODIFIED as
follows:
1. The case is REMANDED to the Regional Trial Court
in regard to the action on the status and filiation of
respondent Teofilo Carlos II and the validity or nullity of
marriage between respondent Felicidad Sandoval and
the late Teofilo Carlos;
2. If Teofilo Carlos II is proven to be the legitimate, or
illegitimate, or legally adopted son of the late Teofilo
Carlos, the RTC is strictly INSTRUCTED to DISMISS
the action for nullity of marriage for lack of cause of
action;
3. The disposition of the RTC in Nos. 1 to 8 of the fallo
of its decision is VACATED AND SET ASIDE.
The Regional Trial Court is ORDERED to conduct trial
on the merits with dispatch and to give this case
priority in its calendar.
No costs. SO ORDERED.
c.) Cheng vs Sy
This is a petition[1] for review on certiorari under Rule
45 of the Rules of Court of the Order dated January 2,
2006[2] of the Regional Trial Court (RTC), Branch 18,
Manila in Civil Case No. 05-112452 entitled Anita
Cheng v. Spouses William Sy and Tessie Sy.
The antecedents are as follows
Petitioner Anita Cheng filed two (2) estafa cases before
the RTC, Branch 7, Manila against respondent
spouses William and Tessie Sy (Criminal Case No. 98-
969952 against Tessie Sy and Criminal Case No. 98-
969953 against William Sy) for issuing to her Philippine
Bank of Commerce (PBC) Check Nos. 171762 and
71860 for P300,000.00 each, in payment of their loan,
both of which were dishonored upon presentment for
having been drawn against a closed account.
Meanwhile, based on the same facts, petitioner, on
January 20, 1999, filed against respondents two (2)
cases for violation of Batas Pambansa Bilang (BP Blg.)
22 before the Metropolitan Trial Court (MeTC), Branch
25, Manila (Criminal Case Nos. 341458-59).
On March 16, 2004, the RTC, Branch 7, Manila
dismissed the estafa cases for failure of the
prosecution to prove the elements of the crime. The
Order dismissing Criminal Case No. 98-969952
contained no declaration as to the civil liability of
Tessie Sy.[3] On the other hand, the Order in Criminal
Case No. 98-969953 contained a statement, Hence, if
there is any liability of the accused, the same is purely
civil, not criminal in nature.[4]
Later, the MeTC, Branch 25, Manila, dismissed, on
demurrer, the BP Blg. 22 cases in its Order[5] dated
February 7, 2005 on account of the failure of petitioner
to identify the accused respondents in open court. The
Order also did not make any pronouncement as to the
civil liability of accused respondents.
On April 26, 2005, petitioner lodged against
respondents before the RTC, Branch 18, Manila, a
complaint[6] for collection of a sum of money with
damages (Civil Case No. 05-112452) based on the
same loaned amount of P600,000.00 covered by the
two PBC checks previously subject of the estafa and
BP Blg. 22 cases.
In the assailed Order[7] dated January 2, 2006, the
RTC, Branch 18, Manila, dismissed the complaint for
lack of jurisdiction, ratiocinating that the civil action to
collect the amount of P600,000.00 with damages was
already impliedly instituted in the BP Blg. 22 cases in
light of Section 1, paragraph (b) of Rule 111 of the
Revised Rules of Court.
Petitioner filed a motion for reconsideration[8] which
the court denied in its Order[9] dated June 5, 2006.
Hence, this petition, raising the sole legal issue
Whether or not Section 1 of Rule 111 of the 2000
Rules of Criminal Procedure and Supreme Court
Circular No. 57-97 on the Rules and Guidelines in the
filing and prosecution of criminal cases under BP Blg.
22 are applicable to the present case where the nature
of the order dismissing the cases for bouncing checks
against the respondents was [based] on the failure of
the prosecution to identify both the accused
(respondents herein)?[10]
Essentially, petitioner argues that since the BP Blg. 22
cases were filed on January 20, 1999, the 2000
Revised Rules on Criminal Procedure promulgated on
December 1, 2000 should not apply, as it must be
given only prospective application. She further
contends that that her case falls within the following
exceptions to the rule that the civil action
correspondent to the criminal action is deemed
instituted with the latter
(1) additional evidence as to the identities of the
accused is necessary for the resolution of the civil
aspect of the case;
(2) a separate complaint would be just as efficacious
as or even more expedient than a timely remand to the
trial court where the criminal action was decided for
further hearings on the civil aspect of the case;
(3) the trial court failed to make any pronouncement as
to the civil liability of the accused amounting to a
reservation of the right to have the civil liability litigated
in a separate action;
(4) the trial court did not declare that the facts from
which the civil liability might arise did not exist;
(5) the civil complaint is based on an obligation ex-
contractu and not ex-delicto pursuant to Article 31[11]
of the Civil Code; and
(6) the claim for civil liability for damages may be had
under Article 29[12] of the Civil Code.
Petitioner also points out that she was not assisted by
any private prosecutor in the BP Blg. 22 proceedings.
The rule is that upon the filing of the estafa and BP Blg.
22 cases against respondents, where the petitioner
has not made any waiver, express reservation to
litigate separately, or has not instituted the
corresponding civil action to collect the amount of
P600,000.00 and damages prior to the criminal action,
the civil action is deemed instituted with the criminal
cases.[13]
This rule applies especially with the advent of the 2000
Revised Rules on Criminal Procedure. Thus, during the
pendency of both the estafa and the BP Blg. 22 cases,
the action to recover the civil liability was impliedly
instituted and remained pending before the respective
trial courts. This is consonant with our ruling in
Rodriguez v. Ponferrada[14] that the possible single
civil liability arising from the act of issuing a bouncing
check can be the subject of both civil actions deemed
instituted with the estafa case and the prosecution for
violation of BP Blg. 22, simultaneously available to the
complaining party, without traversing the prohibition
against forum shopping.[15] Prior to the judgment in
either the estafa case or the BP Blg. 22 case,
petitioner, as the complainant, cannot be deemed to
have elected either of the civil actions both impliedly
instituted in the said criminal proceedings to the
exclusion of the other.[16]
The dismissal of the estafa cases for failure of the
prosecution to prove the elements of the crime beyond
reasonable doubtwhere in Criminal Case No. 98-
969952 there was no pronouncement as regards the
civil liability of the accused and in Criminal Case No.
98-969953 where the trial court declared that the
liability of the accused was only civil in natureproduced
the legal effect of a reservation by the petitioner of her
right to litigate separately the civil action impliedly
instituted with the estafa cases, following Article 29 of
the Civil Code.[17]
However, although this civil action could have been
litigated separately on account of the dismissal of the
estafa cases on reasonable doubt, the petitioner was
deemed to have also elected that such civil action be
prosecuted together with the BP Blg. 22 cases in light
of the Rodriguez v. Ponferrada ruling.
With the dismissal of the BP Blg. 22 cases for failure to
establish the identity of the accused, the question that
arises is whether such dismissal would have the same
legal effect as the dismissed estafa cases. Put
differently, may petitioners action to recover
respondents civil liability be also allowed to prosper
separately after the BP Blg. 22 cases were dismissed?
Section 1 (b), Rule 111 of the 2000 Revised Rules on
Criminal Procedure states
Section 1. Institution of criminal and civil actions.
xxx
(b) The criminal action for violation of Batas Pambansa
Blg. 22 shall be deemed to include the corresponding
civil action. No reservation to file such civil action
separately shall be allowed.
Upon filing of the joint criminal and civil actions, the
offended party shall pay in full the filing fees based on
the amount of the check involved, which shall be
considered as the actual damages claimed. Where the
complaint or information also seeks to recover
liquidated, moral, nominal, temperate or exemplary
damages, the offended party shall pay the filing fees
based on the amounts alleged therein. If the amounts
are not so alleged but any of these damages [is]
subsequently awarded by the court, the filing fees
based on the amount awarded shall constitute a first
lien on the judgment.
Where the civil action has been filed separately and
trial thereof has not yet commenced, it may be
consolidated with the criminal action upon application
with the court trying the latter case. If the application is
granted, the trial of both actions shall proceed in
accordance with section 2 of this Rule governing
consolidation of the civil and criminal actions.
Petitioner is in error when she insists that the 2000
Rules on Criminal Procedure should not apply because
she filed her BP Blg. 22 complaints in 1999. It is now
settled that rules of procedure apply even to cases
already pending at the time of their promulgation. The
fact that procedural statutes may somehow affect the
litigants rights does not preclude their retroactive
application to pending actions. It is axiomatic that the
retroactive application of procedural laws does not
violate any right of a person who may feel that he is
adversely affected, nor is it constitutionally
objectionable. The reason for this is that, as a general
rule, no vested right may attach to, nor arise from,
procedural laws.[18]
Indeed, under the present revised Rules, the criminal
action for violation of BP Blg. 22 includes the
corresponding civil action to recover the amount of the
checks. It should be stressed, this policy is intended to
discourage the separate filing of the civil action. In fact,
the Rules even prohibits the reservation of a separate
civil action, i.e., one can no longer file a separate civil
case after the criminal complaint is filed in court. The
only instance when separate proceedings are allowed
is when the civil action is filed ahead of the criminal
case. Even then, the Rules encourages the
consolidation of the civil and criminal cases. Thus,
where petitioners rights may be fully adjudicated in the
proceedings before the court trying the BP Blg. 22
cases, resort to a separate action to recover civil
liability is clearly unwarranted on account of res
judicata, for failure of petitioner to appeal the civil
aspect of the cases. In view of this special rule
governing actions for violation of BP Blg. 22, Article 31
of the Civil Code is not applicable.[19]
Be it remembered that rules governing procedure
before the courts, while not cast in stone, are for the
speedy, efficient, and orderly dispensation of justice
and should therefore be adhered to in order to attain
this objective.[20]
However, in applying the procedure discussed above,
it appears that petitioner would be left without a
remedy to recover from respondents the P600,000.00
allegedly loaned from her. This could prejudice even
the petitioners Notice of Claim involving the same
amount filed in Special Proceedings No. 98-88390
(Petition for Voluntary Insolvency by Kolin Enterprises,
William Sy and Tessie Sy), which case was reportedly
archived for failure to prosecute the petition for an
unreasonable length of time.[21] Expectedly,
respondents would raise the same defense that
petitioner had already elected to litigate the civil action
to recover the amount of the checks along with the BP
Blg. 22 cases.
It is in this light that we find petitioners contention that
she was not assisted by a private prosecutor during the
BP Blg. 22 proceedings critical. Petitioner indirectly
protests that the public prosecutor failed to protect and
prosecute her cause when he failed to have her
establish the identities of the accused during the trial
and when he failed to appeal the civil action deemed
impliedly instituted with the BP Blg. 22 cases. On this
ground, we agree with petitioner.
Faced with the dismissal of the BP Blg. 22 cases,
petitioners recourse pursuant to the prevailing rules of
procedure would have been to appeal the civil action to
recover the amount loaned to respondents
corresponding to the bounced checks. Hence, the said
civil action may proceed requiring only a
preponderance of evidence on the part of petitioner.
Her failure to appeal within the reglementary period
was tantamount to a waiver altogether of the remedy to
recover the civil liability of respondents. However, due
to the gross mistake of the prosecutor in the BP Blg. 22
cases, we are constrained to digress from this rule.
It is true that clients are bound by the mistakes,
negligence and omission of their counsel.[22] But this
rule admits of exceptions (1) where the counsels
mistake is so great and serious that the client is
prejudiced and denied his day in court, or (2) where the
counsel is guilty of gross negligence resulting in the
clients deprivation of liberty or property without due
process of law.[23] Tested against these guidelines,
we hold that petitioners lot falls within the exceptions.
It is an oft-repeated exhortation to counsels to be well-
informed of existing laws and rules and to keep abreast
with legal developments, recent enactments and
jurisprudence. Unless they faithfully comply with such
duty, they may not be able to discharge competently
and diligently their obligations as members of the
Bar.[24] Further, lawyers in the government service are
expected to be more conscientious in the performance
of their duties as they are subject to public scrutiny.
They are not only members of the Bar but are also
public servants who owe utmost fidelity to public
service.[25] Apparently, the public prosecutor
neglected to equip himself with the knowledge of the
proper procedure for BP Blg. 22 cases under the 2000
Rules on Criminal Procedure such that he failed to
appeal the civil action impliedly instituted with the BP
Blg. 22 cases, the only remaining remedy available to
petitioner to be able to recover the money she loaned
to respondents, upon the dismissal of the criminal
cases on demurrer. By this failure, petitioner was
denied her day in court to prosecute the respondents
for their obligation to pay their loan.
Moreover, we take into consideration the trial courts
observation when it dismissed the estafa charge in
Criminal Case No. 98-969953 that if there was any
liability on the part of respondents, it was civil in nature.
Hence, if the loan be proven true, the inability of
petitioner to recover the loaned amount would be
tantamount to unjust enrichment of respondents, as
they may now conveniently evade payment of their
obligation merely on account of a technicality applied
against petitioner.
There is unjust enrichment when (1) a person is
unjustly benefited, and (2) such benefit is derived at
the expense of or with damages to another. This
doctrine simply means that a person shall not be
allowed to profit or enrich himself inequitably at
anothers expense. One condition for invoking this
principle of unjust enrichment is that the aggrieved
party has no other recourse based on contract, quasi-
contract, crime, quasi-delict or any other provision of
law.[26]
Court litigations are primarily designed to search for
the truth, and a liberal interpretation and application of
the rules which will give the parties the fullest
opportunity to adduce proof is the best way to ferret out
the truth. The dispensation of justice and vindication of
legitimate grievances should not be barred by
technicalities.[27] For reasons of substantial justice
and equity, as the complement of the legal jurisdiction
that seeks to dispense justice where courts of law,
through the inflexibility of their rules and want of power
to adapt their judgments to the special circumstances
of cases, are incompetent to do so,[28] we thus rule,
pro hac vice, in favor of petitioner.
WHEREFORE, the petition is GRANTED. Civil Case
No. 05-112452 entitled Anita Cheng v. Spouses
William Sy and Tessie Sy is hereby ordered
REINSTATED. No pronouncement as to costs. SO
ORDERED.
d.) Carolino vs Senga
Before us is a petition for review under Rule 45
seeking to reverse and set aside the Decision1 dated
May 25, 2009 of the Court of Appeals (CA) in CA-G.R.
SP No. 103502 and the Resolution2 dated September
10, 2009 denying reconsideration thereof.
The factual and legal antecedents are as follows:
On December 1, 1976, Jeremias A. Carolino,
petitioner's husband, Retired3 from the Armed Forces
of the Philippines (AFP) with the rank of Colonel under
General Order No. 1208 dated November 29, 1976,
pursuant to the provisions of Sections 1(A) and 10 of
Republic Act (RA) No. 340,4 as amended. He started
receiving his monthly retirement pay in the amount of
P18,315.00 in December 1976 until the same was
withheld by respondents in March 2005. On June 3,
2005, Jeremias wrote a letter5 addressed to the AFP
Chief of Staff asking for the reasons of the withholding
of his retirement pay. In a letter reply,6 Myrna F.
Villaruz, LTC (FS) PA, Pension and Gratuity Officer of
the AFP Finance Center, informed Jeremias that his
loss of Filipino citizenship caused the deletion of his
name in the alpha list of the AFP Pensioners Payroll
effective March 5, 2005; and that he could avail of re-
entitlement to his retirement benefits and the
restoration of his name in the AFP Pensioners' Master
list Payroll by complying with the requirements
prescribed under RA No. 9225, or the Dual Citizenship
Act.
It appeared that the termination of Jeremias' pension
was done pursuant to Disposition Form7 dated
October 29, 2004,which was approved by the Chief of
Staff and made effective in January 2005. In the said
Disposition Form, the AFP Judge Advocate General
opined that under the provisions of Sections 4, 5, and 6
of RA No. 340, retired military personnel are
disqualified from receiving pension benefits once
incapable to render military service as a result of his
having sworn allegiance to a foreign country. It was
also mentioned that termination of retirement benefits
of pensioner of the AFP could be done pursuant to the
provisions of Presidential Decree (PD) No. 16388
which provides that the name of a retiree who loses his
Filipino citizenship shall be removed from the retired
list and his retirement benefits terminated upon such
loss. It being in consonance with the policy
consideration that all retirement laws inconsistent with
the provisions of PD No. 1638 are repealed and
modified accordingly.
On August 24, 2006, Jeremias filed with the Regional
Trial Court (RTC) of Quezon City, a Petition for
Mandamus9 against Gen. Generoso Senga, as Chief
of Staff of the AFP, Brig. Gen. Fernando Zabat, as
Chief of the AFP Finance Center, Comm. Reynaldo
Basilio, as Chief of the AFP- GHQ Management and
Fiscal Office, and Comm. Emilio Marayag, Pension
and Gratuity Management Officer, Pension and
Gratuity Management Center, AFP Finance Center,
seeking reinstatement of his name in the list of the AFP
retired officers, resumption of payment of his
retirement benefits under RA No. 340, and the
reimbursement of all his retirement pay and benefits
which accrued from March 5, 2005 up to the time his
name is reinstated and, thereafter, with claim for
damages and attorney's fees. The case was docketed
as Civil Case No. Q-06-58686, and raffled off to
Branch 220.
On February 26, 2007, the RTC rendered its
Decision10 granting the petition for mandamus, the
dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered ordering
General Hermogenes Esperon, Jr., as Chief of Staff of
the AFP, Brigadier General Fernando Zabat, as the
Commanding Officer of the AFP Finance Center,
Commodore Reynaldo Basilio, as Chief of the AFP-
GHQ Management and Fiscal Office, and Captain
Theresa M. Nicdao, as Pension and Gratuity Officer of
the Pension and Gratuity Management Center, or any
of their respective successors and those taking
instructions from them as agents or subordinates, to:
a. immediately reinstate the name of petitioner in the
list of retired AFP Officers, and to resume payment of
his retirement benefits under RA 340; and
b. release to [petitioner] all retirement benefits due him
under RA 340 which accrued to him from March 2005
continuously up to the time his name is reinstated in
the list of AFP retired officers.11
The RTC found that the issue for resolution is the
applicability of RA No. 340 and PD No. 1638 upon
Jeremias' retirement benefits. It found that he retired as
a commissioned officer of the AFP in 1976; thus, RA
No. 340 is the law applicable in determining his
entitlement to his retirement benefits and not PD No.
1638 which was issued only in 1979. Article 4 of the
Civil Code provides that "laws shall have no retroactive
effect unless the contrary is provided." PD No. 1638
does not provide for such retroactive application. Also,
it could not have been the intendment of PD No. 1638
to deprive its loyal soldiers of a monthly pension during
their old age especially where, as here, the right had
been vested to them through time. RA No. 340 does
not provide that the loss of Filipino citizenship would
terminate one's retirement benefits; and that PD No.
1638 does not reduce whatever benefits that any
person has already been receiving under existing law.
Respondents sought reconsideration,12 but the RTC
denied the same in an Order13 dated May 25, 2007,
the decretal portion of which reads:
WHEREFORE, premises considered, the instant
Motion for Reconsideration is hereby DENIED,
considering that the questioned decision has not yet
attained its finality. The Motion for Execution in the
meantime is hereby DENIED.14
Aggrieved, respondents elevated the case to the CA.
After the submission of the parties' respective
memoranda, the case was submitted for decision.
Jeremias died on September 30, 200715 and was
substituted by his wife, herein petitioner. On May 25,
2009, the CA granted respondents' appeal. The
dispositive portion of the CA decision reads:
WHEREFORE, premises considered, the instant
appeal is GRANTED. The appealed decision is
REVOKED and SET ASIDE.16
In so ruling, the CA found that while it is true that
Jeremias retired in 1976 under the provisions of RA
No. 340, as amended, which does not contain any
provision anent cessation or loss of retirement benefits
upon acquiring another citizenship, PD No. 1638,
which was signed in 1979, effectively repealed RA No.
340, as amended. Section 27 of PD No. 1638, which
provides that the name of a retiree who loses his
Filipino citizenship shall be removed from the retired
list and his retirement benefits terminated upon such
loss, was correctly made applicable to Jeremias'
retirement benefits. Logic dictates that since Jeremias
had already renounced his allegiance to the
Philippines, he cannot now be compelled by the State
to render active service and to render compulsory
military service when the need arises. The CA found
that for the writ of mandamus to lie, it is essential that
Jeremias should have a clear legal right to the thing
demanded and it must be the imperative duty of
respondents to perform the act required which
petitioner failed to show; thus, mandamus will not lie.
Petitioner's motion for reconsideration was denied in a
Resolution dated September 10, 2009.
Hence, this petition raising the following:
RESPONDENT COURT OF APPEALS COMMITTED
GRAVE REVERSIBLE ERROR IN RENDERING THE
ASSAILED DECISION AND RESOLUTION WHICH
SET ASIDE AND REVERSED THE 26 FEBRUARY
2007 DECISION OF THE QC RTC BECAUSE:
PD 1638 should not have been applied and cannot be
used against petitioner as her husband's retirement
and pension were granted to him by the AFP under RA
340 which was not superseded by PD 1638, a later
statute.
Petitioner correctly availed of the remedy of mandamus
to compel the reinstatement of his pension and
benefits from the AFP under RA 340 as PD 1638 was
not applicable to him. Petitioner contends that her
husband's retirement from the active service in 1976
was pursuant to the provisions of RA No. No. 340 as
PD No. 1638 was not yet in existence then, and there
was nothing in RA No. 340 that disqualifies a retired
military personnel from receiving retirement benefits
after acquiring foreign citizenship. The concept of
retirement benefits is such that one is entitled to them
for services already rendered and not for those to be
made at a future time. Retirement benefits due
petitioner's husband under RA No. 340, is an acquired
right which cannot be taken away by a subsequent law.
PD No. 1638 does not expressly provide for its
retroactive application. Respondents, being officers of
the AFP tasked to implement the provisions of RA No.
340 have neglected their function thereunder by
delisting petitioner's husband as a retiree, thus,
mandamus is proper.
In his Comment, the Solicitor General argues that PD
No. 1638 applies to all military personnel in the service
of the AFP whether active or retired; hence, it applies
retroactively to petitioner's husband. Even when a
retiree is no longer in the active service, his being a
Filipino still makes him a part of the Citizen Armed
Forces; that whether a military personnel retires under
the provisions of RA No. 340 or under PD No. 1638, he
is still in the service of the military and/or the State only
that he is retired, thus, they should not be treated
differently upon the loss of Filipino citizenship. He
argues when there is an irreconcilable conflict between
the two laws of different vintages, i.e., RA No. 340 and
PD No. 1638, the latter enactment prevails.
The Solicitor General argues that mandamus will not
issue to enforce a right to compel compliance with a
duty which is questionable or over which a substantial
doubt exists. In this case, petitioner's husband does
not have a well-defined, clear and certain legal right to
continuously receive retirement benefits after
becoming an American citizen. Likewise, the AFP does
not have a clear and imperative duty to grant the said
benefits considering that Section 27 of PD No. 1638
provides that the name of a retiree who loses his
Filipino citizenship shall be removed from the retired
list and his retirement benefits terminated upon such
loss.
Petitioner filed her reply thereto.
We find merit in the petition.
Petitioner's husband retired in1976 under RA No. 340.
He was already receiving his monthly retirement
benefit in the amount of P18,315.00 since December
1976 until it was terminated in March 2005. Section 5,
RA No. 340 provides:
Sec. 5. Officers and enlisted men placed in the retired
list shall be subject to the rules and articles of war and
to trial by court-martial for any breach thereof. At any
time said officers and enlisted men may be called to
active service by the President. Refusal on the part of
any officer or enlisted man to perform such services
shall terminate his right to further participation in the
benefits of this Act provided he resides in the
Philippines and is physically fit for service. Such fitness
for service shall be determined by applicable
regulations.
The afore-quoted provision clearly shows how a
retiree's retirement benefits may be terminated, i.e.,
when the retiree refuses to perform active service
when called to do so provided that (1) the retiree
resides in the Philippines and (2) is physically fit for
service. There is no other requirement found in the law
which would be the reason for the termination of a
retiree's retirement benefits. Petitioner's husband was
never called to perform active service and refused to
do so, however, his retirement benefit was terminated.
The reason for such termination was his loss of Filipino
citizenship based on Section 27 of PD No. 1638, to wit:
Section 27. Military personnel retired under Sections 4,
5, 10, 11 and 12 shall be carried in the retired list of the
Armed Forces of the Philippines. The name of a retiree
who loses his Filipino citizenship shall be removed
from the retired list and his retirement benefits
terminated upon such loss.
We find that the CA erred in applying PD No. 1638 to
the retirement benefits of petitioner's husband.
Firstly, PD No. 1638 was signed by then President
Ferdinand Marcos on September 10, 1979. Under
Article 4 of the Civil Code, it is provided that laws shall
have no retroactive effect, unless the contrary is
provided. It is said that the law looks to the future only
and has no retroactive effect unless the legislator may
have formally given that effect to some legal
provisions;17 that all statutes are to be construed as
having only prospective operation, unless the purpose
and intention of the legislature to give them a
retrospective effect is expressly declared or is
necessarily implied from the language used; and that
every case of doubt must be resolved against
retrospective effect.18 These principles also apply to
amendments of statutes.
PD No. 1638 does not contain any provision regarding
its retroactive application, nor the same may be implied
from its language. In fact, Section 36 of PD No. 1638
clearly provides that the decree shall take effect upon
its approval. As held in Parreo v. COA,19 there is no
question that PD No. 1638, as amended, applies
prospectively. Since PD No. 1638, as amended, is
about the new system of retirement and separation
from service of military personnel, it should apply to
those who were in the service at the time of its
approval.20 Conversely, PD No. 1638 is not applicable
to those who retired before its effectivity in 1979. The
rule is familiar that after an act is amended, the original
act continues to be in force with regard to all rights that
had accrued prior to such amendment.21
Moreover, Section 27 of PD No. 1638 specifically
provides for the retirees to whom the law shall be
applied, to wit:
Section 27. Military personnel retired under Sections 4,
5, 10, 11 and 12 shall be carried in the retired list of the
Armed Forces of the Philippines. The name of a retiree
who loses his Filipino citizenship shall be removed
from the retired list and his retirement benefits
terminated upon such loss. (emphasis supplied)
Notably, petitioner's husband did not retire under those
above-enumerated Sections of PD No. 1638 as he
retired under RA No. 340.
Secondly, it has been held that before a right to
retirement benefits or pension vests in an employee,
he must have met the stated conditions of eligibility
with respect to the nature of employment, age, and
length of service.22 Undeniably, petitioner's husband
had complied with the conditions of eligibility to
retirement benefits as he was then receiving his
retirement benefits on a monthly basis until it was
terminated. Where the employee retires and meets the
eligibility requirements, he acquires a vested right to
the benefits that is protected by the due process
clause.23 It is only upon retirement that military
personnel acquire a vested right to retirement
benefits.24 Retirees enjoy a protected property interest
whenever they acquire a right to immediate payment
under pre-existing law.25
In Ayog v. Cusi,26 we expounded the nature of a
vested right, thus:
"A right is vested when the right to enjoyment has
become the property of some particular person or
persons as a present interest" (16 C.J.S.
1173).1wphi1 It is "the privilege to enjoy property
legally vested, to enforce contracts, and enjoy the
rights of property conferred by the existing law" (12
C.J.S. 955, Note 46, No. 6) or "some right or interest in
property which has become fixed and established and
is no longer open to doubt or controversy" (Downs vs.
Blount 170 Fed. 15, 20, cited in Balboa vs. Farrales, 51
Phil. 498, 502).
The due process clause prohibits the annihilation of
vested rights. "A state may not impair vested rights by
legislative enactment, by the enactment or by the
subsequent repeal of a municipal ordinance, or by a
change in the constitution of the State, except in a
legitimate exercise of the police power" (16 C.J.S.
1177-78).
It has been observed that, generally, the term "vested
right" expresses the concept of present fixed interest,
which in right reason and natural justice should be
protected against arbitrary State action, or an innately
just and imperative right which an enlightened free
society, sensitive to inherent and irrefragable individual
rights, cannot deny (16 C.J.S. 1174, Note 71, No. 5,
citing Pennsylvania Greyhound Lines, Inc. vs.
Rosenthal, 192 Atl. 2nd 587). 27
Petitioner's husband acquired vested right to the
payment of his retirement benefits which must be
respected and cannot be affected by the subsequent
enactment of PD No. 1638 which provides that loss of
Filipino citizenship terminates retirement benefits.
Vested rights include not only legal or equitable title to
the enforcement of a demand, but also an exemption
from new obligations after the right has vested.28
In fact, Sections 33 and 35 of PD No.1638 recognize
such vested right, to wit:
Section 33. Nothing in this Decree shall be construed
in any manner to reduce whatever retirement and
separation pay or gratuity or other monetary benefits
which any person is heretofore receiving or is entitled
to receive under the provisions of existing law.
xxxx
Section. 35. Except those necessary to give effect to
the provisions of this Decree and to preserve the rights
granted to retired or separated military personnel, all
laws, rules and regulations inconsistent with the
provisions of this Decree are hereby repealed or
modified accordingly.
Section 33 of PD No. 1638 is clear that the law has no
intention to reduce or to revoke whatever retirement
benefits being enjoyed by a retiree at the time of its
passage. Hence, Section 35 provides for an exception
to what the decree repealed or modified, i.e., except
those necessary to preserve the rights granted to
retired or separated military personnel.
We also find that the CA erred in finding that
mandamus will not lie.
Section 3, Rule 65 of the Rules of Court lay down
under what circumstances petition for mandamus may
be filed, to wit:
SEC. 3. Petition for mandamus. When any tribunal,
corporation, board, officer or person unlawfully
neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office,
trust, or station, or unlawfully excludes another from
the use and enjoyment of a right or office to which such
other is entitled, and there is no other plain, speedy
and adequate remedy in the ordinary course of law, the
person aggrieved thereby may file a verified petition in
the proper court, alleging the facts with certainty and
praying that judgment be rendered commanding the
respondent, immediately or at some other time to be
specified by the court, to do the act required to be done
to protect the rights of the petitioner, and to pay the
damages sustained by the petitioner by reason of the
wrongful acts of the respondent.
A writ of mandamus can be issued only when
petitioners legal right to the performance of a particular
act which is sought to be compelled is clear and
complete. A clear legal right is a right which is
indubitably granted by law or is inferable as a matter of
law.29 A doctrine well-embedded in our jurisprudence
is that mandamus will issue only when the petitioner
has a clear legal right to the performance of the act
sought to be compelled and the respondent has an
imperative duty to perform the same.30 The remedy of
mandamus lies to compel the performance of a
ministerial duty.31 A purely ministerial act or duty is
one that an officer or tribunal performs in a given state
of facts, in a prescribed manner, in obedience to the
mandate of a legal authority, without regard to or the
exercise of its own judgment upon the propriety or
impropriety of the act done.32 If the law imposes a
duty upon a public officer, and gives him the right to
decide how or when the duty shall be performed, such
duty is discretionary and not ministerial.33
The petition for mandamus filed by petitioner's
husband with the RTC was for the payment of his
terminated retirement benefits, which has become
vested, and being a ministerial duty on the part of the
respondents to pay such claim, mandamus is the
proper remedy to compel such payment.
The doctrine of exhaustion of administrative remedies
calls for resort first to the appropriate administrative
authorities in the resolution of a controversy falling
under their jurisdiction before the same may be
elevated to the courts of justice for review.34 However,
the principle of exhaustion of administrative remedies
need not be adhered to when the question is purely
legal.35 This is because issues of law cannot be
resolved with finality by the administrative officer.36
Appeal to the administrative officer would only be an
exercise in futility.37 Here, the question raised is purely
legal, i.e., what law should be applied in the payment
of retirement benefits of petitioner's husband. Thus,
there was no need to exhaust all administrative
remedies before a judicial relief can be sought.
WHEREFORE, the petition is GRANTED. The
Decision dated May 25, 2009 and the Resolution dated
September 10, 2009 of the Court of Appeals are
hereby REVERSED and SET ASIDE. The Decision
dated February 26, 2007 of the Regional Trial Court of
Quezon City, Branch 220, is AFFIRMED. SO
ORDERED.
ARTICLE 6 WAIVER OF RIGHTS
a.) Famanila vs Court of Appeals
Before us is a petition for review under Rule 45
seeking to reverse and set aside the Decision1 dated
May 25, 2009 of the Court of Appeals (CA) in CA-G.R.
SP No. 103502 and the Resolution2 dated September
10, 2009 denying reconsideration thereof.
The factual and legal antecedents are as follows:
On December 1, 1976, Jeremias A. Carolino,
petitioner's husband, Retired3 from the Armed Forces
of the Philippines (AFP) with the rank of Colonel under
General Order No. 1208 dated November 29, 1976,
pursuant to the provisions of Sections 1(A) and 10 of
Republic Act (RA) No. 340,4 as amended. He started
receiving his monthly retirement pay in the amount of
P18,315.00 in December 1976 until the same was
withheld by respondents in March 2005. On June 3,
2005, Jeremias wrote a letter5 addressed to the AFP
Chief of Staff asking for the reasons of the withholding
of his retirement pay. In a letter reply,6 Myrna F.
Villaruz, LTC (FS) PA, Pension and Gratuity Officer of
the AFP Finance Center, informed Jeremias that his
loss of Filipino citizenship caused the deletion of his
name in the alpha list of the AFP Pensioners Payroll
effective March 5, 2005; and that he could avail of re-
entitlement to his retirement benefits and the
restoration of his name in the AFP Pensioners' Master
list Payroll by complying with the requirements
prescribed under RA No. 9225, or the Dual Citizenship
Act.
It appeared that the termination of Jeremias' pension
was done pursuant to Disposition Form7 dated
October 29, 2004,which was approved by the Chief of
Staff and made effective in January 2005. In the said
Disposition Form, the AFP Judge Advocate General
opined that under the provisions of Sections 4, 5, and 6
of RA No. 340, retired military personnel are
disqualified from receiving pension benefits once
incapable to render military service as a result of his
having sworn allegiance to a foreign country. It was
also mentioned that termination of retirement benefits
of pensioner of the AFP could be done pursuant to the
provisions of Presidential Decree (PD) No. 16388
which provides that the name of a retiree who loses his
Filipino citizenship shall be removed from the retired
list and his retirement benefits terminated upon such
loss. It being in consonance with the policy
consideration that all retirement laws inconsistent with
the provisions of PD No. 1638 are repealed and
modified accordingly.
On August 24, 2006, Jeremias filed with the Regional
Trial Court (RTC) of Quezon City, a Petition for
Mandamus9 against Gen. Generoso Senga, as Chief
of Staff of the AFP, Brig. Gen. Fernando Zabat, as
Chief of the AFP Finance Center, Comm. Reynaldo
Basilio, as Chief of the AFP- GHQ Management and
Fiscal Office, and Comm. Emilio Marayag, Pension
and Gratuity Management Officer, Pension and
Gratuity Management Center, AFP Finance Center,
seeking reinstatement of his name in the list of the AFP
retired officers, resumption of payment of his
retirement benefits under RA No. 340, and the
reimbursement of all his retirement pay and benefits
which accrued from March 5, 2005 up to the time his
name is reinstated and, thereafter, with claim for
damages and attorney's fees. The case was docketed
as Civil Case No. Q-06-58686, and raffled off to
Branch 220.
On February 26, 2007, the RTC rendered its
Decision10 granting the petition for mandamus, the
dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered ordering
General Hermogenes Esperon, Jr., as Chief of Staff of
the AFP, Brigadier General Fernando Zabat, as the
Commanding Officer of the AFP Finance Center,
Commodore Reynaldo Basilio, as Chief of the AFP-
GHQ Management and Fiscal Office, and Captain
Theresa M. Nicdao, as Pension and Gratuity Officer of
the Pension and Gratuity Management Center, or any
of their respective successors and those taking
instructions from them as agents or subordinates, to:
a. immediately reinstate the name of petitioner in the
list of retired AFP Officers, and to resume payment of
his retirement benefits under RA 340; and
b. release to [petitioner] all retirement benefits due him
under RA 340 which accrued to him from March 2005
continuously up to the time his name is reinstated in
the list of AFP retired officers.11
The RTC found that the issue for resolution is the
applicability of RA No. 340 and PD No. 1638 upon
Jeremias' retirement benefits. It found that he retired as
a commissioned officer of the AFP in 1976; thus, RA
No. 340 is the law applicable in determining his
entitlement to his retirement benefits and not PD No.
1638 which was issued only in 1979. Article 4 of the
Civil Code provides that "laws shall have no retroactive
effect unless the contrary is provided." PD No. 1638
does not provide for such retroactive application. Also,
it could not have been the intendment of PD No. 1638
to deprive its loyal soldiers of a monthly pension during
their old age especially where, as here, the right had
been vested to them through time. RA No. 340 does
not provide that the loss of Filipino citizenship would
terminate one's retirement benefits; and that PD No.
1638 does not reduce whatever benefits that any
person has already been receiving under existing law.
Respondents sought reconsideration,12 but the RTC
denied the same in an Order13 dated May 25, 2007,
the decretal portion of which reads:
WHEREFORE, premises considered, the instant
Motion for Reconsideration is hereby DENIED,
considering that the questioned decision has not yet
attained its finality. The Motion for Execution in the
meantime is hereby DENIED.14
Aggrieved, respondents elevated the case to the CA.
After the submission of the parties' respective
memoranda, the case was submitted for decision.
Jeremias died on September 30, 200715 and was
substituted by his wife, herein petitioner. On May 25,
2009, the CA granted respondents' appeal. The
dispositive portion of the CA decision reads:
WHEREFORE, premises considered, the instant
appeal is GRANTED. The appealed decision is
REVOKED and SET ASIDE.16
In so ruling, the CA found that while it is true that
Jeremias retired in 1976 under the provisions of RA
No. 340, as amended, which does not contain any
provision anent cessation or loss of retirement benefits
upon acquiring another citizenship, PD No. 1638,
which was signed in 1979, effectively repealed RA No.
340, as amended. Section 27 of PD No. 1638, which
provides that the name of a retiree who loses his
Filipino citizenship shall be removed from the retired
list and his retirement benefits terminated upon such
loss, was correctly made applicable to Jeremias'
retirement benefits. Logic dictates that since Jeremias
had already renounced his allegiance to the
Philippines, he cannot now be compelled by the State
to render active service and to render compulsory
military service when the need arises. The CA found
that for the writ of mandamus to lie, it is essential that
Jeremias should have a clear legal right to the thing
demanded and it must be the imperative duty of
respondents to perform the act required which
petitioner failed to show; thus, mandamus will not lie.
Petitioner's motion for reconsideration was denied in a
Resolution dated September 10, 2009.
Hence, this petition raising the following:
RESPONDENT COURT OF APPEALS COMMITTED
GRAVE REVERSIBLE ERROR IN RENDERING THE
ASSAILED DECISION AND RESOLUTION WHICH
SET ASIDE AND REVERSED THE 26 FEBRUARY
2007 DECISION OF THE QC RTC BECAUSE:
PD 1638 should not have been applied and cannot be
used against petitioner as her husband's retirement
and pension were granted to him by the AFP under RA
340 which was not superseded by PD 1638, a later
statute.
Petitioner correctly availed of the remedy of mandamus
to compel the reinstatement of his pension and
benefits from the AFP under RA 340 as PD 1638 was
not applicable to him. Petitioner contends that her
husband's retirement from the active service in 1976
was pursuant to the provisions of RA No. No. 340 as
PD No. 1638 was not yet in existence then, and there
was nothing in RA No. 340 that disqualifies a retired
military personnel from receiving retirement benefits
after acquiring foreign citizenship. The concept of
retirement benefits is such that one is entitled to them
for services already rendered and not for those to be
made at a future time. Retirement benefits due
petitioner's husband under RA No. 340, is an acquired
right which cannot be taken away by a subsequent law.
PD No. 1638 does not expressly provide for its
retroactive application. Respondents, being officers of
the AFP tasked to implement the provisions of RA No.
340 have neglected their function thereunder by
delisting petitioner's husband as a retiree, thus,
mandamus is proper.
In his Comment, the Solicitor General argues that PD
No. 1638 applies to all military personnel in the service
of the AFP whether active or retired; hence, it applies
retroactively to petitioner's husband. Even when a
retiree is no longer in the active service, his being a
Filipino still makes him a part of the Citizen Armed
Forces; that whether a military personnel retires under
the provisions of RA No. 340 or under PD No. 1638, he
is still in the service of the military and/or the State only
that he is retired, thus, they should not be treated
differently upon the loss of Filipino citizenship. He
argues when there is an irreconcilable conflict between
the two laws of different vintages, i.e., RA No. 340 and
PD No. 1638, the latter enactment prevails.
The Solicitor General argues that mandamus will not
issue to enforce a right to compel compliance with a
duty which is questionable or over which a substantial
doubt exists. In this case, petitioner's husband does
not have a well-defined, clear and certain legal right to
continuously receive retirement benefits after
becoming an American citizen. Likewise, the AFP does
not have a clear and imperative duty to grant the said
benefits considering that Section 27 of PD No. 1638
provides that the name of a retiree who loses his
Filipino citizenship shall be removed from the retired
list and his retirement benefits terminated upon such
loss.
Petitioner filed her reply thereto.
We find merit in the petition.
Petitioner's husband retired in1976 under RA No. 340.
He was already receiving his monthly retirement
benefit in the amount of P18,315.00 since December
1976 until it was terminated in March 2005. Section 5,
RA No. 340 provides:
Sec. 5. Officers and enlisted men placed in the retired
list shall be subject to the rules and articles of war and
to trial by court-martial for any breach thereof. At any
time said officers and enlisted men may be called to
active service by the President. Refusal on the part of
any officer or enlisted man to perform such services
shall terminate his right to further participation in the
benefits of this Act provided he resides in the
Philippines and is physically fit for service. Such fitness
for service shall be determined by applicable
regulations.
The afore-quoted provision clearly shows how a
retiree's retirement benefits may be terminated, i.e.,
when the retiree refuses to perform active service
when called to do so provided that (1) the retiree
resides in the Philippines and (2) is physically fit for
service. There is no other requirement found in the law
which would be the reason for the termination of a
retiree's retirement benefits. Petitioner's husband was
never called to perform active service and refused to
do so, however, his retirement benefit was terminated.
The reason for such termination was his loss of Filipino
citizenship based on Section 27 of PD No. 1638, to wit:
Section 27. Military personnel retired under Sections 4,
5, 10, 11 and 12 shall be carried in the retired list of the
Armed Forces of the Philippines. The name of a retiree
who loses his Filipino citizenship shall be removed
from the retired list and his retirement benefits
terminated upon such loss.
We find that the CA erred in applying PD No. 1638 to
the retirement benefits of petitioner's husband.
Firstly, PD No. 1638 was signed by then President
Ferdinand Marcos on September 10, 1979. Under
Article 4 of the Civil Code, it is provided that laws shall
have no retroactive effect, unless the contrary is
provided. It is said that the law looks to the future only
and has no retroactive effect unless the legislator may
have formally given that effect to some legal
provisions;17 that all statutes are to be construed as
having only prospective operation, unless the purpose
and intention of the legislature to give them a
retrospective effect is expressly declared or is
necessarily implied from the language used; and that
every case of doubt must be resolved against
retrospective effect.18 These principles also apply to
amendments of statutes.
PD No. 1638 does not contain any provision regarding
its retroactive application, nor the same may be implied
from its language. In fact, Section 36 of PD No. 1638
clearly provides that the decree shall take effect upon
its approval. As held in Parreo v. COA,19 there is no
question that PD No. 1638, as amended, applies
prospectively. Since PD No. 1638, as amended, is
about the new system of retirement and separation
from service of military personnel, it should apply to
those who were in the service at the time of its
approval.20 Conversely, PD No. 1638 is not applicable
to those who retired before its effectivity in 1979. The
rule is familiar that after an act is amended, the original
act continues to be in force with regard to all rights that
had accrued prior to such amendment.21
Moreover, Section 27 of PD No. 1638 specifically
provides for the retirees to whom the law shall be
applied, to wit:
Section 27. Military personnel retired under Sections 4,
5, 10, 11 and 12 shall be carried in the retired list of the
Armed Forces of the Philippines. The name of a retiree
who loses his Filipino citizenship shall be removed
from the retired list and his retirement benefits
terminated upon such loss. (emphasis supplied)
Notably, petitioner's husband did not retire under those
above-enumerated Sections of PD No. 1638 as he
retired under RA No. 340.
Secondly, it has been held that before a right to
retirement benefits or pension vests in an employee,
he must have met the stated conditions of eligibility
with respect to the nature of employment, age, and
length of service.22 Undeniably, petitioner's husband
had complied with the conditions of eligibility to
retirement benefits as he was then receiving his
retirement benefits on a monthly basis until it was
terminated. Where the employee retires and meets the
eligibility requirements, he acquires a vested right to
the benefits that is protected by the due process
clause.23 It is only upon retirement that military
personnel acquire a vested right to retirement
benefits.24 Retirees enjoy a protected property interest
whenever they acquire a right to immediate payment
under pre-existing law.25
In Ayog v. Cusi,26 we expounded the nature of a
vested right, thus:
"A right is vested when the right to enjoyment has
become the property of some particular person or
persons as a present interest" (16 C.J.S.
1173).1wphi1 It is "the privilege to enjoy property
legally vested, to enforce contracts, and enjoy the
rights of property conferred by the existing law" (12
C.J.S. 955, Note 46, No. 6) or "some right or interest in
property which has become fixed and established and
is no longer open to doubt or controversy" (Downs vs.
Blount 170 Fed. 15, 20, cited in Balboa vs. Farrales, 51
Phil. 498, 502).
The due process clause prohibits the annihilation of
vested rights. "A state may not impair vested rights by
legislative enactment, by the enactment or by the
subsequent repeal of a municipal ordinance, or by a
change in the constitution of the State, except in a
legitimate exercise of the police power" (16 C.J.S.
1177-78).

It has been observed that, generally, the term "vested
right" expresses the concept of present fixed interest,
which in right reason and natural justice should be
protected against arbitrary State action, or an innately
just and imperative right which an enlightened free
society, sensitive to inherent and irrefragable individual
rights, cannot deny (16 C.J.S. 1174, Note 71, No. 5,
citing Pennsylvania Greyhound Lines, Inc. vs.
Rosenthal, 192 Atl. 2nd 587). 27
Petitioner's husband acquired vested right to the
payment of his retirement benefits which must be
respected and cannot be affected by the subsequent
enactment of PD No. 1638 which provides that loss of
Filipino citizenship terminates retirement benefits.
Vested rights include not only legal or equitable title to
the enforcement of a demand, but also an exemption
from new obligations after the right has vested.28
In fact, Sections 33 and 35 of PD No.1638 recognize
such vested right, to wit:
Section 33. Nothing in this Decree shall be construed
in any manner to reduce whatever retirement and
separation pay or gratuity or other monetary benefits
which any person is heretofore receiving or is entitled
to receive under the provisions of existing law.
xxxx
Section. 35. Except those necessary to give effect to
the provisions of this Decree and to preserve the rights
granted to retired or separated military personnel, all
laws, rules and regulations inconsistent with the
provisions of this Decree are hereby repealed or
modified accordingly.
Section 33 of PD No. 1638 is clear that the law has no
intention to reduce or to revoke whatever retirement
benefits being enjoyed by a retiree at the time of its
passage. Hence, Section 35 provides for an exception
to what the decree repealed or modified, i.e., except
those necessary to preserve the rights granted to
retired or separated military personnel.
We also find that the CA erred in finding that
mandamus will not lie.
Section 3, Rule 65 of the Rules of Court lay down
under what circumstances petition for mandamus may
be filed, to wit:
SEC. 3. Petition for mandamus. When any tribunal,
corporation, board, officer or person unlawfully
neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office,
trust, or station, or unlawfully excludes another from
the use and enjoyment of a right or office to which such
other is entitled, and there is no other plain, speedy
and adequate remedy in the ordinary course of law, the
person aggrieved thereby may file a verified petition in
the proper court, alleging the facts with certainty and
praying that judgment be rendered commanding the
respondent, immediately or at some other time to be
specified by the court, to do the act required to be done
to protect the rights of the petitioner, and to pay the
damages sustained by the petitioner by reason of the
wrongful acts of the respondent.
A writ of mandamus can be issued only when
petitioners legal right to the performance of a particular
act which is sought to be compelled is clear and
complete. A clear legal right is a right which is
indubitably granted by law or is inferable as a matter of
law.29 A doctrine well-embedded in our jurisprudence
is that mandamus will issue only when the petitioner
has a clear legal right to the performance of the act
sought to be compelled and the respondent has an
imperative duty to perform the same.30 The remedy of
mandamus lies to compel the performance of a
ministerial duty.31 A purely ministerial act or duty is
one that an officer or tribunal performs in a given state
of facts, in a prescribed manner, in obedience to the
mandate of a legal authority, without regard to or the
exercise of its own judgment upon the propriety or
impropriety of the act done.32 If the law imposes a
duty upon a public officer, and gives him the right to
decide how or when the duty shall be performed, such
duty is discretionary and not ministerial.33
The petition for mandamus filed by petitioner's
husband with the RTC was for the payment of his
terminated retirement benefits, which has become
vested, and being a ministerial duty on the part of the
respondents to pay such claim, mandamus is the
proper remedy to compel such payment.
The doctrine of exhaustion of administrative remedies
calls for resort first to the appropriate administrative
authorities in the resolution of a controversy falling
under their jurisdiction before the same may be
elevated to the courts of justice for review.34 However,
the principle of exhaustion of administrative remedies
need not be adhered to when the question is purely
legal.35 This is because issues of law cannot be
resolved with finality by the administrative officer.36
Appeal to the administrative officer would only be an
exercise in futility.37 Here, the question raised is purely
legal, i.e., what law should be applied in the payment
of retirement benefits of petitioner's husband. Thus,
there was no need to exhaust all administrative
remedies before a judicial relief can be sought.
WHEREFORE, the petition is GRANTED. The
Decision dated May 25, 2009 and the Resolution dated
September 10, 2009 of the Court of Appeals are
hereby REVERSED and SET ASIDE. The Decision
dated February 26, 2007 of the Regional Trial Court of
Quezon City, Branch 220, is AFFIRMED. SO
ORDERED.
b.) Guy vs Court of Appeals
This petition for review on certiorari assails the January
22, 2004 Decision1 of the Court of Appeals in CA-G.R.
SP No. 79742, which affirmed the Orders dated July
21, 20002 and July 17, 20033 of the Regional Trial
Court of Makati City, Branch 138 in SP Proc. Case No.
4549 denying petitioner's motion to dismiss; and its
May 25, 2004 Resolution4 denying petitioner's motion
for reconsideration.
The facts are as follows:
On June 13, 1997, private respondent-minors Karen
Oanes Wei and Kamille Oanes Wei, represented by
their mother Remedios Oanes (Remedios), filed a
petition for letters of administration5 before the
Regional Trial Court of Makati City, Branch 138. The
case was docketed as Sp. Proc. No. 4549 and entitled
Intestate Estate of Sima Wei (a.k.a. Rufino Guy
Susim).
Private respondents alleged that they are the duly
acknowledged illegitimate children of Sima Wei, who
died intestate in Makati City on October 29, 1992,
leaving an estate valued at P10,000,000.00 consisting
of real and personal properties. His known heirs are his
surviving spouse Shirley Guy and children, Emy,
Jeanne, Cristina, George and Michael, all surnamed
Guy. Private respondents prayed for the appointment
of a regular administrator for the orderly settlement of
Sima Wei's estate. They likewise prayed that, in the
meantime, petitioner Michael C. Guy, son of the
decedent, be appointed as Special Administrator of the
estate. Attached to private respondents' petition was a
Certification Against Forum Shopping6 signed by their
counsel, Atty. Sedfrey A. Ordoez.
In his Comment/Opposition,7 petitioner prayed for the
dismissal of the petition. He asserted that his deceased
father left no debts and that his estate can be settled
without securing letters of administration pursuant to
Section 1, Rule 74 of the Rules of Court. He further
argued that private respondents should have
established their status as illegitimate children during
the lifetime of Sima Wei pursuant to Article 175 of the
Family Code.
The other heirs of Sima Wei filed a Joint Motion to
Dismiss8 on the ground that the certification against
forum shopping should have been signed by private
respondents and not their counsel. They contended
that Remedios should have executed the certification
on behalf of her minor daughters as mandated by
Section 5, Rule 7 of the Rules of Court.
In a Manifestation/Motion as Supplement to the Joint
Motion to Dismiss,9 petitioner and his co-heirs alleged
that private respondents' claim had been paid, waived,
abandoned or otherwise extinguished by reason of
Remedios' June 7, 1993 Release and Waiver of Claim
stating that in exchange for the financial and
educational assistance received from petitioner,
Remedios and her minor children discharge the estate
of Sima Wei from any and all liabilities.
The Regional Trial Court denied the Joint Motion to
Dismiss as well as the Supplemental Motion to
Dismiss. It ruled that while the Release and Waiver of
Claim was signed by Remedios, it had not been
established that she was the duly constituted guardian
of her minor daughters. Thus, no renunciation of right
occurred. Applying a liberal application of the rules, the
trial court also rejected petitioner's objections on the
certification against forum shopping.
Petitioner moved for reconsideration but was denied.
He filed a petition for certiorari before the Court of
Appeals which affirmed the orders of the Regional Trial
Court in its assailed Decision dated January 22, 2004,
the dispositive portion of which states:
WHEREFORE, premises considered, the present
petition is hereby DENIED DUE COURSE and
accordingly DISMISSED, for lack of merit.
Consequently, the assailed Orders dated July 21, 2000
and July 17, 2003 are hereby both AFFIRMED.
Respondent Judge is hereby DIRECTED to resolve the
controversy over the illegitimate filiation of the private
respondents (sic) minors [-] Karen Oanes Wei and
Kamille Oanes Wei who are claiming successional
rights in the intestate estate of the deceased Sima Wei,
a.k.a. Rufino Guy Susim.
SO ORDERED.10
The Court of Appeals denied petitioner's motion for
reconsideration, hence, this petition.
Petitioner argues that the Court of Appeals disregarded
existing rules on certification against forum shopping;
that the Release and Waiver of Claim executed by
Remedios released and discharged the Guy family and
the estate of Sima Wei from any claims or liabilities;
and that private respondents do not have the legal
personality to institute the petition for letters of
administration as they failed to prove their filiation
during the lifetime of Sima Wei in accordance with
Article 175 of the Family Code.
Private respondents contend that their counsel's
certification can be considered substantial compliance
with the rules on certification of non-forum shopping,
and that the petition raises no new issues to warrant
the reversal of the decisions of the Regional Trial Court
and the Court of Appeals.
The issues for resolution are: 1) whether private
respondents' petition should be dismissed for failure to
comply with the rules on certification of non-forum
shopping; 2) whether the Release and Waiver of Claim
precludes private respondents from claiming their
successional rights; and 3) whether private
respondents are barred by prescription from proving
their filiation.
The petition lacks merit.
Rule 7, Section 5 of the Rules of Court provides that
the certification of non-forum shopping should be
executed by the plaintiff or the principal party. Failure
to comply with the requirement shall be cause for
dismissal of the case. However, a liberal application of
the rules is proper where the higher interest of justice
would be served. In Sy Chin v. Court of Appeals,11 we
ruled that while a petition may have been flawed where
the certificate of non-forum shopping was signed only
by counsel and not by the party, this procedural lapse
may be overlooked in the interest of substantial
justice.12 So it is in the present controversy where the
merits13 of the case and the absence of an intention to
violate the rules with impunity should be considered as
compelling reasons to temper the strict application of
the rules.
As regards Remedios' Release and Waiver of Claim,
the same does not bar private respondents from
claiming successional rights. To be valid and effective,
a waiver must be couched in clear and unequivocal
terms which leave no doubt as to the intention of a
party to give up a right or benefit which legally pertains
to him. A waiver may not be attributed to a person
when its terms do not explicitly and clearly evince an
intent to abandon a right.14
In this case, we find that there was no waiver of
hereditary rights. The Release and Waiver of Claim
does not state with clarity the purpose of its execution.
It merely states that Remedios received P300,000.00
and an educational plan for her minor daughters "by
way of financial assistance and in full settlement of any
and all claims of whatsoever nature and kind x x x
against the estate of the late Rufino Guy Susim."15
Considering that the document did not specifically
mention private respondents' hereditary share in the
estate of Sima Wei, it cannot be construed as a waiver
of successional rights.
Moreover, even assuming that Remedios truly waived
the hereditary rights of private respondents, such
waiver will not bar the latter's claim. Article 1044 of the
Civil Code, provides:
ART. 1044. Any person having the free disposal of his
property may accept or repudiate an inheritance.
Any inheritance left to minors or incapacitated persons
may be accepted by their parents or guardians.
Parents or guardians may repudiate the inheritance left
to their wards only by judicial authorization.
The right to accept an inheritance left to the poor shall
belong to the persons designated by the testator to
determine the beneficiaries and distribute the property,
or in their default, to those mentioned in Article 1030.
(Emphasis supplied)
Parents and guardians may not therefore repudiate the
inheritance of their wards without judicial approval.
This is because repudiation amounts to an alienation of
property16 which must pass the court's scrutiny in
order to protect the interest of the ward. Not having
been judicially authorized, the Release and Waiver of
Claim in the instant case is void and will not bar private
respondents from asserting their rights as heirs of the
deceased.
Furthermore, it must be emphasized that waiver is the
intentional relinquishment of a known right. Where one
lacks knowledge of a right, there is no basis upon
which waiver of it can rest. Ignorance of a material fact
negates waiver, and waiver cannot be established by a
consent given under a mistake or misapprehension of
fact.17
In the present case, private respondents could not
have possibly waived their successional rights because
they are yet to prove their status as acknowledged
illegitimate children of the deceased. Petitioner himself
has consistently denied that private respondents are
his co-heirs. It would thus be inconsistent to rule that
they waived their hereditary rights when petitioner
claims that they do not have such right. Hence,
petitioner's invocation of waiver on the part of private
respondents must fail.
Anent the issue on private respondents' filiation, we
agree with the Court of Appeals that a ruling on the
same would be premature considering that private
respondents have yet to present evidence. Before the
Family Code took effect, the governing law on actions
for recognition of illegitimate children was Article 285 of
the Civil Code, to wit:
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. (Emphasis
supplied)
We ruled in Bernabe v. Alejo18 that illegitimate
children who were still minors at the time the Family
Code took effect and whose putative parent died
during their minority are given the right to seek
recognition for a period of up to four years from
attaining majority age. This vested right was not
impaired or taken away by the passage of the Family
Code.19
On the other hand, Articles 172, 173 and 175 of the
Family Code, which superseded Article 285 of the Civil
Code, provide:
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.
ART. 173. The action to claim legitimacy may be
brought by the child during his or her lifetime and shall
be transmitted to the heirs should the child die during
minority or in a state of insanity. In these cases, the
heirs shall have a period of five years within which to
institute the action.
The action already commenced by the child shall
survive notwithstanding the death of either or both of
the parties.
ART. 175. Illegitimate children may establish their
illegitimate filiation in the same way and on the same,
evidence as legitimate children.
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.
Under the Family Code, when filiation of an illegitimate
child is established by a record of birth appearing in the
civil register or a final judgment, or an admission of
filiation in a public document or a private handwritten
instrument signed by the parent concerned, the action
for recognition may be brought by the child during his
or her lifetime. However, if the action is based upon
open and continuous possession of the status of an
illegitimate child, or any other means allowed by the
rules or special laws, it may only be brought during the
lifetime of the alleged parent.
It is clear therefore that the resolution of the issue of
prescription depends on the type of evidence to be
adduced by private respondents in proving their
filiation. However, it would be impossible to determine
the same in this case as there has been no reception
of evidence yet. This Court is not a trier of facts. Such
matters may be resolved only by the Regional Trial
Court after a full-blown trial.
While the original action filed by private respondents
was a petition for letters of administration, the trial
court is not precluded from receiving evidence on
private respondents' filiation. Its jurisdiction extends to
matters incidental and collateral to the exercise of its
recognized powers in handling the settlement of the
estate, including the determination of the status of
each heir.20 That the two causes of action, one to
compel recognition and the other to claim inheritance,
may be joined in one complaint is not new in our
jurisprudence.21 As held in Briz v. Briz:22
The question whether a person in the position of the
present plaintiff can in any event maintain a complex
action to compel recognition as a natural child and at
the same time to obtain ulterior relief in the character of
heir, is one which in the opinion of this court must be
answered in the affirmative, provided always that the
conditions justifying the joinder of the two distinct
causes of action are present in the particular case. In
other words, there is no absolute necessity requiring
that the action to compel acknowledgment should have
been instituted and prosecuted to a successful
conclusion prior to the action in which that same
plaintiff seeks additional relief in the character of heir.
Certainly, there is nothing so peculiar to the action to
compel acknowledgment as to require that a rule
should be here applied different from that generally
applicable in other cases. x x x
The conclusion above stated, though not heretofore
explicitly formulated by this court, is undoubtedly to
some extent supported by our prior decisions. Thus,
we have held in numerous cases, and the doctrine
must be considered well settled, that a natural child
having a right to compel acknowledgment, but who has
not been in fact acknowledged, may maintain partition
proceedings for the division of the inheritance against
his coheirs (Siguiong vs. Siguiong, 8 Phil., 5; Tiamson
vs. Tiamson, 32 Phil., 62); and the same person may
intervene in proceedings for the distribution of the
estate of his deceased natural father, or mother
(Capistrano vs. Fabella, 8 Phil., 135; Conde vs. Abaya,
13 Phil., 249; Ramirez vs. Gmur, 42 Phil., 855). In
neither of these situations has it been thought
necessary for the plaintiff to show a prior decree
compelling acknowledgment. The obvious reason is
that in partition suits and distribution proceedings the
other persons who might take by inheritance are before
the court; and the declaration of heirship is appropriate
to such proceedings.
WHEREFORE, the instant petition is DENIED. The
Decision dated January 22, 2004 of the Court of
Appeals in CA-G.R. SP No. 79742 affirming the denial
of petitioner's motion to dismiss; and its Resolution
dated May 25, 2004 denying petitioner's motion for
reconsideration, are AFFIRMED. Let the records be
REMANDED to the Regional Trial Court of Makati City,
Branch 138 for further proceedings. SO ORDERED.
ARTICLE 9 DUTY OF THE COURT TO RENDER
a.) Silverio vs Republic
When God created man, He made him in the likeness
of God; He created them male and female. (Genesis
5:1-2)
Amihan gazed upon the bamboo reed planted by
Bathala and she heard voices coming from inside the
bamboo. "Oh North Wind! North Wind! Please let us
out!," the voices said. She pecked the reed once, then
twice. All of a sudden, the bamboo cracked and slit
open. Out came two human beings; one was a male
and the other was a female. Amihan named the man
"Malakas" (Strong) and the woman "Maganda"
(Beautiful). (The Legend of Malakas and Maganda)
When is a man a man and when is a woman a
woman? In particular, does the law recognize the
changes made by a physician using scalpel, drugs and
counseling with regard to a persons sex? May a
person successfully petition for a change of name and
sex appearing in the birth certificate to reflect the result
of a sex reassignment surgery?
On November 26, 2002, petitioner Rommel Jacinto
Dantes Silverio filed a petition for the change of his first
name and sex in his birth certificate in the Regional
Trial Court of Manila, Branch 8. The petition, docketed
as SP Case No. 02-105207, impleaded the civil
registrar of Manila as respondent.
Petitioner alleged in his petition that he was born in the
City of Manila to the spouses Melecio Petines Silverio
and Anita Aquino Dantes on April 4, 1962. His name
was registered as "Rommel Jacinto Dantes Silverio" in
his certificate of live birth (birth certificate). His sex was
registered as "male."
He further alleged that he is a male transsexual, that is,
"anatomically male but feels, thinks and acts as a
female" and that he had always identified himself with
girls since childhood.1 Feeling trapped in a mans
body, he consulted several doctors in the United
States. He underwent psychological examination,
hormone treatment and breast augmentation. His
attempts to transform himself to a "woman" culminated
on January 27, 2001 when he underwent sex
reassignment surgery2 in Bangkok, Thailand. He was
thereafter examined by Dr. Marcelino Reysio-Cruz, Jr.,
a plastic and reconstruction surgeon in the Philippines,
who issued a medical certificate attesting that he
(petitioner) had in fact undergone the procedure.
From then on, petitioner lived as a female and was in
fact engaged to be married. He then sought to have his
name in his birth certificate changed from "Rommel
Jacinto" to "Mely," and his sex from "male" to "female."
An order setting the case for initial hearing was
published in the Peoples Journal Tonight, a
newspaper of general circulation in Metro Manila, for
three consecutive weeks.3 Copies of the order were
sent to the Office of the Solicitor General (OSG) and
the civil registrar of Manila.
On the scheduled initial hearing, jurisdictional
requirements were established. No opposition to the
petition was made.
During trial, petitioner testified for himself. He also
presented Dr. Reysio-Cruz, Jr. and his American
fianc, Richard P. Edel, as witnesses.
On June 4, 2003, the trial court rendered a decision4 in
favor of petitioner. Its relevant portions read:
Petitioner filed the present petition not to evade any
law or judgment or any infraction thereof or for any
unlawful motive but solely for the purpose of making
his birth records compatible with his present sex.
The sole issue here is whether or not petitioner is
entitled to the relief asked for.
The [c]ourt rules in the affirmative.
Firstly, the [c]ourt is of the opinion that granting the
petition would be more in consonance with the
principles of justice and equity. With his sexual [re-
assignment], petitioner, who has always felt, thought
and acted like a woman, now possesses the physique
of a female. Petitioners misfortune to be trapped in a
mans body is not his own doing and should not be in
any way taken against him.
Likewise, the [c]ourt believes that no harm, injury [or]
prejudice will be caused to anybody or the community
in granting the petition. On the contrary, granting the
petition would bring the much-awaited happiness on
the part of the petitioner and her [fianc] and the
realization of their dreams.
Finally, no evidence was presented to show any cause
or ground to deny the present petition despite due
notice and publication thereof. Even the State, through
the [OSG] has not seen fit to interpose any
[o]pposition.
WHEREFORE, judgment is hereby rendered
GRANTING the petition and ordering the Civil
Registrar of Manila to change the entries appearing in
the Certificate of Birth of [p]etitioner, specifically for
petitioners first name from "Rommel Jacinto" to MELY
and petitioners gender from "Male" to FEMALE. 5
On August 18, 2003, the Republic of the Philippines
(Republic), thru the OSG, filed a petition for certiorari in
the Court of Appeals.6 It alleged that there is no law
allowing the change of entries in the birth certificate by
reason of sex alteration.
On February 23, 2006, the Court of Appeals7 rendered
a decision8 in favor of the Republic. It ruled that the
trial courts decision lacked legal basis. There is no law
allowing the change of either name or sex in the
certificate of birth on the ground of sex reassignment
through surgery. Thus, the Court of Appeals granted
the Republics petition, set aside the decision of the
trial court and ordered the dismissal of SP Case No.
02-105207. Petitioner moved for reconsideration but it
was denied.9 Hence, this petition.
Petitioner essentially claims that the change of his
name and sex in his birth certificate is allowed under
Articles 407 to 413 of the Civil Code, Rules 103 and
108 of the Rules of Court and RA 9048.10
The petition lacks merit.
A Persons First Name Cannot Be Changed On the
Ground of Sex Reassignment
Petitioner invoked his sex reassignment as the ground
for his petition for change of name and sex. As found
by the trial court:
Petitioner filed the present petition not to evade any
law or judgment or any infraction thereof or for any
unlawful motive but solely for the purpose of making
his birth records compatible with his present sex.
(emphasis supplied)
Petitioner believes that after having acquired the
physical features of a female, he became entitled to
the civil registry changes sought. We disagree.
The State has an interest in the names borne by
individuals and entities for purposes of identification.11
A change of name is a privilege, not a right.12 Petitions
for change of name are controlled by statutes.13 In this
connection, Article 376 of the Civil Code provides:
ART. 376. No person can change his name or
surname without judicial authority.
This Civil Code provision was amended by RA 9048
(Clerical Error Law). In particular, Section 1 of RA 9048
provides:
SECTION 1. Authority to Correct Clerical or
Typographical Error and Change of First Name or
Nickname. No entry in a civil register shall be
changed or corrected without a judicial order, except
for clerical or typographical errors and change of first
name or nickname which can be corrected or changed
by the concerned city or municipal civil registrar or
consul general in accordance with the provisions of this
Act and its implementing rules and regulations.
RA 9048 now governs the change of first name.14 It
vests the power and authority to entertain petitions for
change of first name to the city or municipal civil
registrar or consul general concerned. Under the law,
therefore, jurisdiction over applications for change of
first name is now primarily lodged with the
aforementioned administrative officers. The intent and
effect of the law is to exclude the change of first name
from the coverage of Rules 103 (Change of Name) and
108 (Cancellation or Correction of Entries in the Civil
Registry) of the Rules of Court, until and unless an
administrative petition for change of name is first filed
and subsequently denied.15 It likewise lays down the
corresponding venue,16 form17 and procedure. In
sum, the remedy and the proceedings regulating
change of first name are primarily administrative in
nature, not judicial.
RA 9048 likewise provides the grounds for which
change of first name may be allowed:
SECTION 4. Grounds for Change of First Name or
Nickname. The petition for change of first name or
nickname may be allowed in any of the following
cases:
(1) The petitioner finds the first name or nickname to
be ridiculous, tainted with dishonor or extremely
difficult to write or pronounce;
(2) The new first name or nickname has been
habitually and continuously used by the petitioner and
he has been publicly known by that first name or
nickname in the community; or
(3) The change will avoid confusion.
Petitioners basis in praying for the change of his first
name was his sex reassignment. He intended to make
his first name compatible with the sex he thought he
transformed himself into through surgery. However, a
change of name does not alter ones legal capacity or
civil status.18 RA 9048 does not sanction a change of
first name on the ground of sex reassignment. Rather
than avoiding confusion, changing petitioners first
name for his declared purpose may only create grave
complications in the civil registry and the public
interest.
Before a person can legally change his given name, he
must present proper or reasonable cause or any
compelling reason justifying such change.19 In
addition, he must show that he will be prejudiced by
the use of his true and official name.20 In this case, he
failed to show, or even allege, any prejudice that he
might suffer as a result of using his true and official
name.
In sum, the petition in the trial court in so far as it
prayed for the change of petitioners first name was not
within that courts primary jurisdiction as the petition
should have been filed with the local civil registrar
concerned, assuming it could be legally done. It was
an improper remedy because the proper remedy was
administrative, that is, that provided under RA 9048. It
was also filed in the wrong venue as the proper venue
was in the Office of the Civil Registrar of Manila where
his birth certificate is kept. More importantly, it had no
merit since the use of his true and official name does
not prejudice him at all. For all these reasons, the
Court of Appeals correctly dismissed petitioners
petition in so far as the change of his first name was
concerned.
No Law Allows The Change of Entry In The Birth
Certificate As To Sex On the Ground of Sex
Reassignment
The determination of a persons sex appearing in his
birth certificate is a legal issue and the court must look
to the statutes.21 In this connection, Article 412 of the
Civil Code provides:
ART. 412. No entry in the civil register shall be
changed or corrected without a judicial order.
Together with Article 376 of the Civil Code, this
provision was amended by RA 9048 in so far as
clerical or typographical errors are involved. The
correction or change of such matters can now be made
through administrative proceedings and without the
need for a judicial order. In effect, RA 9048 removed
from the ambit of Rule 108 of the Rules of Court the
correction of such errors.22 Rule 108 now applies only
to substantial changes and corrections in entries in the
civil register.23
Section 2(c) of RA 9048 defines what a "clerical or
typographical error" is:
SECTION 2. Definition of Terms. As used in this Act,
the following terms shall mean:
xxx xxx xxx
(3) "Clerical or typographical error" refers to a mistake
committed in the performance of clerical work in
writing, copying, transcribing or typing an entry in the
civil register that is harmless and innocuous, such as
misspelled name or misspelled place of birth or the
like, which is visible to the eyes or obvious to the
understanding, and can be corrected or changed only
by reference to other existing record or records:
Provided, however, That no correction must involve the
change of nationality, age, status or sex of the
petitioner. (emphasis supplied)
Under RA 9048, a correction in the civil registry
involving the change of sex is not a mere clerical or
typographical error. It is a substantial change for which
the applicable procedure is Rule 108 of the Rules of
Court.
The entries envisaged in Article 412 of the Civil Code
and correctable under Rule 108 of the Rules of Court
are those provided in Articles 407 and 408 of the Civil
Code:24
ART. 407. Acts, events and judicial decrees
concerning the civil status of persons shall be recorded
in the civil register.
ART. 408. The following shall be entered in the civil
register:
(1) Births; (2) marriages; (3) deaths; (4) legal
separations; (5) annulments of marriage; (6) judgments
declaring marriages void from the beginning; (7)
legitimations; (8) adoptions; (9) acknowledgments of
natural children; (10) naturalization; (11) loss, or (12)
recovery of citizenship; (13) civil interdiction; (14)
judicial determination of filiation; (15) voluntary
emancipation of a minor; and (16) changes of name.
The acts, events or factual errors contemplated under
Article 407 of the Civil Code include even those that
occur after birth.25 However, no reasonable
interpretation of the provision can justify the conclusion
that it covers the correction on the ground of sex
reassignment.
To correct simply means "to make or set aright; to
remove the faults or error from" while to change means
"to replace something with something else of the same
kind or with something that serves as a substitute."26
The birth certificate of petitioner contained no error. All
entries therein, including those corresponding to his
first name and sex, were all correct. No correction is
necessary.
Article 407 of the Civil Code authorizes the entry in the
civil registry of certain acts (such as legitimations,
acknowledgments of illegitimate children and
naturalization), events (such as births, marriages,
naturalization and deaths) and judicial decrees (such
as legal separations, annulments of marriage,
declarations of nullity of marriages, adoptions,
naturalization, loss or recovery of citizenship, civil
interdiction, judicial determination of filiation and
changes of name). These acts, events and judicial
decrees produce legal consequences that touch upon
the legal capacity, status and nationality of a person.
Their effects are expressly sanctioned by the laws. In
contrast, sex reassignment is not among those acts or
events mentioned in Article 407. Neither is it
recognized nor even mentioned by any law, expressly
or impliedly.
"Status" refers to the circumstances affecting the legal
situation (that is, the sum total of capacities and
incapacities) of a person in view of his age, nationality
and his family membership.27
The status of a person in law includes all his personal
qualities and relations, more or less permanent in
nature, not ordinarily terminable at his own will, such
as his being legitimate or illegitimate, or his being
married or not. The comprehensive term status
include such matters as the beginning and end of legal
personality, capacity to have rights in general, family
relations, and its various aspects, such as birth,
legitimation, adoption, emancipation, marriage,
divorce, and sometimes even succession.28
(emphasis supplied)
A persons sex is an essential factor in marriage and
family relations. It is a part of a persons legal capacity
and civil status. In this connection, Article 413 of the
Civil Code provides:
ART. 413. All other matters pertaining to the
registration of civil status shall be governed by special
laws.
But there is no such special law in the Philippines
governing sex reassignment and its effects. This is
fatal to petitioners cause.
Moreover, Section 5 of Act 3753 (the Civil Register
Law) provides:
SEC. 5. Registration and certification of births. The
declaration of the physician or midwife in attendance at
the birth or, in default thereof, the declaration of either
parent of the newborn child, shall be sufficient for the
registration of a birth in the civil register. Such
declaration shall be exempt from documentary stamp
tax and shall be sent to the local civil registrar not later
than thirty days after the birth, by the physician or
midwife in attendance at the birth or by either parent of
the newborn child.
In such declaration, the person above mentioned shall
certify to the following facts: (a) date and hour of birth;
(b) sex and nationality of infant; (c) names, citizenship
and religion of parents or, in case the father is not
known, of the mother alone; (d) civil status of parents;
(e) place where the infant was born; and (f) such other
data as may be required in the regulations to be
issued.
xxx xxx xxx (emphasis supplied)
Under the Civil Register Law, a birth certificate is a
historical record of the facts as they existed at the time
of birth.29 Thus, the sex of a person is determined at
birth, visually done by the birth attendant (the physician
or midwife) by examining the genitals of the infant.
Considering that there is no law legally recognizing sex
reassignment, the determination of a persons sex
made at the time of his or her birth, if not attended by
error,30 is immutable.31
When words are not defined in a statute they are to be
given their common and ordinary meaning in the
absence of a contrary legislative intent. The words
"sex," "male" and "female" as used in the Civil Register
Law and laws concerning the civil registry (and even all
other laws) should therefore be understood in their
common and ordinary usage, there being no legislative
intent to the contrary. In this connection, sex is defined
as "the sum of peculiarities of structure and function
that distinguish a male from a female"32 or "the
distinction between male and female."33 Female is
"the sex that produces ova or bears young"34 and
male is "the sex that has organs to produce
spermatozoa for fertilizing ova."35 Thus, the words
"male" and "female" in everyday understanding do not
include persons who have undergone sex
reassignment. Furthermore, "words that are employed
in a statute which had at the time a well-known
meaning are presumed to have been used in that
sense unless the context compels to the contrary."36
Since the statutory language of the Civil Register Law
was enacted in the early 1900s and remains
unchanged, it cannot be argued that the term "sex" as
used then is something alterable through surgery or
something that allows a post-operative male-to-female
transsexual to be included in the category "female."
For these reasons, while petitioner may have
succeeded in altering his body and appearance
through the intervention of modern surgery, no law
authorizes the change of entry as to sex in the civil
registry for that reason. Thus, there is no legal basis for
his petition for the correction or change of the entries in
his birth certificate.
Neither May Entries in the Birth Certificate As to First
Name or Sex Be Changed on the Ground of Equity
The trial court opined that its grant of the petition was
in consonance with the principles of justice and equity.
It believed that allowing the petition would cause no
harm, injury or prejudice to anyone. This is wrong.
The changes sought by petitioner will have serious and
wide-ranging legal and public policy consequences.
First, even the trial court itself found that the petition
was but petitioners first step towards his eventual
marriage to his male fianc. However, marriage, one of
the most sacred social institutions, is a special contract
of permanent union between a man and a woman.37
One of its essential requisites is the legal capacity of
the contracting parties who must be a male and a
female.38 To grant the changes sought by petitioner
will substantially reconfigure and greatly alter the laws
on marriage and family relations. It will allow the union
of a man with another man who has undergone sex
reassignment (a male-to-female post-operative
transsexual). Second, there are various laws which
apply particularly to women such as the provisions of
the Labor Code on employment of women,39 certain
felonies under the Revised Penal Code40 and the
presumption of survivorship in case of calamities under
Rule 131 of the Rules of Court,41 among others.
These laws underscore the public policy in relation to
women which could be substantially affected if
petitioners petition were to be granted.
It is true that Article 9 of the Civil Code mandates that
"[n]o judge or court shall decline to render judgment by
reason of the silence, obscurity or insufficiency of the
law." However, it is not a license for courts to engage
in judicial legislation. The duty of the courts is to apply
or interpret the law, not to make or amend it.
In our system of government, it is for the legislature,
should it choose to do so, to determine what guidelines
should govern the recognition of the effects of sex
reassignment. The need for legislative guidelines
becomes particularly important in this case where the
claims asserted are statute-based.
To reiterate, the statutes define who may file petitions
for change of first name and for correction or change of
entries in the civil registry, where they may be filed,
what grounds may be invoked, what proof must be
presented and what procedures shall be observed. If
the legislature intends to confer on a person who has
undergone sex reassignment the privilege to change
his name and sex to conform with his reassigned sex,
it has to enact legislation laying down the guidelines in
turn governing the conferment of that privilege.
It might be theoretically possible for this Court to write
a protocol on when a person may be recognized as
having successfully changed his sex. However, this
Court has no authority to fashion a law on that matter,
or on anything else. The Court cannot enact a law
where no law exists. It can only apply or interpret the
written word of its co-equal branch of government,
Congress.
Petitioner pleads that "[t]he unfortunates are also
entitled to a life of happiness, contentment and [the]
realization of their dreams." No argument about that.
The Court recognizes that there are people whose
preferences and orientation do not fit neatly into the
commonly recognized parameters of social convention
and that, at least for them, life is indeed an ordeal.
However, the remedies petitioner seeks involve
questions of public policy to be addressed solely by the
legislature, not by the courts.
WHEREFORE, the petition is hereby DENIED.
ARTICLE 14 PENAL LAWS
a.) Del Socorro vs Wilsem
Before the Court is a petition for review on certiorari
under Rule 45 of the Rules of Court seeking to reverse
and set aside the Orders1 dated February 19, 2010
and September 1, 2010, respectively, of the Regional
Trial Court of Cebu City (RTC-Cebu), which dismissed
the criminal case entitled People of the Philippines v.
Ernst Johan Brinkman Van Wilsem, docketed as
Criminal Case No. CBU-85503, for violation of
Republic Act (R.A.) No. 9262, otherwise known as the
Anti-Violence Against Women and Their Children Act
of 2004.
The following facts are culled from the records:
Petitioner Norma A. Del Socorro and respondent Ernst
Johan Brinkman Van Wilsem contracted marriage in
Holland on September 25, 1990.2 On January 19,
1994, they were blessed with a son named Roderigo
Norjo Van Wilsem, who at the time of the filing of the
instant petition was sixteen (16) years of age.3
Unfortunately, their marriage bond ended on July 19,
1995 by virtue of a Divorce Decree issued by the
appropriate Court of Holland.4 At that time, their son
was only eighteen (18) months old.5 Thereafter,
petitioner and her son came home to the Philippines.6
According to petitioner, respondentmade a promise to
provide monthly support to their son in the amount of
Two Hundred Fifty (250) Guildene (which is equivalent
to Php17,500.00 more or less).7 However, since the
arrival of petitioner and her son in the Philippines,
respondent never gave support to the son, Roderigo.8
Not long thereafter, respondent cameto the Philippines
and remarried in Pinamungahan, Cebu, and since
then, have been residing thereat.9 Respondent and his
new wife established a business known as Paree
Catering, located at Barangay Tajao, Municipality of
Pinamungahan, Cebu City.10 To date, all the parties,
including their son, Roderigo, are presently living in
Cebu City.11
On August 28, 2009, petitioner, through her counsel,
sent a letter demanding for support from respondent.
However, respondent refused to receive the letter.12
Because of the foregoing circumstances, petitioner
filed a complaint affidavit with the Provincial Prosecutor
of Cebu City against respondent for violation of Section
5, paragraph E(2) of R.A. No. 9262 for the latters
unjust refusal to support his minor child with
petitioner.13 Respondent submitted his counter-
affidavit thereto, to which petitioner also submitted her
reply-affidavit.14 Thereafter, the Provincial Prosecutor
of Cebu City issued a Resolution recommending the
filing of an information for the crime charged against
herein respondent.
The information, which was filed with the RTC-Cebu
and raffled to Branch 20 thereof, states that:
That sometime in the year 1995 and up to the present,
more or less, in the Municipality of Minglanilla,
Province of Cebu, Philippines, and within the
jurisdiction of this Honorable Court, the above-named
accused, did then and there wilfully, unlawfully and
deliberately deprive, refuse and still continue to deprive
his son RODERIGO NORJO VAN WILSEM, a fourteen
(14) year old minor, of financial support legally due
him, resulting in economic abuse to the victim.
CONTRARY TO LAW.15
Upon motion and after notice and hearing, the RTC-
Cebu issued a Hold Departure Order against
respondent.16 Consequently, respondent was arrested
and, subsequently, posted bail.17 Petitioner also filed a
Motion/Application of Permanent Protection Order to
which respondent filed his Opposition.18 Pending the
resolution thereof, respondent was arraigned.19
Subsequently, without the RTC-Cebu having resolved
the application of the protection order, respondent filed
a Motion to Dismiss on the ground of: (1) lack of
jurisdiction over the offense charged; and (2)
prescription of the crime charged.20
On February 19, 2010, the RTC-Cebu issued the
herein assailed Order,21 dismissing the instant
criminal case against respondent on the ground that
the facts charged in the information do not constitute
an offense with respect to the respondent who is
analien, the dispositive part of which states:
WHEREFORE, the Court finds that the facts charged
in the information do not constitute an offense with
respect to the accused, he being an alien, and
accordingly, orders this case DISMISSED.
The bail bond posted by accused Ernst Johan
Brinkman Van Wilsem for his provisional liberty
ishereby cancelled (sic) and ordered released.
SO ORDERED.
Cebu City, Philippines, February 19, 2010.22
Thereafter, petitioner filed her Motion for
Reconsideration thereto reiterating respondents
obligation to support their child under Article 19523 of
the Family Code, thus, failure todo so makes him liable
under R.A. No. 9262 which "equally applies to all
persons in the Philippines who are obliged to support
their minor children regardless of the obligors
nationality."24
On September 1, 2010, the lower court issued an
Order25 denying petitioners Motion for
Reconsideration and reiterating its previous ruling.
Thus:
x x x The arguments therein presented are basically a
rehash of those advanced earlier in the memorandum
of the prosecution. Thus, the court hereby reiterates its
ruling that since the accused is a foreign national he is
not subject to our national law (The Family Code) in
regard to a parents duty and obligation to givesupport
to his child. Consequently, he cannot be charged of
violating R.A. 9262 for his alleged failure to support his
child. Unless it is conclusively established that R.A.
9262 applies to a foreigner who fails to give support
tohis child, notwithstanding that he is not bound by our
domestic law which mandates a parent to give such
support, it is the considered opinion of the court that no
prima faciecase exists against the accused herein,
hence, the case should be dismissed.
WHEREFORE, the motion for reconsideration is
hereby DENIED for lack of merit.
SO ORDERED.
Cebu City, Philippines, September 1, 2010.26
Hence, the present Petition for Review on Certiorari
raising the following issues:
1. Whether or not a foreign national has an obligation
to support his minor child under Philippine law; and
2. Whether or not a foreign national can be held
criminally liable under R.A. No. 9262 for his unjustified
failure to support his minor child.27
At the outset, let it be emphasized that We are taking
cognizance of the instant petition despite the fact that
the same was directly lodged with the Supreme Court,
consistent with the ruling in Republic v. Sunvar Realty
Development Corporation,28 which lays down the
instances when a ruling of the trial court may be
brought on appeal directly to the Supreme Court
without violating the doctrine of hierarchy of courts, to
wit:
x x x Nevertheless, the Rules do not prohibit any of the
parties from filing a Rule 45 Petition with this Court, in
case only questions of law are raised or involved. This
latter situation was one that petitioners found
themselves in when they filed the instant Petition to
raise only questions of law. In Republic v. Malabanan,
the Court clarified the three modes of appeal from
decisions of the RTC, to wit: (1) by ordinary appeal or
appeal by writ of error under Rule 41, whereby
judgment was rendered in a civil or criminal action by
the RTC in the exercise of its original jurisdiction; (2) by
a petition for review under Rule 42, whereby judgment
was rendered by the RTC in the exercise of its
appellate jurisdiction; and (3) by a petition for review on
certiorari before the Supreme Court under Rule 45.
"The first mode of appeal is taken to the [Court of
Appeals] on questions of fact or mixed questions of
fact and law. The second mode of appeal is brought to
the CA on questions of fact, of law, or mixed questions
of fact and law. The third mode of appealis elevated to
the Supreme Court only on questions of law."
(Emphasis supplied)
There is a question of law when the issue does not call
for an examination of the probative value of the
evidence presented or of the truth or falsehood of the
facts being admitted, and the doubt concerns the
correct application of law and jurisprudence on the
matter. The resolution of the issue must rest solely on
what the law provides on the given set of
circumstances.29
Indeed, the issues submitted to us for resolution
involve questions of law the response thereto
concerns the correct application of law and
jurisprudence on a given set of facts, i.e.,whether or
not a foreign national has an obligation to support his
minor child under Philippine law; and whether or not he
can be held criminally liable under R.A. No. 9262 for
his unjustified failure to do so.
It cannot be negated, moreover, that the instant
petition highlights a novel question of law concerning
the liability of a foreign national who allegedly commits
acts and omissions punishable under special criminal
laws, specifically in relation to family rights and duties.
The inimitability of the factual milieu of the present
case, therefore, deserves a definitive ruling by this
Court, which will eventually serve as a guidepost for
future cases. Furthermore, dismissing the instant
petition and remanding the same to the CA would only
waste the time, effort and resources of the courts.
Thus, in the present case, considerations of efficiency
and economy in the administration of justice should
prevail over the observance of the hierarchy of courts.
Now, on the matter of the substantive issues, We find
the petition meritorious. Nonetheless, we do not fully
agree with petitioners contentions.
To determine whether or not a person is criminally
liable under R.A. No. 9262, it is imperative that the
legal obligation to support exists.
Petitioner invokes Article 19530 of the Family Code,
which provides the parents obligation to support his
child. Petitioner contends that notwithstanding the
existence of a divorce decree issued in relation to
Article 26 of the Family Code,31 respondent is not
excused from complying with his obligation to support
his minor child with petitioner.
On the other hand, respondent contends that there is
no sufficient and clear basis presented by petitioner
that she, as well as her minor son, are entitled to
financial support.32 Respondent also added that by
reason of the Divorce Decree, he is not obligated
topetitioner for any financial support.33
On this point, we agree with respondent that petitioner
cannot rely on Article 19534 of the New Civil Code in
demanding support from respondent, who is a foreign
citizen, since Article 1535 of the New Civil Code
stresses the principle of nationality. In other words,
insofar as Philippine laws are concerned, specifically
the provisions of the Family Code on support, the
same only applies to Filipino citizens. By analogy, the
same principle applies to foreigners such that they are
governed by their national law with respect to family
rights and duties.36
The obligation to give support to a child is a matter that
falls under family rights and duties. Since the
respondent is a citizen of Holland or the Netherlands,
we agree with the RTC-Cebu that he is subject to the
laws of his country, not to Philippinelaw, as to whether
he is obliged to give support to his child, as well as the
consequences of his failure to do so.37
In the case of Vivo v. Cloribel,38 the Court held that
Furthermore, being still aliens, they are not in position
to invoke the provisions of the Civil Code of the
Philippines, for that Code cleaves to the principle that
family rights and duties are governed by their personal
law, i.e.,the laws of the nation to which they belong
even when staying in a foreign country (cf. Civil Code,
Article 15).39
It cannot be gainsaid, therefore, that the respondent is
not obliged to support petitioners son under Article195
of the Family Code as a consequence of the Divorce
Covenant obtained in Holland. This does not, however,
mean that respondent is not obliged to support
petitioners son altogether.
In international law, the party who wants to have a
foreign law applied to a dispute or case has the burden
of proving the foreign law.40 In the present case,
respondent hastily concludes that being a national of
the Netherlands, he is governed by such laws on the
matter of provision of and capacity to support.41 While
respondent pleaded the laws of the Netherlands in
advancing his position that he is not obliged to support
his son, he never proved the same.
It is incumbent upon respondent to plead and prove
that the national law of the Netherlands does not
impose upon the parents the obligation to support their
child (either before, during or after the issuance of a
divorce decree), because Llorente v. Court of
Appeals,42 has already enunciated that:
True, foreign laws do not prove themselves in our
jurisdiction and our courts are not authorized to
takejudicial notice of them. Like any other fact, they
must be alleged and proved.43
In view of respondents failure to prove the national law
of the Netherlands in his favor, the doctrine of
processual presumption shall govern. Under this
doctrine, if the foreign law involved is not properly
pleaded and proved, our courts will presume that the
foreign law is the same as our local or domestic or
internal law.44 Thus, since the law of the Netherlands
as regards the obligation to support has not been
properly pleaded and proved in the instant case, it is
presumed to be the same with Philippine law, which
enforces the obligation of parents to support their
children and penalizing the non-compliance therewith.
Moreover, while in Pilapil v. Ibay-Somera,45 the Court
held that a divorce obtained in a foreign land as well as
its legal effects may be recognized in the Philippines in
view of the nationality principle on the matter of status
of persons, the Divorce Covenant presented by
respondent does not completely show that he is
notliable to give support to his son after the divorce
decree was issued. Emphasis is placed on petitioners
allegation that under the second page of the aforesaid
covenant, respondents obligation to support his child
is specifically stated,46 which was not disputed by
respondent.
We likewise agree with petitioner that notwithstanding
that the national law of respondent states that parents
have no obligation to support their children or that such
obligation is not punishable by law, said law would still
not find applicability,in light of the ruling in Bank of
America, NT and SA v. American Realty
Corporation,47 to wit:
In the instant case, assuming arguendo that the
English Law on the matter were properly pleaded and
proved in accordance with Section 24, Rule 132 of the
Rules of Court and the jurisprudence laid down in Yao
Kee, et al. vs. Sy-Gonzales, said foreign law would still
not find applicability.
Thus, when the foreign law, judgment or contract is
contrary to a sound and established public policy of the
forum, the said foreign law, judgment or order shall not
be applied.
Additionally, prohibitive laws concerning persons, their
acts or property, and those which have for their object
public order, public policy and good customs shall not
be rendered ineffective by laws or judgments
promulgated, or by determinations or conventions
agreed upon in a foreign country.
The public policy sought to be protected in the instant
case is the principle imbedded in our jurisdiction
proscribing the splitting up of a single cause of action.
Section 4, Rule 2 of the 1997 Rules of Civil Procedure
is pertinent
If two or more suits are instituted on the basis of the
same cause of action, the filing of one or a judgment
upon the merits in any one is available as a ground for
the dismissal of the others. Moreover, foreign law
should not be applied when its application would work
undeniable injustice to the citizens or residents of the
forum. To give justice is the most important function of
law; hence, a law, or judgment or contract that is
obviously unjust negates the fundamental principles of
Conflict of Laws.48
Applying the foregoing, even if the laws of the
Netherlands neither enforce a parents obligation to
support his child nor penalize the noncompliance
therewith, such obligation is still duly enforceable in the
Philippines because it would be of great injustice to the
child to be denied of financial support when the latter is
entitled thereto.
We emphasize, however, that as to petitioner herself,
respondent is no longer liable to support his former
wife, in consonance with the ruling in San Luis v. San
Luis,49 to wit:
As to the effect of the divorce on the Filipino wife, the
Court ruled that she should no longerbe considered
marriedto the alien spouse. Further, she should not be
required to perform her marital duties and obligations.
It held:
To maintain, as private respondent does, that, under
our laws, petitioner has to be considered still married to
private respondent and still subject to a wife's
obligations under Article 109, et. seq. of the Civil Code
cannot be just. Petitioner should not be obliged to live
together with, observe respect and fidelity, and render
support to private respondent. The latter should not
continue to be one of her heirs with possible rights to
conjugal property. She should not be discriminated
against in her own country if the ends of justice are to
be served. (Emphasis added)50
Based on the foregoing legal precepts, we find that
respondent may be made liable under Section 5(e) and
(i) of R.A. No. 9262 for unjustly refusing or failing to
give support topetitioners son, to wit:
SECTION 5. Acts of Violence Against Women and
Their Children.- The crime of violence against women
and their children is committed through any of the
following acts:
xxxx
(e) Attempting to compel or compelling the woman or
her child to engage in conduct which the woman or her
child has the right to desist from or desist from conduct
which the woman or her child has the right to engage
in, or attempting to restrict or restricting the woman's or
her child's freedom of movement or conduct by force or
threat of force, physical or other harm or threat of
physical or other harm, or intimidation directed against
the woman or child. This shall include, butnot limited
to, the following acts committed with the purpose or
effect of controlling or restricting the woman's or her
child's movement or conduct:
xxxx
(2) Depriving or threatening to deprive the woman or
her children of financial support legally due her or her
family, or deliberately providing the woman's children
insufficient financial support; x x x x
(i) Causing mental or emotional anguish, public ridicule
or humiliation to the woman or her child, including, but
not limited to, repeated verbal and emotional abuse,
and denial of financial support or custody of minor
childrenof access to the woman's child/children.51
Under the aforesaid special law, the deprivation or
denial of financial support to the child is considered
anact of violence against women and children.
In addition, considering that respondent is currently
living in the Philippines, we find strength in petitioners
claim that the Territoriality Principle in criminal law, in
relation to Article 14 of the New Civil Code, applies to
the instant case, which provides that: "[p]enal laws and
those of public security and safety shall be obligatory
upon all who live and sojourn in Philippine territory,
subject to the principle of public international law and
to treaty stipulations." On this score, it is indisputable
that the alleged continuing acts of respondent in
refusing to support his child with petitioner is
committed here in the Philippines as all of the parties
herein are residents of the Province of Cebu City. As
such, our courts have territorial jurisdiction over the
offense charged against respondent. It is likewise
irrefutable that jurisdiction over the respondent was
acquired upon his arrest.
Finally, we do not agree with respondents argument
that granting, but not admitting, that there is a legal
basis for charging violation of R.A. No. 9262 in the
instant case, the criminal liability has been
extinguished on the ground of prescription of crime52
under Section 24 of R.A. No. 9262, which provides
that:
SECTION 24. Prescriptive Period. Acts falling under
Sections 5(a) to 5(f) shall prescribe in twenty (20)
years. Acts falling under Sections 5(g) to 5(I) shall
prescribe in ten (10) years.
The act of denying support to a child under Section
5(e)(2) and (i) of R.A. No. 9262 is a continuing
offense,53 which started in 1995 but is still ongoing at
present. Accordingly, the crime charged in the instant
case has clearly not prescribed.
Given, however, that the issue on whether respondent
has provided support to petitioners child calls for an
examination of the probative value of the evidence
presented, and the truth and falsehood of facts being
admitted, we hereby remand the determination of this
issue to the RTC-Cebu which has jurisdiction over the
case.
WHEREFORE, the petition is GRANTED. The Orders
dated February 19, 2010 and September 1, 2010,
respectively, of the Regional Trial Court of the City of
Cebu are hereby REVERSED and SET ASIDE. The
case is REMANDED to the same court to conduct
further proceedings based on the merits of the case.
SO ORDERED.
ARTICLE 15 NATIONALITY THEORY
a.) Pilapil vs Ibay-Somera
An ill-starred marriage of a Filipina and a foreigner
which ended in a foreign absolute divorce, only to be
followed by a criminal infidelity suit of the latter against
the former, provides Us the opportunity to lay down a
decisional rule on what hitherto appears to be an
unresolved jurisdictional question.
On September 7, 1979, petitioner Imelda Manalaysay
Pilapil, a Filipino citizen, and private respondent Erich
Ekkehard Geiling, a German national, were married
before the Registrar of Births, Marriages and Deaths at
Friedensweiler in the Federal Republic of Germany.
The marriage started auspiciously enough, and the
couple lived together for some time in Malate, Manila
where their only child, Isabella Pilapil Geiling, was born
on April 20, 1980. 1
Thereafter, marital discord set in, with mutual
recriminations between the spouses, followed by a
separation de facto between them.
After about three and a half years of marriage, such
connubial disharmony eventuated in private
respondent initiating a divorce proceeding against
petitioner in Germany before the Schoneberg Local
Court in January, 1983. He claimed that there was
failure of their marriage and that they had been living
apart since April, 1982. 2
Petitioner, on the other hand, filed an action for legal
separation, support and separation of property before
the Regional Trial Court of Manila, Branch XXXII, on
January 23, 1983 where the same is still pending as
Civil Case No. 83-15866. 3
On January 15, 1986, Division 20 of the Schoneberg
Local Court, Federal Republic of Germany,
promulgated a decree of divorce on the ground of
failure of marriage of the spouses. The custody of the
child was granted to petitioner. The records show that
under German law said court was locally and
internationally competent for the divorce proceeding
and that the dissolution of said marriage was legally
founded on and authorized by the applicable law of
that foreign jurisdiction. 4
On June 27, 1986, or more than five months after the
issuance of the divorce decree, private respondent
filed two complaints for adultery before the City Fiscal
of Manila alleging that, while still married to said
respondent, petitioner "had an affair with a certain
William Chia as early as 1982 and with yet another
man named Jesus Chua sometime in 1983". Assistant
Fiscal Jacinto A. de los Reyes, Jr., after the
corresponding investigation, recommended the
dismissal of the cases on the ground of insufficiency of
evidence. 5 However, upon review, the respondent city
fiscal approved a resolution, dated January 8, 1986,
directing the filing of two complaints for adultery
against the petitioner. 6 The complaints were
accordingly filed and were eventually raffled to two
branches of the Regional Trial Court of Manila. The
case entitled "People of the Philippines vs. Imelda
Pilapil and William Chia", docketed as Criminal Case
No. 87-52435, was assigned to Branch XXVI presided
by the respondent judge; while the other case, "People
of the Philippines vs. Imelda Pilapil and James Chua",
docketed as Criminal Case No. 87-52434 went to the
sala of Judge Leonardo Cruz, Branch XXV, of the
same court. 7
On March 14, 1987, petitioner filed a petition with the
Secretary of Justice asking that the aforesaid
resolution of respondent fiscal be set aside and the
cases against her be dismissed. 8 A similar petition
was filed by James Chua, her co-accused in Criminal
Case No. 87-52434. The Secretary of Justice, through
the Chief State Prosecutor, gave due course to both
petitions and directed the respondent city fiscal to
inform the Department of Justice "if the accused have
already been arraigned and if not yet arraigned, to
move to defer further proceedings" and to elevate the
entire records of both cases to his office for review. 9
Petitioner thereafter filed a motion in both criminal
cases to defer her arraignment and to suspend further
proceedings thereon. 10 As a consequence, Judge
Leonardo Cruz suspended proceedings in Criminal
Case No. 87-52434. On the other hand, respondent
judge merely reset the date of the arraignment in
Criminal Case No. 87-52435 to April 6, 1987. Before
such scheduled date, petitioner moved for the
cancellation of the arraignment and for the suspension
of proceedings in said Criminal Case No. 87-52435
until after the resolution of the petition for review then
pending before the Secretary of Justice. 11 A motion to
quash was also filed in the same case on the ground of
lack of jurisdiction, 12 which motion was denied by the
respondent judge in an order dated September 8,
1987. The same order also directed the arraignment of
both accused therein, that is, petitioner and William
Chia. The latter entered a plea of not guilty while the
petitioner refused to be arraigned. Such refusal of the
petitioner being considered by respondent judge as
direct contempt, she and her counsel were fined and
the former was ordered detained until she submitted
herself for arraignment. 13 Later, private respondent
entered a plea of not guilty. 14
On October 27, 1987, petitioner filed this special civil
action for certiorari and prohibition, with a prayer for a
temporary restraining order, seeking the annulment of
the order of the lower court denying her motion to
quash. The petition is anchored on the main ground
that the court is without jurisdiction "to try and decide
the charge of adultery, which is a private offense that
cannot be prosecuted de officio (sic), since the
purported complainant, a foreigner, does not qualify as
an offended spouse having obtained a final divorce
decree under his national law prior to his filing the
criminal complaint." 15
On October 21, 1987, this Court issued a temporary
restraining order enjoining the respondents from
implementing the aforesaid order of September 8,
1987 and from further proceeding with Criminal Case
No. 87-52435. Subsequently, on March 23, 1988
Secretary of Justice Sedfrey A. Ordoez acted on the
aforesaid petitions for review and, upholding
petitioner's ratiocinations, issued a resolution directing
the respondent city fiscal to move for the dismissal of
the complaints against the petitioner. 16
We find this petition meritorious. The writs prayed for
shall accordingly issue.
Under Article 344 of the Revised Penal Code, 17 the
crime of adultery, as well as four other crimes against
chastity, cannot be prosecuted except upon a sworn
written complaint filed by the offended spouse. It has
long since been established, with unwavering
consistency, that compliance with this rule is a
jurisdictional, and not merely a formal, requirement. 18
While in point of strict law the jurisdiction of the court
over the offense is vested in it by the Judiciary Law,
the requirement for a sworn written complaint is just as
jurisdictional a mandate since it is that complaint which
starts the prosecutory proceeding 19 and without which
the court cannot exercise its jurisdiction to try the case.
Now, the law specifically provides that in prosecutions
for adultery and concubinage the person who can
legally file the complaint should be the offended
spouse, and nobody else. Unlike the offenses of
seduction, abduction, rape and acts of lasciviousness,
no provision is made for the prosecution of the crimes
of adultery and concubinage by the parents,
grandparents or guardian of the offended party. The
so-called exclusive and successive rule in the
prosecution of the first four offenses above mentioned
do not apply to adultery and concubinage. It is
significant that while the State, as parens patriae, was
added and vested by the 1985 Rules of Criminal
Procedure with the power to initiate the criminal action
for a deceased or incapacitated victim in the aforesaid
offenses of seduction, abduction, rape and acts of
lasciviousness, in default of her parents, grandparents
or guardian, such amendment did not include the
crimes of adultery and concubinage. In other words,
only the offended spouse, and no other, is authorized
by law to initiate the action therefor.
Corollary to such exclusive grant of power to the
offended spouse to institute the action, it necessarily
follows that such initiator must have the status,
capacity or legal representation to do so at the time of
the filing of the criminal action. This is a familiar and
express rule in civil actions; in fact, lack of legal
capacity to sue, as a ground for a motion to dismiss in
civil cases, is determined as of the filing of the
complaint or petition.
The absence of an equivalent explicit rule in the
prosecution of criminal cases does not mean that the
same requirement and rationale would not apply.
Understandably, it may not have been found necessary
since criminal actions are generally and fundamentally
commenced by the State, through the People of the
Philippines, the offended party being merely the
complaining witness therein. However, in the so-called
"private crimes" or those which cannot be prosecuted
de oficio, and the present prosecution for adultery is of
such genre, the offended spouse assumes a more
predominant role since the right to commence the
action, or to refrain therefrom, is a matter exclusively
within his power and option.
This policy was adopted out of consideration for the
aggrieved party who might prefer to suffer the outrage
in silence rather than go through the scandal of a
public trial. 20 Hence, as cogently argued by petitioner,
Article 344 of the Revised Penal Code thus
presupposes that the marital relationship is still
subsisting at the time of the institution of the criminal
action for, adultery. This is a logical consequence since
the raison d'etre of said provision of law would be
absent where the supposed offended party had ceased
to be the spouse of the alleged offender at the time of
the filing of the criminal case. 21
In these cases, therefore, it is indispensable that the
status and capacity of the complainant to commence
the action be definitely established and, as already
demonstrated, such status or capacity must indubitably
exist as of the time he initiates the action. It would be
absurd if his capacity to bring the action would be
determined by his status before or subsequent to the
commencement thereof, where such capacity or status
existed prior to but ceased before, or was acquired
subsequent to but did not exist at the time of, the
institution of the case. We would thereby have the
anomalous spectacle of a party bringing suit at the very
time when he is without the legal capacity to do so.
To repeat, there does not appear to be any local
precedential jurisprudence on the specific issue as to
when precisely the status of a complainant as an
offended spouse must exist where a criminal
prosecution can be commenced only by one who in
law can be categorized as possessed of such status.
Stated differently and with reference to the present
case, the inquiry ;would be whether it is necessary in
the commencement of a criminal action for adultery
that the marital bonds between the complainant and
the accused be unsevered and existing at the time of
the institution of the action by the former against the
latter.
American jurisprudence, on cases involving statutes in
that jurisdiction which are in pari materia with ours,
yields the rule that after a divorce has been decreed,
the innocent spouse no longer has the right to institute
proceedings against the offenders where the statute
provides that the innocent spouse shall have the
exclusive right to institute a prosecution for adultery.
Where, however, proceedings have been properly
commenced, a divorce subsequently granted can have
no legal effect on the prosecution of the criminal
proceedings to a conclusion. 22
In the cited Loftus case, the Supreme Court of Iowa
held that
'No prosecution for adultery can be commenced except
on the complaint of the husband or wife.' Section 4932,
Code. Though Loftus was husband of defendant when
the offense is said to have been committed, he had
ceased to be such when the prosecution was begun;
and appellant insists that his status was not such as to
entitle him to make the complaint. We have repeatedly
said that the offense is against the unoffending spouse,
as well as the state, in explaining the reason for this
provision in the statute; and we are of the opinion that
the unoffending spouse must be such when the
prosecution is commenced. (Emphasis supplied.)
We see no reason why the same doctrinal rule should
not apply in this case and in our jurisdiction,
considering our statutory law and jural policy on the
matter. We are convinced that in cases of such nature,
the status of the complainant vis-a-vis the accused
must be determined as of the time the complaint was
filed. Thus, the person who initiates the adultery case
must be an offended spouse, and by this is meant that
he is still married to the accused spouse, at the time of
the filing of the complaint.
In the present case, the fact that private respondent
obtained a valid divorce in his country, the Federal
Republic of Germany, is admitted. Said divorce and its
legal effects may be recognized in the Philippines
insofar as private respondent is concerned 23 in view
of the nationality principle in our civil law on the matter
of status of persons.
Thus, in the recent case of Van Dorn vs. Romillo, Jr.,
et al., 24 after a divorce was granted by a United
States court between Alice Van Dornja Filipina, and
her American husband, the latter filed a civil case in a
trial court here alleging that her business concern was
conjugal property and praying that she be ordered to
render an accounting and that the plaintiff be granted
the right to manage the business. Rejecting his
pretensions, this Court perspicuously demonstrated the
error of such stance, thus:
There can be no question as to the validity of that
Nevada divorce in any of the States of the United
States. The decree is binding on private respondent as
an American citizen. For instance, private respondent
cannot sue petitioner, as her husband, in any State of
the Union. ...
It is true that owing to the nationality principle
embodied in Article 15 of the Civil Code, only
Philippine nationals are covered by the policy against
absolute divorces the same being considered contrary
to our concept of public policy and morality. However,
aliens may obtain divorces abroad, which may be
recognized in the Philippines, provided they are valid
according to their national law. ...
Thus, pursuant to his national law, private respondent
is no longer the husband of petitioner. He would have
no standing to sue in the case below as petitioner's
husband entitled to exercise control over conjugal
assets. ... 25
Under the same considerations and rationale, private
respondent, being no longer the husband of petitioner,
had no legal standing to commence the adultery case
under the imposture that he was the offended spouse
at the time he filed suit.
The allegation of private respondent that he could not
have brought this case before the decree of divorce for
lack of knowledge, even if true, is of no legal
significance or consequence in this case. When said
respondent initiated the divorce proceeding, he
obviously knew that there would no longer be a family
nor marriage vows to protect once a dissolution of the
marriage is decreed. Neither would there be a danger
of introducing spurious heirs into the family, which is
said to be one of the reasons for the particular
formulation of our law on adultery, 26 since there
would thenceforth be no spousal relationship to speak
of. The severance of the marital bond had the effect of
dissociating the former spouses from each other,
hence the actuations of one would not affect or cast
obloquy on the other.
The aforecited case of United States vs. Mata cannot
be successfully relied upon by private respondent. In
applying Article 433 of the old Penal Code,
substantially the same as Article 333 of the Revised
Penal Code, which punished adultery "although the
marriage be afterwards declared void", the Court
merely stated that "the lawmakers intended to declare
adulterous the infidelity of a married woman to her
marital vows, even though it should be made to appear
that she is entitled to have her marriage contract
declared null and void, until and unless she actually
secures a formal judicial declaration to that effect".
Definitely, it cannot be logically inferred therefrom that
the complaint can still be filed after the declaration of
nullity because such declaration that the marriage is
void ab initio is equivalent to stating that it never
existed. There being no marriage from the beginning,
any complaint for adultery filed after said declaration of
nullity would no longer have a leg to stand on.
Moreover, what was consequently contemplated and
within the purview of the decision in said case is the
situation where the criminal action for adultery was
filed before the termination of the marriage by a judicial
declaration of its nullity ab initio. The same rule and
requisite would necessarily apply where the
termination of the marriage was effected, as in this
case, by a valid foreign divorce.
Private respondent's invocation of Donio-Teves, et al.
vs. Vamenta, hereinbefore cited, 27 must suffer the
same fate of inapplicability. A cursory reading of said
case reveals that the offended spouse therein had duly
and seasonably filed a complaint for adultery, although
an issue was raised as to its sufficiency but which was
resolved in favor of the complainant. Said case did not
involve a factual situation akin to the one at bar or any
issue determinative of the controversy herein.
WHEREFORE, the questioned order denying
petitioner's motion to quash is SET ASIDE and another
one entered DISMISSING the complaint in Criminal
Case No. 87-52435 for lack of jurisdiction. The
temporary restraining order issued in this case on
October 21, 1987 is hereby made permanent. SO
ORDERED.
b.) Garcia-Recio vs Recio
A divorce obtained abroad by an alien may be
recognized in our jurisdiction, provided such decree is
valid according to the national law of the foreigner.
However, the divorce decree and the governing
personal law of the alien spouse who obtained the
divorce must be proven. Our courts do not take judicial
notice of foreign laws and judgments; hence, like any
other facts, both the divorce decree and the national
law of the alien must be alleged and proven according
to our law on evidence.
The Case
Before us is a Petition for Review under Rule 45 of the
Rules of Court, seeking to nullify the January 7, 1999
Decision[1] and the March 24, 1999 Order[2] of the
Regional Trial Court of Cabanatuan City, Branch 28, in
Civil Case No. 3026AF. The assailed Decision
disposed as follows:
WHEREFORE, this Court declares the marriage
between Grace J. Garcia and Rederick A. Recio
solemnized on January 12, 1994 at Cabanatuan City
as dissolved and both parties can now remarry under
existing and applicable laws to any and/or both
parties.[3]
The assailed Order denied reconsideration of the
above-quoted Decision.
The Facts
Rederick A. Recio, a Filipino, was married to Editha
Samson, an Australian citizen, in Malabon, Rizal, on
March 1, 1987.[4] They lived together as husband and
wife in Australia. On May 18, 1989, [5] a decree of
divorce, purportedly dissolving the marriage, was
issued by an Australian family court.
On June 26, 1992, respondent became an Australian
citizen, as shown by a Certificate of Australian
Citizenship issued by the Australian government.[6]
Petitioner -- a Filipina -- and respondent were married
on January 12, 1994 in Our Lady of Perpetual Help
Church in Cabanatuan City.[7] In their application for a
marriage license, respondent was declared as single
and Filipino.[8]
Starting October 22, 1995, petitioner and respondent
lived separately without prior judicial dissolution of their
marriage. While the two were still in Australia, their
conjugal assets were divided on May 16, 1996, in
accordance with their Statutory Declarations secured in
Australia.[9]
On March 3, 1998, petitioner filed a Complaint for
Declaration of Nullity of Marriage[10] in the court a quo,
on the ground of bigamy -- respondent allegedly had a
prior subsisting marriage at the time he married her on
January 12, 1994. She claimed that she learned of
respondents marriage to Editha Samson only in
November, 1997.
In his Answer, respondent averred that, as far back as
1993, he had revealed to petitioner his prior marriage
and its subsequent dissolution.[11] He contended that
his first marriage to an Australian citizen had been
validly dissolved by a divorce decree obtained in
Australia in 1989;[12] thus, he was legally capacitated
to marry petitioner in 1994.
On July 7, 1998 -- or about five years after the couples
wedding and while the suit for the declaration of nullity
was pending -- respondent was able to secure a
divorce decree from a family court in Sydney, Australia
because the marriage ha[d] irretrievably broken
down.[13]
Respondent prayed in his Answer that the Complaint
be dismissed on the ground that it stated no cause of
action.[14] The Office of the Solicitor General agreed
with respondent.[15] The court marked and admitted
the documentary evidence of both parties.[16] After
they submitted their respective memoranda, the case
was submitted for resolution.[17]
Thereafter, the trial court rendered the assailed
Decision and Order.
Ruling of the Trial Court
The trial court declared the marriage dissolved on the
ground that the divorce issued in Australia was valid
and recognized in the Philippines. It deemed the
marriage ended, but not on the basis of any defect in
an essential element of the marriage; that is,
respondents alleged lack of legal capacity to remarry.
Rather, it based its Decision on the divorce decree
obtained by respondent. The Australian divorce had
ended the marriage; thus, there was no more marital
union to nullify or annul.
Hence, this Petition.[18]
Issues
Petitioner submits the following issues for our
consideration:
1 Filipinos cannot be dissolved even by a divorce
The trial court gravely erred in finding that the divorce
decree obtained in Australia by the respondent ipso
facto terminated his first marriage to Editha Samson
thereby capacitating him to contract a second marriage
with the petitioner.
2 who are both aliens, may be recognized in the
The failure of the respondent, who is now a naturalized
Australian, to present a certificate of legal capacity to
marry constitutes absence of a substantial requisite
voiding the petitioners marriage to the respondent
3 divorces abroad, which may be recognized in the
The trial court seriously erred in the application of Art.
26 of the Family Code in this case.
4 demonstrate its conformity to the foreign law allowing
The trial court patently and grievously erred in
disregarding Arts. 11, 13, 21, 35, 40, 52 and 53 of the
Family Code as the applicable provisions in this case.
5 admitted in evidence, it must first comply with the
The trial court gravely erred in pronouncing that the
divorce decree obtained by the respondent in Australia
ipso facto capacitated the parties to remarry, without
first securing a recognition of the judgment granting the
divorce decree before our courts.[19]
The Petition raises five issues, but for purposes of this
Decision, we shall concentrate on two pivotal ones: (1)
whether the divorce between respondent and Editha
Samson was proven, and (2) whether respondent was
proven to be legally capacitated to marry petitioner.
Because of our ruling on these two, there is no more
necessity to take up the rest.
The Courts Ruling
The Petition is partly meritorious.
First Issue:
Proving the Divorce Between Respondent and Editha
Samson
Petitioner assails the trial courts recognition of the
divorce between respondent and Editha Samson.
Citing Adong v. Cheong Seng Gee,[20] petitioner
argues that the divorce decree, like any other foreign
judgment, may be given recognition in this jurisdiction
only upon proof of the existence of (1) the foreign law
allowing absolute divorce and (2) the alleged divorce
decree itself. She adds that respondent miserably
failed to establish these elements.
Petitioner adds that, based on the first paragraph of
Article 26 of the Family Code, marriages solemnized
abroad are governed by the law of the place where
they were celebrated (the lex loci celebrationis). In
effect, the Code requires the presentation of the
foreign law to show the conformity of the marriage in
question to the legal requirements of the place where
the marriage was performed.
At the outset, we lay the following basic legal principles
as the take-off points for our discussion. Philippine law
does not provide for absolute divorce; hence, our
courts cannot grant it.[21] A marriage between two
obtained abroad, because of Articles 15[22] and 17[23]
of the Civil Code.[24] In mixed marriages involving a
Filipino and a foreigner, Article 26[25] of the Family
Code allows the former to contract a subsequent
marriage in case the divorce is validly obtained abroad
by the alien spouse capacitating him or her to
remarry.[26] A divorce obtained abroad by a couple,
Philippines, provided it is consistent with their
respective national laws.[27]
A comparison between marriage and divorce, as far as
pleading and proof are concerned, can be made. Van
Dorn v. Romillo Jr. decrees that aliens may obtain
Philippines, provided they are valid according to their
national law.[28] Therefore, before a foreign divorce
decree can be recognized by our courts, the party
pleading it must prove the divorce as a fact and
it.[29] Presentation solely of the divorce decree is
insufficient.
Divorce as a Question of Fact
Petitioner insists that before a divorce decree can be
registration requirements under Articles 11, 13 and 52
of the Family Code. These articles read as follows:
ART. 11. Where a marriage license is required, each of
the contracting parties shall file separately a sworn
application for such license with the proper local civil
registrar which shall specify the following:
xxxxxxxxx
(5) If previously married, how, when and where the
previous marriage was dissolved or annulled;
xxxxxxxxx
ART. 13. In case either of the contracting parties has
been previously married, the applicant shall be
required to
ART. 13. In case either of the contracting parties has
been previously married, the applicant shall be
required to furnish, instead of the birth or baptismal
certificate required in the last preceding article, the
death certificate of the deceased spouse or the judicial
decree of the absolute divorce, or the judicial decree of
annulment or declaration of nullity of his or her
previous marriage. x x x.
ART. 52. The judgment of annulment or of absolute
nullity of the marriage, the partition and distribution of
the properties of the spouses, and the delivery of the
childrens presumptive legitimes shall be recorded in
the appropriate civil registry and registries of property;
otherwise, the same shall not affect their persons.
Respondent, on the other hand, argues that the
Australian divorce decree is a public document -- a
written official act of an Australian family court.
Therefore, it requires no further proof of its authenticity
and due execution.
Respondent is getting ahead of himself. Before a
foreign judgment is given presumptive evidentiary
value, the document must first be presented and
admitted in evidence.[30] A divorce obtained abroad is
proven by the divorce decree itself. Indeed the best
evidence of a judgment is the judgment itself.[31] The
decree purports to be a written act or record of an act
of an official body or tribunal of a foreign country.[32]
Under Sections 24 and 25 of Rule 132, on the other
hand, a writing or document may be proven as a public
or official record of a foreign country by either (1) an
official publication or (2) a copy thereof attested[33] by
the officer having legal custody of the document. If the
record is not kept in the Philippines, such copy must be
(a) accompanied by a certificate issued by the proper
diplomatic or consular officer in the Philippine foreign
service stationed in the foreign country in which the
record is kept and (b) authenticated by the seal of his
office. [34]
The divorce decree between respondent and Editha
Samson appears to be an authentic one issued by an
Australian family court.[35] However, appearance is
not sufficient; compliance with the aforementioned
rules on evidence must be demonstrated.
Fortunately for respondents cause, when the divorce
decree of May 18, 1989 was submitted in evidence,
counsel for petitioner objected, not to its admissibility,
but only to the fact that it had not been registered in the
Local Civil Registry of Cabanatuan City.[36] The trial
court ruled that it was admissible, subject to petitioners
qualification.[37] Hence, it was admitted in evidence
and accorded weight by the judge. Indeed, petitioners
failure to object properly rendered the divorce decree
admissible as a written act of the Family Court of
Sydney, Australia.[38]
Compliance with the quoted articles (11, 13 and 52) of
the Family Code is not necessary; respondent was no
longer bound by Philippine personal laws after he
acquired Australian citizenship in 1992.[39]
Naturalization is the legal act of adopting an alien and
clothing him with the political and civil rights belonging
to a citizen.[40] Naturalized citizens, freed from the
protective cloak of their former states, don the attires of
their adoptive countries. By becoming an Australian,
respondent severed his allegiance to the Philippines
and the vinculum juris that had tied him to Philippine
personal laws.
Burden of Proving Australian Law
Respondent contends that the burden to prove
Australian divorce law falls upon petitioner, because
she is the party challenging the validity of a foreign
judgment. He contends that petitioner was satisfied
with the original of the divorce decree and was
cognizant of the marital laws of Australia, because she
had lived and worked in that country for quite a long
time. Besides, the Australian divorce law is allegedly
known by Philippine courts; thus, judges may take
judicial notice of foreign laws in the exercise of sound
discretion.
We are not persuaded. The burden of proof lies with
the party who alleges the existence of a fact or thing
necessary in the prosecution or defense of an
action.[41] In civil cases, plaintiffs have the burden of
proving the material allegations of the complaint when
those are denied by the answer; and defendants have
the burden of proving the material allegations in their
answer when they introduce new matters.[42] Since
the divorce was a defense raised by respondent, the
burden of proving the pertinent Australian law
validating it falls squarely upon him.
It is well-settled in our jurisdiction that our courts
cannot take judicial notice of foreign laws.[43] Like any
other facts, they must be alleged and proved.
Australian marital laws are not among those matters
that judges are supposed to know by reason of their
judicial function.[44] The power of judicial notice must
be exercised with caution, and every reasonable doubt
upon the subject should be resolved in the negative.
Second Issue: Respondents Legal Capacity to
Remarry
Petitioner contends that, in view of the insufficient proof
of the divorce, respondent was legally incapacitated to
marry her in 1994. Hence, she concludes that their
marriage was void ab initio.
Respondent replies that the Australian divorce decree,
which was validly admitted in evidence, adequately
established his legal capacity to marry under Australian
law.
Respondents contention is untenable. In its strict legal
sense, divorce means the legal dissolution of a lawful
union for a cause arising after marriage. But divorces
are of different types. The two basic ones are (1)
absolute divorce or a vinculo matrimonii and (2) limited
divorce or a mensa et thoro. The first kind terminates
the marriage, while the second suspends it and leaves
the bond in full force.[45] There is no showing in the
case at bar which type of divorce was procured by
respondent.
Respondent presented a decree nisi or an interlocutory
decree -- a conditional or provisional judgment of
divorce. It is in effect the same as a separation from
bed and board, although an absolute divorce may
follow after the lapse of the prescribed period during
which no reconciliation is effected.[46]
Even after the divorce becomes absolute, the court
may under some foreign statutes and practices, still
restrict remarriage. Under some other jurisdictions,
remarriage may be limited by statute; thus, the guilty
party in a divorce which was granted on the ground of
adultery may be prohibited from marrying again. The
court may allow a remarriage only after proof of good
behavior.[47]
On its face, the herein Australian divorce decree
contains a restriction that reads:
1. A party to a marriage who marries again before this
decree becomes absolute (unless the other party has
died) commits the offence of bigamy.[48]
This quotation bolsters our contention that the divorce
obtained by respondent may have been restricted. It
did not absolutely establish his legal capacity to
remarry according to his national law. Hence, we find
no basis for the ruling of the trial court, which
erroneously assumed that the Australian divorce ipso
facto restored respondents capacity to remarry despite
the paucity of evidence on this matter.
We also reject the claim of respondent that the divorce
decree raises a disputable presumption or presumptive
evidence as to his civil status based on Section 48,
Rule 39[49] of the Rules of Court, for the simple reason
that no proof has been presented on the legal effects
of the divorce decree obtained under Australian laws.
Significance of the Certificate of Legal Capacity
Petitioner argues that the certificate of legal capacity
required by Article 21 of the Family Code was not
submitted together with the application for a marriage
license. According to her, its absence is proof that
respondent did not have legal capacity to remarry.
We clarify. To repeat, the legal capacity to contract
marriage is determined by the national law of the party
concerned. The certificate mentioned in Article 21 of
the Family Code would have been sufficient to
establish the legal capacity of respondent, had he duly
presented it in court. A duly authenticated and admitted
certificate is prima facie evidence of legal capacity to
marry on the part of the alien applicant for a marriage
license.[50]
As it is, however, there is absolutely no evidence that
proves respondents legal capacity to marry petitioner.
A review of the records before this Court shows that
only the following exhibits were presented before the
lower court: (1) for petitioner: (a) Exhibit A
Complaint;[51] (b) Exhibit B Certificate of Marriage
Between Rederick A. Recio (Filipino-Australian) and
Grace J. Garcia (Filipino) on January 12, 1994 in
Cabanatuan City, Nueva Ecija;[52] (c) Exhibit C
Certificate of Marriage Between Rederick A. Recio
(Filipino) and Editha D. Samson (Australian) on March
1, 1987 in Malabon, Metro Manila;[53] (d) Exhibit D
Office of the City Registrar of Cabanatuan City
Certification that no information of annulment between
Rederick A. Recio and Editha D. Samson was in its
records;[54] and (e) Exhibit E Certificate of Australian
Citizenship of Rederick A. Recio;[55] (2) for
respondent: (a) Exhibit 1 -- Amended Answer;[56] (b)
Exhibit 2 Family Law Act 1975 Decree Nisi of
Dissolution of Marriage in the Family Court of
Australia;[57] (c) Exhibit 3 Certificate of Australian
Citizenship of Rederick A. Recio;[58] (d) Exhibit 4
Decree Nisi of Dissolution of Marriage in the Family
Court of Australia Certificate;[59] and Exhibit 5 --
Statutory Declaration of the Legal Separation Between
Rederick A. Recio and Grace J. Garcia Recio since
October 22, 1995.[60]
Based on the above records, we cannot conclude that
respondent, who was then a naturalized Australian
citizen, was legally capacitated to marry petitioner on
January 12, 1994. We agree with petitioners contention
that the court a quo erred in finding that the divorce
decree ipso facto clothed respondent with the legal
capacity to remarry without requiring him to adduce
sufficient evidence to show the Australian personal law
governing his status; or at the very least, to prove his
legal capacity to contract the second marriage.
Neither can we grant petitioners prayer to declare her
marriage to respondent null and void on the ground of
bigamy. After all, it may turn out that under Australian
law, he was really capacitated to marry petitioner as a
direct result of the divorce decree. Hence, we believe
that the most judicious course is to remand this case to
the trial court to receive evidence, if any, which show
petitioners legal capacity to marry petitioner. Failing in
that, then the court a quo may declare a nullity of the
parties marriage on the ground of bigamy, there being
already in evidence two existing marriage certificates,
which were both obtained in the Philippines, one in
Malabon, Metro Manila dated March 1, 1987 and the
other, in Cabanatuan City dated January 12, 1994.
WHEREFORE, in the interest of orderly procedure and
substantial justice, we REMAND the case to the court
a quo for the purpose of receiving evidence which
conclusively show respondents legal capacity to marry
petitioner; and failing in that, of declaring the parties
marriage void on the ground of bigamy, as above
discussed. No costs. SO ORDERED.
c.) Quita vs CA
FE D. QUITA and Arturo T. Padlan, both Filipinos,
were married in the Philippines on 18 May 1941. They
were not however blessed with children. Somewhere
along the way their relationship soured. Eventually Fe
sued Arturo for divorce in San Francisco, California,
U.S.A. She submitted in the divorce proceedings a
private writing dated 19 July 1950 evidencing their
agreement to live separately from each other and a
settlement of their conjugal properties. On 23 July
1954 she obtained a final judgment of divorce. Three
(3) weeks thereafter she married a certain Felix Tupaz
in the same locality but their relationship also ended in
a divorce. Still in the U.S.A., she married for the third
time, to a certain Wernimont.
On 16 April 1972 Arturo died. He left no will. On 31
August 1972 Lino Javier Inciong filed a petition with the
Regional Trial Court of Quezon City for issuance of
letters of administration concerning the estate of Arturo
in favor of the Philippine Trust Company. Respondent
Blandina Dandan (also referred to as Blandina
Padlan), claiming to be the surviving spouse of Arturo
Padlan, and Claro, Alexis, Ricardo, Emmanuel,
Zenaida and Yolanda, all surnamed Padlan, named in
the petition as surviving children of Arturo Padlan,
opposed the petition and prayed for the appointment
instead of Atty. Leonardo Cabasal, which was resolved
in favor of the latter. Upon motion of the oppositors
themselves, Atty. Cabasal was later replaced by Higino
Castillon. On 30 April 1973 the oppositors (Blandina
and the Padlan children) submitted certified
photocopies of the 19 July 1950 private writing and the
final judgment of divorce between petitioner and
Arturo. Later Ruperto T. Padlan, claiming to be the sole
surviving brother of the deceased Arturo, intervened.
On 7 October 1987 petitioner moved for the immediate
declaration of heirs of the decedent and the distribution
of his estate. At the scheduled hearing on 23 October
1987, private respondent as well as the six (6) Padlan
children and Ruperto failed to appear despite due
notice. On the same day, the trial court required the
submission of the records of birth of the Padlan
children within ten (10) days from receipt thereof, after
which, with or without the documents, the issue on the
declaration of heirs would be considered submitted for
resolution. The prescribed period lapsed without the
required documents being submitted.
The trial court invoking Tenchavez v. Escao[1] which
held that "a foreign divorce between Filipino citizens
sought and decreed after the effectivity of the present
Civil Code (Rep. Act 386) was not entitled to
recognition as valid in this jurisdiction,"[2] disregarded
the divorce between petitioner and Arturo.
Consequently, it expressed the view that their marriage
subsisted until the death of Arturo in 1972. Neither did
it consider valid their extrajudicial settlement of
conjugal properties due to lack of judicial approval.[3]
On the other hand, it opined that there was no showing
that marriage existed between private respondent and
Arturo, much less was it shown that the alleged Padlan
children had been acknowledged by the deceased as
his children with her. As regards Ruperto, it found that
he was a brother of Arturo. On 27 November 1987[4]
only petitioner and Ruperto were declared the intestate
heirs of Arturo. Accordingly, equal adjudication of the
net hereditary estate was ordered in favor of the two
intestate heirs.[5]
On motion for reconsideration, Blandina and the
Padlan children were allowed to present proofs that the
recognition of the children by the deceased as his
legitimate children, except Alexis who was recognized
as his illegitimate child, had been made in their
respective records of birth. Thus on 15 February
1988[6] partial reconsideration was granted declaring
the Padlan children, with the exception of Alexis,
entitled to one-half of the estate to the exclusion of
Ruperto Padlan, and petitioner to the other half.[7]
Private respondent was not declared an heir. Although
it was stated in the aforementioned records of birth that
she and Arturo were married on 22 April 1947, their
marriage was clearly void since it was celebrated
during the existence of his previous marriage to
petitioner.
In their appeal to the Court of Appeals, Blandina and
her children assigned as one of the errors allegedly
committed by the trial court the circumstance that the
case was decided without a hearing, in violation of
Sec. 1, Rule 90, of the Rules of Court, which provides
that if there is a controversy before the court as to who
are the lawful heirs of the deceased person or as to the
distributive shares to which each person is entitled
under the law, the controversy shall be heard and
decided as in ordinary cases.
Respondent appellate court found this ground alone
sufficient to sustain the appeal; hence, on 11
September 1995 it declared null and void the 27
November 1987 decision and 15 February 1988 order
of the trial court, and directed the remand of the case
to the trial court for further proceedings.[8] On 18 April
1996 it denied reconsideration.[9]
Should this case be remanded to the lower court for
further proceedings? Petitioner insists that there is no
need because, first, no legal or factual issue obtains for
resolution either as to the heirship of the Padlan
children or as to their respective shares in the intestate
estate of the decedent; and, second, the issue as to
who between petitioner and private respondent is the
proper heir of the decedent is one of law which can be
resolved in the present petition based on established
facts and admissions of the parties.
We cannot sustain petitioner. The provision relied upon
by respondent court is clear: If there is a controversy
before the court as to who are the lawful heirs of the
deceased person or as to the distributive shares to
which each person is entitled under the law, the
controversy shall be heard and decided as in ordinary
cases.
We agree with petitioner that no dispute exists either
as to the right of the six (6) Padlan children to inherit
from the decedent because there are proofs that they
have been duly acknowledged by him and petitioner
herself even recognizes them as heirs of Arturo
Padlan;[10] nor as to their respective hereditary
shares. But controversy remains as to who is the
legitimate surviving spouse of Arturo. The trial court,
after the parties other than petitioner failed to appear
during the scheduled hearing on 23 October 1987 of
the motion for immediate declaration of heirs and
distribution of estate, simply issued an order requiring
the submission of the records of birth of the Padlan
children within ten (10) days from receipt thereof, after
which, with or without the documents, the issue on
declaration of heirs would be deemed submitted for
resolution.
We note that in her comment to petitioner's motion
private respondent raised, among others, the issue as
to whether petitioner was still entitled to inherit from the
decedent considering that she had secured a divorce
in the U.S.A. and in fact had twice remarried. She also
invoked the above quoted procedural rule.[11] To this,
petitioner replied that Arturo was a Filipino and as such
remained legally married to her in spite of the divorce
they obtained.[12] Reading between the lines, the
implication is that petitioner was no longer a Filipino
citizen at the time of her divorce from Arturo. This
should have prompted the trial court to conduct a
hearing to establish her citizenship. The purpose of a
hearing is to ascertain the truth of the matters in issue
with the aid of documentary and testimonial evidence
as well as the arguments of the parties either
supporting or opposing the evidence. Instead, the
lower court perfunctorily settled her claim in her favor
by merely applying the ruling in Tenchavez v. Escao.
Then in private respondent's motion to set aside and/or
reconsider the lower court's decision she stressed that
the citizenship of petitioner was relevant in the light of
the ruling in Van Dorn v. Romillo Jr.[13] that aliens may
obtain divorces abroad, which may be recognized in
the Philippines, provided they are valid according to
their national law. She prayed therefore that the case
be set for hearing.[14] Petitioner opposed the motion
but failed to squarely address the issue on her
citizenship.[15] The trial court did not grant private
respondent's prayer for a hearing but proceeded to
resolve her motion with the finding that both petitioner
and Arturo were "Filipino citizens and were married in
the Philippines."[16] It maintained that their divorce
obtained in 1954 in San Francisco, California, U.S.A.,
was not valid in Philippine jurisdiction. We deduce that
the finding on their citizenship pertained solely to the
time of their marriage as the trial court was not
supplied with a basis to determine petitioner's
citizenship at the time of their divorce. The doubt
persisted as to whether she was still a Filipino citizen
when their divorce was decreed. The trial court must
have overlooked the materiality of this aspect. Once
proved that she was no longer a Filipino citizen at the
time of their divorce, Van Dorn would become
applicable and petitioner could very well lose her right
to inherit from Arturo.
Respondent again raised in her appeal the issue on
petitioner's citizenship;[17] it did not merit
enlightenment however from petitioner.[18] In the
present proceeding, petitioner's citizenship is brought
anew to the fore by private respondent. She even
furnishes the Court with the transcript of stenographic
notes taken on 5 May 1995 during the hearing for the
reconstitution of the original of a certain transfer
certificate title as well as the issuance of new owner's
duplicate copy thereof before another trial court. When
asked whether she was an American citizen petitioner
answered that she was since 1954.[19] Significantly,
the decree of divorce of petitioner and Arturo was
obtained in the same year. Petitioner however did not
bother to file a reply memorandum to erase the
uncertainty about her citizenship at the time of their
divorce, a factual issue requiring hearings to be
conducted by the trial court. Consequently, respondent
appellate court did not err in ordering the case returned
to the trial court for further proceedings.
We emphasize however that the question to be
determined by the trial court should be limited only to
the right of petitioner to inherit from Arturo as his
surviving spouse. Private respondent's claim to
heirship was already resolved by the trial court. She
and Arturo were married on 22 April 1947 while the
prior marriage of petitioner and Arturo was subsisting
thereby resulting in a bigamous marriage considered
void from the beginning under Arts. 80 and 83 of the
Civil Code. Consequently, she is not a surviving
spouse that can inherit from him as this status
presupposes a legitimate relationship.[20]
As regards the motion of private respondent for
petitioner and her counsel to be declared in contempt
of court and that the present petition be dismissed for
forum shopping,[21] the same lacks merit. For forum
shopping to exist the actions must involve the same
transactions and same essential facts and
circumstances. There must also be identical causes of
action, subject matter and issue.[22] The present
petition deals with declaration of heirship while the
subsequent petitions filed before the three (3) trial
courts concern the issuance of new owner's duplicate
copies of titles of certain properties belonging to the
estate of Arturo. Obviously, there is no reason to
declare the existence of forum shopping.
WHEREFORE, the petition is DENIED. The decision of
respondent Court of Appeals ordering the remand of
the case to the court of origin for further proceedings
and declaring null and void its decision holding
petitioner Fe D. Quita and Ruperto T. Padlan as
intestate heirs is AFFIRMED. The order of the
appellate court modifying its previous decision by
granting one-half (1/2) of the net hereditary estate to
the Padlan children, namely, Claro, Ricardo,
Emmanuel, Zenaida and Yolanda, with the exception
of Alexis, all surnamed Padlan, instead of Arturo's
brother Ruperto Padlan, is likewise AFFIRMED. The
Court however emphasizes that the reception of
evidence by the trial court should be limited to the
hereditary rights of petitioner as the surviving spouse
of Arturo Padlan.
The motion to declare petitioner and her counsel in
contempt of court and to dismiss the present petition
for forum shopping is DENIED. SO ORDERED.
d.) Elmar Perez vs CA
This petition for certiorari and prohibition under Rule 65
of the Rules of Court assails the July 25, 2003
Decision1 of the Court of Appeals in CA-G.R. SP No.
74456 which set aside and declared as null and void
the September 30, 2002 Order2 of the Regional Trial
Court of Quezon City, Branch 84, granting petitioners
motion for leave to file intervention and admitting the
Complaint-in-Intervention3 in Civil Case No. Q-01-
44847; and its January 23, 2004 Resolution4 denying
the motion for reconsideration.
Private respondent Tristan A. Catindig married Lily
Gomez Catindig5 twice on May 16, 1968. The first
marriage ceremony was celebrated at the Central
Methodist Church at T.M. Kalaw Street, Ermita, Manila
while the second took place at the Lourdes Catholic
Church in La Loma, Quezon City. The marriage
produced four children.
Several years later, the couple encountered marital
problems that they decided to separate from each
other. Upon advice of a mutual friend, they decided to
obtain a divorce from the Dominican Republic. Thus,
on April 27, 1984, Tristan and Lily executed a Special
Power of Attorney addressed to the Judge of the First
Civil Court of San Cristobal, Dominican Republic,
appointing an attorney-in-fact to institute a divorce
action under its laws.6
Thereafter, on April 30, 1984, the private respondents
filed a joint petition for dissolution of conjugal
partnership with the Regional Trial Court of Makati. On
June 12, 1984, the civil court in the Dominican
Republic ratified the divorce by mutual consent of
Tristan and Lily. Subsequently, on June 23, 1984, the
Regional Trial Court of Makati City, Branch 133,
ordered the complete separation of properties between
Tristan and Lily.
On July 14, 1984, Tristan married petitioner Elmar O.
Perez in the State of Virginia in the United States7 and
both lived as husband and wife until October 2001.
Their union produced one offspring.8
During their cohabitation, petitioner learned that the
divorce decree issued by the court in the Dominican
Republic which "dissolved" the marriage between
Tristan and Lily was not recognized in the Philippines
and that her marriage to Tristan was deemed void
under Philippine law. When she confronted Tristan
about this, the latter assured her that he would legalize
their union after he obtains an annulment of his
marriage with Lily. Tristan further promised the
petitioner that he would adopt their son so that he
would be entitled to an equal share in his estate as that
of each of his children with Lily.9
On August 13, 2001, Tristan filed a petition for the
declaration of nullity of his marriage to Lily with the
Regional Trial Court of Quezon City, docketed as Case
No. Q-01-44847.
Subsequently, petitioner filed a Motion for Leave to File
Intervention10 claiming that she has a legal interest in
the matter in litigation because she knows certain
information which might aid the trial court at a truthful,
fair and just adjudication of the annulment case, which
the trial court granted on September 30, 2002.
Petitioners complaint-in-intervention was also ordered
admitted.
Tristan filed a petition for certiorari and prohibition with
the Court of Appeals seeking to annul the order dated
September 30, 2002 of the trial court. The Court of
Appeals granted the petition and declared as null and
void the September 30, 2002 Order of the trial court
granting the motion for leave to file intervention and
admitting the complaint-in-intervention.
Petitioners motion for reconsideration was denied,
hence this petition for certiorari and prohibition filed
under Rule 65 of the Rules of Court. Petitioner
contends that the Court of Appeals gravely abused its
discretion in disregarding her legal interest in the
annulment case between Tristan and Lily.
The petition lacks merit.
Ordinarily, the proper recourse of an aggrieved party
from a decision of the Court of Appeals is a petition for
review on certiorari under Rule 45 of the Rules of
Court. However, if the error subject of the recourse is
one of jurisdiction, or the act complained of was
granted by a court with grave abuse of discretion
amounting to lack or excess of jurisdiction, as alleged
in this case, the proper remedy is a petition for
certiorari under Rule 65 of the said Rules.11 This is
based on the premise that in issuing the assailed
decision and resolution, the Court of Appeals acted
with grave abuse of discretion, amounting to excess of
lack of jurisdiction and there is no plain, speedy and
adequate remedy in the ordinary course of law. A
remedy is considered plain, speedy, and adequate if it
will promptly relieve the petitioner from the injurious
effect of the judgment and the acts of the lower
court.12
It is therefore incumbent upon the petitioner to
establish that the Court of Appeals acted with grave
abuse of discretion amounting to excess or lack of
jurisdiction when it promulgated the assailed decision
and resolution.
We have previously ruled that grave abuse of
discretion may arise when a lower court or tribunal
violates or contravenes the Constitution, the law or
existing jurisprudence. By grave abuse of discretion is
meant, such capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction. The
abuse of discretion must be grave as where the power
is exercised in an arbitrary or despotic manner by
reason of passion or personal hostility and must be so
patent and gross as to amount to an evasion of
positive duty or to a virtual refusal to perform the duty
enjoined by or to act at all in contemplation of law.13
The word "capricious," usually used in tandem with the
term "arbitrary," conveys the notion of willful and
unreasoning action. Thus, when seeking the corrective
hand of certiorari, a clear showing of caprice and
arbitrariness in the exercise of discretion is
imperative.14
The Rules of Court laid down the parameters before a
person, not a party to a case can intervene, thus:
Who may intervene. A person who has a legal
interest in the matter in litigation, or in the success of
either of the parties, or an interest against both, or is so
situated as to be adversely affected by a distribution or
other disposition of property in the custody of the court
or of an officer thereof may, with leave of court, be
allowed to intervene in the action. The court shall
consider whether or not the intervention will unduly
delay or prejudice the adjudication of the rights of the
original parties, and whether or not the intervenors
rights may be fully protected in a separate
proceeding.15
The requirements for intervention are: [a] legal interest
in the matter in litigation; and [b] consideration must be
given as to whether the adjudication of the original
parties may be delayed or prejudiced, or whether the
intervenors rights may be protected in a separate
proceeding or not.16
Legal interest, which entitles a person to intervene,
must be in the matter in litigation and of such direct
and immediate character that the intervenor will either
gain or lose by direct legal operation and effect of the
judgment.17 Such interest must be actual, direct and
material, and not simply contingent and expectant.18
Petitioner claims that her status as the wife and
companion of Tristan for 17 years vests her with the
requisite legal interest required of a would-be
intervenor under the Rules of Court.
Petitioners claim lacks merit. Under the law, petitioner
was never the legal wife of Tristan, hence her claim of
legal interest has no basis.
When petitioner and Tristan married on July 14, 1984,
Tristan was still lawfully married to Lily. The divorce
decree that Tristan and Lily obtained from the
Dominican Republic never dissolved the marriage
bond between them. It is basic that laws relating to
family rights and duties, or to the status, condition and
legal capacity of persons are binding upon citizens of
the Philippines, even though living abroad.19
Regardless of where a citizen of the Philippines might
be, he or she will be governed by Philippine laws with
respect to his or her family rights and duties, or to his
or her status, condition and legal capacity. Hence, if a
Filipino regardless of whether he or she was married
here or abroad, initiates a petition abroad to obtain an
absolute divorce from spouse and eventually becomes
successful in getting an absolute divorce decree, the
Philippines will not recognize such absolute divorce.20
When Tristan and Lily married on May 18, 1968, their
marriage was governed by the provisions of the Civil
Code21 which took effect on August 30, 1950. In the
case of Tenchavez v. Escano22 we held:
(1) That a foreign divorce between Filipino citizens,
sought and decreed after the effectivity of the present
Civil Code (Rep. Act No. 386), is not entitled to
recognition as valid in this jurisdiction; and neither is
the marriage contracted with another party by the
divorced consort, subsequently to the foreign decree of
divorce, entitled to validity in the country. (Emphasis
added)
Thus, petitioners claim that she is the wife of Tristan
even if their marriage was celebrated abroad lacks
merit. Thus, petitioner never acquired the legal interest
as a wife upon which her motion for intervention is
based.
Since petitioners motion for leave to file intervention
was bereft of the indispensable requirement of legal
interest, the issuance by the trial court of the order
granting the same and admitting the complaint-in-
intervention was attended with grave abuse of
discretion. Consequently, the Court of Appeals
correctly set aside and declared as null and void the
said order.
WHEREFORE, the petition is DISMISSED. The
assailed Decision dated July 25, 2003 and Resolution
dated January 23, 2004 of the Court of Appeals in CA-
G.R. SP No. 74456 are AFFIRMED. No
pronouncement as to costs. SO ORDERED.
e.) San Luis vs San Luis
Before us are consolidated petitions for review
assailing the February 4, 1998 Decision 1 of the Court
of Appeals in CA-G.R. CV No. 52647, which reversed
and set aside the September 12, 1995 2 and January
31, 1996 3 Resolutions of the Regional Trial Court of
Makati City, Branch 134 in SP. Proc. No. M-3708; and
its May 15, 1998 Resolution 4 denying petitioners
motion for reconsideration.
The instant case involves the settlement of the estate
of Felicisimo T. San Luis (Felicisimo), who was the
former governor of the Province of Laguna. During his
lifetime, Felicisimo contracted three marriages. His first
marriage was with Virginia Sulit on March 17, 1942 out
of which were born six children, namely: Rodolfo, Mila,
Edgar, Linda, Emilita and Manuel. On August 11, 1963,
Virginia predeceased Felicisimo.
Five years later, on May 1, 1968, Felicisimo married
Merry Lee Corwin, with whom he had a son, Tobias.
However, on October 15, 1971, Merry Lee, an
American citizen, filed a Complaint for Divorce 5 before
the Family Court of the First Circuit, State of Hawaii,
United States of America (U.S.A.), which issued a
Decree Granting Absolute Divorce and Awarding Child
Custody on December 14, 1973. 6
On June 20, 1974, Felicisimo married respondent
Felicidad San Luis, then surnamed Sagalongos, before
Rev. Fr. William Meyer, Minister of the United
Presbyterian at Wilshire Boulevard, Los Angeles,
California, U.S.A. 7 He had no children with
respondent but lived with her for 18 years from the time
of their marriage up to his death on December 18,
1992.
Thereafter, respondent sought the dissolution of their
conjugal partnership assets and the settlement of
Felicisimos estate. On December 17, 1993, she filed a
petition for letters of administration 8 before the
Regional Trial Court of Makati City, docketed as SP.
Proc. No. M-3708 which was raffled to Branch 146
thereof.
Respondent alleged that she is the widow of
Felicisimo; that, at the time of his death, the decedent
was residing at 100 San Juanico Street, New Alabang
Village, Alabang, Metro Manila; that the decedents
surviving heirs are respondent as legal spouse, his six
children by his first marriage, and son by his second
marriage; that the decedent left real properties, both
conjugal and exclusive, valued at P30,304,178.00
more or less; that the decedent does not have any
unpaid debts. Respondent prayed that the conjugal
partnership assets be liquidated and that letters of
administration be issued to her.
On February 4, 1994, petitioner Rodolfo San Luis, one
of the children of Felicisimo by his first marriage, filed a
motion to dismiss 9 on the grounds of improper venue
and failure to state a cause of action. Rodolfo claimed
that the petition for letters of administration should
have been filed in the Province of Laguna because this
was Felicisimos place of residence prior to his death.
He further claimed that respondent has no legal
personality to file the petition because she was only a
mistress of Felicisimo since the latter, at the time of his
death, was still legally married to Merry Lee.
On February 15, 1994, Linda invoked the same
grounds and joined her brother Rodolfo in seeking the
dismissal 10 of the petition. On February 28, 1994, the
trial court issued an Order 11 denying the two motions
to dismiss.
Unaware of the denial of the motions to dismiss,
respondent filed on March 5, 1994 her opposition 12
thereto. She submitted documentary evidence showing
that while Felicisimo exercised the powers of his public
office in Laguna, he regularly went home to their house
in New Alabang Village, Alabang, Metro Manila which
they bought sometime in 1982. Further, she presented
the decree of absolute divorce issued by the Family
Court of the First Circuit, State of Hawaii to prove that
the marriage of Felicisimo to Merry Lee had already
been dissolved. Thus, she claimed that Felicisimo had
the legal capacity to marry her by virtue of paragraph
2, 13 Article 26 of the Family Code and the doctrine
laid down in Van Dorn v. Romillo, Jr. 14
Thereafter, Linda, Rodolfo and herein petitioner Edgar
San Luis, separately filed motions for reconsideration
from the Order denying their motions to dismiss. 15
They asserted that paragraph 2, Article 26 of the
Family Code cannot be given retroactive effect to
validate respondents bigamous marriage with
Felicisimo because this would impair vested rights in
derogation of Article 256 16 of the Family Code.
On April 21, 1994, Mila, another daughter of Felicisimo
from his first marriage, filed a motion to disqualify
Acting Presiding Judge Anthony E. Santos from
hearing the case.
On October 24, 1994, the trial court issued an Order 17
denying the motions for reconsideration. It ruled that
respondent, as widow of the decedent, possessed the
legal standing to file the petition and that venue was
properly laid. Meanwhile, the motion for disqualification
was deemed moot and academic 18 because then
Acting Presiding Judge Santos was substituted by
Judge Salvador S. Tensuan pending the resolution of
said motion.
Mila filed a motion for inhibition 19 against Judge
Tensuan on November 16, 1994. On even date, Edgar
also filed a motion for reconsideration 20 from the
Order denying their motion for reconsideration arguing
that it does not state the facts and law on which it was
based.
On November 25, 1994, Judge Tensuan issued an
Order 21 granting the motion for inhibition. The case
was re-raffled to Branch 134 presided by Judge Paul T.
Arcangel.
On April 24, 1995, 22 the trial court required the parties
to submit their respective position papers on the twin
issues of venue and legal capacity of respondent to file
the petition. On May 5, 1995, Edgar manifested 23 that
he is adopting the arguments and evidence set forth in
his previous motion for reconsideration as his position
paper. Respondent and Rodolfo filed their position
papers on June 14, 24 and June 20, 25 1995,
respectively.
On September 12, 1995, the trial court dismissed the
petition for letters of administration. It held that, at the
time of his death, Felicisimo was the duly elected
governor and a resident of the Province of Laguna.
Hence, the petition should have been filed in Sta. Cruz,
Laguna and not in Makati City. It also ruled that
respondent was without legal capacity to file the
petition for letters of administration because her
marriage with Felicisimo was bigamous, thus, void ab
initio. It found that the decree of absolute divorce
dissolving Felicisimos marriage to Merry Lee was not
valid in the Philippines and did not bind Felicisimo who
was a Filipino citizen. It also ruled that paragraph 2,
Article 26 of the Family Code cannot be retroactively
applied because it would impair the vested rights of
Felicisimos legitimate children.
Respondent moved for reconsideration 26 and for the
disqualification 27 of Judge Arcangel but said motions
were denied. 28
Respondent appealed to the Court of Appeals which
reversed and set aside the orders of the trial court in its
assailed Decision dated February 4, 1998, the
dispositive portion of which states:
WHEREFORE, the Orders dated September 12, 1995
and January 31, 1996 are hereby REVERSED and
SET ASIDE; the Orders dated February 28 and
October 24, 1994 are REINSTATED; and the records
of the case is REMANDED to the trial court for further
proceedings. 29
The appellante court ruled that under Section 1, Rule
73 of the Rules of Court, the term "place of residence"
of the decedent, for purposes of fixing the venue of the
settlement of his estate, refers to the personal, actual
or physical habitation, or actual residence or place of
abode of a person as distinguished from legal
residence or domicile. It noted that although Felicisimo
discharged his functions as governor in Laguna, he
actually resided in Alabang, Muntinlupa. Thus, the
petition for letters of administration was properly filed in
Makati City.
The Court of Appeals also held that Felicisimo had
legal capacity to marry respondent by virtue of
paragraph 2, Article 26 of the Family Code and the
rulings in Van Dorn v. Romillo, Jr. 30 and Pilapil v.
Ibay-Somera. 31 It found that the marriage between
Felicisimo and Merry Lee was validly dissolved by
virtue of the decree of absolute divorce issued by the
Family Court of the First Circuit, State of Hawaii. As a
result, under paragraph 2, Article 26, Felicisimo was
capacitated to contract a subsequent marriage with
respondent. Thus
With the well-known rule express mandate of
paragraph 2, Article 26, of the Family Code of the
Philippines, the doctrines in Van Dorn, Pilapil, and the
reason and philosophy behind the enactment of E.O.
No. 227, there is no justiciable reason to sustain the
individual view sweeping statement of Judge
Arc[h]angel, that "Article 26, par. 2 of the Family Code,
contravenes the basic policy of our state against
divorce in any form whatsoever." Indeed, courts cannot
deny what the law grants. All that the courts should do
is to give force and effect to the express mandate of
the law. The foreign divorce having been obtained by
the Foreigner on December 14, 1992, 32 the Filipino
divorcee, "shall x x x have capacity to remarry under
Philippine laws". For this reason, the marriage between
the deceased and petitioner should not be
denominated as "a bigamous marriage.
Therefore, under Article 130 of the Family Code, the
petitioner as the surviving spouse can institute the
judicial proceeding for the settlement of the estate of
the deceased. x x x 33
Edgar, Linda, and Rodolfo filed separate motions for
reconsideration 34 which were denied by the Court of
Appeals.
On July 2, 1998, Edgar appealed to this Court via the
instant petition for review on certiorari. 35 Rodolfo later
filed a manifestation and motion to adopt the said
petition which was granted. 36
In the instant consolidated petitions, Edgar and
Rodolfo insist that the venue of the subject petition for
letters of administration was improperly laid because at
the time of his death, Felicisimo was a resident of Sta.
Cruz, Laguna. They contend that pursuant to our
rulings in Nuval v. Guray 37 and Romualdez v. RTC,
Br. 7, Tacloban City, 38 "residence" is synonymous
with "domicile" which denotes a fixed permanent
residence to which when absent, one intends to return.
They claim that a person can only have one domicile at
any given time. Since Felicisimo never changed his
domicile, the petition for letters of administration should
have been filed in Sta. Cruz, Laguna.
Petitioners also contend that respondents marriage to
Felicisimo was void and bigamous because it was
performed during the subsistence of the latters
marriage to Merry Lee. They argue that paragraph 2,
Article 26 cannot be retroactively applied because it
would impair vested rights and ratify the void bigamous
marriage. As such, respondent cannot be considered
the surviving wife of Felicisimo; hence, she has no
legal capacity to file the petition for letters of
administration.
The issues for resolution: (1) whether venue was
properly laid, and (2) whether respondent has legal
capacity to file the subject petition for letters of
administration.
The petition lacks merit.
Under Section 1, 39 Rule 73 of the Rules of Court, the
petition for letters of administration of the estate of
Felicisimo should be filed in the Regional Trial Court of
the province "in which he resides at the time of his
death." In the case of Garcia Fule v. Court of Appeals,
40 we laid down the doctrinal rule for determining the
residence as contradistinguished from domicile of
the decedent for purposes of fixing the venue of the
settlement of his estate:
[T]he term "resides" connotes ex vi termini "actual
residence" as distinguished from "legal residence or
domicile." This term "resides," like the terms "residing"
and "residence," is elastic and should be interpreted in
the light of the object or purpose of the statute or rule
in which it is employed. In the application of venue
statutes and rules Section 1, Rule 73 of the Revised
Rules of Court is of such nature residence rather
than domicile is the significant factor. Even where the
statute uses the word "domicile" still it is construed as
meaning residence and not domicile in the technical
sense. Some cases make a distinction between the
terms "residence" and "domicile" but as generally used
in statutes fixing venue, the terms are synonymous,
and convey the same meaning as the term
"inhabitant." In other words, "resides" should be viewed
or understood in its popular sense, meaning, the
personal, actual or physical habitation of a person,
actual residence or place of abode. It signifies physical
presence in a place and actual stay thereat. In this
popular sense, the term means merely residence, that
is, personal residence, not legal residence or domicile.
Residence simply requires bodily presence as an
inhabitant in a given place, while domicile requires
bodily presence in that place and also an intention to
make it ones domicile. No particular length of time of
residence is required though; however, the residence
must be more than temporary. 41 (Emphasis supplied)
It is incorrect for petitioners to argue that "residence,"
for purposes of fixing the venue of the settlement of the
estate of Felicisimo, is synonymous with "domicile."
The rulings in Nuval and Romualdez are inapplicable
to the instant case because they involve election
cases. Needless to say, there is a distinction between
"residence" for purposes of election laws and
"residence" for purposes of fixing the venue of actions.
In election cases, "residence" and "domicile" are
treated as synonymous terms, that is, the fixed
permanent residence to which when absent, one has
the intention of returning. 42 However, for purposes of
fixing venue under the Rules of Court, the "residence"
of a person is his personal, actual or physical
habitation, or actual residence or place of abode, which
may not necessarily be his legal residence or domicile
provided he resides therein with continuity and
consistency. 43 Hence, it is possible that a person may
have his residence in one place and domicile in
another.
In the instant case, while petitioners established that
Felicisimo was domiciled in Sta. Cruz, Laguna,
respondent proved that he also maintained a residence
in Alabang, Muntinlupa from 1982 up to the time of his
death. Respondent submitted in evidence the Deed of
Absolute Sale 44 dated January 5, 1983 showing that
the deceased purchased the aforesaid property. She
also presented billing statements 45 from the
Philippine Heart Center and Chinese General Hospital
for the period August to December 1992 indicating the
address of Felicisimo at "100 San Juanico, Ayala
Alabang, Muntinlupa." Respondent also presented
proof of membership of the deceased in the Ayala
Alabang Village Association 46 and Ayala Country
Club, Inc., 47 letter-envelopes 48 from 1988 to 1990
sent by the deceaseds children to him at his Alabang
address, and the deceaseds calling cards 49 stating
that his home/city address is at "100 San Juanico,
Ayala Alabang Village, Muntinlupa" while his
office/provincial address is in "Provincial Capitol, Sta.
Cruz, Laguna."
From the foregoing, we find that Felicisimo was a
resident of Alabang, Muntinlupa for purposes of fixing
the venue of the settlement of his estate.
Consequently, the subject petition for letters of
administration was validly filed in the Regional Trial
Court 50 which has territorial jurisdiction over Alabang,
Muntinlupa. The subject petition was filed on
December 17, 1993. At that time, Muntinlupa was still a
municipality and the branches of the Regional Trial
Court of the National Capital Judicial Region which had
territorial jurisdiction over Muntinlupa were then seated
in Makati City as per Supreme Court Administrative
Order No. 3. 51 Thus, the subject petition was validly
filed before the Regional Trial Court of Makati City.
Anent the issue of respondent Felicidads legal
personality to file the petition for letters of
administration, we must first resolve the issue of
whether a Filipino who is divorced by his alien spouse
abroad may validly remarry under the Civil Code,
considering that Felicidads marriage to Felicisimo was
solemnized on June 20, 1974, or before the Family
Code took effect on August 3, 1988. In resolving this
issue, we need not retroactively apply the provisions of
the Family Code, particularly Art. 26, par. (2)
considering that there is sufficient jurisprudential basis
allowing us to rule in the affirmative.
The case of Van Dorn v. Romillo, Jr. 52 involved a
marriage between a foreigner and his Filipino wife,
which marriage was subsequently dissolved through a
divorce obtained abroad by the latter. Claiming that the
divorce was not valid under Philippine law, the alien
spouse alleged that his interest in the properties from
their conjugal partnership should be protected. The
Court, however, recognized the validity of the divorce
and held that the alien spouse had no interest in the
properties acquired by the Filipino wife after the
divorce. Thus:
In this case, the divorce in Nevada released private
respondent from the marriage from the standards of
American law, under which divorce dissolves the
marriage. As stated by the Federal Supreme Court of
the United States in Atherton vs. Atherton, 45 L. Ed.
794, 799:
"The purpose and effect of a decree of divorce from the
bond of matrimony by a competent jurisdiction are to
change the existing status or domestic relation of
husband and wife, and to free them both from the
bond. The marriage tie, when thus severed as to one
party, ceases to bind either. A husband without a wife,
or a wife without a husband, is unknown to the law.
When the law provides, in the nature of a penalty, that
the guilty party shall not marry again, that party, as well
as the other, is still absolutely freed from the bond of
the former marriage."
Thus, pursuant to his national law, private respondent
is no longer the husband of petitioner. He would have
no standing to sue in the case below as petitioners
husband entitled to exercise control over conjugal
assets. As he is bound by the Decision of his own
countrys Court, which validly exercised jurisdiction
over him, and whose decision he does not repudiate,
he is estopped by his own representation before said
Court from asserting his right over the alleged conjugal
property. 53
As to the effect of the divorce on the Filipino wife, the
Court ruled that she should no longer be considered
married to the alien spouse. Further, she should not be
required to perform her marital duties and obligations.
It held:
To maintain, as private respondent does, that, under
our laws, petitioner has to be considered still married to
private respondent and still subject to a wife's
obligations under Article 109, et. seq. of the Civil Code
cannot be just. Petitioner should not be obliged to live
together with, observe respect and fidelity, and render
support to private respondent. The latter should not
continue to be one of her heirs with possible rights to
conjugal property. She should not be discriminated
against in her own country if the ends of justice are to
be served. 54 (Emphasis added)
This principle was thereafter applied in Pilapil v. Ibay-
Somera 55 where the Court recognized the validity of a
divorce obtained abroad. In the said case, it was held
that the alien spouse is not a proper party in filing the
adultery suit against his Filipino wife. The Court stated
that "the severance of the marital bond had the effect
of dissociating the former spouses from each other,
hence the actuations of one would not affect or cast
obloquy on the other." 56
Likewise, in Quita v. Court of Appeals, 57 the Court
stated that where a Filipino is divorced by his
naturalized foreign spouse, the ruling in Van Dorn
applies. 58 Although decided on December 22, 1998,
the divorce in the said case was obtained in 1954
when the Civil Code provisions were still in effect.
The significance of the Van Dorn case to the
development of limited recognition of divorce in the
Philippines cannot be denied. The ruling has long been
interpreted as severing marital ties between parties in
a mixed marriage and capacitating the Filipino spouse
to remarry as a necessary consequence of upholding
the validity of a divorce obtained abroad by the alien
spouse. In his treatise, Dr. Arturo M. Tolentino cited
Van Dorn stating that "if the foreigner obtains a valid
foreign divorce, the Filipino spouse shall have capacity
to remarry under Philippine law." 59 In Garcia v. Recio,
60 the Court likewise cited the aforementioned case in
relation to Article 26. 61
In the recent case of Republic v. Orbecido III, 62 the
historical background and legislative intent behind
paragraph 2, Article 26 of the Family Code were
discussed, to wit:
Brief Historical Background
On July 6, 1987, then President Corazon Aquino
signed into law Executive Order No. 209, otherwise
known as the "Family Code," which took effect on
August 3, 1988. Article 26 thereof states:
All marriages solemnized outside the Philippines in
accordance with the laws in force in the country where
they were solemnized, and valid there as such, shall
also be valid in this country, except those prohibited
under Articles 35, 37, and 38.
On July 17, 1987, shortly after the signing of the
original Family Code, Executive Order No. 227 was
likewise signed into law, amending Articles 26, 36, and
39 of the Family Code. A second paragraph was added
to Article 26. As so amended, it now provides:
ART. 26. All marriages solemnized outside the
Philippines in accordance with the laws in force in the
country where they were solemnized, and valid there
as such, shall also be valid in this country, except
those prohibited under Articles 35(1), (4), (5) and (6),
36, 37 and 38.
Where a marriage between a Filipino citizen and a
foreigner is validly celebrated and a divorce is
thereafter validly obtained abroad by the alien spouse
capacitating him or her to remarry, the Filipino spouse
shall have capacity to remarry under Philippine law.
(Emphasis supplied)
xxxx
Legislative Intent
Records of the proceedings of the Family Code
deliberations showed that the intent of Paragraph 2 of
Article 26, according to Judge Alicia Sempio-Diy, a
member of the Civil Code Revision Committee, is to
avoid the absurd situation where the Filipino spouse
remains married to the alien spouse who, after
obtaining a divorce, is no longer married to the Filipino
spouse.
Interestingly, Paragraph 2 of Article 26 traces its origin
to the 1985 case of Van Dorn v. Romillo, Jr. The Van
Dorn case involved a marriage between a Filipino
citizen and a foreigner. The Court held therein that a
divorce decree validly obtained by the alien spouse is
valid in the Philippines, and consequently, the Filipino
spouse is capacitated to remarry under Philippine law.
63 (Emphasis added)
As such, the Van Dorn case is sufficient basis in
resolving a situation where a divorce is validly obtained
abroad by the alien spouse. With the enactment of the
Family Code and paragraph 2, Article 26 thereof, our
lawmakers codified the law already established
through judicial precedent.1awphi1.net
Indeed, when the object of a marriage is defeated by
rendering its continuance intolerable to one of the
parties and productive of no possible good to the
community, relief in some way should be obtainable.
64 Marriage, being a mutual and shared commitment
between two parties, cannot possibly be productive of
any good to the society where one is considered
released from the marital bond while the other remains
bound to it. Such is the state of affairs where the alien
spouse obtains a valid divorce abroad against the
Filipino spouse, as in this case.
Petitioners cite Articles 15 65 and 17 66 of the Civil
Code in stating that the divorce is void under Philippine
law insofar as Filipinos are concerned. However, in
light of this Courts rulings in the cases discussed
above, the Filipino spouse should not be discriminated
against in his own country if the ends of justice are to
be served. 67 In Alonzo v. Intermediate Appellate
Court, 68 the Court stated:
But as has also been aptly observed, we test a law by
its results; and likewise, we may add, by its purposes.
It is a cardinal rule that, in seeking the meaning of the
law, the first concern of the judge should be to discover
in its provisions the intent of the lawmaker.
Unquestionably, the law should never be interpreted in
such a way as to cause injustice as this is never within
the legislative intent. An indispensable part of that
intent, in fact, for we presume the good motives of the
legislature, is to render justice.
Thus, we interpret and apply the law not independently
of but in consonance with justice. Law and justice are
inseparable, and we must keep them so. To be sure,
there are some laws that, while generally valid, may
seem arbitrary when applied in a particular case
because of its peculiar circumstances. In such a
situation, we are not bound, because only of our nature
and functions, to apply them just the same, in slavish
obedience to their language. What we do instead is
find a balance between the word and the will, that
justice may be done even as the law is obeyed.
As judges, we are not automatons. We do not and
must not unfeelingly apply the law as it is worded,
yielding like robots to the literal command without
regard to its cause and consequence. "Courts are apt
to err by sticking too closely to the words of a law," so
we are warned, by Justice Holmes again, "where these
words import a policy that goes beyond them."
xxxx
More than twenty centuries ago, Justinian defined
justice "as the constant and perpetual wish to render
every one his due." That wish continues to motivate
this Court when it assesses the facts and the law in
every case brought to it for decision. Justice is always
an essential ingredient of its decisions. Thus when the
facts warrants, we interpret the law in a way that will
render justice, presuming that it was the intention of
the lawmaker, to begin with, that the law be dispensed
with justice. 69
Applying the above doctrine in the instant case, the
divorce decree allegedly obtained by Merry Lee which
absolutely allowed Felicisimo to remarry, would have
vested Felicidad with the legal personality to file the
present petition as Felicisimos surviving spouse.
However, the records show that there is insufficient
evidence to prove the validity of the divorce obtained
by Merry Lee as well as the marriage of respondent
and Felicisimo under the laws of the U.S.A. In Garcia
v. Recio, 70 the Court laid down the specific guidelines
for pleading and proving foreign law and divorce
judgments. It held that presentation solely of the
divorce decree is insufficient and that proof of its
authenticity and due execution must be presented.
Under Sections 24 and 25 of Rule 132, a writing or
document may be proven as a public or official record
of a foreign country by either (1) an official publication
or (2) a copy thereof attested by the officer having legal
custody of the document. If the record is not kept in the
Philippines, such copy must be (a) accompanied by a
certificate issued by the proper diplomatic or consular
officer in the Philippine foreign service stationed in the
foreign country in which the record is kept and (b)
authenticated by the seal of his office. 71
With regard to respondents marriage to Felicisimo
allegedly solemnized in California, U.S.A., she
submitted photocopies of the Marriage Certificate and
the annotated text 72 of the Family Law Act of
California which purportedly show that their marriage
was done in accordance with the said law. As stated in
Garcia, however, the Court cannot take judicial notice
of foreign laws as they must be alleged and proved. 73
Therefore, this case should be remanded to the trial
court for further reception of evidence on the divorce
decree obtained by Merry Lee and the marriage of
respondent and Felicisimo.
Even assuming that Felicisimo was not capacitated to
marry respondent in 1974, nevertheless, we find that
the latter has the legal personality to file the subject
petition for letters of administration, as she may be
considered the co-owner of Felicisimo as regards the
properties that were acquired through their joint efforts
during their cohabitation.
Section 6, 74 Rule 78 of the Rules of Court states that
letters of administration may be granted to the
surviving spouse of the decedent. However, Section 2,
Rule 79 thereof also provides in part:
SEC. 2. Contents of petition for letters of
administration. A petition for letters of administration
must be filed by an interested person and must show,
as far as known to the petitioner: x x x.
An "interested person" has been defined as one who
would be benefited by the estate, such as an heir, or
one who has a claim against the estate, such as a
creditor. The interest must be material and direct, and
not merely indirect or contingent. 75
In the instant case, respondent would qualify as an
interested person who has a direct interest in the
estate of Felicisimo by virtue of their cohabitation, the
existence of which was not denied by petitioners. If she
proves the validity of the divorce and Felicisimos
capacity to remarry, but fails to prove that her marriage
with him was validly performed under the laws of the
U.S.A., then she may be considered as a co-owner
under Article 144 76 of the Civil Code. This provision
governs the property relations between parties who live
together as husband and wife without the benefit of
marriage, or their marriage is void from the beginning.
It provides that the property acquired by either or both
of them through their work or industry or their wages
and salaries shall be governed by the rules on co-
ownership. In a co-ownership, it is not necessary that
the property be acquired through their joint labor,
efforts and industry. Any property acquired during the
union is prima facie presumed to have been obtained
through their joint efforts. Hence, the portions
belonging to the co-owners shall be presumed equal,
unless the contrary is proven. 77
Meanwhile, if respondent fails to prove the validity of
both the divorce and the marriage, the applicable
provision would be Article 148 of the Family Code
which has filled the hiatus in Article 144 of the Civil
Code by expressly regulating the property relations of
couples living together as husband and wife but are
incapacitated to marry. 78 In Saguid v. Court of
Appeals, 79 we held that even if the cohabitation or the
acquisition of property occurred before the Family
Code took effect, Article 148 governs. 80 The Court
described the property regime under this provision as
follows:
The regime of limited co-ownership of property
governing the union of parties who are not legally
capacitated to marry each other, but who nonetheless
live together as husband and wife, applies to properties
acquired during said cohabitation in proportion to their
respective contributions. Co-ownership will only be up
to the extent of the proven actual contribution of
money, property or industry. Absent proof of the extent
thereof, their contributions and corresponding shares
shall be presumed to be equal.
xxxx
In the cases of Agapay v. Palang, and Tumlos v.
Fernandez, which involved the issue of co-ownership
of properties acquired by the parties to a bigamous
marriage and an adulterous relationship, respectively,
we ruled that proof of actual contribution in the
acquisition of the property is essential. x x x
As in other civil cases, the burden of proof rests upon
the party who, as determined by the pleadings or the
nature of the case, asserts an affirmative issue.
Contentions must be proved by competent evidence
and reliance must be had on the strength of the partys
own evidence and not upon the weakness of the
opponents defense. x x x 81
In view of the foregoing, we find that respondents legal
capacity to file the subject petition for letters of
administration may arise from her status as the
surviving wife of Felicisimo or as his co-owner under
Article 144 of the Civil Code or Article 148 of the
Family Code.
WHEREFORE, the petition is DENIED. The Decision
of the Court of Appeals reinstating and affirming the
February 28, 1994 Order of the Regional Trial Court
which denied petitioners motion to dismiss and its
October 24, 1994 Order which dismissed petitioners
motion for reconsideration is AFFIRMED. Let this case
be REMANDED to the trial court for further
proceedings. SO ORDERED.
f.) Lavadia vs Heirs of Luna
Divorce between Filipinos is void and ineffectual under
the nationality rule adopted by Philippine law. Hence,
any settlement of property between the parties of the
first marriage involving Filipinos submitted as an
incident of a divorce obtained in a foreign country lacks
competent judicial approval, and cannot be
enforceable against the assets of the husband who
contracts a subsequent marriage.
The Case
The petitioner, the second wife of the late Atty. Juan
Luces Luna, appeals the adverse decision
promulgated on November 11, 2005,1 whereby the
Court of Appeals (CA) affirmed with modification the
decision rendered on August 27, 2001 by the Regional
Trial Court (RTC), Branch 138, in Makati City.2 The CA
thereby denied her right in the 25/100 pro indiviso
share of the husband in a condominium unit, and in the
law books of the husband acquired during the second
marriage.
Antecedents
The antecedent facts were summarized by the CA as
follows:
ATTY. LUNA, a practicing lawyer, was at first a name
partner in the prestigious law firm Sycip, Salazar, Luna,
Manalo, Hernandez & Feliciano Law Offices at that
time when he was living with his first wife, herein
intervenor-appellant Eugenia Zaballero-Luna
(EUGENIA), whom he initially married ina civil
ceremony conducted by the Justice of the Peace of
Paraaque, Rizal on September 10, 1947 and later
solemnized in a church ceremony at the Pro-Cathedral
in San Miguel, Bulacan on September 12, 1948. In
ATTY. LUNAs marriage to EUGENIA, they begot
seven (7) children, namely: Regina Maria L. Nadal,
Juan Luis Luna, Araceli Victoria L. Arellano, Ana Maria
L. Tabunda, Gregorio Macario Luna, Carolina Linda L.
Tapia, and Cesar Antonio Luna. After almost two (2)
decades of marriage, ATTY. LUNA and EUGENIA
eventually agreed to live apart from each other in
February 1966 and agreed to separation of property, to
which end, they entered into a written agreement
entitled "AGREEMENT FOR SEPARATION AND
PROPERTY SETTLEMENT" dated November 12,
1975, whereby they agreed to live separately and to
dissolve and liquidate their conjugal partnership of
property.
On January 12, 1976, ATTY. LUNA obtained a divorce
decree of his marriage with EUGENIA from the Civil
and Commercial Chamber of the First Circumscription
of the Court of First Instance of Sto. Domingo,
Dominican Republic. Also in Sto.Domingo, Dominican
Republic, on the same date, ATTY. LUNA contracted
another marriage, this time with SOLEDAD. Thereafter,
ATTY. LUNA and SOLEDAD returned to the
Philippines and lived together as husband and wife
until 1987.
Sometime in 1977, ATTY. LUNA organized a new law
firm named: Luna, Puruganan, Sison and Ongkiko
(LUPSICON) where ATTY. LUNA was the managing
partner.
On February 14, 1978, LUPSICON through ATTY.
LUNA purchased from Tandang Sora Development
Corporation the 6th Floor of Kalaw-Ledesma
Condominium Project(condominium unit) at Gamboa
St., Makati City, consisting of 517.52 square meters,
for P1,449,056.00, to be paid on installment basis for
36months starting on April 15, 1978. Said
condominium unit was to be usedas law office of
LUPSICON. After full payment, the Deed of Absolute
Sale over the condominium unit was executed on July
15, 1983, and CCT No. 4779 was issued on August 10,
1983, which was registered bearing the following
names:
"JUAN LUCES LUNA, married to Soledad L. Luna
(46/100); MARIO E. ONGKIKO, married to Sonia P.G.
Ongkiko (25/100); GREGORIO R. PURUGANAN,
married to Paz A. Puruganan (17/100); and TERESITA
CRUZ SISON, married to Antonio J.M. Sison (12/100)
x x x" Subsequently, 8/100 share of ATTY. LUNA and
17/100 share of Atty. Gregorio R. Puruganan in the
condominium unit was sold to Atty. Mario E. Ongkiko,
for which a new CCT No. 21761 was issued on
February 7, 1992 in the following names:
"JUAN LUCES LUNA, married to Soledad L. Luna
(38/100); MARIO E. ONGKIKO, married to Sonia P.G.
Ongkiko (50/100); TERESITA CRUZ SISON, married
to Antonio J.M. Sison (12/100) x x x"
Sometime in 1992, LUPSICON was dissolved and the
condominium unit was partitioned by the partners but
the same was still registered in common under CCT
No. 21716. The parties stipulated that the interest of
ATTY. LUNA over the condominium unit would be
25/100 share. ATTY. LUNA thereafter established and
headed another law firm with Atty. Renato G. Dela
Cruzand used a portion of the office condominium unit
as their office. The said law firm lasted until the death
of ATTY. JUAN on July 12, 1997.
After the death of ATTY. JUAN, his share in the
condominium unit including the lawbooks, office
furniture and equipment found therein were taken over
by Gregorio Z. Luna, ATTY. LUNAs son of the first
marriage. Gregorio Z. Luna thenleased out the 25/100
portion of the condominium unit belonging to his father
to Atty. Renato G. De la Cruz who established his own
law firm named Renato G. De la Cruz & Associates.
The 25/100 pro-indiviso share of ATTY. Luna in the
condominium unit as well as the law books, office
furniture and equipment became the subject of the
complaint filed by SOLEDAD against the heirs of
ATTY. JUAN with the RTC of Makati City, Branch 138,
on September 10, 1999, docketed as Civil Case No.
99-1644. The complaint alleged that the subject
properties were acquired during the existence of the
marriage between ATTY. LUNA and SOLEDAD
through their joint efforts that since they had no
children, SOLEDAD became co-owner of the said
properties upon the death of ATTY. LUNA to the extent
of pro-indiviso share consisting of her share in the
said properties plus her share in the net estate of
ATTY. LUNA which was bequeathed to her in the
latters last will and testament; and thatthe heirs of
ATTY. LUNA through Gregorio Z. Luna excluded
SOLEDAD from her share in the subject properties.
The complaint prayed that SOLEDAD be declared the
owner of the portion of the subject properties;that
the same be partitioned; that an accounting of the
rentals on the condominium unit pertaining to the share
of SOLEDAD be conducted; that a receiver be
appointed to preserve ad administer the subject
properties;and that the heirs of ATTY. LUNA be
ordered to pay attorneys feesand costs of the suit to
SOLEDAD.3
Ruling of the RTC
On August 27, 2001, the RTC rendered its decision
after trial upon the aforementioned facts,4 disposing
thusly:
WHEREFORE, judgment is rendered as follows:
(a) The 24/100 pro-indiviso share in the condominium
unit located at the SIXTH FLOOR of the KALAW
LEDESMA CONDOMINIUM PROJECT covered by
Condominium Certificate of Title No. 21761 consisting
of FIVE HUNDRED SEVENTEEN (517/100) SQUARE
METERS is adjudged to have been acquired by Juan
Lucas Luna through his sole industry;
(b) Plaintiff has no right as owner or under any other
concept over the condominium unit, hence the entry in
Condominium Certificate of Title No. 21761 of the
Registry of Deeds of Makati with respect to the civil
status of Juan Luces Luna should be changed from
"JUAN LUCES LUNA married to Soledad L. Luna" to
"JUAN LUCES LUNA married to Eugenia Zaballero
Luna";
(c) Plaintiff is declared to be the owner of the books
Corpus Juris, Fletcher on Corporation, American
Jurisprudence and Federal Supreme Court Reports
found in the condominium unit and defendants are
ordered to deliver them to the plaintiff as soon as
appropriate arrangements have been madefor
transport and storage.
No pronouncement as to costs.
SO ORDERED.5
Decision of the CA
Both parties appealed to the CA.6
On her part, the petitioner assigned the following errors
to the RTC, namely:
I. THE LOWER COURT ERRED IN RULING THAT
THE CONDOMINIUM UNIT WAS ACQUIRED THRU
THE SOLE INDUSTRY OF ATTY. JUAN LUCES
LUNA;
II. THE LOWER COURT ERRED IN RULING THAT
PLAINTIFFAPPELLANT DID NOT CONTRIBUTE
MONEY FOR THE ACQUISITION OF THE
CONDOMINIUM UNIT;
III. THE LOWER COURT ERRED IN GIVING
CREDENCE TO PORTIONS OF THE TESTIMONY
OF GREGORIO LUNA, WHO HAS NO ACTUAL
KNOWLEDGE OF THE ACQUISITION OF THE UNIT,
BUT IGNORED OTHER PORTIONS OF HIS
TESTIMONY FAVORABLE TO THE PLAINTIFF-
APPELLANT;
IV. THE LOWER COURT ERRED IN NOT GIVING
SIGNIFICANCE TO THE FACT THAT THE
CONJUGAL PARTNERSHIP BETWEEN LUNA AND
INTERVENOR-APPELLANT WAS ALREADY
DISSOLVED AND LIQUIDATED PRIOR TO THE
UNION OF PLAINTIFF-APPELLANT AND LUNA;
V. THE LOWER COURT ERRED IN GIVING UNDUE
SIGNIFICANCE TO THE ABSENCE OF THE
DISPOSITION OF THE CONDOMINIUM UNIT IN THE
HOLOGRAPHIC WILL OF THE PLAINTIFF-
APPELLANT;
VI. THE LOWER COURT ERRED IN GIVING UNDUE
SIGNIFICANCE TO THE FACTTHAT THE NAME OF
PLAINTIFF-APPELLANT DID NOT APPEAR IN THE
DEED OF ABSOLUTE SALE EXECUTED BY
TANDANG SORA DEVELOPMENT CORPORATION
OVER THE CONDOMINIUM UNIT;
VII. THE LOWER COURT ERRED IN RULING THAT
NEITHER ARTICLE 148 OF THE FAMILYCODE NOR
ARTICLE 144 OF THE CIVIL CODE OF THE
PHILIPPINES ARE APPLICABLE;
VIII. THE LOWER COURT ERRED IN NOT RULING
THAT THE CAUSE OF ACTION OF THE
INTERVENOR-APPELLANT HAS BEEN BARRED BY
PESCRIPTION AND LACHES; and
IX. THE LOWER COURT ERRED IN NOT
EXPUNGING/DISMISSING THE INTERVENTION
FOR FAILURE OF INTERVENOR-APPELLANT TO
PAY FILING FEE.7
In contrast, the respondents attributedthe following
errors to the trial court, to wit:
I. THE LOWER COURT ERRED IN HOLDING THAT
CERTAIN FOREIGN LAW BOOKS IN THE LAW
OFFICE OF ATTY. LUNA WERE BOUGHT WITH THE
USE OF PLAINTIFFS MONEY;
II. THE LOWER COURT ERRED IN HOLDING THAT
PLAINTIFF PROVED BY PREPONDERANCE OF
EVIDENCE (HER CLAIM OVER) THE SPECIFIED
FOREIGN LAW BOOKS FOUND IN ATTY. LUNAS
LAW OFFICE; and
III. THE LOWER COURT ERRED IN NOT HOLDING
THAT, ASSUMING PLAINTIFF PAID FOR THE SAID
FOREIGN LAW BOOKS, THE RIGHT TO RECOVER
THEM HAD PRESCRIBED AND BARRED BY
LACHES AND ESTOPPEL.8
On November 11, 2005, the CA promulgated its
assailed modified decision,9 holding and ruling:
EUGENIA, the first wife, was the legitimate wife of
ATTY. LUNA until the latters death on July 12, 1997.
The absolute divorce decree obtained by ATTY. LUNA
inthe Dominican Republic did not terminate his prior
marriage with EUGENIA because foreign divorce
between Filipino citizens is not recognized in our
jurisdiction. x x x10
xxxx
WHEREFORE, premises considered, the assailed
August 27, 2001 Decision of the RTC of MakatiCity,
Branch 138, is hereby MODIFIEDas follows:
(a) The 25/100 pro-indiviso share in the condominium
unit at the SIXTH FLOOR of the KALAW LEDESMA
CONDOMINIUM PROJECT covered by Condominium
Certificate of Title No. 21761 consisting of FIVE
HUNDRED SEVENTEEN (517/100) (sic) SQUARE
METERS is hereby adjudged to defendants-appellants,
the heirs of Juan Luces Luna and Eugenia Zaballero-
Luna (first marriage), having been acquired from the
sole funds and sole industry of Juan Luces Luna while
marriage of Juan Luces Luna and Eugenia Zaballero-
Luna (first marriage) was still subsisting and valid;
(b) Plaintiff-appellant Soledad Lavadia has no right as
owner or under any other concept over the
condominium unit, hence the entry in Condominium
Certificate of Title No. 21761 of the Registry of Deeds
ofMakati with respect to the civil status of Juan Luces
Luna should be changed from "JUAN LUCES LUNA
married to Soledad L. Luna" to "JUAN LUCES LUNA
married to Eugenia Zaballero Luna";
(c) Defendants-appellants, the heirs of Juan Luces
Luna and Eugenia Zaballero-Luna(first marriage) are
hereby declared to be the owner of the books Corpus
Juris, Fletcher on Corporation, American
Jurisprudence and Federal Supreme Court Reports
found in the condominium unit.
No pronouncement as to costs.
SO ORDERED.11
On March 13, 2006,12 the CA denied the petitioners
motion for reconsideration.13
Issues
In this appeal, the petitioner avers in her petition for
review on certiorarithat:
A. The Honorable Court of Appeals erred in ruling that
the Agreement for Separation and Property Settlement
executed by Luna and Respondent Eugenia was
unenforceable; hence, their conjugal partnership was
not dissolved and liquidated;
B. The Honorable Court of Appeals erred in not
recognizing the Dominican Republic courts approval of
the Agreement;
C. The Honorable Court of Appeals erred in ruling that
Petitioner failed to adduce sufficient proof of actual
contribution to the acquisition of purchase of the
subjectcondominium unit; and
D. The Honorable Court of Appeals erred in ruling that
Petitioner was not entitled to the subject law books.14
The decisive question to be resolved is who among the
contending parties should be entitled to the 25/100 pro
indivisoshare in the condominium unit; and to the law
books (i.e., Corpus Juris, Fletcher on Corporation,
American Jurisprudence and Federal Supreme Court
Reports).
The resolution of the decisive question requires the
Court to ascertain the law that should determine, firstly,
whether the divorce between Atty. Luna and Eugenia
Zaballero-Luna (Eugenia) had validly dissolved the first
marriage; and, secondly, whether the second marriage
entered into by the late Atty. Luna and the petitioner
entitled the latter to any rights in property. Ruling of the
Court
We affirm the modified decision of the CA.
1. Atty. Lunas first marriage with Eugenia
subsisted up to the time of his death
The first marriage between Atty. Luna and Eugenia,
both Filipinos, was solemnized in the Philippines on
September 10, 1947. The law in force at the time of the
solemnization was the Spanish Civil Code, which
adopted the nationality rule. The Civil Codecontinued
to follow the nationality rule, to the effect that Philippine
laws relating to family rights and duties, or to the
status, condition and legal capacity of persons were
binding upon citizens of the Philippines, although living
abroad.15 Pursuant to the nationality rule, Philippine
laws governed thiscase by virtue of bothAtty. Luna and
Eugenio having remained Filipinos until the death of
Atty. Luna on July 12, 1997 terminated their marriage.
From the time of the celebration ofthe first marriage on
September 10, 1947 until the present, absolute divorce
between Filipino spouses has not been recognized in
the Philippines. The non-recognition of absolute
divorce between Filipinos has remained even under
the Family Code,16 even if either or both of the
spouses are residing abroad.17 Indeed, the only two
types of defective marital unions under our laws have
beenthe void and the voidable marriages. As such, the
remedies against such defective marriages have been
limited to the declaration of nullity ofthe marriage and
the annulment of the marriage.
It is true that on January 12, 1976, the Court of First
Instance (CFI) of Sto. Domingo in the Dominican
Republic issued the Divorce Decree dissolving the first
marriage of Atty. Luna and Eugenia.18 Conformably
with the nationality rule, however, the divorce, even if
voluntarily obtained abroad, did not dissolve the
marriage between Atty. Luna and Eugenia, which
subsisted up to the time of his death on July 12, 1997.
This finding conforms to the Constitution, which
characterizes marriage as an inviolable social
institution,19 and regards it as a special contract of
permanent union between a man and a woman for the
establishment of a conjugal and family life.20 The non-
recognition of absolute divorce in the Philippines is a
manifestation of the respect for the sanctity of the
marital union especially among Filipino citizens. It
affirms that the extinguishment of a valid marriage
must be grounded only upon the death of either
spouse, or upon a ground expressly provided bylaw.
For as long as this public policy on marriage between
Filipinos exists, no divorce decree dissolving the
marriage between them can ever be given legal or
judicial recognition and enforcement in this jurisdiction.
2. The Agreement for Separation and Property
Settlement
was void for lack of court approval
The petitioner insists that the Agreement for
Separation and Property Settlement (Agreement) that
the late Atty. Luna and Eugenia had entered into and
executed in connection with the divorce proceedings
before the CFI of Sto. Domingo in the Dominican
Republic to dissolve and liquidate their conjugal
partnership was enforceable against Eugenia. Hence,
the CA committed reversible error in decreeing
otherwise.
The insistence of the petitioner was unwarranted.
Considering that Atty. Luna and Eugenia had not
entered into any marriage settlement prior to their
marriage on September 10, 1947, the system of
relative community or conjugal partnership of gains
governed their property relations. This is because the
Spanish Civil Code, the law then in force at the time of
their marriage, did not specify the property regime of
the spouses in the event that they had not entered into
any marriage settlement before or at the time of the
marriage. Article 119 of the Civil Codeclearly so
provides, to wit:
Article 119. The future spouses may in the marriage
settlements agree upon absolute or relative community
of property, or upon complete separation of property,
or upon any other regime. In the absence of marriage
settlements, or when the same are void, the system of
relative community or conjugal partnership of gains as
established in this Code, shall govern the property
relations between husband and wife.
Article 142 of the Civil Codehas defined a conjugal
partnership of gains thusly:
Article 142. By means of the conjugal partnership of
gains the husband and wife place in a common fund
the fruits of their separate property and the income
from their work or industry, and divide equally, upon
the dissolution of the marriage or of the partnership,
the net gains or benefits obtained indiscriminately by
either spouse during the marriage.
The conjugal partnership of gains subsists until
terminated for any of various causes of termination
enumerated in Article 175 of the Civil Code, viz:
Article 175. The conjugal partnership of gains
terminates:
(1) Upon the death of either spouse;
(2) When there is a decree of legal separation;
(3) When the marriage is annulled;
(4) In case of judicial separation of property under
Article 191.
The mere execution of the Agreement by Atty. Luna
and Eugenia did not per sedissolve and liquidate their
conjugal partnership of gains. The approval of the
Agreement by a competent court was still required
under Article 190 and Article 191 of the Civil Code, as
follows:
Article 190. In the absence of an express declaration in
the marriage settlements, the separation of property
between spouses during the marriage shall not take
place save in virtue of a judicial order. (1432a)
Article 191. The husband or the wife may ask for the
separation of property, and it shall be decreed when
the spouse of the petitioner has been sentenced to a
penalty which carries with it civil interdiction, or has
been declared absent, or when legal separation has
been granted.
xxxx
The husband and the wife may agree upon the
dissolution of the conjugal partnership during the
marriage, subject to judicial approval. All the creditors
of the husband and of the wife, as well as of the
conjugal partnership shall be notified of any petition for
judicialapproval or the voluntary dissolution of the
conjugal partnership, so that any such creditors may
appear atthe hearing to safeguard his interests. Upon
approval of the petition for dissolution of the conjugal
partnership, the court shall take such measures as
may protect the creditors and other third persons.
After dissolution of the conjugal partnership, the
provisions of articles 214 and 215 shall apply. The
provisions of this Code concerning the effect of
partition stated in articles 498 to 501 shall be
applicable. (1433a)
But was not the approval of the Agreement by the CFI
of Sto. Domingo in the Dominican Republic sufficient in
dissolving and liquidating the conjugal partnership of
gains between the late Atty. Luna and Eugenia?
The query is answered in the negative. There is no
question that the approval took place only as an
incident ofthe action for divorce instituted by Atty. Luna
and Eugenia, for, indeed, the justifications for their
execution of the Agreement were identical to the
grounds raised in the action for divorce.21 With the
divorce not being itself valid and enforceable under
Philippine law for being contrary to Philippine public
policy and public law, the approval of the Agreement
was not also legally valid and enforceable under
Philippine law. Consequently, the conjugal partnership
of gains of Atty. Luna and Eugenia subsisted in the
lifetime of their marriage.
3. Atty. Lunas marriage with Soledad, being bigamous,
was void; properties acquired during their marriage
were governed by the rules on co-ownership
What law governed the property relations of the
second marriage between Atty. Luna and Soledad?
The CA expressly declared that Atty. Lunas
subsequent marriage to Soledad on January 12, 1976
was void for being bigamous,22 on the ground that the
marriage between Atty. Luna and Eugenia had not
been dissolved by the Divorce Decree rendered by the
CFI of Sto. Domingo in the Dominican Republic but
had subsisted until the death of Atty. Luna on July 12,
1997.
The Court concurs with the CA.
In the Philippines, marriages that are bigamous,
polygamous, or incestuous are void. Article 71 of the
Civil Codeclearly states:
Article 71. All marriages performed outside the
Philippines in accordance with the laws in force in the
country where they were performed, and valid there as
such, shall also be valid in this country, except
bigamous, polygamous, or incestuous marriages as
determined by Philippine law.
Bigamy is an illegal marriage committed by contracting
a second or subsequent marriage before the first
marriage has been legally dissolved, or before the
absent spouse has been declared presumptively dead
by means of a judgment rendered in the proper
proceedings.23 A bigamous marriage is considered
void ab initio.24
Due to the second marriage between Atty. Luna and
the petitioner being void ab initioby virtue of its being
bigamous, the properties acquired during the bigamous
marriage were governed by the rules on co-ownership,
conformably with Article 144 of the Civil Code, viz:
Article 144. When a man and a woman live together as
husband and wife, but they are not married, ortheir
marriage is void from the beginning, the property
acquired by eitheror both of them through their work or
industry or their wages and salaries shall be governed
by the rules on co-ownership.(n)
In such a situation, whoever alleges co-ownership
carried the burden of proof to confirm such
fact.1wphi1 To establish co-ownership, therefore, it
became imperative for the petitioner to offer proof of
her actual contributions in the acquisition of property.
Her mere allegation of co-ownership, without sufficient
and competent evidence, would warrant no relief in her
favor. As the Court explained in Saguid v. Court of
Appeals:25
In the cases of Agapay v. Palang, and Tumlos v.
Fernandez, which involved the issue of co-ownership
ofproperties acquired by the parties to a bigamous
marriage and an adulterous relationship, respectively,
we ruled that proof of actual contribution in the
acquisition of the property is essential. The claim of co-
ownership of the petitioners therein who were parties
to the bigamous and adulterousunion is without basis
because they failed to substantiate their allegation that
they contributed money in the purchase of the disputed
properties. Also in Adriano v. Court of Appeals, we
ruled that the fact that the controverted property was
titled in the name of the parties to an adulterous
relationship is not sufficient proof of coownership
absent evidence of actual contribution in the
acquisition of the property.
As in other civil cases, the burden of proof rests upon
the party who, as determined by the pleadings or the
nature of the case, asserts an affirmative issue.
Contentions must be proved by competent evidence
and reliance must be had on the strength of the partys
own evidence and not upon the weakness of the
opponents defense. This applies with more vigor
where, as in the instant case, the plaintiff was allowed
to present evidence ex parte.1wphi1 The plaintiff is
not automatically entitled to the relief prayed for. The
law gives the defendantsome measure of protection as
the plaintiff must still prove the allegations in the
complaint. Favorable relief can be granted only after
the court isconvinced that the facts proven by the
plaintiff warrant such relief. Indeed, the party alleging a
fact has the burden of proving it and a mereallegation
is not evidence.26
The petitioner asserts herein that she sufficiently
proved her actual contributions in the purchase of the
condominium unit in the aggregate amount of at least
P306,572.00, consisting in direct contributions of
P159,072.00, and in repaying the loans Atty. Luna had
obtained from Premex Financing and Banco Filipino
totaling P146,825.30;27 and that such aggregate
contributions of P306,572.00 corresponded to almost
the entire share of Atty. Luna in the purchase of the
condominium unit amounting to P362,264.00 of the
units purchase price of P1,449,056.00.28 The
petitioner further asserts that the lawbooks were paid
for solely out of her personal funds, proof of which Atty.
Luna had even sent her a "thank you" note;29 that she
had the financial capacity to make the contributions
and purchases; and that Atty. Luna could not acquire
the properties on his own due to the meagerness of the
income derived from his law practice.
Did the petitioner discharge her burden of proof on the
co-ownership?
In resolving the question, the CA entirely debunked the
petitioners assertions on her actual contributions
through the following findings and conclusions, namely:
SOLEDAD was not able to prove by preponderance of
evidence that her own independent funds were used to
buy the law office condominium and the law books
subject matter in contentionin this case proof that
was required for Article 144 of the New Civil Code and
Article 148 of the Family Code to apply as to cases
where properties were acquired by a man and a
woman living together as husband and wife but not
married, or under a marriage which was void ab initio.
Under Article 144 of the New Civil Code, the rules on
co-ownership would govern. But this was not readily
applicable to many situations and thus it created a void
at first because it applied only if the parties were not in
any way incapacitated or were without impediment to
marry each other (for it would be absurd to create a co-
ownership where there still exists a prior conjugal
partnership or absolute community between the man
and his lawful wife). This void was filled upon adoption
of the Family Code. Article 148 provided that: only the
property acquired by both of the parties through their
actual joint contribution of money, property or industry
shall be owned in common and in proportion to their
respective contributions. Such contributions and
corresponding shares were prima faciepresumed to be
equal. However, for this presumption to arise, proof of
actual contribution was required. The same rule and
presumption was to apply to joint deposits of money
and evidence of credit. If one of the parties was validly
married to another, his or her share in the co-
ownership accrued to the absolute community or
conjugal partnership existing in such valid marriage. If
the party who acted in bad faith was not validly married
to another, his or her share shall be forfeited in the
manner provided in the last paragraph of the Article
147. The rules on forfeiture applied even if both parties
were in bad faith. Co-ownership was the exception
while conjugal partnership of gains was the strict rule
whereby marriage was an inviolable social institution
and divorce decrees are not recognized in the
Philippines, as was held by the Supreme Court in the
case of Tenchavez vs. Escao, G.R. No. L-19671,
November 29, 1965, 15 SCRA 355, thus:
xxxx
As to the 25/100pro-indivisoshare of ATTY. LUNA in
the condominium unit, SOLEDAD failed to prove that
she made an actual contribution to purchase the said
property. She failed to establish that the four (4)
checks that she presented were indeed used for the
acquisition of the share of ATTY. LUNA in the
condominium unit. This was aptly explained in the
Decision of the trial court, viz.:
"x x x The first check, Exhibit "M" for P55,000.00
payable to Atty. Teresita Cruz Sison was issued on
January 27, 1977, which was thirteen (13) months
before the Memorandum of Agreement, Exhibit "7" was
signed. Another check issued on April 29, 1978 in the
amount of P97,588.89, Exhibit "P" was payable to
Banco Filipino. According to the plaintiff, thiswas in
payment of the loan of Atty. Luna. The third check
which was for P49,236.00 payable to PREMEX was
dated May 19, 1979, also for payment of the loan of
Atty. Luna. The fourth check, Exhibit "M", for P4,072.00
was dated December 17, 1980. None of the foregoing
prove that the amounts delivered by plaintiff to the
payees were for the acquisition of the subject
condominium unit. The connection was simply not
established. x x x"
SOLEDADs claim that she made a cash contribution
of P100,000.00 is unsubstantiated. Clearly, there is no
basis for SOLEDADs claim of co-ownership over the
25/100 portion of the condominium unit and the trial
court correctly found that the same was acquired
through the sole industry of ATTY. LUNA, thus:
"The Deed of Absolute Sale, Exhibit "9", covering the
condominium unit was in the name of Atty. Luna,
together with his partners in the law firm. The name of
the plaintiff does not appear as vendee or as the
spouse of Atty. Luna. The same was acquired for the
use of the Law firm of Atty. Luna. The loans from Allied
Banking Corporation and Far East Bank and Trust
Company were loans of Atty. Luna and his partners
and plaintiff does not have evidence to show that she
paid for them fully or partially. x x x"
WHEREFORE, the Court AFFIRMS the decision
promulgated on November 11, 2005; and ORDERS the
petitioner to pay the costs of suit. SO ORDERED.
g.) Noveras vs Noveras
Before the Court is a petition for review assailing the 9
May 2008 Decision1 of the Court of Appeals in CA-G.R
.. CV No. 88686, which affirmed in part the 8
December 2006 Decision2 of the Regional Trial Court
(RTC) of Baler, Aurora, Branch 96.
The factual antecedents are as follow:
David A. Noveras (David) and Leticia T. Noveras
(Leticia) were married on 3 December 1988 in Quezon
City, Philippines. They resided in California, United
States of America (USA) where they eventually
acquired American citizenship. They then begot two
children, namely: Jerome T.
Noveras, who was born on 4 November 1990 and
JenaT. Noveras, born on 2 May 1993. David was
engaged in courier service business while Leticia
worked as a nurse in San Francisco, California.
During the marriage, they acquired the following
properties in the Philippines and in the USA:

The fact that CCT No. 4779 and subsequently, CCT

No. 21761 were in the name of "JUAN LUCES LUNA,
married to Soledad L. Luna" was no proof that
SOLEDAD was a co-owner of the condominium unit.
Acquisition of title and registration thereof are two
different acts. It is well settled that registration does not
confer title but merely confirms one already existing.
The phrase "married to" preceding "Soledad L. Luna"
is merely descriptive of the civil status of ATTY. LUNA.

SOLEDAD, the second wife, was not even a lawyer.

So it is but logical that SOLEDAD had no participation
in the law firm or in the purchase of books for the law
firm. SOLEDAD failed to prove that she had anything
to contribute and that she actually purchased or paid
for the law office amortization and for the law books. It
is more logical to presume that it was ATTY. LUNA
who bought the law office space and the law books
from his earnings from his practice of law rather than
embarrassingly beg or ask from SOLEDAD money for
use of the law firm that he headed.30

The Court upholds the foregoing findings and

conclusions by the CA both because they were
substantiated by the records and because we have not
been shown any reason to revisit and undo them.
Indeed, the petitioner, as the party claiming the co-
ownership, did not discharge her burden of proof. Her
mere allegations on her contributions, not being
evidence,31 did not serve the purpose. In contrast,
given the subsistence of the first marriage between
Atty. Luna and Eugenia, the presumption that Atty.
Luna acquired the properties out of his own personal
funds and effort remained. It should then be justly
concluded that the properties in litislegally pertained to
their conjugal partnership of gains as of the time of his
death. Consequently, the sole ownership of the 25/100
pro indivisoshare of Atty. Luna in the condominium
unit, and of the lawbooks pertained to the respondents
as the lawful heirs of Atty. Luna.
The Sampaloc property used to beowned by Davids
parents. The parties herein secured a loan from a bank
and mortgaged the property. When said property was
about to be foreclosed, the couple paid a total of P1.5
Million for the redemption of the same.
Due to business reverses, David left the USA and
returned to the Philippines in 2001. In December
2002,Leticia executed a Special Power of Attorney
(SPA) authorizing David to sell the Sampaloc property
for P2.2 Million. According to Leticia, sometime in
September 2003, David abandoned his family and
lived with Estrellita Martinez in Aurora province. Leticia
claimed that David agreed toand executed a Joint
Affidavit with Leticia in the presence of Davids father,
Atty. Isaias Noveras, on 3 December 2003 stating that:
1) the P1.1Million proceeds from the sale of the
Sampaloc property shall be paid to and collected by
Leticia; 2) that David shall return and pay to Leticia
P750,000.00, which is equivalent to half of the amount
of the redemption price of the Sampaloc property; and
3) that David shall renounce and forfeit all his rights
and interest in the conjugal and real properties situated
in the Philippines.5 David was able to collect
P1,790,000.00 from the sale of the Sampaloc property,
leaving an unpaid balance of P410,000.00.
Upon learning that David had an extra-marital affair,
Leticia filed a petition for divorce with the Superior
Court of California, County of San Mateo, USA. The
California court granted the divorce on 24 June 2005
and judgment was duly entered on 29 June 2005.6 The
California court granted to Leticia the custody of her
two children, as well as all the couples properties in
the USA.7
On 8 August 2005, Leticia filed a petition for Judicial
Separation of Conjugal Property before the RTC of
Baler, Aurora. She relied on the 3 December 2003
Joint Affidavit and Davids failure to comply with his
obligation under the same. She prayed for: 1) the
power to administer all conjugal properties in the
Philippines; 2) David and his partner to cease and
desist from selling the subject conjugal properties; 3)
the declaration that all conjugal properties be forfeited
in favor of her children; 4) David to remit half of the
purchase price as share of Leticia from the sale of the
Sampaloc property; and 5) the payment ofP50,000.00
and P100,000.00 litigation expenses.8
In his Answer, David stated that a judgment for the
dissolution of their marriage was entered on 29 June
2005 by the Superior Court of California, County of
San Mateo. He demanded that the conjugal
partnership properties, which also include the USA
properties, be liquidated and that all expenses of
liquidation, including attorneys fees of both parties be
charged against the conjugal partnership.9
The RTC of Baler, Aurora simplified the issues as
follow:
1. Whether or not respondent David A. Noveras
committed acts of abandonment and marital infidelity
which can result intothe forfeiture of the parties
properties in favor of the petitioner and their two (2)
children.
2. Whether or not the Court has jurisdiction over the
properties in California, U.S.A. and the same can be
included in the judicial separation prayed for.
3. Whether or not the "Joint Affidavit" x x x executed by
petitioner Leticia T. Noveras and respondent David A.
Noveras will amount to a waiver or forfeiture of the
latters property rights over their conjugal properties.
4. Whether or not Leticia T. Noveras isentitled to
reimbursement of onehalf of the P2.2 [M]illion sales
proceeds of their property in Sampaloc, Manila and
one-half of the P1.5 [M]illion used to redeem the
property of Atty. Isaias Noveras, including interests and
charges.
5. How the absolute community properties should be
distributed.
6. Whether or not the attorneys feesand litigation
expenses of the parties were chargeable against their
conjugal properties.
Corollary to the aboveis the issue of:
Whether or not the two common children of the parties
are entitled to support and presumptive legitimes.10
On 8 December 2006, the RTC rendered judgment as
follows:
1. The absolute community of property of the parties is
hereby declared DISSOLVED;
2. The net assets of the absolute community of
property ofthe parties in the Philippines are hereby
ordered to be awarded to respondent David A.
Noveras only, with the properties in the United States
of America remaining in the sole ownership of
petitioner Leticia Noveras a.k.a. Leticia Tacbiana
pursuant to the divorce decree issuedby the Superior
Court of California, County of San Mateo, United
States of America, dissolving the marriage of the
parties as of June 24, 2005. The titles presently
covering said properties shall be cancelled and new
titles be issued in the name of the party to whom said
properties are awarded;
3. One-half of the properties awarded to respondent
David A. Noveras in the preceding paragraph are
hereby given to Jerome and Jena, his two minor
children with petitioner LeticiaNoveras a.k.a. Leticia
Tacbiana as their presumptive legitimes and said
legitimes must be annotated on the titles covering the
said properties.Their share in the income from these
properties shall be remitted to them annually by the
respondent within the first half of January of each year,
starting January 2008;
4. One-half of the properties in the United States of
America awarded to petitioner Leticia Noveras a.k.a.
Leticia Tacbiana in paragraph 2 are hereby given to
Jerome and Jena, her two minor children with
respondent David A. Noveras as their presumptive
legitimes and said legitimes must be annotated on the
titles/documents covering the said properties. Their
share in the income from these properties, if any, shall
be remitted to them annually by the petitioner within
the first half of January of each year, starting January
2008;
5. For the support of their two (2) minor children,
Jerome and Jena, respondent David A. Noveras shall
give them US$100.00 as monthly allowance in addition
to their income from their presumptive legitimes, while
petitioner Leticia Tacbiana shall take care of their food,
clothing, education and other needs while they are in
her custody in the USA. The monthly allowance due
from the respondent shall be increased in the future as
the needs of the children require and his financial
capacity can afford;
6. Of the unpaid amount of P410,000.00 on the
purchase price of the Sampaloc property, the Paringit
Spouses are hereby ordered to pay P5,000.00 to
respondent David A. Noveras and P405,000.00 to the
two children. The share of the respondent may be paid
to him directly but the share of the two children shall be
deposited with a local bank in Baler, Aurora, in a joint
account tobe taken out in their names, withdrawal from
which shall only be made by them or by their
representative duly authorized with a Special Power of
Attorney. Such payment/deposit shall be made
withinthe period of thirty (30) days after receipt of a
copy of this Decision, with the passbook of the joint
account to be submitted to the custody of the Clerk of
Court of this Court within the same period. Said
passbook can be withdrawn from the Clerk of Court
only by the children or their attorney-in-fact; and
7. The litigation expenses and attorneys fees incurred
by the parties shall be shouldered by them
individually.11
The trial court recognized that since the parties are US
citizens, the laws that cover their legal and
personalstatus are those of the USA. With respect to
their marriage, the parties are divorced by virtue of the
decree of dissolution of their marriage issued by the
Superior Court of California, County of San Mateo on
24June 2005. Under their law, the parties marriage
had already been dissolved. Thus, the trial court
considered the petition filed by Leticia as one for
liquidation of the absolute community of property
regime with the determination of the legitimes, support
and custody of the children, instead of an action for
judicial separation of conjugal property.
With respect to their property relations, the trial court
first classified their property regime as absolute
community of property because they did not execute
any marriage settlement before the solemnization of
their marriage pursuant to Article 75 of the Family
Code. Then, the trial court ruled that in accordance
with the doctrine of processual presumption, Philippine
law should apply because the court cannot take judicial
notice of the US law since the parties did not submit
any proof of their national law. The trial court held that
as the instant petition does not fall under the provisions
of the law for the grant of judicial separation of
properties, the absolute community properties cannot
beforfeited in favor of Leticia and her children.
Moreover, the trial court observed that Leticia failed to
prove abandonment and infidelity with preponderant
evidence.
The trial court however ruled that Leticia is not entitled
to the reimbursements she is praying for considering
that she already acquired all of the properties in the
USA. Relying still on the principle of equity, the Court
also adjudicated the Philippine properties to David,
subject to the payment of the childrens presumptive
legitimes. The trial court held that under Article 89 of
the Family Code, the waiver or renunciation made by
David of his property rights in the Joint Affidavit is void.
On appeal, the Court of Appeals modified the trial
courts Decision by directing the equal division of the
Philippine properties between the spouses. Moreover
with respect to the common childrens presumptive
legitime, the appellate court ordered both spouses to
each pay their children the amount of P520,000.00,
thus:
WHEREFORE, the instant appeal is PARTLY
GRANTED. Numbers 2, 4 and 6 of the
assailedDecision dated December 8, 2006 of Branch
96, RTC of Baler, Aurora Province, in Civil Case No.
828 are hereby MODIFIED to read as follows:
2. The net assets of the absolute community of
property of the parties in the Philippines are hereby
divided equally between petitioner Leticia Noveras
a.k.a. Leticia Tacbiana (sic) and respondent David A.
Noveras;
xxx
4. One-half of the properties awarded to petitioner
Leticia Tacbiana (sic) in paragraph 2 shall pertain to
her minor children, Jerome and Jena, as their
presumptive legitimes which shall be annotated on the
titles/documents covering the said properties. Their
share in the income therefrom, if any, shall be remitted
to them by petitioner annually within the first half of
January, starting 2008;
xxx
6. Respondent David A. Noveras and petitioner Leticia
Tacbiana (sic) are each ordered to pay the amount
ofP520,000.00 to their two children, Jerome and Jena,
as their presumptive legitimes from the sale of the
Sampaloc property inclusive of the receivables
therefrom, which shall be deposited to a local bank of
Baler, Aurora, under a joint account in the latters
names. The payment/deposit shall be made within a
period of thirty (30) days from receipt ofa copy of this
Decision and the corresponding passbook entrusted to
the custody ofthe Clerk of Court a quowithin the same
period, withdrawable only by the children or their
attorney-in-fact.
A number 8 is hereby added, which shall read as
follows:
8. Respondent David A. Noveras is hereby ordered to
pay petitioner Leticia Tacbiana (sic) the amount of
P1,040,000.00 representing her share in the proceeds
from the sale of the Sampaloc property.
The last paragraph shall read as follows:
Send a copy of this Decision to the local civil registry of
Baler, Aurora; the local civil registry of Quezon City;
the Civil RegistrarGeneral, National Statistics Office,
Vibal Building, Times Street corner EDSA, Quezon
City; the Office of the Registry of Deeds for the
Province of Aurora; and to the children, Jerome
Noveras and Jena Noveras.
The rest of the Decision is AFFIRMED.12
In the present petition, David insists that the Court of
Appeals should have recognized the California
Judgment which awarded the Philippine properties to
him because said judgment was part of the pleading
presented and offered in evidence before the trial
court. David argues that allowing Leticia to share in the
Philippine properties is tantamount to unjust
enrichment in favor of Leticia considering that the latter
was already granted all US properties by the California
court.
In summary and review, the basic facts are: David and
Leticia are US citizens who own properties in the USA
and in the Philippines. Leticia obtained a decree of
divorce from the Superior Court of California in June
2005 wherein the court awarded all the properties in
the USA to Leticia. With respect to their properties in
the Philippines, Leticiafiled a petition for judicial
separation ofconjugal properties.
At the outset, the trial court erred in recognizing the
divorce decree which severed the bond of marriage
between the parties. In Corpuz v. Sto. Tomas,13 we
stated that:
The starting point in any recognition of a foreign
divorce judgment is the acknowledgment that our
courts do not take judicial notice of foreign judgments
and laws. Justice Herrera explained that, as a rule, "no
sovereign is bound to give effect within its dominion to
a judgment rendered by a tribunal of another country."
This means that the foreign judgment and its
authenticity must beproven as facts under our rules on
evidence, together with the aliens applicable national
law to show the effect of the judgment on the alien
himself or herself. The recognition may be made in an
action instituted specifically for the purpose or in
another action where a party invokes the foreign
decree as an integral aspect of his claim or defense.14
The requirements of presenting the foreign divorce
decree and the national law of the foreigner must
comply with our Rules of Evidence. Specifically, for
Philippine courts to recognize a foreign judgment
relating to the status of a marriage, a copy of the
foreign judgment may be admitted in evidence and
proven as a fact under Rule 132, Sections 24 and 25,
in relation to Rule 39, Section 48(b) of the Rules of
Court.15
Under Section 24 of Rule 132, the record of public
documents of a sovereign authority or tribunal may be
proved by: (1) an official publication thereof or (2) a
copy attested by the officer having the legal custody
thereof. Such official publication or copy must
beaccompanied, if the record is not kept in the
Philippines, with a certificate that the attesting officer
has the legal custody thereof. The certificate may be
issued by any of the authorized Philippine embassy or
consular officials stationed in the foreign country in
which the record is kept, and authenticated by the seal
of his office. The attestation must state, in substance,
that the copy is a correct copy of the original, or a
specific part thereof, asthe case may be, and must be
under the official seal of the attesting officer.
Section 25 of the same Rule states that whenever a
copy of a document or record is attested for the
purpose of evidence, the attestation must state, in
substance, that the copy is a correct copy of the
original, or a specific part thereof, as the case may be.
The attestation must be under the official seal of the
attesting officer, if there be any, or if hebe the clerk of a
court having a seal, under the seal of such court.
Based on the records, only the divorce decree was
presented in evidence. The required certificates to
prove its authenticity, as well as the pertinent California
law on divorce were not presented.
It may be noted that in Bayot v. Court of Appeals,16 we
relaxed the requirement on certification where we held
that "[petitioner therein] was clearly an American
citizenwhen she secured the divorce and that divorce
is recognized and allowed in any of the States of the
Union, the presentation of a copy of foreign divorce
decree duly authenticatedby the foreign court issuing
said decree is, as here, sufficient." In this case
however, it appears that there is no seal from the office
where the divorce decree was obtained.
Even if we apply the doctrine of processual
presumption17 as the lower courts did with respect to
the property regime of the parties, the recognition of
divorce is entirely a different matter because, to begin
with, divorce is not recognized between Filipino
citizens in the Philippines. Absent a valid recognition of
the divorce decree, it follows that the parties are still
legally married in the Philippines. The trial court thus
erred in proceeding directly to liquidation.
As a general rule, any modification in the marriage
settlements must be made before the celebration of
marriage. An exception to this rule is allowed provided
that the modification isjudicially approved and refers
only to the instances provided in Articles 66,67, 128,
135 and 136 of the Family Code.18
Leticia anchored the filing of the instant petition for
judicial separation of property on paragraphs 4 and 6
of Article 135 of the Family Code, to wit:
Art. 135. Any of the following shall be considered
sufficient cause for judicial separation of property:
(1) That the spouse of the petitioner has been
sentenced to a penalty which carries with it civil
interdiction;
(2) That the spouse of the petitioner has been judicially
declared an absentee;
(3) That loss of parental authority ofthe spouse of
petitioner has been decreed by the court;
(4) That the spouse of the petitioner has abandoned
the latter or failed to comply with his or her obligations
to the family as provided for in Article 101;
(5) That the spouse granted the power of
administration in the marriage settlements has abused
that power; and
(6) That at the time of the petition, the spouses have
been separated in fact for at least one year and
reconciliation is highly improbable.
In the cases provided for in Numbers (1), (2), and (3),
the presentation of the final judgment against the
guiltyor absent spouse shall be enough basis for the
grant of the decree ofjudicial separation of property.
(Emphasis supplied).
The trial court had categorically ruled that there was no
abandonment in this case to necessitate judicial
separation of properties under paragraph 4 of Article
135 of the Family Code. The trial court ratiocinated:
Moreover, abandonment, under Article 101 of the
Family Code quoted above, must be for a valid cause
and the spouse is deemed to have abandoned the
other when he/she has left the conjugal dwelling
without intention of returning. The intention of not
returning is prima facie presumed if the allegedly [sic]
abandoning spouse failed to give any information as to
his or her whereabouts within the period of three
months from such abandonment.
In the instant case, the petitioner knows that the
respondent has returned to and stayed at his
hometown in Maria Aurora, Philippines, as she even
went several times to visit him there after the alleged
abandonment. Also, the respondent has been going
back to the USA to visit her and their children until the
relations between them worsened. The last visit of said
respondent was in October 2004 when he and the
petitioner discussed the filing by the latter of a petition
for dissolution of marriage with the California court.
Such turn for the worse of their relationship and the
filing of the saidpetition can also be considered as valid
causes for the respondent to stay in the Philippines.19
Separation in fact for one year as a ground to grant a
judicial separation of property was not tackled in the
trial courts decision because, the trial court
erroneously treated the petition as liquidation of the
absolute community of properties.
The records of this case are replete with evidence that
Leticia and David had indeed separated for more than
a year and that reconciliation is highly improbable.
First, while actual abandonment had not been proven,
it is undisputed that the spouses had been living
separately since 2003 when David decided to go back
to the Philippines to set up his own business. Second,
Leticia heard from her friends that David has been
cohabiting with Estrellita Martinez, who represented
herself as Estrellita Noveras. Editha Apolonio, who
worked in the hospital where David was once confined,
testified that she saw the name of Estrellita listed as
the wife of David in the Consent for Operation form.20
Third and more significantly, they had filed for divorce
and it was granted by the California court in June 2005.
Having established that Leticia and David had actually
separated for at least one year, the petition for judicial
separation of absolute community of property should
be granted.
The grant of the judicial separation of the absolute
community property automatically dissolves the
absolute community regime, as stated in the 4th
paragraph of Article 99 ofthe Family Code, thus:
Art. 99. The absolute community terminates:
(1) Upon the death of either spouse;
(2) When there is a decree of legal separation;
(3) When the marriage is annulled or declared void; or
(4) In case of judicial separation of property during the
marriage under Articles 134 to 138. (Emphasis
supplied).
Under Article 102 of the same Code, liquidation follows
the dissolution of the absolute community regime and
the following procedure should apply:
Art. 102. Upon dissolution of the absolute community
regime, the following procedure shall apply:
(1) An inventory shall be prepared, listing separately all
the properties of the absolute community and the
exclusive properties of each spouse.
(2) The debts and obligations of the absolute
community shall be paid out of its assets. In case of
insufficiency of said assets, the spouses shall be
solidarily liable for the unpaid balance with their
separate properties in accordance with the provisions
of the second paragraph of Article 94.
(3) Whatever remains of the exclusive properties of the
spouses shall thereafter be delivered to each of them.
(4) The net remainder of the properties of the absolute
community shall constitute its net assets, which shall
be divided equally between husband and wife, unless a
different proportion or division was agreed upon in the
marriage settlements, or unless there has been a
voluntary waiver of such share provided in this Code.
For purposes of computing the net profits subject to
forfeiture in accordance with Articles 43, No. (2) and
63, No. (2),the said profits shall be the increase in
value between the market value of the community
property at the time of the celebration of the marriage
and the market value at the time of its dissolution.
(5) The presumptive legitimes of the common children
shall be delivered upon partition, in accordance with
Article 51.
(6) Unless otherwise agreed upon by the parties, in the
partition of the properties, the conjugal dwelling and
the lot on which it is situated shall be adjudicated tothe
spouse with whom the majority of the common children
choose to remain. Children below the age of seven
years are deemed to have chosen the mother, unless
the court has decided otherwise. In case there is no
such majority, the court shall decide, taking into
consideration the best interests of said children. At the
risk of being repetitious, we will not remand the case to
the trial court. Instead, we shall adopt the modifications
made by the Court of Appeals on the trial courts
Decision with respect to liquidation.
We agree with the appellate court that the Philippine
courts did not acquire jurisdiction over the California
properties of David and Leticia. Indeed, Article 16 of
the Civil Code clearly states that real property as well
as personal property is subject to the law of the country
where it is situated. Thus, liquidation shall only be
limited to the Philippine properties.
We affirm the modification madeby the Court of
Appeals with respect to the share of the spouses in the
absolutecommunity properties in the Philippines, as
well as the payment of their childrens presumptive
legitimes, which the appellate court explained in this
wise:
Leticia and David shall likewise have an equal share in
the proceeds of the Sampaloc property.1wphi1 While
both claimed to have contributed to the redemption of
the Noveras property, absent a clear showing where
their contributions came from, the same is presumed to
have come from the community property. Thus, Leticia
is not entitled to reimbursement of half of the
redemption money.
David's allegation that he used part of the proceeds
from the sale of the Sampaloc property for the benefit
of the absolute community cannot be given full
credence. Only the amount of P120,000.00 incurred in
going to and from the U.S.A. may be charged thereto.
Election expenses in the amount of P300,000.00 when
he ran as municipal councilor cannot be allowed in the
absence of receipts or at least the Statement of
Contributions and Expenditures required under Section
14 of Republic Act No. 7166 duly received by the
Commission on Elections. Likewise, expenses incurred
to settle the criminal case of his personal driver is not
deductible as the same had not benefited the family. In
sum, Leticia and David shall share equally in the
proceeds of the sale net of the amount of P120,000.00
or in the respective amounts of P1,040,000.00.
xxxx
Under the first paragraph of Article 888 of the Civil
Code, "(t)he legitime of legitimate children and
descendants consists of one-half or the hereditary
estate of the father and of the mother." The children
arc therefore entitled to half of the share of each
spouse in the net assets of the absolute community,
which shall be annotated on the titles/documents
covering the same, as well as to their respective
shares in the net proceeds from the sale of the
Sampaloc property including the receivables from Sps.
Paringit in the amount of P410,000.00. Consequently,
David and Leticia should each pay them the amount of
P520,000.00 as their presumptive legitimes
therefrom.21
WHEREFORE, the petition is DENIED. The assailed
Decision of the Court of Appeals in CA G.R. CV No.
88686 is AFFIRMED. SO ORDERED.
h.) Orion Savings Bank vs Suzuki
Before us is the Petition for Review on Certiorari1 filed
by petitioner Orion Savings Bank (Orion) under Rule
45 of the Rules of Court, assailing the decision2 dated
August 23, 2012 and the resolution3 dated January 25,
2013 of the Court of Appeals (CA) in CA-G.R. CV No.
94104.
The Factual Antecedents
In the first week of August 2003, respondent
Shigekane Suzuki (Suzuki), a Japanese national, met
with Ms. Helen Soneja (Soneja) to inquire about a
condominium unit and a parking slot at Cityland
Pioneer, Mandaluyong City, allegedly owned by Yung
Sam Kang (Kang), a Korean national and a Special
Resident Retiree's Visa (SRRV) holder.
At the meeting, Soneja informed Suzuki that Unit No.
536 [covered by Condominium Certificate of Title
(CCT) No. 18186]4 and Parking Slot No. 42 [covered
by CCT No. 9118]5 were for sale for P3,000,000.00.
Soneja likewise assured Suzuki that the titles to the
unit and the parking slot were clean. After a brief
negotiation, the parties agreed to reduce the price to
P2,800,000.00. On August 5, 2003, Suzuki issued
Kang a Bank of the Philippine Island (BPI) Check No.
833496 for One Hundred Thousand Pesos
(P100,000.00) as reservation fee.7 On August 21,
2003, Suzuki issued Kang another check, BPI Check
No. 83350,8 this time for P2,700,000.00 representing
the remaining balance of the purchase price. Suzuki
and Kang then executed a Deed of Absolute Sale
dated August 26, 20039 covering Unit No. 536 and
Parking Slot No. 42. Soon after, Suzuki took
possession of the condominium unit and parking lot,
and commenced the renovation of the interior of the
condominium unit.
Kang thereafter made several representations with
Suzuki to deliver the titles to the properties, which were
then allegedly in possession of Alexander Perez
(Perez, Orions Loans Officer) for safekeeping. Despite
several verbal demands, Kang failed to deliver the
documents. Suzuki later on learned that Kang had left
the country, prompting Suzuki to verify the status of the
properties with the Mandaluyong City Registry of
Deeds.
Before long, Suzuki learned that CCT No. 9118
representing the title to the Parking Slot No. 42
contained no annotations although it remained under
the name of Cityland Pioneer. This notwithstanding,
Cityland Pioneer, through Assistant Vice President
Rosario D. Perez, certified that Kang had fully paid the
purchase price of Unit. No. 53610 and Parking Slot No.
42.11 CCT No. 18186 representing the title to the
condominium unit had no existing encumbrance,
except for anannotation under Entry No. 73321/C-
10186 which provided that any conveyance or
encumbrance of CCT No. 18186 shall be subject to
approval by the Philippine Retirement Authority (PRA).
Although CCT No. 18186 contained Entry No.
66432/C-10186 dated February 2, 1999 representing a
mortgage in favor of Orion for a P1,000,000.00 loan,
that annotation was subsequently cancelled on June
16, 2000 by Entry No. 73232/T. No. 10186. Despite the
cancellation of the mortgage to Orion, the titles to the
properties remained in possession of Perez.
To protect his interests, Suzuki thenexecuted an
Affidavit of Adverse Claim12 dated September 8, 2003,
withthe Registry of Deeds of Mandaluyong City,
annotated as Entry No. 3292/C-No. 18186 in CCT No.
18186. Suzuki then demanded the delivery of the
titles.13 Orion, (through Perez), however, refused to
surrender the titles, and cited the need to consult
Orions legal counsel as its reason.
On October 14, 2003, Suzuki received a letter from
Orions counsel dated October 9, 2003, stating that
Kang obtained another loan in the amount of
P1,800,000.00. When Kang failed to pay, he executed
a Dacion en Pagodated February 2, 2003, in favorof
Orion covering Unit No. 536. Orion, however, did not
register the Dacion en Pago, until October 15, 2003.
On October 28, 2003, Suzuki executed an Affidavit of
Adverse Claim over Parking Slot No. 42 (covered by
CCT No. 9118) and this was annotated as Entry No.
4712/C-No. 9118 in the parking lots title.
On January 27, 2004, Suzuki filed a complaint for
specific performance and damages against Kang and
Orion. At the pre-trial, the parties made the following
admissions and stipulations:
1. That as of August 26, 2003, Kang was the registered
owner of Unit No. 536 and Parking Slot No. 42;
2. That the mortgage in favor ofOrion supposedly
executed by Kang, with Entry No. 66432/C-10186
dated February 2, 1999, was subsequently cancelled
by Entry No. 73232/T No. 10186 dated June 16, 2000;
3. That the alleged Dacion en Pagowas never
annotated in CCT Nos. 18186 and 9118;
4. That Orion only paid the appropriate capital gains
tax and the documentary stamp tax for the alleged
Dacion en Pago on October 15, 2003;
5. That Parking Slot No. 42, covered by CCT No. 9118,
was never mortgaged to Orion; and
6. That when Suzuki bought the properties, he went to
Orion to obtain possession of the titles.
The RTC Ruling
In its decision14 dated June 29, 2009, the Regional
Trial Court (RTC), Branch 213, Mandaluyong City ruled
infavor of Suzuki and ordered Orion to deliver the CCT
Nos. 18186 and 9118 to Suzuki.
The court found that Suzuki was an innocent purchaser
for value whose rights over the properties prevailed
over Orions. The RTC further noted that Suzuki
exerted efforts to verify the status of the properties but
he did not find any existing encumbrance inthe titles.
Although Orion claims to have purchased the property
by way of a Dacion en Pago, Suzuki only learned
about it two (2) months after he bought the properties
because Orion never bothered to register or annotate
the Dacion en Pagoin CCT Nos. 18186 and 9116.
The RTC further ordered Orion and Kang to jointly and
severally pay Suzuki moral damages, exemplary
damages, attorneys fees, appearance fees, expenses
for litigation and cost ofsuit. Orion timely appealed the
RTC decision with the CA.
The CA Ruling
On August 23, 2012, the CA partially granted Orions
appeal and sustained the RTC insofar as it upheld
Suzukis right over the properties. The CA further noted
that Entry No. 73321/C-10186 pertaining to the
withdrawal of investment of an SRRV only serves as a
warning to an SRRV holder about the implications of a
conveyance of a property investment. It deviated from
the RTC ruling, however, by deleting the award for
moral damages, exemplary damages, attorneys fees,
expenses for litigation and cost of suit.
Orion sought a reconsideration of the CA decision but
the CA denied the motion in its January 25, 2013
resolution. Orion then filed a petition for review on
certiorariunder Rule 45 with this Court.
The Petition and Comment
Orions petition is based on the following
grounds/arguments:15
1. The Deed of Sale executed by Kang in favor of
Suzuki is null and void. Under Korean law, any
conveyance of a conjugal property should be made
with the consent of both spouses;
2. Suzuki is not a buyer in good faith for he failed to
check the owners duplicate copies of the CCTs;
3. Knowledge of the PRA restriction under Entry No.
73321/C-10186, which prohibits any conveyance or
encumbrance of the property investment, defeats the
alleged claim of good faith by Suzuki; and
4. Orion should not be faulted for exercising due
diligence.
In his Comment,16 Suzuki asserts that the issue on
spousal consent was belatedly raised on appeal.
Moreover, proof of acquisition during the marital
coverture is a condition sine qua nonfor the operation
of the presumption of conjugal ownership.17 Suzuki
additionally maintains that he is a purchaser in good
faith, and is thus entitled to the protection of the law.
The Courts Ruling
We deny the petition for lack of merit.
The Court may inquire into conclusions of fact when
the inference made is manifestly mistaken
In a Rule 45 petition, the latitude of judicial review
generally excludes a factual and evidentiary re-
evaluation, and the Court ordinarily abides by the
uniform factual conclusions of the trial court and the
appellate court.18 In the present case, while the courts
below both arrived at the same conclusion, there
appears tobe an incongruence in their factual findings
and the legal principle they applied to the attendant
factual circumstances. Thus, we are compelled to
examine certain factual issues in the exercise of our
sound discretion to correct any mistaken inference that
may have been made.19
Philippine Law governs the transfer of real property
Orion believes that the CA erred in not ruling on the
issue of spousal consent. We cannot uphold this
position, however, because the issue of spousal
consent was only raised on appeal to the CA. It is a
well-settled principle that points of law, theories,
issues, and arguments not brought to the attention of
the trial court cannot be raised for the first time on
appeal and considered by a reviewing court.20 To
consider these belated arguments would violate basic
principles of fairplay, justice, and due process.
Having said these, we shall nonetheless discuss the
issues Orion belatedly raised, if only to put an end to
lingering doubts on the correctness of the denial of the
present petition.
It is a universal principle thatreal or immovable
property is exclusively subject to the laws of the
country or state where it is located.21 The reason is
found in the very nature of immovable property its
immobility. Immovables are part of the country and so
closely connected to it that all rights over them have
their natural center of gravity there.22
Thus, all matters concerning the titleand disposition
ofreal property are determined by what is known as the
lex loci rei sitae, which can alone prescribe the mode
by which a title canpass from one person to another, or
by which an interest therein can be gained or lost.23
This general principle includes all rules governing the
descent, alienation and transfer of immovable property
and the validity, effect and construction of wills and
other conveyances.24
This principle even governs the capacity of the person
making a deed relating to immovable property, no
matter what its nature may be. Thus, an instrument will
be ineffective to transfer title to land if the person
making it is incapacitated by the lex loci rei sitae, even
though under the law of his domicile and by the law of
the place where the instrument is actually made, his
capacity is undoubted.25
On the other hand, property relations between spouses
are governed principally by the national law of the
spouses.26 However, the party invoking the application
of a foreign law has the burden of proving the foreign
law. The foreign law is a question of fact to be properly
pleaded and proved as the judge cannot take judicial
notice of a foreign law.27 He is presumed to know only
domestic or the law of the forum.28
To prove a foreign law, the party invoking it must
present a copy thereof and comply with Sections 24
and 25 of Rule 132 of the Revised Rules of Court
which reads:
SEC. 24. Proof of official record. The record of
public documents referred to in paragraph (a) of
Section 19, when admissible for any purpose, may be
evidenced by an official publication thereof or by a
copy attested by the officer having the legal custody of
the record, or by his deputy, and accompanied, if the
record is not kept in the Philippines, with a certificate
that such officer has the custody. If the office in which
the record is kept is in a foreign country, the certificate
may be made by a secretary of the embassy or
legation, consul general, consul, vice consul, or
consular agent or by any officer in the foreign service
of the Philippines stationed in the foreign country
inwhich the record is kept, and authenticated by the
seal of his office. (Emphasis supplied)
SEC. 25. What attestation ofcopy must state.
Whenever a copy of a document or record is attested
for the purpose of the evidence, the attestation must
state, in substance, that the copy is a correct copy of
the original, or a specific part thereof, as the case may
be. The attestation must be under the official seal of
the attesting officer, if there be any, or if he be the clerk
of a court having a seal, under the seal of such court.
Accordingly, matters concerning the title and
disposition of real property shall be governed by
Philippine law while issues pertaining to the conjugal
natureof the property shall be governed by South
Korean law, provided it is proven as a fact.
In the present case, Orion, unfortunately failed to prove
the South Korean law on the conjugal ownership
ofproperty. It merely attached a "Certification from the
Embassy of the Republic of Korea"29 to prove the
existence of Korean Law. This certification, does not
qualify as sufficient proof of the conjugal nature of the
property for there is no showing that it was properly
authenticated bythe seal of his office, as required
under Section 24 of Rule 132.30
Accordingly, the International Law doctrine of
presumed-identity approachor processual presumption
comes into play, i.e., where a foreign law is not
pleaded or, evenif pleaded, is not proven, the
presumption is that foreign law is the same as
Philippine Law.31
Under Philippine Law, the phrase "Yung Sam Kang
married to' Hyun Sook Jung" is merely descriptive of
the civil status of Kang.32 In other words, the import
from the certificates of title is that Kang is the owner of
the properties as they are registered in his name alone,
and that he is married to Hyun Sook Jung.
We are not unmindful that in numerous cases we have
held that registration of the property in the name of
only one spouse does not negate the possibility of it
being conjugal or community property.33 In those
cases, however, there was proof that the properties,
though registered in the name of only one spouse,
were indeed either conjugal or community
properties.34 Accordingly, we see no reason to declare
as invalid Kangs conveyance in favor of Suzuki for the
supposed lack of spousal consent.
The petitioner failed to adduce sufficient evidence to
prove the due execution of the Dacion en Pago
Article 1544 of the New Civil Codeof the Philippines
provides that:
ART. 1544. If the same thing should have been sold to
different vendees, the ownership shall be transferred to
the person who may have first taken possession
thereof in good faith, if it should be movable property.
Should it be immovable property, the ownership shall
belong to the person acquiring it who in good faith first
recorded it in the Registry of Property.
Should there be no inscription, the ownership shall
pertain to the person who in good faith was first in the
possession; and, in the absence thereof, to the person
who presents the oldest title, provided there is good
faith.
The application of Article 1544 of the New Civil Code
presupposes the existence of two or more duly
executed contracts of sale. In the present case, the
Deed of Sale dated August 26, 200335 between
Suzuki and Kang was admitted by Orion36 and was
properly identified by Suzukis witness Ms. Mary Jane
Samin (Samin).37
It is not disputed, too, that the Deed of Sale dated
August 26, 2003 was consummated. In a contract of
sale, the seller obligates himself to transfer the
ownership of the determinate thing sold, and to deliver
the same to the buyer, who obligates himself to pay a
price certain to the seller.38 The execution of the
notarized deed of saleand the actual transfer of
possession amounted to delivery that produced the
legal effect of transferring ownership to Suzuki.39
On the other hand, although Orion claims priority in
right under the principle of prius tempore, potior jure
(i.e.,first in time, stronger in right), it failedto prove the
existence and due execution of the Dacion en Pagoin
its favor.
At the outset, Orion offered the Dacion en Pagoas
Exhibit "5"with submarkings "5-a" to "5-c" to prove the
existence of the February 6, 2003 transaction in its
Formal Offer dated July 20, 2008. Orion likewise
offered in evidence the supposed promissory note
dated September 4, 2002 as Exhibit "12"to prove the
existence of the additional P800,000.00 loan. The
RTC, however, denied the admission of Exhibits "5"
and "12,"among others, in its order dated August 19,
2008 "since the same [were] not identified in court by
any witness."40
Despite the exclusion of its most critical documentary
evidence, Orion failed to make a tender ofexcluded
evidence, as provided under Section 40, Rule 132 of
the Rules of Court. For this reason alone, we are
prevented from seriously considering Exhibit "5" and its
submarkings and Exhibit "12" in the present petition.
Moreover, even if we consider Exhibit "5" and its
submarkings and Exhibit "12" in the present petition,
the copious inconsistencies and contradictions in the
testimonial and documentary evidence of Orion,
militate against the conclusion that the Dacion en
Pagowas duly executed. First, there appears to be no
due and demandable obligation when the Dacion en
Pago was executed, contrary to the allegations of
Orion. Orions witness Perez tried to impress upon the
RTC that Kang was in default in his P1,800,000.00
loan. During his direct examination, he stated:
ATTY. CRUZAT:
Q: Okay, so this loan of P1.8 million, what happened to
this loan, Mr. Witness?
A: Well it became past due, there has been delayed
interest payment by Mr. Kangand...
Q: So what did you do after there were defaults[?]
A: We have to secure the money or the investment of
the bank through loans and we have executed a
dacion en pagobecause Mr. Kang said he has no
money. So we just execute[d] the dacion en pago
rather than going through the Foreclosure proceedings.
xxxx
Q: Can you tell the court when was this executed?
A: February 6, 2003, your Honor.41
A reading of the supposed promissory note, however,
shows that there was nodefault to speak of when the
supposed Dacion en Pagowas executed.
Based on the promissory note, Kangs loan obligation
wouldmature only on August 27, 2003. Neither can
Orion claim that Kang had been in default in his
installment payments because the wordings of the
promissory note provide that "[t]he principal of this
loanand its interest and other charges shall be paid by
me/us in accordance hereunder: SINGLE PAYMENT
LOANS.42 "There was thus no due and demandable
loan obligation when the alleged Dacion en Pago was
executed.
Second, Perez, the supposed person who prepared
the Dacion en Pago,appears to only have a vague idea
of the transaction he supposedly prepared. During his
cross-examination, he testified:
ATTY. DE CASTRO:
Q: And were you the one who prepared this [dacion en
pago] Mr. witness?
A: Yes, sir. I personally prepared this.
xxxx
Q: So this 1.8 million pesos is already inclusive of all
the penalties, interest and surcharge due from Mr.
Yung Sam Kang?
A: Its just the principal, sir.
Q: So you did not state the interest [and] penalties?
A: In the [dacion en pago], we do not include interest,
sir. We may actually includethat but....
Q: Can you read the Second Whereas Clause, Mr.
Witness?
A: Whereas the first party failed to pay the said loan to
the second party and as of February 10, 2003, the
outstanding obligation which is due and demandable
principal and interest and other charges included
amounts to P1,800,000.00 pesos, sir.
xxxx
Q: You are now changing your answer[.] [I]t now
includes interest and other charges, based on this
document?
A: Yes, based on that document, sir.43
Third, the Dacion en Pago,mentioned that the
P1,800,000.00 loan was secured by a real estate
mortgage. However, no document was ever presented
to prove this real estate mortgage aside from it being
mentioned in the Dacion en Pago itself.
ATTY. DE CASTRO:
Q: Would you know if there is any other document like
a supplement to that Credit Line Agreement referring to
this 1.8 million peso loan by Mr. Yung Sam Kang which
says that there was a subsequent collateralization or
security given by Mr. Yung [Sam]
Kang for the loan?
xxxx
A: The [dacion en pago], sir.44
Fourth,the Dacion en Pago was first mentioned only
two (2) months after Suzuki and Samin demanded the
delivery of the titles sometime in August 2003,and after
Suzuki caused the annotation of his affidavit of adverse
claim. Records show that it was only on October 9,
2003, when Orion, through its counsel, Cristobal Balbin
Mapile & Associates first spoke of the Dacion en
Pago.45 Not even Perez mentioned any Dacion en
Pago on October 1, 2003, when he personally received
a letter demanding the delivery of the titles.Instead,
Perez refused to accept the letter and opted to first
consult with his lawyer.46
Notably, even the October 9, 2003 letter contained
material inconsistencies in its recital of facts
surrounding the execution of the Dacion en Pago. In
particular, it mentioned that "on [September 4, 2002],
after paying the original loan, [Kang] applied and was
granted a new Credit Line Facility by [Orion] x x x for
ONE MILLION EIGHT HUNDRED THOUSAND
PESOS (P1,800,000.00)." Perez, however, testified
that there was "no cash movement" in the original
P1,000,000.00 loan. In his testimony, he said:
COURT:
xxxx
Q: Would you remember what was the subject matter
of that real estate mortgage for that first P1,000,000.00
loan?
A: Its a condominium Unit in Cityland, sir.
xxxx
Q: Would you recall if there was any payment by Mr.
Yung Sam Kang of this P1,000,000.00 loan?
A: None sir.
Q: No payments?
A: None sir.
Q: And from 1999 to 2002, there was no payment,
either by way of payment to the principal, by way
ofpayment of interest, there was no payment by Mr.
Yung Sam Kang of this loan?
A: Literally, there was no actual cash movement, sir.
Q: There was no actual cash?
A: Yes, sir.
Q: And yet despite no payment, the bank Orion
Savings Bank still extended an P800,000.00 additional
right?
A: Yes, sir.47
Fifth, it is undisputed that notwithstanding the
supposed execution of theDacion en Pago on February
2, 2003, Kang remained in possession of the
condominium unit. In fact, nothing in the records shows
that Orion even bothered to take possession of the
property even six (6) months after the supposed date
of execution of the Dacion en Pago. Kang was even
able to transfer possession of the condominium unit to
Suzuki, who then made immediate improvements
thereon. If Orion really purchased the condominium
unit on February 2, 2003 and claimed to be its true
owner, why did it not assert its ownership immediately
after the alleged sale took place? Why did it have to
assert its ownership only after Suzuki demanded the
delivery of the titles? These gaps have remained
unanswered and unfilled.
In Suntay v. CA,48 we held that the most prominent
index of simulation is the complete absence of
anattempt on the part of the vendee to assert his rights
of ownership over the property in question. After the
sale, the vendee should have entered the land and
occupied the premises. The absence of any attempt on
the part of Orion to assert its right of dominion over the
property allegedly soldto it is a clear badge of fraud.
That notwithstanding the execution of the Dacion en
Pago, Kang remained in possession of the disputed
condominium unit from the time of the execution of
the Dacion en Pagountil the propertys subsequent
transfer to Suzuki unmistakably strengthens the
fictitious nature of the Dacion en Pago.
These circumstances, aside from the glaring
inconsistencies in the documents and testimony of
Orions witness, indubitably prove the spurious nature
of the Dacion en Pago.
The fact that the Dacion en Pago
is a notarized document does not
support the conclusion that the
sale it embodies is a true
conveyance
Public instruments are evidence of the facts that gave
rise to their execution and are to be considered as
containing all the terms of the agreement.49 While a
notarized document enjoys this presumption, "the fact
that a deed is notarized is not a guarantee of the
validity of its contents."50 The presumption of
regularity of notarized documents is not absolute and
may be rebutted by clear and convincing evidence to
the contrary.51
In the present case, the presumption cannot apply
because the regularity in the execution of the Dacion
en Pago and the loan documents was challenged in
the proceedings below where their prima facievalidity
was overthrown by the highly questionable
circumstances surrounding their execution.52
Effect of the PRA restriction on
the validity of Suzukis title to the
property
Orion argues that the PRA restriction in CCT No.
18186 affects the conveyance to Suzuki. In particular,
Orion assails the status of Suzuki as a purchaser in
good faith in view of the express PRA restriction
contained in CCT No. 18186.53
We reject this suggested approachoutright because, to
our mind, the PRA restriction cannot affect the
conveyance in favor of Suzuki. On this particular point,
we concur withthe following findings of the CA:
x x x the annotation merely servesas a warning to the
owner who holds a Special Resident Retirees
Visa(SRRV) that he shall lose his visa if he disposes
his property which serves as his investment in order to
qualify for such status. Section 14 of the Implementing
Investment Guidelines under Rule VIII-A of the Rules
and Regulations Implementing Executive Order No.
1037, Creating the Philippine Retirement Park System
Providing Funds Therefor and For Other Purpose (
otherwise known as the Philippine Retirement
Authority) states:
Section 14. Should the retiree-investor withdraw his
investment from the Philippines, or transfer the same
to another domestic enterprise, orsell, convey or
transfer his condominium unit or units to another
person, natural or juridical without the prior approval of
the Authority, the Special Resident Retirees Visa
issued to him, and/or unmarried minor child or
children[,] may be cancelled or revoked by the
Philippine Government, through the appropriate
government department or agency, upon
recommendation of the Authority.54
Moreover, Orion should not be allowed to successfully
assail the good faith of Suzuki on the basis of the PRA
restriction. Orion knew of the PRA restriction when it
transacted with Kang. Incidentally, Orion admitted
accommodating Kangs request to cancel the mortgage
annotation despite the lack of payment to circumvent
the PRA restriction. Orion, thus, is estopped from
impugning the validity of the conveyance in favor of
Suzuki on the basis of the PRA restriction that Orion
itself ignored and "attempted" to circumvent.
With the conclusion that Orion failed to prove the
authenticity of the Dacion en Pago, we see no reason
for the application of the rules on double sale under
Article 1544 of the New Civil Code. Suzuki, moreover,
successfully adduced sufficient evidence to establish
the validity of conveyance in his favor.
WHEREFORE, premises considered, we DENY the
petition for lack of merit. Costs against petitioner Orion
Savings Bank. SO ORDERED.
i.) Del Socorro vs Wilselm (Article 14 Case)
ARTICLE 16 REAL AND PERSONAL PROPERTY
a.) Orion Savings vs Suzuki (Article 15 Case)
ARTICLE 19 PRINCIPLE OF ABUSE OF RIGHTS
a.) Far East Bank vs Pacilan Jr.
Before the Court is the petition for review on certiorari
filed by Far East Bank and Trust Company (now Bank
of the Philippines Islands) seeking the reversal of the
Decision[1] dated August 30, 2002 of the Court of
Appeals (CA) in CA-G.R. CV No. 36627 which ordered
it, together with its branch accountant, Roger
Villadelgado, to pay respondent Themistocles Pacilan,
Jr.[2] the total sum of P100,000.00 as moral and
exemplary damages. The assailed decision affirmed
with modification that of the Regional Trial Court (RTC)
of Negros Occidental, Bacolod City, Branch 54, in Civil
Case No. 4908. Likewise sought to be reversed and
set aside is the Resolution dated January 17, 2003 of
the appellate court, denying petitioner banks motion for
reconsideration.
The case stemmed from the following undisputed facts:
Respondent Pacilan opened a current account with
petitioner banks Bacolod Branch on May 23, 1980. His
account was denominated as Current Account No.
53208 (0052-00407-4). The respondent had since then
issued several postdated checks to different payees
drawn against the said account. Sometime in March
1988, the respondent issued Check No. 2434886 in the
amount of P680.00 and the same was presented for
payment to petitioner bank on April 4, 1988.
Upon its presentment on the said date, Check No.
2434886 was dishonored by petitioner bank. The next
day, or on April 5, 1988, the respondent deposited to
his current account the amount of P800.00. The said
amount was accepted by petitioner bank; hence,
increasing the balance of the respondents deposit to
P1,051.43.
Subsequently, when the respondent verified with
petitioner bank about the dishonor of Check No.
2434866, he discovered that his current account was
closed on the ground that it was improperly handled.
The records of petitioner bank disclosed that between
the period of March 30, 1988 and April 5, 1988, the
respondent issued four checks, to wit: Check No.
2480416 for P6,000.00; Check No. 2480419 for
P50.00; Check No. 2434880 for P680.00 and; Check
No. 2434886 for P680.00, or a total amount of
P7,410.00. At the time, however, the respondents
current account with petitioner bank only had a deposit
of P6,981.43. Thus, the total amount of the checks
presented for payment on April 4, 1988 exceeded the
balance of the respondents deposit in his account. For
this reason, petitioner bank, through its branch
accountant, Villadelgado, closed the respondents
current account effective the evening of April 4, 1988
as it then had an overdraft of P428.57. As a
consequence of the overdraft, Check No. 2434886 was
dishonored.
On April 18, 1988, the respondent wrote to petitioner
bank complaining that the closure of his account was
unjustified. When he did not receive a reply from
petitioner bank, the respondent filed with the RTC of
Negros Occidental, Bacolod City, Branch 54, a
complaint for damages against petitioner bank and
Villadelgado. The case was docketed as Civil Case No.
4908. The respondent, as complainant therein, alleged
that the closure of his current account by petitioner
bank was unjustified because on the first banking hour
of April 5, 1988, he already deposited an amount
sufficient to fund his checks. The respondent pointed
out that Check No. 2434886, in particular, was
delivered to petitioner bank at the close of banking
hours on April 4, 1988 and, following normal banking
procedure, it
(petitioner bank) had until the last clearing hour of the
following day, or on April 5, 1988, to honor the check or
return it, if not funded. In disregard of this banking
procedure and practice, however, petitioner bank
hastily closed the respondents current account and
dishonored his Check No. 2434886.
The respondent further alleged that prior to the closure
of his current account, he had issued several other
postdated checks. The petitioner banks act of closing
his current account allegedly preempted the deposits
that he intended to make to fund those checks.
Further, the petitioner banks act exposed him to
criminal prosecution for violation of Batas Pambansa
Blg. 22.
According to the respondent, the indecent haste that
attended the closure of his account was patently
malicious and intended to embarrass him. He claimed
that he is a Cashier of Prudential Bank and Trust
Company, whose branch office is located just across
that of petitioner bank, and a prominent and respected
leader both in the civic and banking communities. The
alleged malicious acts of petitioner bank besmirched
the respondents reputation and caused him social
humiliation, wounded feelings, insurmountable worries
and sleepless nights entitling him to an award of
damages.
In their answer, petitioner bank and Villadelgado
maintained that the respondents current account was
subject to petitioner banks Rules and Regulations
Governing the Establishment and Operation of Regular
Demand Deposits which provide that the Bank
reserves the right to close an account if the depositor
frequently draws checks against insufficient funds
and/or uncollected deposits and that the Bank reserves
the right at any time to return checks of the depositor
which are drawn against insufficient funds or for any
reason.[3]
They showed that the respondent had improperly and
irregularly handled his current account. For example, in
1986, the respondents account was overdrawn 156
times, in 1987, 117 times and in 1988, 26 times. In all
these instances, the account was overdrawn due to the
issuance of checks against insufficient funds. The
respondent had also signed several checks with a
different signature from the specimen on file for
dubious reasons.
When the respondent made the deposit on April 5,
1988, it was obviously to cover for issuances made the
previous day against an insufficiently funded account.
When his Check No. 2434886 was presented for
payment on April 4, 1988, he had already incurred an
overdraft; hence, petitioner bank rightfully dishonored
the same for insufficiency of funds.
After due proceedings, the court a quo rendered
judgment in favor of the respondent as it ordered the
petitioner bank and Villadelgado, jointly and severally,
to pay the respondent the amounts of P100,000.00 as
moral damages and P50,000.00 as exemplary
damages and costs of suit. In so ruling, the court a quo
also cited petitioner banks rules and regulations which
state that a charge of P10.00 shall be levied against
the depositor for any check that is taken up as a
returned item due to insufficiency of funds on the date
of receipt from the clearing office even if said check is
honored and/or covered by sufficient deposit the
following banking day. The same rules and regulations
also provide that a check returned for insufficiency of
funds for any reason of similar import may be
subsequently recleared for one more time only, subject
to the same charges.
According to the court a quo, following these rules and
regulations, the respondent, as depositor, had the right
to put up sufficient funds for a check that was taken as
a returned item for insufficient funds the day following
the receipt of said check from the clearing office. In
fact, the said check could still be recleared for one
more time. In previous instances, petitioner bank
notified the respondent when he incurred an overdraft
and he would then deposit sufficient funds the following
day to cover the overdraft. Petitioner bank thus acted
unjustifiably when it immediately closed the
respondents account on April 4, 1988 and deprived
him of the opportunity to reclear his check or deposit
sufficient funds therefor the following day.
As a result of the closure of his current account,
several of the respondents checks were subsequently
dishonored and because of this, the respondent was
humiliated, embarrassed and lost his credit standing in
the business community. The court a quo further
ratiocinated that even granting arguendo that petitioner
bank had the right to close the respondents account,
the manner which attended the closure constituted an
abuse of the
said right. Citing Article 19 of the Civil Code of the
Philippines which states that [e]very person must, in
the exercise of his rights and in the performance of his
duties, act with justice, give everyone his due, and
observe honesty and good faith and Article 20 thereof
which states that [e]very person who, contrary to law,
wilfully or negligently causes damage to another, shall
indemnify the latter for the same, the court a quo
adjudged petitioner bank of acting in bad faith. It held
that, under the foregoing circumstances, the
respondent is entitled to an award of moral and
exemplary damages.
The decretal portion of the court a quos decision reads:
WHEREFORE, PREMISES CONSIDERED, judgment
is hereby rendered:
1.Ordering the defendants [petitioner bank and
Villadelgado], jointly and severally, to pay plaintiff [the
respondent] the sum of P100,000.00 as moral
damages;
2. Ordering the defendants, jointly and severally, to pay
plaintiff the sum of P50,000.00 as exemplary damages
plus costs and expenses of the suit; and
3. Dismissing [the] defendants counterclaim for lack of
merit.
SO ORDERED.[4]
On appeal, the CA rendered the Decision dated August
30, 2002, affirming with modification the decision of the
court a quo.
The appellate court substantially affirmed the factual
findings of the court a quo as it held that petitioner
bank unjustifiably closed the respondents account
notwithstanding that its own rules and regulations
allow that a check returned for insufficiency of funds or
any reason of similar import, may be subsequently
recleared for one more time, subject to standard
charges. Like the court a quo, the appellate court
observed that in several instances in previous years,
petitioner bank would inform the respondent when he
incurred an overdraft and allowed him to make a timely
deposit to fund the checks that were initially
dishonored for insufficiency of funds. However, on April
4, 1988, petitioner bank immediately closed the
respondents account without even notifying him that he
had incurred an overdraft. Even when they had already
closed his account on April 4, 1988, petitioner bank still
accepted the deposit that the respondent made on
April 5, 1988, supposedly to cover his checks.
Echoing the reasoning of the court a quo, the CA
declared that even as it may be conceded that
petitioner bank had reserved the right to close an
account for repeated overdrafts by the respondent, the
exercise of that right must never be despotic or
arbitrary. That petitioner bank chose to close the
account outright and return the check, even after
accepting a deposit sufficient to cover the said check,
is contrary to its duty to handle the respondents
account with utmost fidelity. The exercise of the right is
not absolute and good faith, at least, is required. The
manner by which petitioner bank closed the account of
the respondent runs afoul of Article 19 of the Civil
Code which enjoins every person, in the exercise of his
rights, to give every one his due, and observe honesty
and good faith.
The CA concluded that petitioner banks precipitate and
imprudent closure of the respondents account had
caused him, a respected officer of several civic and
banking associations, serious anxiety and humiliation.
It had, likewise, tainted his credit standing.
Consequently, the award of damages is warranted.
The CA, however, reduced the amount of damages
awarded by the court a quo as it found the same to be
excessive:
We, however, find excessive the amount of damages
awarded by the RTC. In our view the reduced amount
of P75,000.00 as moral damages and P25,000.00 as
exemplary damages are in order. Awards for damages
are not meant to enrich the plaintiff-appellee [the
respondent] at the expense of defendants-appellants
[the petitioners], but to obviate the moral suffering he
has undergone. The award is aimed at the restoration,
within limits possible, of the status quo ante, and
should be proportionate to the suffering inflicted.[5]
The dispositive portion of the assailed CA decision
reads:
WHEREFORE, the decision appealed from is hereby
AFFIRMED, subject to the MODIFICATION that the
award of moral damages is reduced to P75,000.00 and
the award of exemplary damages reduced to
P25,000.00.
SO ORDERED.[6]
Petitioner bank sought the reconsideration of the said
decision but in the assailed Resolution dated January
17, 2003, the appellate court denied its motion. Hence,
the recourse to this Court.
Petitioner bank maintains that, in closing the account of
the respondent in the evening of April 4, 1988, it acted
in good faith and in accordance with the rules and
regulations governing the operation of a
regular demand deposit which reserves to the bank the
right to close an account if the depositor frequently
draws checks against insufficient funds and/or
uncollected deposits. The same rules and regulations
also provide that the depositor is not entitled, as a
matter of right, to overdraw on this deposit and the
bank reserves the right at any time to return checks of
the depositor which are drawn against insufficient
funds or for any reason.
It cites the numerous instances that the respondent
had overdrawn his account and those instances where
he deliberately signed checks using a signature
different from the specimen on file. Based on these
facts, petitioner bank was constrained to close the
respondents account for improper and irregular
handling and returned his Check No. 2434886 which
was presented to the bank for payment on April 4,
1988.
Petitioner bank further posits that there is no law or
rule which gives the respondent a legal right to make
good his check or to deposit the corresponding amount
to cover said check within 24 hours after the same is
dishonored or returned by the bank for having been
drawn against insufficient funds. It vigorously denies
having violated Article 19 of the Civil Code as it insists
that it acted in good faith and in accordance with the
pertinent banking rules and regulations.
The petition is impressed with merit.
A perusal of the respective decisions of the court a quo
and the appellate court show that the award of
damages in the respondents favor was anchored
mainly on Article 19 of the Civil Code which, quoted
anew below, reads:
Art. 19. Every person must, in the exercise of his rights
and in the performance of his duties, act with justice,
give everyone his due, and observe honesty and good
faith.
The elements of abuse of rights are the following: (a)
the existence of a legal right or duty; (b) which is
exercised in bad faith; and (c) for the sole intent of
prejudicing or injuring another.[7] Malice or bad faith is
at the core of the said provision.[8] The law always
presumes good faith and any person who seeks to be
awarded damages due to acts of another has the
burden of proving that the latter acted in bad faith or
with ill-motive.[9] Good faith refers to the state of the
mind which is manifested by the acts of the individual
concerned. It consists of the intention to abstain from
taking an unconscionable and unscrupulous advantage
of another.[10] Bad faith does not simply connote bad
judgment or simple negligence, dishonest purpose or
some moral obliquity and conscious doing of a wrong,
a breach of known duty due to some motives or
interest or ill-will that partakes of the nature of
fraud.[11] Malice connotes ill-will or spite and speaks
not in response to duty. It implies an intention to do
ulterior and unjustifiable harm. Malice is bad faith or
bad motive.[12]
Undoubtedly, petitioner bank has the right to close the
account of the respondent based on the following
provisions of its Rules and Regulations Governing the
Establishment and Operation of Regular Demand
Deposits:
10) The Bank reserves the right to close an account if
the depositor frequently draws checks against
insufficient funds and/or uncollected deposits.
12) However, it is clearly understood that the depositor
is not entitled, as a matter of right, to overdraw on this
deposit and the bank reserves the right at any time to
return checks of the depositor which are drawn against
insufficient funds or for any other reason.
The facts, as found by the court a quo and the
appellate court, do not establish that, in the exercise of
this right, petitioner bank committed an abuse thereof.
Specifically, the second and third elements for abuse
of rights are not attendant in the present case. The
evidence presented by petitioner bank negates the
existence of bad faith or malice on its part in closing
the respondents account on April 4, 1988 because on
the said date the same was already overdrawn. The
respondent issued four checks, all due on April 4,
1988, amounting to P7,410.00 when the balance of his
current account deposit was only P6,981.43. Thus, he
incurred an overdraft of P428.57 which resulted in the
dishonor of his Check No. 2434886. Further, petitioner
bank showed that in 1986, the current account of the
respondent was overdrawn 156 times due to his
issuance of checks against insufficient funds.[13] In
1987, the said account was overdrawn 117 times for
the same
reason.[14] Again, in 1988, 26 times.[15] There were
also several instances when the respondent issued
checks deliberately using a signature different from his
specimen signature on file with petitioner bank.[16] All
these circumstances taken together justified the
petitioner banks closure of the respondents account on
April 4, 1988 for improper handling.
It is observed that nowhere under its rules and
regulations is petitioner bank required to notify the
respondent, or any depositor for that matter, of the
closure of the account for frequently drawing checks
against insufficient funds. No malice or bad faith could
be imputed on petitioner bank for so acting since the
records bear out that the respondent had indeed been
improperly and irregularly handling his account not just
a few times but hundreds of times. Under the
circumstances, petitioner bank could not be faulted for
exercising its right in accordance with the express rules
and regulations governing the current accounts of its
depositors. Upon the opening of his account, the
respondent had agreed to be bound by these terms
and conditions.
Neither the fact that petitioner bank accepted the
deposit made by the respondent the day following the
closure of his account constitutes bad faith or malice
on the part of petitioner bank. The same could be
characterized as simple negligence by its personnel.
Said act, by itself, is not constitutive of bad faith.
The respondent had thus failed to discharge his burden
of proving bad faith on the part of petitioner bank or
that it was motivated by ill-will or spite in closing his
account on April 4, 1988 and in inadvertently accepting
his deposit on April 5, 1988.
Further, it has not been shown that these acts were
done by petitioner bank with the sole intention of
prejudicing and injuring the respondent. It is conceded
that the respondent may have suffered damages as a
result of the closure of his current account. However,
there is a material distinction between damages and
injury. The Court had the occasion to explain the
distinction between damages and injury in this wise:
Injury is the illegal invasion of a legal right; damage is
the loss, hurt or harm which results from the injury; and
damages are the recompense or compensation
awarded for the damage suffered. Thus, there can be
damage without injury in those instances in which the
loss or harm was not the result of a violation of a legal
duty. In such cases, the consequences must be borne
by the injured person alone, the law affords no remedy
for damages resulting from an act which does not
amount to a legal injury or wrong. These situations are
often called damnum absque injuria.

In other words, in order that a plaintiff may maintain an
action for the injuries of which he complains, he must
establish that such injuries resulted from a breach of
duty which the defendant owed to the plaintiff a
concurrence of injury to the plaintiff and legal
responsibility by the person causing it. The underlying
basis for the award of tort damages is the premise that
the individual was injured in contemplation of law.
Thus, there must first be a breach of some duty and
the imposition of liability for that breach before
damages may be awarded; and the breach of such
duty should be the proximate cause of the injury.[17]
Whatever damages the respondent may have suffered
as a consequence, e.g., dishonor of his other
insufficiently funded checks, would have to be borne by
him alone. It was the respondents repeated improper
and irregular handling of his account which constrained
petitioner bank to close the same in accordance with
the rules and regulations governing its depositors
current accounts. The respondents case is clearly one
of damnum absque injuria.
WHEREFORE, the petition is GRANTED. The
Decision dated August 30, 2002 and Resolution dated
January 17, 2003 of the Court of Appeals in CA-G.R.
CV No. 36627 are REVERSED AND SET ASIDE. SO
ORDERED.
b.) Uypitching vs Quiamco
Honeste vivere, non alterum laedere et jus suum
cuique tribuere. To live virtuously, not to injure others
and to give everyone his due. These supreme norms of
justice are the underlying principles of law and order in
society. We reaffirm them in this petition for review on
certiorari assailing the July 26, 2000 decision1 and
October 18, 2000 resolution of the Court of Appeals
(CA) in CA-G.R. CV No. 47571.
In 1982, respondent Ernesto C. Quiamco was
approached by Juan Davalan,2 Josefino Gabutero and
Raul Generoso to amicably settle the civil aspect of a
criminal case for robbery3 filed by Quiamco against
them. They surrendered to him a red Honda XL-100
motorcycle and a photocopy of its certificate of
registration. Respondent asked for the original
certificate of registration but the three accused never
came to see him again. Meanwhile, the motorcycle
was parked in an open space inside respondents
business establishment, Avesco-AVNE Enterprises,
where it was visible and accessible to the public.
It turned out that, in October 1981, the motorcycle had
been sold on installment basis to Gabutero by
petitioner Ramas Uypitching Sons, Inc., a family-
owned corporation managed by petitioner Atty. Ernesto
Ramas Uypitching. To secure its payment, the
motorcycle was mortgaged to petitioner corporation.4
When Gabutero could no longer pay the installments,
Davalan assumed the obligation and continued the
payments. In September 1982, however, Davalan
stopped paying the remaining installments and told
petitioner corporations collector, Wilfredo Verao, that
the motorcycle had allegedly been "taken by
respondents men."
Nine years later, on January 26, 1991, petitioner
Uypitching, accompanied by policemen,5 went to
Avesco-AVNE Enterprises to recover the motorcycle.
The leader of the police team, P/Lt. Arturo Vendiola,
talked to the clerk in charge and asked for respondent.
While P/Lt. Vendiola and the clerk were talking,
petitioner Uypitching paced back and forth inside the
establishment uttering "Quiamco is a thief of a
motorcycle."
On learning that respondent was not in Avesco-AVNE
Enterprises, the policemen left to look for respondent in
his residence while petitioner Uypitching stayed in the
establishment to take photographs of the motorcycle.
Unable to find respondent, the policemen went back to
Avesco-AVNE Enterprises and, on petitioner
Uypitchings instruction and over the clerks objection,
took the motorcycle.
On February 18, 1991, petitioner Uypitching filed a
criminal complaint for qualified theft and/or violation of
the Anti-Fencing Law6 against respondent in the Office
of the City Prosecutor of Dumaguete City.7
Respondent moved for dismissal because the
complaint did not charge an offense as he had neither
stolen nor bought the motorcycle. The Office of the City
Prosecutor dismissed the complaint8 and denied
petitioner Uypitchings subsequent motion for
reconsideration.
Respondent filed an action for damages against
petitioners in the RTC of Dumaguete City, Negros
Oriental, Branch 37.9 He sought to hold the petitioners
liable for the following: (1) unlawful taking of the
motorcycle; (2) utterance of a defamatory remark (that
respondent was a thief) and (3) precipitate filing of a
baseless and malicious complaint. These acts
humiliated and embarrassed the respondent and
injured his reputation and integrity.
On July 30, 1994, the trial court rendered a decision10
finding that petitioner Uypitching was motivated with
malice and ill will when he called respondent a thief,
took the motorcycle in an abusive manner and filed a
baseless complaint for qualified theft and/or violation of
the Anti-Fencing Law. Petitioners acts were found to
be contrary to Articles 1911 and 2012 of the Civil
Code. Hence, the trial court held petitioners liable to
respondent for P500,000 moral damages, P200,000
exemplary damages and P50,000 attorneys fees plus
costs.
Petitioners appealed the RTC decision but the CA
affirmed the trial courts decision with modification,
reducing the award of moral and exemplary damages
to P300,000 and P100,000, respectively.13 Petitioners
sought reconsideration but it was denied. Thus, this
petition.
In their petition and memorandum, petitioners submit
that the sole (allegedly) issue to be resolved here is
whether the filing of a complaint for qualified theft
and/or violation of the Anti-Fencing Law in the Office of
the City Prosecutor warranted the award of moral
damages, exemplary damages, attorneys fees and
costs in favor of respondent.
Petitioners suggestion is misleading. They were held
liable for damages not only for instituting a groundless
complaint against respondent but also for making a
slanderous remark and for taking the motorcycle from
respondents establishment in an abusive manner.
Correctness of the Findings of the RTC and CA
As they never questioned the findings of the RTC and
CA that malice and ill will attended not only the public
imputation of a crime to respondent14 but also the
taking of the motorcycle, petitioners were deemed to
have accepted the correctness of such findings. This
alone was sufficient to hold petitioners liable for
damages to respondent.
Nevertheless, to address petitioners concern, we also
find that the trial and appellate courts correctly ruled
that the filing of the complaint was tainted with malice
and bad faith. Petitioners themselves in fact described
their action as a "precipitate act."15 Petitioners were
bent on portraying respondent as a thief. In this
connection, we quote with approval the following
findings of the RTC, as adopted by the CA:
x x x There was malice or ill-will [in filing the complaint
before the City Prosecutors Office] because Atty.
Ernesto Ramas Uypitching knew or ought to have
known as he is a lawyer, that there was no probable
cause at all for filing a criminal complaint for qualified
theft and fencing activity against [respondent]. Atty.
Uypitching had no personal knowledge that
[respondent] stole the motorcycle in question. He was
merely told by his bill collector ([i.e.] the bill collector of
Ramas Uypitching Sons, Inc.)[,] Wilfredo Verao[,] that
Juan Dabalan will [no longer] pay the remaining
installment(s) for the motorcycle because the
motorcycle was taken by the men of [respondent]. It
must be noted that the term used by Wilfredo Verao
in informing Atty. Ernesto Ramas Uypitching of the
refusal of Juan Dabalan to pay for the remaining
installment was []taken[], not []unlawfully taken[] or
stolen. Yet, despite the double hearsay, Atty. Ernesto
Ramas Uypitching not only executed the [complaint-
affidavit] wherein he named [respondent] as the
suspect of the stolen motorcycle but also charged
[respondent] of qualified theft and fencing activity
before the City [Prosecutors] Office of Dumaguete.
The absence of probable cause necessarily signifies
the presence of malice. What is deplorable in all these
is that Juan Dabalan, the owner of the motorcycle, did
not accuse [respondent] or the latters men of stealing
the motorcycle[,] much less bother[ed] to file a case for
qualified theft before the authorities. That Atty.
Uypitchings act in charging [respondent] with qualified
theft and fencing activity is tainted with malice is also
shown by his answer to the question of Cupid
Gonzaga16 [during one of their conversations] - "why
should you still file a complaint? You have already
recovered the motorcycle"[:] "Aron motagam ang
kawatan ug motor." ("To teach a lesson to the thief of
motorcycle.")17
Moreover, the existence of malice, ill will or bad faith is
a factual matter. As a rule, findings of fact of the trial
court, when affirmed by the appellate court, are
conclusive on this Court. We see no compelling reason
to reverse the findings of the RTC and the CA.
Petitioners Abused Their Right of Recovery as
Mortgagee(s)
Petitioners claim that they should not be held liable for
petitioner corporations exercise of its right as seller-
mortgagee to recover the mortgaged vehicle
preliminary to the enforcement of its right to foreclose
on the mortgage in case of default. They are clearly
mistaken.
True, a mortgagee may take steps to recover the
mortgaged property to enable it to enforce or protect its
foreclosure right thereon. There is, however, a well-
defined procedure for the recovery of possession of
mortgaged property: if a mortgagee is unable to obtain
possession of a mortgaged property for its sale on
foreclosure, he must bring a civil action either to
recover such possession as a preliminary step to the
sale, or to obtain judicial foreclosure.18
Petitioner corporation failed to bring the proper civil
action necessary to acquire legal possession of the
motorcycle. Instead, petitioner Uypitching descended
on respondents establishment with his policemen and
ordered the seizure of the motorcycle without a search
warrant or court order. Worse, in the course of the
illegal seizure of the motorcycle, petitioner Uypitching
even mouthed a slanderous statement.
No doubt, petitioner corporation, acting through its co-
petitioner Uypitching, blatantly disregarded the lawful
procedure for the enforcement of its right, to the
prejudice of respondent. Petitioners acts violated the
law as well as public morals, and transgressed the
proper norms of human relations.
The basic principle of human relations, embodied in
Article 19 of the Civil Code, provides:
Art. 19. Every person must in the exercise of his rights
and in the performance of his duties, act with justice,
give every one his due, and observe honesty and good
faith.
Article 19, also known as the "principle of abuse of
right," prescribes that a person should not use his right
unjustly or contrary to honesty and good faith,
otherwise he opens himself to liability.19 It seeks to
preclude the use of, or the tendency to use, a legal
right (or duty) as a means to unjust ends.
There is an abuse of right when it is exercised solely to
prejudice or injure another.20 The exercise of a right
must be in accordance with the purpose for which it
was established and must not be excessive or unduly
harsh; there must be no intention to harm another.21
Otherwise, liability for damages to the injured party will
attach.
In this case, the manner by which the motorcycle was
taken at petitioners instance was not only attended by
bad faith but also contrary to the procedure laid down
by law. Considered in conjunction with the defamatory
statement, petitioners exercise of the right to recover
the mortgaged vehicle was utterly prejudicial and
injurious to respondent. On the other hand, the
precipitate act of filing an unfounded complaint could
not in any way be considered to be in accordance with
the purpose for which the right to prosecute a crime
was established. Thus, the totality of petitioners
actions showed a calculated design to embarrass,
humiliate and publicly ridicule respondent. Petitioners
acted in an excessively harsh fashion to the prejudice
of respondent. Contrary to law, petitioners willfully
caused damage to respondent. Hence, they should
indemnify him.22
WHEREFORE, the petition is hereby DENIED. The
July 26, 2000 decision and October 18, 2000 resolution
of the Court of Appeals in CA-G.R. CV No. 47571 are
AFFIRMED.
Triple costs against petitioners, considering that
petitioner Ernesto Ramas Uypitching is a lawyer and
an officer of the court, for his improper behavior. SO
ORDERED.
c.) Cebu Country Club vs Elizagaque
For our resolution is the instant Petition for Review on
Certiorari under Rule 45 of the 1997 Rules of Civil
Procedure, as amended, assailing the Decision[1]
dated January 31, 2003 and Resolution dated October
2, 2003 of the Court of Appeals in CA-G.R. CV No.
71506.
The facts are:
Cebu Country Club, Inc. (CCCI), petitioner, is a
domestic corporation operating as a non-profit and
non-stock private membership club, having its principal
place of business in Banilad, Cebu City. Petitioners
herein are members of its Board of Directors.
Sometime in 1987, San Miguel Corporation, a special
company proprietary member of CCCI, designated
respondent Ricardo F. Elizagaque, its Senior Vice
President and Operations Manager for the Visayas and
Mindanao, as a special non-proprietary member. The
designation was thereafter approved by the CCCIs
Board of Directors.
In 1996, respondent filed with CCCI an application for
proprietary membership. The application was indorsed
by CCCIs two (2) proprietary members, namely:
Edmundo T. Misa and Silvano Ludo.
As the price of a proprietary share was around the P5
million range, Benito Unchuan, then president of CCCI,
offered to sell respondent a share for only P3.5 million.
Respondent, however, purchased the share of a
certain Dr. Butalid for only P3 million. Consequently, on
September 6, 1996, CCCI issued Proprietary
Ownership Certificate No. 1446 to respondent.
During the meetings dated April 4, 1997 and May 30,
1997 of the CCCI Board of Directors, action on
respondents application for proprietary membership
was deferred. In another Board meeting held on July
30, 1997, respondents application was voted upon.
Subsequently, or on August 1, 1997, respondent
received a letter from Julius Z. Neri, CCCIs corporate
secretary, informing him that the Board disapproved
his application for proprietary membership.
On August 6, 1997, Edmundo T. Misa, on behalf of
respondent, wrote CCCI a letter of reconsideration. As
CCCI did not answer, respondent, on October 7, 1997,
wrote another letter of reconsideration. Still, CCCI kept
silent. On November 5, 1997, respondent again sent
CCCI a letter inquiring whether any member of the
Board objected to his application. Again, CCCI did not
reply.
Consequently, on December 23, 1998, respondent
filed with the Regional Trial Court (RTC), Branch 71,
Pasig City a complaint for damages against petitioners,
docketed as Civil Case No. 67190.
After trial, the RTC rendered its Decision dated
February 14, 2001 in favor of respondent, thus:
WHEREFORE, judgment is hereby rendered in favor of
plaintiff:
1. Ordering defendants to pay, jointly and severally,
plaintiff the amount of P2,340,000.00 as actual or
compensatory damages.
2. Ordering defendants to pay, jointly and severally,
plaintiff the amount of P5,000,000.00 as moral
damages.
3. Ordering defendants to pay, jointly and severally,
plaintiff the amount of P1,000,000.00 as exemplary
damages.
4. Ordering defendants to pay, jointly and severally,
plaintiff the amount of P1,000,000.00 as and by way of
attorneys fees and P80,000.00 as litigation expenses.
5. Costs of suit.
Counterclaims are hereby DISMISSED for lack of
merit.
SO ORDERED.[2]
On appeal by petitioners, the Court of Appeals, in its
Decision dated January 31, 2003, affirmed the trial
courts Decision with modification, thus:
WHEREFORE, premises considered, the assailed
Decision dated February 14, 2001 of the Regional Trial
Court, Branch 71, Pasig City in Civil Case No. 67190 is
hereby AFFIRMED with MODIFICATION as follows:
1. Ordering defendants-appellants to pay, jointly and
severally, plaintiff-appellee the amount of
P2,000,000.00 as moral damages;
2. Ordering defendants-appellants to pay, jointly and
severally, plaintiff-appellee the amount of
P1,000,000.00 as exemplary damages;
3. Ordering defendants-appellants to pay, jointly and
severally, plaintiff-appellee the mount of P500,000.00
as attorneys fees and P50,000.00 as litigation
expenses; and
4. Costs of the suit.
The counterclaims are DISMISSED for lack of merit.
SO ORDERED.[3]
On March 3, 2003, petitioners filed a motion for
reconsideration and motion for leave to set the motion
for oral arguments. In its Resolution[4] dated October
2, 2003, the appellate court denied the motions for lack
of merit.
Hence, the present petition.
The issue for our resolution is whether in disapproving
respondents application for proprietary membership
with CCCI, petitioners are liable to respondent for
damages, and if so, whether their liability is joint and
several.
Petitioners contend, inter alia, that the Court of
Appeals erred in awarding exorbitant damages to
respondent despite the lack of evidence that they acted
in bad faith in disapproving the latters application; and
in disregarding their defense of damnum absque
injuria.
For his part, respondent maintains that the petition
lacks merit, hence, should be denied.
CCCIs Articles of Incorporation provide in part:
SEVENTH: That this is a non-stock corporation and
membership therein as well as the right of participation
in its assets shall be limited to qualified persons who
are duly accredited owners of Proprietary Ownership
Certificates issued by the corporation in accordance
with its By-Laws.
Corollary, Section 3, Article 1 of CCCIs Amended By-
Laws provides:
SECTION 3. HOW MEMBERS ARE ELECTED The
procedure for the admission of new members of the
Club shall be as follows:
(a) Any proprietary member, seconded by another
voting proprietary member, shall submit to the
Secretary a written proposal for the admission of a
candidate to the Eligible-for-Membership List;
(b) Such proposal shall be posted by the Secretary for
a period of thirty (30) days on the Club bulletin board
during which time any member may interpose
objections to the admission of the applicant by
communicating the same to the Board of Directors;
(c) After the expiration of the aforesaid thirty (30) days,
if no objections have been filed or if there are, the
Board considers the objections unmeritorious, the
candidate shall be qualified for inclusion in the Eligible-
for-Membership List;
(d) Once included in the Eligible-for-Membership List
and after the candidate shall have acquired in his
name a valid POC duly recorded in the books of the
corporation as his own, he shall become a Proprietary
Member, upon a non-refundable admission fee of
P1,000.00, provided that admission fees will only be
collected once from any person.
On March 1, 1978, Section 3(c) was amended to read
as follows:
(c) After the expiration of the aforesaid thirty (30) days,
the Board may, by unanimous vote of all directors
present at a regular or special meeting, approve the
inclusion of the candidate in the Eligible-for-
Membership List.
As shown by the records, the Board adopted a secret
balloting known as the black ball system of voting
wherein each member will drop a ball in the ballot box.
A white ball represents conformity to the admission of
an applicant, while a black ball means disapproval.
Pursuant to Section 3(c), as amended, cited above, a
unanimous vote of the directors is required. When
respondents application for proprietary membership
was voted upon during the Board meeting on July 30,
1997, the ballot box contained one (1) black ball. Thus,
for lack of unanimity, his application was disapproved.
Obviously, the CCCI Board of Directors, under its
Articles of Incorporation, has the right to approve or
disapprove an application for proprietary membership.
But such right should not be exercised arbitrarily.
Articles 19 and 21 of the Civil Code on the Chapter on
Human Relations provide restrictions, thus:
Article 19. Every person must, in the exercise of his
rights and in the performance of his duties, act with
justice, give everyone his due, and observe honesty
and good faith.
Article 21. Any person who willfully causes loss or
injury to another in a manner that is contrary to morals,
good customs or public policy shall compensate the
latter for the damage.
In GF Equity, Inc. v. Valenzona,[5] we expounded
Article 19 and correlated it with Article 21, thus:
This article, known to contain what is commonly
referred to as the principle of abuse of rights, sets
certain standards which must be observed not only in
the exercise of one's rights but also in the performance
of one's duties. These standards are the following: to
act with justice; to give everyone his due; and to
observe honesty and good faith. The law, therefore,
recognizes a primordial limitation on all rights; that in
their exercise, the norms of human conduct set forth in
Article 19 must be observed. A right, though by itself
legal because recognized or granted by law as such,
may nevertheless become the source of some
illegality. When a right is exercised in a manner which
does not conform with the norms enshrined in Article
19 and results in damage to another, a legal wrong is
thereby committed for which the wrongdoer must be
held responsible. But while Article 19 lays down a rule
of conduct for the government of human relations and
for the maintenance of social order, it does not provide
a remedy for its violation. Generally, an action for
damages under either Article 20 or Article 21 would be
proper. (Emphasis in the original)
In rejecting respondents application for proprietary
membership, we find that petitioners violated the rules
governing human relations, the basic principles to be
observed for the rightful relationship between human
beings and for the stability of social order. The trial
court and the Court of Appeals aptly held that
petitioners committed fraud and evident bad faith in
disapproving respondents applications. This is contrary
to morals, good custom or public policy. Hence,
petitioners are liable for damages pursuant to Article
19 in relation to Article 21 of the same Code.
It bears stressing that the amendment to Section 3(c)
of CCCIs Amended By-Laws requiring the unanimous
vote of the directors present at a special or regular
meeting was not printed on the application form
respondent filled and submitted to CCCI. What was
printed thereon was the original provision of Section
3(c) which was silent on the required number of votes
needed for admission of an applicant as a proprietary
member.
Petitioners explained that the amendment was not
printed on the application form due to economic
reasons. We find this excuse flimsy and unconvincing.
Such amendment, aside from being extremely
significant, was introduced way back in 1978 or almost
twenty (20) years before respondent filed his
application. We cannot fathom why such a prestigious
and exclusive golf country club, like the CCCI, whose
members are all affluent, did not have enough money
to cause the printing of an updated application form.
It is thus clear that respondent was left groping in the
dark wondering why his application was disapproved.
He was not even informed that a unanimous vote of
the Board members was required. When he sent a
letter for reconsideration and an inquiry whether there
was an objection to his application, petitioners
apparently ignored him. Certainly, respondent did not
deserve this kind of treatment. Having been designated
by San Miguel Corporation as a special non-proprietary
member of CCCI, he should have been treated by
petitioners with courtesy and civility. At the very least,
they should have informed him why his application was
disapproved.
The exercise of a right, though legal by itself, must
nonetheless be in accordance with the proper norm.
When the right is exercised arbitrarily, unjustly or
excessively and results in damage to another, a legal
wrong is committed for which the wrongdoer must be
held responsible.[6] It bears reiterating that the trial
court and the Court of Appeals held that petitioners
disapproval of respondents application is characterized
by bad faith.
As to petitioners reliance on the principle of damnum
absque injuria or damage without injury, suffice it to
state that the same is misplaced. In Amonoy v.
Gutierrez,[7] we held that this principle does not apply
when there is an abuse of a persons right, as in this
case.
As to the appellate courts award to respondent of
moral damages, we find the same in order. Under
Article 2219 of the New Civil Code, moral damages
may be recovered, among others, in acts and actions
referred to in Article 21. We believe respondents
testimony that he suffered mental anguish, social
humiliation and wounded feelings as a result of the
arbitrary denial of his application. However, the amount
of P2,000,000.00 is excessive. While there is no hard-
and-fast rule in determining what would be a fair and
reasonable amount of moral damages, the same
should not be palpably and scandalously excessive.
Moral damages are not intended to impose a penalty to
the wrongdoer, neither to enrich the claimant at the
expense of the defendant.[8] Taking into consideration
the attending circumstances here, we hold that an
award to respondent of P50,000.00, instead of
P2,000,000.00, as moral damages is reasonable.
Anent the award of exemplary damages, Article 2229
allows it by way of example or correction for the public
good. Nonetheless, since exemplary damages are
imposed not to enrich one party or impoverish another
but to serve as a deterrent against or as a negative
incentive to curb socially deleterious actions,[9] we
reduce the amount from P1,000,000.00 to P25,000.00
only.
On the matter of attorneys fees and litigation
expenses, Article 2208 of the same Code provides,
among others, that attorneys fees and expenses of
litigation may be recovered in cases when exemplary
damages are awarded and where the court deems it
just and equitable that attorneys fees and expenses of
litigation should be recovered, as in this case. In any
event, however, such award must be reasonable, just
and equitable. Thus, we reduce the amount of
attorneys fees (P500,000.00) and litigation expenses
(P50,000.00) to P50,000.00 and P25,000.00,
respectively.
Lastly, petitioners argument that they could not be held
jointly and severally liable for damages because only
one (1) voted for the disapproval of respondents
application lacks merit.
Section 31 of the Corporation Code provides:
SEC. 31. Liability of directors, trustees or officers.
Directors or trustees who willfully and knowingly vote
for or assent to patently unlawful acts of the
corporation or who are guilty of gross negligence or
bad faith in directing the affairs of the corporation or
acquire any personal or pecuniary interest in conflict
with their duty as such directors, or trustees shall be
liable jointly and severally for all damages resulting
therefrom suffered by the corporation, its stockholders
or members and other persons. (Emphasis ours)
WHEREFORE, we DENY the petition. The challenged
Decision and Resolution of the Court of Appeals in CA-
G.R. CV No. 71506 are AFFIRMED with modification in
the sense that (a) the award of moral damages is
reduced from P2,000,000.00 to P50,000.00; (b) the
award of exemplary damages is reduced from
P1,000,000.00 to P25,000.00; and (c) the award of
attorneys fees and litigation expenses is reduced from
P500,000.00 and P50,000.00 to P50,000.00 and
P25,000.00, respectively. Costs against petitioners. SO
ORDERED.
d.) Calatagan Golf Club vs Clemente, Jr.
Seeking the reversal of the Decision[1] dated 1 June
2004 of the Court of Appeals in CA-G.R. SP No. 62331
and the reinstatement of the Decision dated 15
November 2000 of the Securities and Exchange
Commission (SEC) in SEC Case No. 04-98-5954,
petitioner Calatagan Golf Club, Inc. (Calatagan) filed
this Rule 45 petition against respondent Sixto
Clemente, Jr. (Clemente).
The key facts are undisputed.
Clemente applied to purchase one share of stock of
Calatagan, indicating in his application for membership
his mailing address at Phimco Industries, Inc. P.O. Box
240, MCC, complete residential address, office and
residence telephone numbers, as well as the company
(Phimco) with which he was connected, Calatagan
issued to him Certificate of Stock No. A-01295 on 2
May 1990 after paying P120,000.00 for the share.[2]
Calatagan charges monthly dues on its members to
meet expenses for general operations, as well as costs
for upkeep and improvement of the grounds and
facilities. The provision on monthly dues is
incorporated in Calatagans Articles of Incorporation
and By-Laws. It is also reproduced at the back of each
certificate of stock.[3] As reproduced in the dorsal side
of Certificate of Stock No. A-01295, the provision
reads:
5. The owners of shares of stock shall be subject to the
payment of monthly dues in an amount as may be
prescribed in the by-laws or by the Board of Directors
which shall in no case be less that [sic] P50.00 to meet
the expenses for the general operations of the club,
and the maintenance and improvement of its premises
and facilities, in addition to such fees as may be
charged for the actual use of the facilities x x x
When Clemente became a member the monthly
charge stood at P400.00. He paid P3,000.00 for his
monthly dues on 21 March 1991 and another
P5,400.00 on 9 December 1991. Then he ceased
paying the dues. At that point, his balance amounted to
P400.00.[4]
Ten (10) months later, Calatagan made the initial step
to collect Clementes back accounts by sending a
demand letter dated 21 September 1992. It was
followed by a second letter dated 22 October 1992.
Both letters were sent to Clementes mailing address as
indicated in his membership application but were sent
back to sender with the postal note that the address
had been closed.[5]
Calatagan declared Clemente delinquent for having
failed to pay his monthly dues for more than sixty (60)
days, specifically P5,600.00 as of 31 October 1992.
Calatagan also included Clementes name in the list of
delinquent members posted on the clubs bulletin
board. On 1 December 1992, Calatagans board of
directors adopted a resolution authorizing the
foreclosure of shares of delinquent members, including
Clementes; and the public auction of these shares.
On 7 December 1992, Calatagan sent a third and final
letter to Clemente, this time signed by its Corporate
Secretary, Atty. Benjamin Tanedo, Jr. The letter
contains a warning that unless Clemente settles his
outstanding dues, his share would be included among
the delinquent shares to be sold at public auction on 15
January 1993. Again, this letter was sent to Clementes
mailing address that had already been closed.[6]
On 5 January 1993, a notice of auction sale was
posted on the Clubs bulletin board, as well as on the
clubs premises. The auction sale took place as
scheduled on 15 January 1993, and Clementes share
sold for P64,000.[7] According to the Certificate of Sale
issued by Calatagan after the sale, Clementes share
was purchased by a Nestor A. Virata.[8] At the time of
the sale, Clementes accrued monthly dues amounted
to P5,200.00.[9] A notice of foreclosure of Clementes
share was published in the 26 May 1993 issue of the
Business World.[10]
Clemente learned of the sale of his share only in
November of 1997.[11] He filed a claim with the
Securities and Exchange Commission (SEC) seeking
the restoration of his shareholding in Calatagan with
damages.
On 15 November 2000, the SEC rendered a decision
dismissing Clementes complaint. Citing Section 69 of
the Corporation Code which provides that the sale of
shares at an auction sale can only be questioned
within six (6) months from the date of sale, the SEC
concluded that Clementes claim, filed four (4) years
after the sale, had already prescribed. The SEC further
held that Calatagan had complied with all the
requirements for a valid sale of the subject share,
Clemente having failed to inform Calatagan that the
address he had earlier supplied was no longer his
address. Clemente, the SEC ruled, had acted in bad
faith in assuming as he claimed that his non-payment
of monthly dues would merely render his share
inactive.
Clemente filed a petition for review with the Court of
Appeals. On 1 June 2004, the Court of Appeals
promulgated a decision reversing the SEC. The
appellate court restored Clementes one share with a
directive to Calatagan to issue in his a new share, and
awarded to Clemente a total of P400,000.00 in
damages, less the unpaid monthly dues of P5,200.00.
In rejecting the SECs finding that the action had
prescribed, the Court of Appeals cited the SECs own
ruling in SEC Case No. 4160, Caram v. Valley Golf
Country Club, Inc., that Section 69 of the Corporation
Code specifically refers to unpaid subscriptions to
capital stock, and not to any other debt of stockholders.
With the insinuation that Section 69 does not apply to
unpaid membership dues in non-stock corporations,
the appellate court employed Article 1140 of the Civil
Code as the proper rule of prescription. The provision
sets the prescription period of actions to recover
movables at eight (8) years.
The Court of Appeals also pointed out that since that
Calatagans first two demand letters had been returned
to it as sender with the notation about the closure of
the mailing address, it very well knew that its third and
final demand letter also sent to the same mailing
address would not be received by Clemente. It noted
the by-law requirement that within ten (10) days after
the Board has ordered the sale at auction of a
members share of stock for indebtedness, the
Corporate Secretary shall notify the owner thereof and
advise the Membership Committee of such fact.
Finally, the Court of Appeals ratiocinated that a person
who is in danger of the imminent loss of his property
has the right to be notified and be given the chance to
prevent the loss.[12]
Hence, the present appeal.
Calatagan maintains that the action of Clemente had
prescribed pursuant to Section 69 of the Corporation
Code, and that the requisite notices under both the law
and the by-laws had been rendered to Clemente.
Section 69 of the Code provides that an action to
recover delinquent stock sold must be commenced by
the filing of a complaint within six (6) months from the
date of sale. As correctly pointed out by the Court of
Appeals, Section 69 is part of Title VIII of the Code
entitled Stocks and Stockholders and refers specifically
to unpaid subscriptions to capital stock, the sale of
which is governed by the immediately preceding
Section 68.
The Court of Appeals debunked both Calatagans and
the SECs reliance on Section 69 by citing another SEC
ruling in the case of Caram v. Valley Golf. In
connection with Section 69, Calatagan raises a
peripheral point made in the SECs Caram ruling. In
Caram, the SEC, using as take-off Section 6 of the
Corporation Code which refers to such rights,
privileges or restrictions as may be stated in the
articles of incorporation, pointed out that the Articles of
Incorporation of Valley Golf does not impose any lien,
liability or restriction on the Golf Share [of Caram], but
only its (Valley Golfs) By-Laws does. Here, Calatagan
stresses that its own Articles of Incorporation does
provide that the monthly dues assessed on owners of
shares of the corporation, along with all other
obligations of the shareholders to the club, shall
constitute a first lien on the shares and in the event of
delinquency such shares may be ordered sold by the
Board of Directors in the manner provided in the By-
Laws to satisfy said dues or other obligations of the
shareholders.[13] With its illative but incomprehensible
logic, Calatagan concludes that the prescriptive period
under Section 69 should also apply to the sale of
Clementes share as the lien that Calatagan perceives
to be a restriction is stated in the articles of
incorporation and not only in the by-laws.

We remain unconvinced.
There are fundamental differences that defy
equivalence or even analogy between the sale of
delinquent stock under Section 68 and the sale that
occurred in this case. At the root of the sale of
delinquent stock is the non-payment of the subscription
price for the share of stock itself. The stockholder or
subscriber has yet to fully pay for the value of the
share or shares subscribed. In this case, Clemente had
already fully paid for the share in Calatagan and no
longer had any outstanding obligation to deprive him of
full title to his share. Perhaps the analogy could have
been made if Clemente had not yet fully paid for his
share and the non-stock corporation, pursuant to an
article or by-law provision designed to address that
situation, decided to sell such share as a
consequence. But that is not the case here, and there
is no purpose for us to apply Section 69 to the case at
bar.
Calatagan argues in the alternative that Clementes suit
is barred by Article 1146 of the Civil Code which
establishes four (4) years as the prescriptive period for
actions based upon injury to the rights of the plaintiff on
the hypothesis that the suit is purely for damages. As a
second alternative still, Calatagan posits that
Clementes action is governed by Article 1149 of the
Civil Code which sets five (5) years as the period of
prescription for all other actions whose prescriptive
periods are not fixed in the Civil Code or in any other
law. Neither article is applicable but Article 1140 of the
Civil Code which provides that an action to recover
movables shall prescribe in eight (8) years. Calatagans
action is for the recovery of a share of stock, plus
damages.
Calatagans advertence to the fact that the constitution
of a lien on the members share by virtue of the explicit
provisions in its Articles of Incorporation and By-Laws
is relevant but ultimately of no help to its cause.
Calatagans Articles of Incorporation states that the
dues, together with all other obligations of members to
the club, shall constitute a first lien on the shares,
second only to any lien in favor of the national or local
government, and in the event of delinquency such
shares may be ordered sold by the Board of Directors
in the manner provided in the By-Laws to satisfy said
dues or other obligations of the stockholders.[14] In
turn, there are several provisions in the By-laws that
govern the payment of dues, the lapse into
delinquency of the member, and the constitution and
execution on the lien. We quote these provisions:
ARTICLE XII MEMBERS ACCOUNT
SEC. 31. (a) Billing Members, Posting of Delinquent
Members The Treasurer shall bill al members monthly.
As soon as possible after the end of every month, a
statement showing the account of bill of a member for
said month will be prepared and sent to him. If the bill
of any member remains unpaid by the 20th of the
month following that in which the bill was incurred, the
Treasurer shall notify him that if his bill is not paid in full
by the end of the succeeding month his name will be
posted as delinquent the following day at the
Clubhouse bulletin board. While posted, a member, the
immediate members of his family, and his guests, may
not avail of the facilities of the Club.
(b) Members on the delinquent list for more than 60
days shall be reported to the Board and their shares or
the shares of the juridical entities they represent shall
thereafter be ordered sold by the Board at auction to
satisfy the claims of the Club as provided for in Section
32 hereon. A member may pay his overdue account at
any time before the auction sale.
Sec. 32. Lien on Shares; Sale of Share at Auction- The
club shall have a first lien on every share of stock to
secure debts of the members to the Club. This lien
shall be annotated on the certificates of stock and may
be enforced by the Club in the following manner:
(a) Within ten (10) days after the Board has ordered
the sale at auction of a members share of stock for
indebtedness under Section 31(b) hereof, the
Secretary shall notify the owner thereof, and shall
advise the Membership Committee of such fact.
(b) The Membership Committee shall then notify all
applicants on the Waiting List and all registered
stockholders of the availability of a share of stock for
sale at auction at a specified date, time and place, and
shall post a notice to that effect in the Club bulletin
board for at least ten (10) days prior to the auction
sale.
(c) On the date and hour fixed, the Membership
Committee shall proceed with the auction by viva voce
bidding and award the sale of the share of stock to the
highest bidder.
(d) The purchase price shall be paid by the winning
bidder to the Club within twenty-four (24) hours after
the bidding. The winning bidder or the representative in
the case of a juridical entity shall become a Regular
Member upon payment of the purchase price and
issuance of a new stock certificate in his name or in the
name of the juridical entity he represents. The
proceeds of the sale shall be paid by the Club to the
selling stockholder after deducting his obligations to
the Club.
(e) If no bids be received or if the winning bidder fails
to pay the amount of this bid within twenty-four (24)
hours after the bidding, the auction procedures may be
repeated from time to time at the discretion of the
Membership Committee until the share of stock be
sold.
(f) If the proceeds from the sale of the share of stock
are not sufficient to pay in full the indebtedness of the
member, the member shall continue to be obligated to
the Club for the unpaid balance. If the member whose
share of stock is sold fails or refuse to surrender the
stock certificate for cancellation, cancellation shall be
effected in the books of the Club based on a record of
the proceedings. Such cancellation shall render the
unsurrendered stock certificate null and void and notice
to this effect shall be duly published.
It is plain that Calatagan had endeavored to install a
clear and comprehensive procedure to govern the
payment of monthly dues, the declaration of a member
as delinquent, and the constitution of a lien on the
shares and its eventual public sale to answer for the
members debts. Under Section 91 of the Corporation
Code, membership in a non-stock corporation shall be
terminated in the manner and for the causes provided
in the articles of incorporation or the by-laws. The By-
law provisions are elaborate in explaining the manner
and the causes for the termination of membership in
Calatagan, through the execution on the lien of the
share. The Court is satisfied that the By-Laws, as
written, affords due protection to the member by
assuring that the member should be notified by the
Secretary of the looming execution sale that would
terminate membership in the club. In addition, the By-
Laws guarantees that after the execution sale, the
proceeds of the sale would be returned to the former
member after deducting the outstanding obligations. If
followed to the letter, the termination of membership
under this procedure outlined in the By-Laws would
accord with substantial justice.
Yet, did Calatagan actually comply with the by-law
provisions when it sold Clementes share? The
appellate courts finding on this point warrants our
approving citation, thus:
In accordance with this provision, Calatagan sent the
third and final demand letter to Clemente on December
7, 1992. The letter states that if the amount of
delinquency is not paid, the share will be included
among the delinquent shares to be sold at public
auction. This letter was signed by Atty. Benjamin
Tanedo, Jr., Calatagan Golfs Corporate Secretary. It
was again sent to Clementes mailing address Phimco
Industries Inc., P.O. Box 240, MCC Makati. As
expected, it was returned because the post office box
had been closed.
Under the By-Laws, the Corporate Secretary is tasked
to give or cause to be given, all notices required by law
or by these By-Laws. .. and keep a record of the
addresses of all stockholders. As quoted above, Sec.
32 (a) of the By-Laws further provides that within ten
(10) days after the Board has ordered the sale at
auction of a members share of stock for indebtedness
under Section 31 (b) hereof, the Secretary shall notify
the owner thereof and shall advise the Membership
Committee of such fact., The records do not disclose
what report the Corporate Secretary transmitted to the
Membership Committee to comply with Section 32(a).
Obviously, the reason for this mandatory requirement
is to give the Membership Committee the opportunity
to find out, before the share is sold, if proper notice has
been made to the shareholder member.
We presume that the Corporate Secretary, as a lawyer
is knowledgeable on the law and on the standards of
good faith and fairness that the law requires. As
custodian of corporate records, he should also have
known that the first two letters sent to Clemente were
returned because the P.O. Box had been closed. Thus,
we are surprised given his knowledge of the law and of
corporate records that he would send the third and final
letter Clementes last chance before his share is sold
and his membership lost to the same P.O. Box that
had been closed.
Calatagan argues that it exercised due diligence before
the foreclosure sale and sent several notices to
Clementes specified mailing address. We do not
agree; we cannot label as due diligence Calatagans
act of sending the December 7, 1992 letter to
Clementes mailing address knowing fully well that the
P.O. Box had been closed. Due diligence or good faith
imposes upon the Corporate Secretary the chief
repository of all corporate records the obligation to
check Clementes other address which, under the By-
Laws, have to be kept on file and are in fact on file.
One obvious purpose of giving the Corporate Secretary
the duty to keep the addresses of members on file is
specifically for matters of this kind, when the member
cannot be reached through his or her mailing address.
Significantly, the Corporate Secretary does not have to
do the actual verification of other addressees on
record; a mere clerk can do the very simple task of
checking the files as in fact clerks actually undertake
these tasks. In fact, one telephone call to Clementes
phone numbers on file would have alerted him of his
impending loss.
Ultimately, the petition must fail because Calatagan
had failed to duly observe both the spirit and letter of
its own by-laws. The by-law provisions was clearly
conceived to afford due notice to the delinquent
member of the impending sale, and not just to provide
an intricate faade that would facilitate Calatagans sale
of the share. But then, the bad faith on Calatagans part
is palpable. As found by the Court of Appeals,
Calatagan very well knew that Clementes postal box to
which it sent its previous letters had already been
closed, yet it persisted in sending that final letter to the
same postal box. What for? Just for the exercise, it
appears, as it had known very well that the letter would
never actually reach Clemente.
It is noteworthy that Clemente in his membership
application had provided his residential address along
with his residence and office telephone numbers.
Nothing in Section 32 of Calatagans By-Laws requires
that the final notice prior to the sale be made solely
through the members mailing address. Clemente cites
our aphorism-like pronouncement in Rizal Commercial
Banking Corporation v. Court of Appeals[15] that [a]
simple telephone call and an ounce of good faith x x x
could have prevented this present controversy. That
memorable observation is quite apt in this case.
Calatagans bad faith and failure to observe its own By-
Laws had resulted not merely in the loss of Clementes
privilege to play golf at its golf course and avail of its
amenities, but also in significant pecuniary damage to
him. For that loss, the only blame that could be thrown
Clementes way was his failure to notify Calatagan of
the closure of the P.O. Box. That lapse, if we uphold
Calatagan would cost Clemente a lot. But, in the first
place, does he deserve answerability for failing to
notify the club of the closure of the postal box? Indeed,
knowing as he did that Calatagan was in possession of
his home address as well as residence and office
telephone numbers, he had every reason to assume
that the club would not be at a loss should it need to
contact him. In addition, according to Clemente, he
was not even aware of the closure of the postal box,
the maintenance of which was not his responsibility but
his employer Phimcos.
The utter bad faith exhibited by Calatagan brings into
operation Articles 19, 20 and 21 of the Civil Code,[16]
under the Chapter on Human Relations. These
provisions, which the Court of Appeals did apply,
enunciate a general obligation under law for every
person to act fairly and in good faith towards one
another. A non-stock corporation like Calatagan is not
exempt from that obligation in its treatment of its
members. The obligation of a corporation to treat every
person honestly and in good faith extends even to its
shareholders or members, even if the latter find
themselves contractually bound to perform certain
obligations to the corporation. A certificate of stock
cannot be a charter of dehumanization.
We turn to the matter of damages. The award of actual
damages is of course warranted since Clemente has
sustained pecuniary injury by reason of Calatagans
wrongful violation of its own By-Laws. It would not be
feasible to deliver Clementes original Certificate of
Stock because it had already been cancelled and a
new one issued in its place in the name of the
purchases at the auction who was not impleaded in
this case. However, the Court of Appeals instead
directed that Calatagan to issue to Clemente a new
certificate of stock. That sufficiently redresses the
actual damages sustained by Clemente. After all, the
certificate of stock is simply the evidence of the share.
The Court of Appeals also awarded Clemente
P200,000.00 as moral damages, P100,000.00 as
exemplary damages, and P100,000.00 as attorneys
fees. We agree that the award of such damages is
warranted.
The Court of Appeals cited Calatagan for violation of
Article 32 of the Civil Code, which allows recovery of
damages from any private individual who directly or
indirectly obstructs, defeats, violates or in any manner
impedes or impairs the right against deprivation of
property without due process of laws. The plain letter
of the provision squarely entitles Clemente to damages
from Calatagan. Even without Article 32 itself,
Calatagan will still be bound to pay moral and
exemplary damages to Clemente. The latter was able
to duly prove that he had sustained mental anguish,
serious anxiety and wounded feelings by reason of
Calatagans acts, thereby entitling him to moral
damages under Article 2217 of the Civil Code.
Moreover, it is evident that Calatagans bad faith as
exhibited in the
course of its corporate actions warrants correction for
the public good, thereby justifying exemplary damages
under Article 2229 of the Civil Code.
WHEREFORE, the petition is DENIED. The Decision
of the Court of Appeals is AFFIRMED. Costs against
petitioner. SO ORDERED.
e.) Ardiente vs Javier
Before the Court is a petition for review on certiorari
under Rule 45 of the Rules of Court seeking to reverse
and set aside the Decision1 and Resolution2 of the
Court of Appeals (CA), dated August 28, 2003 and
December 17, 2003, respectively, in CA-G.R. CV No.
73000. The CA Decision affirmed with modification the
August 15, 2001 Decision3 of the Regional Trial Court
(RTC) of Cagayan de Oro City, Branch 24, while the
CA Resolution denied petitioner's Motion for
Reconsideration.
The facts, as summarized by the CA, are as follows:
[Herein petitioner] Joyce V. Ardiente and her husband
Dr. Roberto S. Ardiente are owners of a housing unit at
Emily Homes, Balulang, Cagayan de Oro City with a lot
area of one hundred fifty-three (153) square meters
and covered by Transfer Certificate of Title No. 69905.
On June 2, 1994, Joyce Ardiente entered into a
Memorandum of Agreement (Exh. "B", pp. 470-473,
Records) selling, transferring and conveying in favor of
[respondent] Ma. Theresa Pastorfide all their rights and
interests in the housing unit at Emily Homes in
consideration of P70,000.00. The Memorandum of
Agreement carries a stipulation:
"4. That the water and power bill of the subject property
shall be for the account of the Second Party (Ma.
Theresa Pastorfide) effective June 1, 1994." (Records,
p. 47)
vis-a-vis Ma. Theresa Pastorfide's assumption of the
payment of the mortgage loan secured by Joyce
Ardiente from the National Home Mortgage (Records,
Exh. "A", pp. 468-469)
For four (4) years, Ma. Theresa's use of the water
connection in the name of Joyce Ardiente was never
questioned nor perturbed (T.S.N., October 31, 2000,
pp. 7-8) until on March 12, 1999, without notice, the
water connection of Ma. Theresa was cut off.
Proceeding to the office of the Cagayan de Oro Water
District (COWD) to complain, a certain Mrs. Madjos
told Ma. Theresa that she was delinquent for three (3)
months corresponding to the months of December
1998, January 1999, and February 1999. Ma. Theresa
argued that the due date of her payment was March
18, 1999 yet (T.S.N., October 31, 2000, pp. 11-12).
Mrs. Madjos later told her that it was at the instance of
Joyce Ardiente that the water line was cut off (T.S.N.,
February 5, 2001, p. 31).
On March 15, 1999, Ma. Theresa paid the delinquent
bills (T.S.N., October 31, 2000, p. 12). On the same
date, through her lawyer, Ma. Theresa wrote a letter to
the COWD to explain who authorized the cutting of the
water line (Records, p. 160).
On March 18, 1999, COWD, through the general
manager, [respondent] Gaspar Gonzalez, Jr.,
answered the letter dated March 15, 1999 and
reiterated that it was at the instance of Joyce Ardiente
that the water line was cut off (Records, p. 161).
Aggrieved, on April 14, 1999, Ma. Theresa Pastorfide
[and her husband] filed [a] complaint for damages
[against petitioner, COWD and its manager Gaspar
Gonzalez] (Records, pp. 2-6).
In the meantime, Ma. Theresa Pastorfide's water line
was only restored and reconnected when the [trial]
court issued a writ of preliminary mandatory injunction
on December 14, 1999 (Records, p. 237).4
After trial, the RTC rendered judgment holding as
follows:
xxxx
In the exercise of their rights and performance of their
duties, defendants did not act with justice, gave
plaintiffs their due and observe honesty and good faith.
Before disconnecting the water supply, defendants
COWD and Engr. Gaspar Gonzales did not even send
a disconnection notice to plaintiffs as testified to by
Engr. Bienvenido Batar, in-charge of the Commercial
Department of defendant COWD. There was one
though, but only three (3) days after the actual
disconnection on March 12, 1999. The due date for
payment was yet on March 15. Clearly, they did not act
with justice. Neither did they observe honesty.
They should not have been swayed by the prodding of
Joyce V. Ardiente. They should have investigated first
as to the present ownership of the house. For doing
the act because Ardiente told them, they were
negligent. Defendant Joyce Ardiente should have
requested before the cutting off of the water supply,
plaintiffs to pay. While she attempted to tell plaintiffs
but she did not have the patience of seeing them. She
knew that it was plaintiffs who had been using the
water four (4) years ago and not hers. She should have
been very careful. x x x5
The dispositive portion of the trial court's Decision
reads, thus:
WHEREFORE, premises considered, judgment is
hereby rendered ordering defendants [Ardiente,
COWD and Gonzalez] to pay jointly and severally
plaintiffs, the following sums:
(a) P200,000.00 for moral damages;
(b) 200,000.00 for exemplary damages; and
(c) 50,000.00 for attorney's fee.
The cross-claim of Cagayan de Oro Water District and
Engr. Gaspar Gonzales is hereby dismissed. The
Court is not swayed that the cutting off of the water
supply of plaintiffs was because they were influenced
by defendant Joyce Ardiente. They were negligent too
for which they should be liable.
SO ORDERED.6
Petitioner, COWD and Gonzalez filed an appeal with
the CA.
On August 28, 2003, the CA promulgated its assailed
Decision disposing as follows:
IN VIEW OF ALL THE FOREGOING, the appealed
decision is AFFIRMED, with the modification that the
awarded damages is reduced to P100,000.00 each for
moral and exemplary damages, while attorney's fees is
lowered to P25,000.00. Costs against appellants.
SO ORDERED.7
The CA ruled, with respect to petitioner, that she has a
"legal duty to honor the possession and use of water
line by Ma. Theresa Pastorfide pursuant to their
Memorandum of Agreement" and "that when
[petitioner] applied for its disconnection, she acted in
bad faith causing prejudice and [injury to] Ma. Theresa
Pastorfide."8
As to COWD and Gonzalez, the CA held that they
"failed to give a notice of disconnection and derelicted
in reconnecting the water line despite payment of the
unpaid bills by the [respondent spouses Pastorfide]."9
Petitioner, COWD and Gonzalez filed their respective
Motions for Reconsideration, but these were denied by
the CA in its Resolution dated December 17, 2003.
COWD and Gonzalez filed a petition for review on
certiorari with this Court, which was docketed as G.R.
No. 161802. However, based on technical grounds and
on the finding that the CA did not commit any
reversible error in its assailed Decision, the petition
was denied via a Resolution10 issued by this Court on
March 24, 2004. COWD and Gonzalez filed a motion
for reconsideration, but the same was denied with
finality through this Court's Resolution11 dated June
28, 2004.
Petitioner, on the other hand, timely filed the instant
petition with the following Assignment of Errors:
7.1 HONORABLE COURT OF APPEALS (ALTHOUGH
IT HAS REDUCED THE LIABILITY INTO HALF) HAS
STILL COMMITTED GRAVE AND SERIOUS ERROR
WHEN IT UPHELD THE JOINT AND SOLIDARY
LIABILITY OF PETITIONER JOYCE V. ARDIENTE
WITH CAGAYAN DE ORO WATER DISTRICT
(COWD) AND ENGR. GASPAR D. GONZALES FOR
THE LATTER'S FAILURE TO SERVE NOTICE UPON
RESPONDENTS SPOUSES PASTORFIDE PRIOR
TO THE ACTUAL DISCONNECTION DESPITE
EVIDENCE ADDUCED DURING TRIAL THAT EVEN
WITHOUT PETITIONER'S REQUEST, COWD WAS
ALREADY SET TO EFFECT DISCONNECTION OF
RESPONDENTS' WATER SUPPLY DUE TO NON-
PAYMENT OF ACCOUNT FOR THREE (3) MONTHS.
7.2 THE HONORABLE COURT OF APPEALS
COMMITTED GRAVE AND SERIOUS ERROR WHEN
IT RULED TOTALLY AGAINST PETITIONER AND
FAILED TO FIND THAT RESPONDENTS ARE
GUILTY OF CONTRIBUTORY NEGLIGENCE WHEN
THEY FAILED TO PAY THEIR WATER BILLS FOR
THREE MONTHS AND TO MOVE FOR THE
TRANSFER OF THE COWD ACCOUNT IN THEIR
NAME, WHICH WAS A VIOLATION OF THEIR
MEMORANDUM OF AGREEMENT WITH
PETITIONER JOYCE V. ARDIENTE. RESPONDENTS
LIKEWISE DELIBERATELY FAILED TO EXERCISE
DILIGENCE OF A GOOD FATHER OF THE FAMILY
TO MINIMIZE THE DAMAGE UNDER ART. 2203 OF
THE NEW CIVIL CODE.
7.3 THE HONORABLE COURT OF APPEALS
SERIOUSLY ERRED WHEN IT DISREGARDED THE
FACT THAT RESPONDENT SPOUSES
PASTORFIDE ARE LIKEWISE BOUND TO OBSERVE
ARTICLE 19 OF THE NEW CIVIL CODE, i.e., IN THE
EXERCISE OF THEIR RIGHTS AND IN THE
PERFORMANCE OF THEIR DUTIES TO ACT WITH
JUSTICE, GIVE EVERYONE HIS DUE AND
OBSERVE HONESTY AND GOOD FAITH.
7.4 THE HONORABLE COURT OF APPEALS
GRAVELY ERRED WHEN IT GRANTED AN AWARD
OF MORAL AND EXEMPLARY DAMAGES AND
ATTORNEY'S FEES AS AGAINST PETITIONER
ARDIENTE.12
At the outset, the Court noticed that COWD and
Gonzalez, who were petitioner's co-defendants before
the RTC and her co-appellants in the CA, were
impleaded as respondents in the instant petition. This
cannot be done. Being her co-parties before the RTC
and the CA, petitioner cannot, in the instant petition for
review on certiorari, make COWD and Gonzalez,
adversary parties. It is a grave mistake on the part of
petitioner's counsel to treat COWD and Gonzalez as
respondents. There is no basis to do so, considering
that, in the first place, there is no showing that
petitioner filed a cross-claim against COWD and
Gonzalez. Under Section 2, Rule 9 of the Rules of
Court, a cross-claim which is not set up shall be
barred. Thus, for failing to set up a cross-claim against
COWD and Gonzalez before the RTC, petitioner is
already barred from doing so in the present petition.
More importantly, as shown above, COWD and
Gonzalez's petition for review on certiorari filed with
this Court was already denied with finality on June 28,
2004, making the presently assailed CA Decision final
and executory insofar as COWD and Gonzalez are
concerned. Thus, COWD and Gonzalez are already
precluded from participating in the present petition.
They cannot resurrect their lost cause by filing
pleadings this time as respondents but, nonetheless,
reiterating the same prayer in their previous pleadings
filed with the RTC and the CA.
As to the merits of the instant petition, the Court
likewise noticed that the main issues raised by
petitioner are factual and it is settled that the resolution
of factual issues is the function of lower courts, whose
findings on these matters are received with respect
and considered binding by the Supreme Court subject
only to certain exceptions, none of which is present in
this instant petition.13 This is especially true when the
findings of the RTC have been affirmed by the CA as in
this case.14
In any case, a perusal of the records at hand would
readily show that the instant petition lacks merit.
Petitioner insists that she should not be held liable for
the disconnection of respondent spouses' water
supply, because she had no participation in the actual
disconnection. However, she admitted in the present
petition that it was she who requested COWD to
disconnect the Spouses Pastorfide's water supply. This
was confirmed by COWD and Gonzalez in their cross-
claim against petitioner. While it was COWD which
actually discontinued respondent spouses' water
supply, it cannot be denied that it was through the
instance of petitioner that the Spouses Pastorfide's
water supply was disconnected in the first place.
It is true that it is within petitioner's right to ask and
even require the Spouses Pastorfide to cause the
transfer of the former's account with COWD to the
latter's name pursuant to their Memorandum of
Agreement. However, the remedy to enforce such right
is not to cause the disconnection of the respondent
spouses' water supply. The exercise of a right must be
in accordance with the purpose for which it was
established and must not be excessive or unduly
harsh; there must be no intention to harm another.15
Otherwise, liability for damages to the injured party will
attach.16 In the present case, intention to harm was
evident on the part of petitioner when she requested
for the disconnection of respondent spouses water
supply without warning or informing the latter of such
request. Petitioner claims that her request for
disconnection was based on the advise of COWD
personnel and that her intention was just to compel the
Spouses Pastorfide to comply with their agreement
that petitioner's account with COWD be transferred in
respondent spouses' name. If such was petitioner's
only intention, then she should have advised
respondent spouses before or immediately after
submitting her request for disconnection, telling them
that her request was simply to force them to comply
with their obligation under their Memorandum of
Agreement. But she did not. What made matters worse
is the fact that COWD undertook the disconnection
also without prior notice and even failed to reconnect
the Spouses Pastorfides water supply despite
payment of their arrears. There was clearly an abuse
of right on the part of petitioner, COWD and Gonzalez.
They are guilty of bad faith.
The principle of abuse of rights as enshrined in Article
19 of the Civil Code provides that every person must,
in the exercise of his rights and in the performance of
his duties, act with justice, give everyone his due, and
observe honesty and good faith.
In this regard, the Court's ruling in Yuchengco v. The
Manila Chronicle Publishing Corporation17 is
instructive, to wit:
xxxx
This provision of law sets standards which must be
observed in the exercise of ones rights as well as in
the performance of its duties, to wit: to act with justice;
give everyone his due; and observe honesty and good
faith.
In Globe Mackay Cable and Radio Corporation v.
Court of Appeals, it was elucidated that while Article 19
"lays down a rule of conduct for the government of
human relations and for the maintenance of social
order, it does not provide a remedy for its violation.
Generally, an action for damages under either Article
20 or Article 21 would be proper." The Court said:
One of the more notable innovations of the New Civil
Code is the codification of "some basic principles that
are to be observed for the rightful relationship between
human beings and for the stability of the social order."
[REPORT ON THE CODE COMMISSION ON THE
PROPOSED CIVIL CODE OF THE PHILIPPINES, p.
39]. The framers of the Code, seeking to remedy the
defect of the old Code which merely stated the effects
of the law, but failed to draw out its spirit, incorporated
certain fundamental precepts which were "designed to
indicate certain norms that spring from the fountain of
good conscience" and which were also meant to serve
as "guides for human conduct [that] should run as
golden threads through society, to the end that law
may approach its supreme ideal, which is the sway and
dominance of justice." (Id.) Foremost among these
principles is that pronounced in Article 19 x x x.
xxxx
This article, known to contain what is commonly
referred to as the principle of abuse of rights, sets
certain standards which must be observed not only in
the exercise of one's rights, but also in the
performance of one's duties. These standards are the
following: to act with justice; to give everyone his due;
and to observe honesty and good faith. The law,
therefore, recognizes a primordial limitation on all
rights; that in their exercise, the norms of human
conduct set forth in Article 19 must be observed. A
right, though by itself legal because recognized or
granted by law as such, may nevertheless become the
source of some illegality. When a right is exercised in a
manner which does not conform with the norms
enshrined in Article 19 and results in damage to
another, a legal wrong is thereby committed for which
the wrongdoer must be held responsible. But while
Article 19 lays down a rule of conduct for the
government of human relations and for the
maintenance of social order, it does not provide a
remedy for its violation. Generally, an action for
damages under either Article 20 or Article 21 would be
proper.
Corollarilly, Article 20 provides that "every person who,
contrary to law, willfully or negligently causes damage
to another shall indemnify the latter for the same." It
speaks of the general sanctions of all other provisions
of law which do not especially provide for its own
sanction. When a right is exercised in a manner which
does not conform to the standards set forth in the said
provision and results in damage to another, a legal
wrong is thereby committed for which the wrongdoer
must be responsible. Thus, if the provision does not
provide a remedy for its violation, an action for
damages under either Article 20 or Article 21 of the
Civil Code would be proper.
The question of whether or not the principle of abuse of
rights has been violated resulting in damages under
Article 20 or other applicable provision of law, depends
on the circumstances of each case. x x x18
To recapitulate, petitioner's acts which violated the
abovementioned provisions of law is her unjustifiable
act of having the respondent spouses' water supply
disconnected, coupled with her failure to warn or at
least notify respondent spouses of such intention. On
the part of COWD and Gonzalez, it is their failure to
give prior notice of the impending disconnection and
their subsequent neglect to reconnect respondent
spouses' water supply despite the latter's settlement of
their delinquent account.
On the basis of the foregoing, the Court finds no
cogent reason to depart from the ruling of both the
RTC and the CA that petitioner, COWD and Gonzalez
are solidarily liable.
The Spouses Pastorfide are entitled to moral damages
based on the provisions of Article 2219,19 in
connection with Articles 2020 and 2121 of the Civil
Code.
As for exemplary damages, Article 2229 provides that
exemplary damages may be imposed by way of
example or correction for the public good.
Nonetheless, exemplary damages are imposed not to
enrich one party or impoverish another, but to serve as
a deterrent against or as a negative incentive to curb
socially deleterious actions.22 In the instant case, the
Court agrees with the CA in sustaining the award of
exemplary damages, although it reduced the amount
granted, considering that respondent spouses were
deprived of their water supply for more than nine (9)
months, and such deprivation would have continued
were it not for the relief granted by the RTC.
With respect to the award of attorney's fees, Article
2208 of the Civil Code provides, among others, that
such fees may be recovered when exemplary
damages are awarded, when the defendant's act or
omission has compelled the plaintiff to litigate with third
persons or to incur expenses to protect his interest,
and where the defendant acted in gross and evident
bad faith in refusing to satisfy the plaintiffs plainly
valid, just and demandable claim.
WHEREFORE, instant petition for review on certiorari
is DENIED. The Decision and Resolution of the Court
of Appeals, dated August 28, 2003 and December 17,
2003, respectively, in CA-G.R. CV No. 73000 are
AFFIRMED. SO ORDERED.
f.) Sesbreno vs CA and VECO
This case concerns the claim for damages of petitioner
Raul H. Sesbreo founded on abuse of rights.
Sesbreo accused the violation of contract (VOC)
inspection team dispatched by the Visayan Electric
Company (VECO) to check his electric meter with
conducting an unreasonable search in his residential
premises. But the Regional Trial Court (RTC), Branch
13, in Cebu City rendered judgment on August 19,
1994 dismissing the claim;1 and the Court of Appeals
(CA) affirmed the dismissal on March 10, 2003.2
Hence, this appeal by Sesbreo.
Antecedents
At the time material to the petition, VECO was a public
utility corporation organized and existing under the
laws of the Philippines. VECO engaged in the sale and
distribution of electricity within Metropolitan Cebu.
Sesbreo was one of VECOs customers under the
metered service contract they had entered into on
March 2, 1982.3 Respondent Vicente E. Garcia was
VECOs President, General Manager and Chairman of
its Board of Directors. Respondent Jose E. Garcia was
VECOs Vice-President, Treasurer and a Member of its
Board of Directors. Respondent Angelita Lhuillier was
another Member of VECOs Board of Directors.
Respondent Juan Coromina was VECOs Assistant
Treasurer, while respondent Norberto Abellana was
the Head of VECOs Billing Section whose main
function was to compute back billings of customers
found to have violated their contracts.
To ensure that its electric meters were properly
functioning, and that none of it meters had been
tampered with, VECO employed respondents Engr.
Felipe Constantino and Ronald Arcilla as violation of
contract (VOC) inspectors.4 Respondent Sgt. Demetrio
Balicha, who belonged to the 341st Constabulary
Company, Cebu Metropolitan Command, Camp Sotero
Cabahug, Cebu City, accompanied and escorted the
VOC inspectors during their inspection of the
households of its customers on May 11, 1989 pursuant
to a mission order issued to him.5
The CA summarized the antecedent facts as follows:
x x x. Reduced to its essentials, however, the facts of
this case are actually simple enough, although the
voluminous records might indicate otherwise. It all has
to do with an incident that occurred at around 4:00
oclock in the afternoon of May 11, 1989. On that day,
the Violation of Contracts (VOC) Team of defendants-
appellees Constantino and Arcilla and their PC escort,
Balicha, conducted a routine inspection of the houses
at La Paloma Village, Labangon, Cebu City, including
that of plaintiff-appellant Sesbreo, for illegal
connections, meter tampering, seals, conduit pipes,
jumpers, wiring connections, and meter installations.
After Bebe Baledio, plaintiff-appellant Sesbreos maid,
unlocked the gate, they inspected the electric meter
and found that it had been turned upside down.
Defendant-appellant Arcilla took photographs of the
upturned electric meter. With Chuchie Garcia, Peter
Sesbreo and one of the maids present, they removed
said meter and replaced it with a new one. At that time,
plaintiff-appellant Sesbreo was in his office and no
one called to inform him of the inspection. The VOC
Team then asked for and received Chuchie Garcias
permission to enter the house itself to examine the kind
and number of appliances and light fixtures in the
household and determine its electrical load.
Afterwards, Chuchie Garcia signed the Inspection
Division Report, which showed the condition of the
electric meter on May 11, 1989 when the VOC Team
inspected it, with notice that it would be subjected to a
laboratory test. She also signed a Load Survey Sheet
that showed the electrical load of plaintiff-appellant
Sesbreo.
But according to plaintiff-appellant Sesbreo there was
nothing routine or proper at all with what the VOC
Team did on May 11, 1989 in his house. Their entry to
his house and the surrounding premises was effected
without his permission and over the objections of his
maids. They threatened, forced or coerced their way
into his house. They unscrewed the electric meter,
turned it upside down and took photographs thereof.
They then replaced it with a new electric meter. They
searched the house and its rooms without his
permission or a search warrant. They forced a visitor to
sign two documents, making her appear to be his
representative or agent. Afterwards, he found that
some of his personal effects were missing, apparently
stolen by the VOC Team when they searched the
house.6
Judgment of the RTC
On August 19, 1994, the RTC rendered judgment
dismissing the complaint.7 It did not accord credence
to the testimonies of Sesbreos witnesses, Bebe
Baledio, his housemaid, and Roberto Lopez, a part-
time salesman, due to inconsistencies on material
points in their respective testimonies. It observed that
Baledio could not make up her mind as to whether
Sesbreos children were in the house when the VOC
inspection team detached and replaced the electric
meter. Likewise, it considered unbelievable that Lopez
should hear the exchanges between Constantino,
Arcilla and Balicha, on one hand, and Baledio, on the
other, considering that Lopez could not even hear the
conversation between two persons six feet away from
where he was seated during the simulation done in
court, the same distance he supposedly had from the
gate of Sesbreos house during the incident. It pointed
out that Lopezs presence at the gate during the
incident was even contradicted by his own testimony
indicating that an elderly woman had opened the gate
for the VECO personnel, because it was Baledio, a
lady in her 20s, who had repeatedly stated on her
direct and cross examinations that she had let the
VECO personnel in. It concluded that for Lopez to do
nothing at all upon seeing a person being threatened
by another in the manner he described was simply
contrary to human experience.
In contrast, the RTC believed the evidence of the
respondents showing that the VOC inspection team
had found the electric meter in Sesbreos residence
turned upside down to prevent the accurate registering
of the electricity consumption of the household,
causing them to detach and replace the meter. It held
as unbelievable that the team forcibly entered the
house through threats and intimidation; that they
themselves turned the electric meter upside down in
order to incriminate him for theft of electricity, because
the fact that the team and Sesbreo had not known
each other before then rendered it unlikely for the team
to fabricate charges against him; and that Sesbreos
non-presentation of Chuchie Garcia left her allegation
of her being forced to sign the two documents by the
team unsubstantiated.
Decision of the CA
Sesbreo appealed, but the CA affirmed the RTC on
March 10, 2003,8 holding thusly:
x x x. plaintiff-appellant Sesbreos account is simply
too implausible or far-fetched to be believed. For one
thing, the inspection on his household was just one of
many others that the VOC Team had conducted in that
subdivision. Yet, none but plaintiff-appellant Sesbreo
complained of the alleged acts of the VOC Team.
Considering that there is no proof that they also
perpetrated the same illegal acts on other customers in
the guise of conducting a Violation of Contracts
inspection, plaintiff-appellant Sesbreo likewise failed
to show why he alone was singled out. It is also difficult
to believe that the VOC Team would be brazen enough
to want to antagonize a person such as plaintiff-
appellant Sesbreo. There is no evidence that the
VOC Team harbored any evil motive or grudge against
plaintiff-appellant Sesbreo, who is a total stranger to
them. Until he came along, they did not have any prior
criminal records to speak of, or at least, no evidence
thereof was presented. It is equally difficult to believe
that their superiors would authorize or condone their
alleged illegal acts. Especially so since there is no
indication that prior to the incident on May 11, 1989,
there was already bad blood or animosity between
plaintiff-appellant Sesbreo and defendant appellees to
warrant such a malevolent response. In fact, since
availing of defendant-appellee VECOs power services,
the relationship between them appears to have been
uneventful.
It becomes all the more apparent that the charges
stemming from the May 11, 1989 incident were
fabricated when taken together with the lower courts
evaluation of the alleged theft of plaintiff-appellant
Sesbreos personal effects. It stated that on August 8,
1989, plaintiff-appellant Sesbreo wrote the barangay
captain of Punta Princesa and accused Chuchie
Garcia and Victoria Villarta alias Victoria Rocamora of
theft of some of his things that earlier he claimed had
been stolen by members of the VOC Team. When he
was confronted with these facts, plaintiff-appellant
Sesbreo further claimed that the items allegedly
stolen by Chuchie Garcia were part of the loot taken by
defendants-appellees Constantino and Arcilla. Yet not
once did plaintiff-appellant Sesbreo or any of his
witnesses mention that a conspiracy existed between
these people. Clearly, much like his other allegations, it
is nothing more than an afterthought by plaintiff-
appellant Sesbreo.
All in all, the allegations against defendants-appellees
appear to be nothing more than a put-on to save face.
For the simple truth is that the inspection exposed
plaintiff-appellant Sesbreo as a likely cheat and thief.
xxxx
Neither is this Court swayed by the testimonies of
Baledio and Lopez.1wphi1 The lower court rightly
described their testimonies as fraught by discrepancies
and inconsistencies on material points and even called
Lopez a perjured witness. On the other hand, it is odd
that plaintiff-appellant Sesbreo chose not to present
the witness whose testimony was very crucial. But
even though Chuchie Garcia never testified, her
absence speaks volumes. Whereas plaintiff-appellant
Sesbreo claimed that the VOC Team forced her to
sign two documents that made her appear to be his
authorized agent or representative, the latter claimed
otherwise and that she also gave them permission to
enter and search the house. The person most qualified
to refute the VOC Teams claim is Chuchie Garcia
herself. It is axiomatic that he who asserts a fact or
claim must prove it. He cannot transfer that burden to
the person against whom he asserts such fact or claim.
When certain evidence is suppressed, the presumption
is that it will adversely affect the cause of the party
suppressing it, should it come to light. x x x9

Upon denial of his motion for reconsideration,10
Sesbreo appealed.
Issue
Was Sesbreo entitled to recover damages for abuse
of rights?
Ruling:
The appeal has no merit.
Sesbreos main contention is that the inspection of his
residence by the VOC team was an unreasonable
search for being carried out without a warrant and for
being allegedly done with malice or bad faith.
Before dealing with the contention, we have to note
that two distinct portions of Sesbreos residence were
inspected by the VOS team the garage where the
electric meter was installed, and the main premises
where the four bedrooms, living rooms, dining room
and kitchen were located.
Anent the inspection of the garage where the meter
was installed, the respondents assert that the VOC
team had the continuing authority from Sesbreo as
the consumer to enter his premises at all reasonable
hours to conduct an inspection of the meter without
being liable for trespass to dwelling. The authority
emanated from paragraph 9 of the metered service
contract entered into between VECO and each of its
consumers, which provided as follows:
9. The CONSUMER agrees to allow properly
authorized employees or representatives of the
COMPANY to enter his premises at all reasonable
hours without being liable to trespass to dwelling for
the purpose of inspecting, installing, reading, removing,
testing, replacing or otherwise disposing of its property,
and/or removing the COMPANYS property in the
event of the termination of the contract for any
cause.11
Sesbreo contends, however, that paragraph 9 did not
give Constantino, Arcilla and Balicha the blanket
authority to enter at will because the only property
VECO owned in his premises was the meter; hence,
Constantino and Arcilla should enter only the garage.
He denies that they had the right to enter the main
portion of the house and inspect the various rooms and
the appliances therein because those were not the
properties of VECO. He posits that Balicha, who was
not an employee of VECO, had no authority
whatsoever to enter his house and conduct a search.
He concludes that their search was unreasonable, and
entitled him to damages in light of their admission that
they had entered and inspected his premises without a
search warrant.12
We do not accept Sesbreos conclusion.1avvphi1
Paragraph 9 clothed the entire VOC team with
unquestioned authority to enter the garage to inspect
the meter. The members of the team obviously met the
conditions imposed by paragraph 9 for an authorized
entry. Firstly, their entry had the objective of
conducting the routine inspection of the meter.13
Secondly, the entry and inspection were confined to
the garage where the meter was installed.14 Thirdly,
the entry was effected at around 4 oclock p.m., a
reasonable hour.15 And, fourthly, the persons who
inspected the meter were duly authorized for the
purpose by VECO.
Although Balicha was not himself an employee of
VECO,16 his participation was to render police
assistance to ensure the personal security of
Constantino and Arcilla during the inspection,
rendering him a necessary part of the team as an
authorized representative. Under the circumstances,
he was authorized to enter considering that paragraph
9 expressly extended such authority to "properly
authorized employees or representatives" of VECO.
It is true, as Sesbreo urges, that paragraph 9 did not
cover the entry into the main premises of the
residence. Did this necessarily mean that any entry by
the VOS team into the main premises required a
search warrant to be first secured?
Sesbreo insists so, citing Section 2, Article III of the
1987 Constitution, the clause guaranteeing the right of
every individual against unreasonable searches and
seizures, viz:
Section 2. The right of the people to be secure in their
persons, houses, papers and effects against
unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except
upon probable cause to be determined personally by
the judge after examination under oath or affirmation of
the complainant and the witnesses he may produce,
and particularly describing the place to be searched
and the persons or things to be seized.
He states that a violation of this constitutional guaranty
rendered VECO and its VOS team liable to him for
damages by virtue of Article 32 (9) of the Civil Code,
which pertinently provides:
Article 32. Any public officer or employee, or any
private individual, who directly or indirectly obstructs,
defeats, violates or in any manner impedes or impairs
any of the following rights and liberties of another
person shall be liable to the latter for damages:
xxxx
(9) The right to be secured in ones person, house,
papers, and effects against unreasonable searches
and seizures;
x x x x.
Sesbreos insistence has no legal and factual basis.
The constitutional guaranty against unlawful searches
and seizures is intended as a restraint against the
Government and its agents tasked with law
enforcement. It is to be invoked only to ensure freedom
from arbitrary and unreasonable exercise of State
power. The Court has made this clear in its
pronouncements, including that made in People v.
Marti,17 viz:
If the search is made upon the request of law
enforcers, a warrant must generally be first secured if it
is to pass the test of constitutionality. However, if the
search is made at the behest or initiative of the
proprietor of a private establishment for its own and
private purposes, as in the case at bar, and without the
intervention of police authorities, the right against
unreasonable search and seizure cannot be invoked
for only the act of private individual, not the law
enforcers, is involved. In sum, the protection against
unreasonable searches and seizures cannot be
extended to acts committed by private individuals so as
to bring it within the ambit of alleged unlawful intrusion
by the government.18
It is worth noting that the VOC inspectors decided to
enter the main premises only after finding the meter of
Sesbreo turned upside down, hanging and its disc not
rotating. Their doing so would enable them to
determine the unbilled electricity consumed by his
household. The circumstances justified their decision,
and their inspection of the main premises was a
continuation of the authorized entry. There was no
question then that their ability to determine the unbilled
electricity called for them to see for themselves the
usage of electricity inside. Not being agents of the
State, they did not have to first obtain a search warrant
to do so.
Balichas presence participation in the entry did not
make the inspection a search by an agent of the State
within the ambit of the guaranty. As already mentioned,
Balicha was part of the team by virtue of his mission
order authorizing him to assist and escort the team
during its routine inspection.19 Consequently, the entry
into the main premises of the house by the VOC team
did not constitute a violation of the guaranty.
Our holding could be different had Sesbreo
persuasively demonstrated the intervention of malice
or bad faith on the part of Constantino and Arcilla
during their inspection of the main premises, or any
excessiveness committed by them in the course of the
inspection. But Sesbreo did not. On the other hand,
the CA correctly observed that the inspection did not
zero in on Sesbreos residence because the other
houses within the area were similarly subjected to the
routine inspection.20 This, we think, eliminated any
notion of malice or bad faith.
Clearly, Sesbreo did not establish his claim for
damages if the respondents were not guilty of abuse of
rights. To stress, the concept of abuse of rights
prescribes that a person should not use his right
unjustly or in bad faith; otherwise, he may be liable to
another who suffers injury. The rationale for the
concept is to present some basic principles to be
followed for the rightful relationship between human
beings and the stability of social order.21 Moreover,
according to a commentator,22 "the exercise of right
ends when the right disappears, and it disappears
when it is abused, especially to the prejudice of
others[;] [i]t cannot be said that a person exercises a
right when he unnecessarily prejudices another."
Article 19 of the Civil Code23 sets the standards to be
observed in the exercise of ones rights and in the
performance of ones duties, namely: (a) to act with
justice; (b) to give everyone his due; and (c) to observe
honesty and good faith. The law thereby recognizes
the primordial limitation on all rights that in the
exercise of the rights, the standards under Article 19
must be observed.24
Although the act is not illegal, liability for damages may
arise should there be an abuse of rights, like when the
act is performed without prudence or in bad faith. In
order that liability may attach under the concept of
abuse of rights, the following elements must be
present, to wit: (a) the existence of a legal right or duty,
(b) which is exercised in bad faith, and (c) for the sole
intent of prejudicing or injuring another.25 There is no
hard and fast rule that can be applied to ascertain
whether or not the principle of abuse of rights is to be
invoked. The resolution of the issue depends on the
circumstances of each case.
Sesbreo asserts that he did not authorize Baledio or
Chuchie Garcia to let anyone enter his residence in his
absence; and that Baledio herself confirmed that the
members of the VOC team had intimidated her into
letting them in.
The assertion of Sesbreo is improper for
consideration in this appeal.1wphi1 The RTC and the
CA unanimously found the testimonies of Sesbreos
witnesses implausible because of inconsistencies on
material points; and even declared that the non-
presentation of Garcia as a witness was odd if not
suspect. Considering that such findings related to the
credibility of the witnesses and their testimonies, the
Court cannot review and undo them now because it is
not a trier of facts, and is not also tasked to analyze or
weigh evidence all over again.26 Verily, a review that
may tend to supplant the findings of the trial court that
had the first-hand opportunity to observe the demeanor
of the witnesses themselves should be undertaken by
the Court with prudent hesitation. Only when Sesbreo
could make a clear showing of abuse in their
appreciation of the evidence and records by the trial
and the appellate courts should the Court do the
unusual review of the factual findings of the trial and
appellate courts.27 Alas, that showing was not made
here.
Nor should the Court hold that Sesbreo was denied
due process by the refusal of the trial judge to inhibit
from the case. Although the trial judge had issued an
order for his voluntary inhibition, he still rendered the
judgment in the end in compliance with the instruction
of the Executive Judge, whose exercise of her
administrative authority on the matter of the inhibition
should be respected.28 In this connection, we find to
be apt the following observation of the CA, to wit:
x x x. Both Judge Paredes and Judge Priscila Agana
serve the Regional Trial Court and are therefore of co-
equal rank. The latter has no authority to reverse or
modify the orders of Judge Paredes. But in ordering
Judge Paredes to continue hearing the case, Judge
Agana did not violate their co-equal status or
unilaterally increased her jurisdiction. It is merely part
of her administrative responsibilities as Executive
Judge of the Regional Trial Court of Cebu City, of
which Judge Paredes is also a member.29
Lastly, the Court finds nothing wrong if the writer of the
decision in the CA refused to inhibit from participating
in the resolution of the motion for reconsideration filed
by Sesbrefio. The motion for her inhibition was
grounded on suspicion of her bias and prejudice,30 but
suspicion of bias and prejudice were not enough
grounds for inhibition.31
Suffice it to say that the records are bereft of any
indication that even suggested that the Associate
Justices of the CA who participated in the promulgation
of the decision were tainted with bias against him.
WHEREFORE, the Court DENIES the pet1t1on for
review on certiorari; AFFIRMS the decision
promulgated on March 10, 2003; and DIRECTS the
petitioner to pay the costs of suit. SO ORDERED.
g.) Saladaga vs Astorga
Membership in the legal profession is a high personal
privilege burdened with conditions,1 including
continuing fidelity to the law and constant possession
of moral fitness. Lawyers, as guardians of the law, play
a vital role in the preservation of society, and a
consequent obligation of lawyers is to maintain the
highest standards of ethical conduct.2 Failure to live by
the standards of the legal profession and to discharge
the burden of the privilege conferred on one as a
member of the bar warrant the suspension or
revocation of that privilege.
The Factual Antecedents
Complainant Florencio A. Saladaga and respondent
Atty. Arturo B. Astorga entered into a "Deed of Sale
with Right to Repurchase" on December 2, 1981 where
respondent sold (with rightof repurchase) to
complainant a parcel of coconut land located at
Barangay Bunga, Baybay, Leyte covered by Transfer
Certificate of Title (TCT) No. T-662 for P15,000.00.
Under the said deed, respondent represented that he
has "the perfect right to dispose as owner in fee
simple" the subject property and that the said property
is "free from all liens and encumbrances."3 The deed
also provided that respondent, as vendor a retro, had
two years within which to repurchase the property, and
if not repurchased within the said period, "the parties
shall renew [the] instrument/agreement."4
Respondent failed to exercise his right of repurchase
within the period provided in the deed, and no renewal
of the contract was made even after complainant sent
respondent a final demand dated May 10, 1984 for the
latter to repurchase the property. Complainant
remained in peaceful possession of the property until
December 1989 when he received letters from the
Rural Bank of Albuera (Leyte), Inc. (RBAI) informing
him that the property was mortgaged by respondent to
RBAI, that the bank had subsequently foreclosed on
the property, and that complainant should therefore
vacate the property.5
Complainant was alarmed and made aninvestigation.
He learned the following:
(1) TCT No. T-662 was already cancelled by TCT No.
T-3211 in the name of Philippine National Bank (PNB)
as early as November 17, 1972 after foreclosure
proceedings;
(2) TCT No. T-3211 was cancelled by TCT No. T-7235
in the names of respondent and his wife on January 4,
1982 pursuant to a deed of sale dated March 27,1979
between PNB and respondent;
(3) Respondent mortgaged the subject property to
RBAI on March 14, 1984, RBAI foreclosed on the
property, and subsequently obtained TCT No. TP-
10635 on March 27, 1991.6 Complainant was
subsequently dispossessed of the property by RBAI.7
Aggrieved, complainant instituted a criminal complaint
for estafa against respondent with the Office of the
Provincial Prosecutor of Leyte, docketed as I.S. No.
95-144. The Provincial Prosecutor of Leyte approved
the Resolution8 dated April 21, 1995 in I.S. No. 95-144
finding that "[t]he facts of [the] case are sufficient to
engender a well-founded belief that Estafa x x x has
been committed and that respondent herein is probably
guilty thereof."9 Accordingly, an Information10 dated
January 8,1996 was filed before the Municipal Trial
Court (MTC) of Baybay, Leyte, formally charging
respondent with the crime of estafa under Article 316,
paragraphs 1 and 2 of the Revised Penal Code,11
committed as follows:
On March 14, 1984, accused representing himself as
the owner of a parcel of land known as Lot No. 7661 of
the Baybay Cadastre, mortgaged the same to the
Rural Bank of Albuera, Albuera, Leyte, within the
jurisdiction of this Honorable Court, knowing fully well
that the possessor and owner at that time was private
complainant Florencio Saladaga by virtue of a Pacto
de Retro Sale which accused executed in favor of
private complainant on 2nd December, 1981, without
first redeeming/repurchasing the same. [P]rivate
complainant knowing of accused[s] unlawful act only
on or about the last week of February, 1991 when the
rural bank dispossessed him of the property, the
mortgage having been foreclosed, private complainant
thereby suffered damages and was prejudiced by
accused[s] unlawful transaction and
misrepresentation.
The aforementioned estafa case against respondent
was docketed as Criminal Case No. 3112-A.
Complainant likewise instituted the instant
administrative cases against respondent by filing
before this Court an Affidavit-Complaint12 dated
January 28, 1997 and Supplemental Complaint13
dated February 27, 1997, which were docketed as A.C.
No. 4697 and A.C. No. 4728, respectively. In both
complaints, complainant sought the disbarment of
respondent.
The administrative cases were referred to the
Integrated Bar of the Philippines (IBP) for investigation,
report and recommendation.14
In his Consolidated Answer15 dated August 16, 2003
filed before the IBP, respondent denied that his
agreement with complainant was a pacto de retrosale.
He claimed that it was an equitable mortgage and that,
if only complainant rendered an accounting of his
benefits from the produce of the land, the total amount
would have exceeded P15,000.00.
Report and Recommendation of the Investigating
Commissioner and Resolution of the IBP Board of
Governors
In a Report and Recommendation16 dated April 29,
2005, the Investigating Commissioner of the IBPs
Commission on Bar Discipline found that respondent
was in bad faith when he dealt with complainant and
executed the "Deed of Sale with Right to Repurchase"
but later on claimed that the agreement was one of
equitable mortgage. Respondent was also guilty of
deceit or fraud when he represented in the "Deed of
Sale with Right to Repurchase" dated December 2,
1981 that the property was covered by TCT No. T-662,
even giving complainant the owners copy of the said
certificate of title, when the said TCT had already been
cancelled on November 17, 1972 by TCT No. T-3211
in the name of Philippine National Bank (PNB).
Respondent made matters even worse, when he had
TCT No. T-3211 cancelled with the issuance of TCT
No. T-7235 under his and his wifes name on January
4,1982 without informing complainant. This was
compounded by respondents subsequent mortgage of
the property to RBAI, which led to the acquisition of the
property by RBAI and the dispossession thereof of
complainant. Thus, the Investigating Commissioner
recommended that respondent be (1) suspended from
the practice of law for one year, with warning that a
similar misdeed in the future shall be dealt with more
severity, and (2) ordered to return the sum of
P15,000.00, the amount he received as consideration
for the pacto de retrosale, with interest at the legal rate.
Considering respondents "commission of unlawful
acts, especially crimes involving moral turpitude, actsof
dishonesty, grossly immoral conduct and deceit," the
IBP Board of Governors adopted and approved the
Investigating Commissioners Report and
Recommendation with modification as follows:
respondent is(1) suspended from the practice of law for
two years, with warning that a similar misdeed in the
future shall be dealt with more severity, and (2)
ordered to return the sum of P15,000.00 received in
consideration of the pacto de retrosale, with legal
interest.17
The Courts Ruling
The Court agrees with the recommendation of the IBP
Board of Governors to suspend respondent from the
practice of law for two years, but it refrains from
ordering respondent to return the P15,000.00
consideration, plus interest.
Respondent does not deny executing the "Deed of
Sale with Right to Repurchase" dated December 2,
1981 in favor of complainant. However, respondent
insists that the deed is not one of sale with pacto de
retro, but one of equitable mortgage. Thus, respondent
argues that he still had the legal right to mortgage the
subject property to other persons. Respondent
additionally asserts that complainant should render an
accounting of the produce the latter had collected from
the said property, which would already exceed the
P15,000.00 consideration stated in the deed.
There is no merit in respondents defense.
Regardless of whether the written contract between
respondent and complainant is actually one of sale
with pacto de retroor of equitable mortgage,
respondents actuations in his transaction with
complainant, as well as in the present administrative
cases, clearly show a disregard for the highest
standards of legal proficiency, morality, honesty,
integrity, and fair dealing required from lawyers, for
which respondent should be held administratively
liable.
When respondent was admitted to the legal profession,
he took an oath where he undertook to "obey the
laws," "do no falsehood," and "conduct [him]self as a
lawyer according to the best of [his] knowledge and
discretion."18 He gravely violated his oath.
The Investigating Commissioner correctly found, and
the IBP Board of Governors rightly agreed, that
respondent caused the ambiguity or vagueness in the
"Deed of Sale with Right to Repurchase" as he was the
one who prepared or drafted the said instrument.
Respondent could have simply denominated the
instrument as a deed of mortgage and referred to
himself and complainant as "mortgagor" and
"mortgagee," respectively, rather than as "vendor a
retro" and "vendee a retro." If only respondent had
been more circumspect and careful in the drafting and
preparation of the deed, then the controversy between
him and complainant could havebeen avoided or, at
the very least, easily resolved. His imprecise and
misleading wording of the said deed on its face
betrayed lack oflegal competence on his part. He
thereby fell short of his oath to "conduct [him]self as a
lawyer according to the best of [his] knowledge and
discretion."
More significantly, respondent transgressed the laws
and the fundamental tenet of human relations
asembodied in Article 19 of the Civil Code:
Art. 19. Every person must, in the exercise of his rights
and in the performance of his duties, act with justice,
give everyone his due, and observe honesty and good
faith.
Respondent, as owner of the property, had the right to
mortgage it to complainant but, as a lawyer, he should
have seen to it that his agreement with complainant is
embodied in an instrument that clearly expresses the
intent of the contracting parties. A lawyer who drafts a
contract must see to it that the agreement faithfully and
clearly reflects the intention of the contracting parties.
Otherwise, the respective rights and obligations of the
contracting parties will be uncertain, which opens the
door to legal disputes between the said parties.
Indeed, the uncertainty caused by respondents poor
formulation of the "Deed of Sale with Right to
Repurchase" was a significant factor in the legal
controversy between respondent and complainant.
Such poor formulation reflects at the very least
negatively on the legal competence of respondent.
Under Section 63 of the Land Registration Act,19 the
law in effect at the time the PNB acquired the subject
property and obtained TCT No. T-3211 in its name in
1972, where a decree in favor of a purchaser who
acquires mortgaged property in foreclosure
proceedings becomes final, such purchaser becomes
entitled to the issuance of a new certificate of title in his
name and a memorandum thereof shall be "indorsed
upon the mortgagors original certificate."20 TCT No.
T-662, which respondent gave complainant when they
entered into the "Deed of Sale with Right to
Repurchase" dated December 2, 1981, does not
bearsuch memorandum but only a memorandum on
the mortgage of the property to PNB in 1963 and the
subsequent amendment of the mortgage.
Respondent dealt with complainant with bad faith,
falsehood, and deceit when he entered into the "Deed
of Sale with Right to Repurchase" dated December 2,
1981 with the latter. He made it appear that the
property was covered by TCT No. T-662 under his
name, even giving complainant the owners copy of the
said certificate oftitle, when the truth is that the said
TCT had already been cancelled some nine years
earlier by TCT No. T-3211 in the name of PNB. He did
not evencare to correct the wrong statement in the
deed when he was subsequently issued a new copy of
TCT No. T-7235 on January 4, 1982,21 or barely a
month after the execution of the said deed. All told,
respondent clearly committed an act of gross
dishonesty and deceit against complainant.
Canon 1 and Rule 1.01 of the Codeof Professional
Responsibility provide:
CANON 1 A lawyer shall uphold the constitution,
obey the laws of the land and promote respect for law
and legal processes.
Rule 1.01 A lawyer shall not engage in unlawful,
dishonest, immoral or deceitful conduct. Under Canon
1, a lawyer is not only mandated to personally obey the
laws and the legal processes, he is moreover expected
to inspire respect and obedience thereto. On the other
hand, Rule 1.01 states the norm of conduct that is
expected of all lawyers.22
Any act or omission that is contrary to, prohibited or
unauthorized by, in defiance of, disobedient to, or
disregards the law is "unlawful." "Unlawful" conduct
does not necessarily imply the element of criminality
although the concept is broad enough to include such
element.23
To be "dishonest" means the disposition to lie, cheat,
deceive, defraud or betray; be untrustworthy; lacking
inintegrity, honesty, probity, integrity in principle,
fairness and straightforwardness. On the other hand,
conduct that is "deceitful" means as follows:
[Having] the proclivity for fraudulent and deceptive
misrepresentation, artifice or device that is used upon
another who is ignorant of the true facts, to the
prejudice and damage of the party imposed upon. In
order to be deceitful, the person must either have
knowledge of the falsity or acted in reckless and
conscious ignorance thereof, especially if the parties
are not on equal terms, and was done with the intent
that the aggrieved party act thereon, and the latter
indeed acted in reliance of the false statement or deed
in the manner contemplated to his injury.24 The
actions of respondent in connection with the execution
of the "Deed of Sale with Right to Repurchase" clearly
fall within the concept of unlawful, dishonest, and
deceitful conduct. They violate Article 19 of the Civil
Code. They show a disregard for Section 63 of the
Land Registration Act. They also reflect bad faith,
dishonesty, and deceit on respondents part. Thus,
respondent deserves to be sanctioned.
Respondents breach of his oath, violation of the laws,
lack of good faith, and dishonesty are compounded by
his gross disregard of this Courts directives, as well as
the orders of the IBPs Investigating Commissioner
(who was acting as an agent of this Court pursuant to
the Courts referral of these cases to the IBP for
investigation, report and recommendation), which
caused delay in the resolution of these administrative
cases.
In particular, the Court required respondent to
comment on complainants Affidavit-Complaint in A.C.
No. 4697 and Supplemental Complaint in A.C. No.
4728 on March 12, 1997 and June 25, 1997,
respectively.25 While he requested for several
extensions of time within which to submit his comment,
no such comment was submitted prompting the Court
to require him in a Resolution dated February 4,1998
to (1) show cause why he should not be disciplinarily
dealt with or held in contempt for such failure, and (2)
submit the consolidated comment.26 Respondent
neither showed cause why he should not be
disciplinarily dealt with or held in contempt for such
failure, nor submitted the consolidated comment.
When these cases were referred to the IBP and during
the proceedings before the IBPs Investigating
Commissioner, respondent was again required several
times to submit his consolidated answer. He only
complied on August 28, 2003, or more than six years
after this Court originally required him to do so. The
Investigating Commissioner also directed the parties to
submit their respective position papers. Despite having
been given several opportunities to submit the same,
respondent did not file any position paper.27
Respondents disregard of the directives of this Court
and of the Investigating Commissioner, which caused
undue delay in these administrative cases,
contravenes the following provisions of the Code of
Professional Responsibility:
CANON 11 A lawyer shall observe and maintain the
respect due to the courts and to judicial officers and
should insist on similar conduct by others.
xxxx
CANON 12 A lawyer shall exert every effort and
consider it his duty to assist in the speedy and efficient
administration of justice.
xxxx
Rule 12.03 A lawyer shall not, after obtaining
extensions of time to file pleadings, memoranda or
briefs, let the period lapse without submitting the same
or offering an explanation for his failure to do so.
Rule 12.04 A lawyer shall not unduly delay a case,
impede the execution of a judgment or misuse court
processes.
Respondents infractions are aggravated by the fact
that he has already been imposed a disciplinary
sanction before.1wphi1 In Nuez v. Atty. Astorga,28
respondent was held liable for conduct unbecoming an
attorney for which he was fined P2,000.00.
Given the foregoing, the suspension of respondent
from the practice of law for two years, as
recommended by the IBP Board of Governors, is
proper.
The Court, however, will not adopt the
recommendation of the IBP to order respondent to
return the sum of P15,000.00 he received from
complainant under the "Deed of Sale with Right to
Repurchase." This is a civil liability best determined
and awarded in a civil case rather than the present
administrative cases.
In Roa v. Moreno,29 the Court pronounced that "[i]n
disciplinary proceedings against lawyers, the only
issue is whether the officer of the court is still fit to be
allowed to continue as a member of the Bar. Our only
concern is the determination of respondents
administrative liability. Our findings have no material
bearing on other judicial action which the parties may
choose to file against each other."While the respondent
lawyers wrongful actuations may give rise at the same
time to criminal, civil, and administrative liabilities, each
must be determined in the appropriate case; and every
case must be resolved in accordance with the facts
and the law applicable and the quantum of proof
required in each. Section 5,30 in relation to Sections
131 and 2,32 Rule 133 of the Rules of Court states that
in administrative cases, such as the ones atbar, only
substantial evidence is required, not proof beyond
reasonable doubt as in criminal cases, or
preponderance of evidence asin civil cases.
Substantial evidence is that amount of relevant
evidence which a reasonable mind might accept as
adequate to justify a conclusion.33
The Court notes that based on the same factual
antecedents as the present administrative cases,
complainant instituted a criminal case for estafa
against respondent, docketed as Criminal Case No.
3112-A, before the MTC. When a criminal action is
instituted, the civil action for the recovery of civil liability
arising from the offense charged shall be deemed
instituted with the criminal action unless the offended
party waives the civil action, reserves the right to
institute it separately or institutes the civil action prior to
the criminal action.34 Unless the complainant waived
the civil action, reserved the right to institute it
separately, or instituted the civil action prior to the
criminal action, then his civil action for the recovery of
civil liability arising from the estafa committed by
respondent is deemed instituted with Criminal Case
No. 3112-A. The civil liability that complainant may
recover in Criminal Case No. 3112-A includes
restitution; reparation of the damage caused him;
and/or indemnification for consequential damages,35
which may already cover the P15,000.00 consideration
complainant had paid for the subject property.
WHEREFORE, respondent is hereby found GUILTY of
the following: breach of the Lawyers Oath; unlawful,
dishonest, and deceitful conduct; and disrespect for the
Court and causing undue delay of these cases, for
which he is SUSPENDED from the practice of law for a
period of two (2) years, reckoned from receipt of this
Decision, with WARNING that a similar misconduct in
the future shall be dealt with more severely.
Let a copy of this Decision be furnished the Office of
the Bar Confidant and the Integrated Bar of the
Philippines for their information and guidance. The
Court Administrator is directed to circulate this
Decision to all courts in the country. SO ORDERED.
ARTICLE 21 ACTS CONTRARY TO MORALS
a.) Buenaventura vs CA
These cases involve a petition for the declaration of
nullity of marriage, which was filed by petitioner Noel
Buenaventura on July 12, 1992, on the ground of the
alleged psychological incapacity of his wife, Isabel
Singh Buenaventura, herein respondent. After
respondent filed her answer, petitioner, with leave of
court, amended his petition by stating that both he and
his wife were psychologically incapacitated to comply
with the essential obligations of marriage. In response,
respondent filed an amended answer denying the
allegation that she was psychologically
incapacitated.[1]
On July 31, 1995, the Regional Trial Court
promulgated a Decision, the dispositive portion of
which reads:
WHEREFORE, judgment is hereby rendered as
follows:
1) Declaring and decreeing the marriage entered into
between plaintiff Noel A. Buenaventura and defendant
Isabel Lucia Singh Buenaventura on July 4, 1979, null
and void ab initio;
2) Ordering the plaintiff to pay defendant moral
damages in the amount of 2.5 million pesos and
exemplary damages of 1 million pesos with 6% interest
from the date of this decision plus attorneys fees of
P100,000.00;
3) Ordering the plaintiff to pay the defendant expenses
of litigation of P50,000.00, plus costs;
4) Ordering the liquidation of the assets of the conjugal
partnership property[,] particularly the plaintiffs
separation/retirement benefits received from the Far
East Bank [and] Trust Company[,] by ceding, giving
and paying to her fifty percent (50%) of the net amount
of P3,675,335.79 or P1,837,667.89 together with 12%
interest per annum from the date of this decision and
one-half (1/2) of his outstanding shares of stock with
Manila Memorial Park and Provident Group of
Companies;
5) Ordering him to give a regular support in favor of his
son Javy Singh Buenaventura in the amount of
P15,000.00 monthly, subject to modification as the
necessity arises;
6) Awarding the care and custody of the minor Javy
Singh Buenaventura to his mother, the herein
defendant; and
7) Hereby authorizing the defendant to revert back to
the use of her maiden family name Singh.
Let copies of this decision be furnished the appropriate
civil registry and registries of properties.
SO ORDERED.[2]
Petitioner appealed the above decision to the Court of
Appeals. While the case was pending in the appellate
court, respondent filed a motion to increase the
P15,000 monthly support pendente lite of their son
Javy Singh Buenaventura. Petitioner filed an
opposition thereto, praying that it be denied or that
such incident be set for oral argument.[3]
On September 2, 1996, the Court of Appeals issued a
Resolution increasing the support pendente lite to
P20,000.[4] Petitioner filed a motion for reconsideration
questioning the said Resolution.[5]
On October 8, 1996, the appellate court promulgated a
Decision dismissing petitioners appeal for lack of merit
and affirming in toto the trial courts decision.[6]
Petitioner filed a motion for reconsideration which was
denied. From the abovementioned Decision, petitioner
filed the instant Petition for Review on Certiorari.
On November 13, 1996, through another Resolution,
the Court of Appeals denied petitioners motion for
reconsideration of the September 2, 1996 Resolution,
which increased the monthly support for the son.[7]
Petitioner filed a Petition for Certiorari to question
these two Resolutions.
On July 9, 1997, the Petition for Review on Certiorari[8]
and the Petition for Certiorari[9] were ordered
consolidated by this Court.[10]
In the Petition for Review on Certiorari petitioner claims
that the Court of Appeals decided the case not in
accord with law and jurisprudence, thus:
1. WHEN IT AWARDED DEFENDANT-APPELLEE
MORAL DAMAGES IN THE AMOUNT OF P2.5
MILLION AND EXEMPLARY DAMAGES OF P1
MILLION, WITH 6% INTEREST FROM THE DATE OF
ITS DECISION, WITHOUT ANY LEGAL AND MORAL
BASIS;

2. WHEN IT AWARDED P100,000.00 ATTORNEYS
FEES AND P50,000.00 EXPENSES OF LITIGATION,
PLUS COSTS, TO DEFENDANT-APPELLEE,
WITHOUT FACTUAL AND LEGAL BASIS;
3. WHEN IT ORDERED PLAINTIFF-APPELLANT
NOEL TO PAY DEFENDANT-APPELLEE ONE-HALF
OR P1,837,667.89 OUT OF HIS RETIREMENT
BENEFITS RECEIVED FROM THE FAR EAST BANK
AND TRUST CO., WITH 12% INTEREST THEREON
FROM THE DATE OF ITS DECISION,
NOTWITHSTANDING THAT SAID RETIREMENT
BENEFITS ARE GRATUITOUS AND EXCLUSIVE
PROPERTY OF NOEL, AND ALSO TO DELIVER TO
DEFENDANT-APPELLEE ONE-HALF OF HIS
SHARES OF STOCK WITH THE MANILA MEMORIAL
PARK AND THE PROVIDENT GROUP OF
COMPANIES, ALTHOUGH SAID SHARES OF
STOCK WERE ACQUIRED BY NOEL BEFORE HIS
MARRIAGE TO RESPONDENT ISABEL AND ARE,
THEREFORE, AGAIN HIS EXCLUSIVE
PROPERTIES; AND
4. WHEN IT AWARDED EXCLUSIVE CARE AND
CUSTODY OVER THE PARTIES MINOR CHILD TO
DEFENDANT-APPELLEE WITHOUT ASKING THE
CHILD (WHO WAS ALREADY 13 YEARS OLD AT
THAT TIME) HIS CHOICE AS TO WHOM, BETWEEN
HIS TWO PARENTS, HE WOULD LIKE TO HAVE
CUSTODY OVER HIS PERSON.[11]
In the Petition for Certiorari, petitioner advances the
following contentions:
THE COURT OF APPEALS GRAVELY ABUSED ITS
DISCRETION WHEN IT REFUSED TO SET
RESPONDENTS MOTION FOR INCREASED
SUPPORT FOR THE PARTIES SON FOR
HEARING.[12]
THERE WAS NO NEED FOR THE COURT OF
APPEALS TO INCREASE JAVYS MONTHLY
SUPPORT OF P15,000.00 BEING GIVEN BY
PETITIONER EVEN AT PRESENT PRICES.[13]
IN RESOLVING RESPONDENTS MOTION FOR THE
INCREASE OF JAVYS SUPPORT, THE COURT OF
APPEALS SHOULD HAVE EXAMINED THE LIST OF
EXPENSES SUBMITTED BY RESPONDENT IN THE
LIGHT OF PETITIONERS OBJECTIONS THERETO,
INSTEAD OF MERELY ASSUMING THAT JAVY IS
ENTITLED TO A P5,000 INCREASE IN SUPPORT AS
SAID AMOUNT IS TOO MINIMAL.[14]
LIKEWISE, THE COURT OF APPEALS SHOULD
HAVE GIVEN PETITIONER AN OPPORTUNITY TO
PROVE HIS PRESENT INCOME TO SHOW THAT HE
CANNOT AFFORD TO INCREASE JAVYS
SUPPORT.[15]
With regard to the first issue in the main case, the
Court of Appeals articulated:
On Assignment of Error C, the trial court, after findings
of fact ascertained from the testimonies not only of the
parties particularly the defendant-appellee but likewise,
those of the two psychologists, awarded damages on
the basis of Articles 21, 2217 and 2229 of the Civil
Code of the Philippines.
Thus, the lower court found that plaintiff-appellant
deceived the defendant-appellee into marrying him by
professing true love instead of revealing to her that he
was under heavy parental pressure to marry and that
because of pride he married defendant-appellee; that
he was not ready to enter into marriage as in fact his
career was and always would be his first priority; that
he was unable to relate not only to defendant-appellee
as a husband but also to his son, Javy, as a father; that
he had no inclination to make the marriage work such
that in times of trouble, he chose the easiest way out,
that of leaving defendantappellee and their son; that he
had no desire to keep defendant-appellee and their
son as proved by his reluctance and later, refusal to
reconcile after their separation; that the
aforementioned caused defendant-appellee to suffer
mental anguish, anxiety, besmirched reputation,
sleepless nights not only in those years the parties
were together but also after and throughout their
separation.
Plaintiff-appellant assails the trial courts decision on
the ground that unlike those arising from a breach in
ordinary contracts, damages arising as a consequence
of marriage may not be awarded. While it is correct
that there is, as yet, no decided case by the Supreme
Court where damages by reason of the performance or
non-performance of marital obligations were awarded,
it does not follow that no such award for damages may
be made.
Defendant-appellee, in her amended answer,
specifically prayed for moral and exemplary damages
in the total amount of 7 million pesos. The lower court,
in the exercise of its discretion, found full justification of
awarding at least half of what was originally prayed for.
We find no reason to disturb the ruling of the trial
court.[16]
The award by the trial court of moral damages is based
on Articles 2217 and 21 of the Civil Code, which read
as follows:
ART. 2217. Moral damages include physical suffering,
mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, social
humiliation, and similar injury. Though incapable of
pecuniary computation, moral damages may be
recovered if they are the proximate result of the
defendants wrongful act or omission.
ART. 21. Any person who wilfully causes loss or injury
to another in a manner that is contrary to morals, good
customs or public policy shall compensate the latter for
the damage.
The trial court referred to Article 21 because Article
2219[17] of the Civil Code enumerates the cases in
which moral damages may be recovered and it
mentions Article 21 as one of the instances. It must be
noted that Article 21 states that the individual must
willfully cause loss or injury to another. There is a need
that the act is willful and hence done in complete
freedom. In granting moral damages, therefore, the
trial court and the Court of Appeals could not but have
assumed that the acts on which the moral damages
were based were done willfully and freely, otherwise
the grant of moral damages would have no leg to stand
on.
On the other hand, the trial court declared the marriage
of the parties null and void based on Article 36 of the
Family Code, due to psychological incapacity of the
petitioner, Noel Buenaventura. Article 36 of the Family
Code states:

A marriage contracted by any party who, at the time of
the celebration, was psychologically incapacitated to
comply with the essential marital obligations of
marriage, shall likewise be void even if such incapacity
becomes manifest only after its solemnization.
Psychological incapacity has been defined, thus:
. . . no less than a mental (not physical) incapacity that
causes a party to be truly incognitive of the basic
marital covenants that concomitantly must be assumed
and discharged by the parties to the marriage which,
as so expressed by Article 68 of the Family Code,
include their mutual obligations to live together,
observe love, respect and fidelity and render help and
support. There is hardly any doubt that the intendment
of the law has been to confine the meaning of
"psychological incapacity" to the most serious cases of
personality disorders clearly demonstrative of an utter
insensitivity or inability to give meaning and
significance to the marriage. . . .[18]
The Court of Appeals and the trial court considered the
acts of the petitioner after the marriage as proof of his
psychological incapacity, and therefore a product of his
incapacity or inability to comply with the essential
obligations of marriage. Nevertheless, said courts
considered these acts as willful and hence as grounds
for granting moral damages. It is contradictory to
characterize acts as a product of psychological
incapacity, and hence beyond the control of the party
because of an innate inability, while at the same time
considering the same set of acts as willful. By declaring
the petitioner as psychologically incapacitated, the
possibility of awarding moral damages on the same set
of facts was negated. The award of moral damages
should be predicated, not on the mere act of entering
into the marriage, but on specific evidence that it was
done deliberately and with malice by a party who had
knowledge of his or her disability and yet willfully
concealed the same. No such evidence appears to
have been adduced in this case.
For the same reason, since psychological incapacity
means that one is truly incognitive of the basic marital
covenants that one must assume and discharge as a
consequence of marriage, it removes the basis for the
contention that the petitioner purposely deceived the
private respondent. If the private respondent was
deceived, it was not due to a willful act on the part of
the petitioner. Therefore, the award of moral damages
was without basis in law and in fact.
Since the grant of moral damages was not proper, it
follows that the grant of exemplary damages cannot
stand since the Civil Code provides that exemplary
damages are imposed in addition to moral, temperate,
liquidated or compensatory damages.[19]
With respect to the grant of attorneys fees and
expenses of litigation the trial court explained, thus:
Regarding Attorneys fees, Art. 2208 of the Civil Code
authorizes an award of attorneys fees and expenses of
litigation, other than judicial costs, when as in this case
the plaintiffs act or omission has compelled the
defendant to litigate and to incur expenses of litigation
to protect her interest (par. 2), and where the Court
deems it just and equitable that attorneys fees and
expenses of litigation should be recovered. (par.
11)[20]
The Court of Appeals reasoned as follows:
On Assignment of Error D, as the award of moral and
exemplary damages is fully justified, the award of
attorneys fees and costs of litigation by the trial court is
likewise fully justified.[21]
The acts or omissions of petitioner which led the lower
court to deduce his psychological incapacity, and his
act in filing the complaint for the annulment of his
marriage cannot be considered as unduly compelling
the private respondent to litigate, since both are
grounded on petitioners psychological incapacity,
which as explained above is a mental incapacity
causing an utter inability to comply with the obligations
of marriage. Hence, neither can be a ground for
attorneys fees and litigation expenses. Furthermore,
since the award of moral and exemplary damages is
no longer justified, the award of attorneys fees and
expenses of litigation is left without basis.
Anent the retirement benefits received from the Far
East Bank and Trust Co. and the shares of stock in the
Manila Memorial Park and the Provident Group of
Companies, the trial court said:
The third issue that must be resolved by the Court is
what to do with the assets of the conjugal partnership
in the event of declaration of annulment of the
marriage. The Honorable Supreme Court has held that
the declaration of nullity of marriage carries ipso facto
a judgment for the liquidation of property (Domingo v.
Court of Appeals, et al., G.R. No. 104818, Sept. 17,
1993, 226 SCRA, pp. 572 573, 586). Thus, speaking
through Justice Flerida Ruth P. Romero, it was ruled in
this case:
When a marriage is declared void ab initio, the law
states that the final judgment therein shall provide for
the liquidation, partition and distribution of the
properties of the spouses, the custody and support of
the common children and the delivery of their
presumptive legitimes, unless such matters had been
adjudicated in the previous proceedings.
The parties here were legally married on July 4, 1979,
and therefore, all property acquired during the
marriage, whether the acquisition appears to have
been made, contracted or registered in the name of
one or both spouses, is presumed to be conjugal
unless the contrary is proved (Art. 116, New Family
Code; Art. 160, Civil Code). Art. 117 of the Family
Code enumerates what are conjugal partnership
properties. Among others they are the following:
1) Those acquired by onerous title during the marriage
at the expense of the common fund, whether the
acquisition be for the partnership, or for only one of the
spouses;
2) Those obtained from the labor, industry, work or
profession of either or both of the spouses;
3) The fruits, natural, industrial, or civil, due or received
during the marriage from the common property, as well
as the net fruits from the exclusive property of each
spouse. . . .
Applying the foregoing legal provisions, and without
prejudice to requiring an inventory of what are the
parties conjugal properties and what are the exclusive
properties of each spouse, it was disclosed during the
proceedings in this case that the plaintiff who worked
first as Branch Manager and later as Vice-President of
Far East Bank & Trust Co. received
separation/retirement package from the said bank in
the amount of P3,701,500.00 which after certain
deductions amounting to P26,164.21 gave him a net
amount of P3,675,335.79 and actually paid to him on
January 9, 1995 (Exhs. 6, 7, 8, 9, 10, 11). Not having
shown debts or obligations other than those deducted
from the said retirement/separation pay, under Art. 129
of the Family Code The net remainder of the conjugal
partnership properties shall constitute the profits, which
shall be divided equally between husband and wife,
unless a different proportion or division was agreed
upon in the marriage settlement or unless there has
been a voluntary waiver or forfeiture of such share as
provided in this Code. In this particular case, however,
there had been no marriage settlement between the
parties, nor had there been any voluntary waiver or
valid forfeiture of the defendant wifes share in the
conjugal partnership properties. The previous cession
and transfer by the plaintiff of his one-half (1/2) share
in their residential house and lot covered by T.C.T. No.
S-35680 of the Registry of Deeds of Paraaque, Metro
Manila, in favor of the defendant as stipulated in their
Compromise Agreement dated July 12, 1993, and
approved by the Court in its Partial Decision dated
August 6, 1993, was actually intended to be in full
settlement of any and all demands for past support. In
reality, the defendant wife had allowed some
concession in favor of the plaintiff husband, for were
the law strictly to be followed, in the process of
liquidation of the conjugal assets, the conjugal dwelling
and the lot on which it is situated shall, unless
otherwise agreed upon by the parties, be adjudicated
to the spouse with whom their only child has chosen to
remain (Art. 129, par. 9). Here, what was done was
one-half (1/2) portion of the house was ceded to
defendant so that she will not claim anymore for past
unpaid support, while the other half was transferred to
their only child as his presumptive legitime.
Consequently, nothing yet has been given to the
defendant wife by way of her share in the conjugal
properties, and it is but just, lawful and fair, that she be
given one-half (1/2) share of the separation/retirement
benefits received by the plaintiff the same being part of
their conjugal partnership properties having been
obtained or derived from the labor, industry, work or
profession of said defendant husband in accordance
with Art. 117, par. 2 of the Family Code. For the same
reason, she is entitled to one-half (1/2) of the
outstanding shares of stock of the plaintiff husband
with the Manila Memorial Park and the Provident
Group of Companies.[22]
The Court of Appeals articulated on this matter as
follows:
On Assignment of Error E, plaintiff-appellant assails
the order of the trial court for him to give one-half of his
separation/retirement benefits from Far East Bank &
Trust Company and half of his outstanding shares in
Manila Memorial Park and Provident Group of
Companies to the defendant-appellee as the latters
share in the conjugal partnership.
On August 6, 1993, the trial court rendered a Partial
Decision approving the Compromise Agreement
entered into by the parties. In the same Compromise
Agreement, the parties had agreed that henceforth,
their conjugal partnership is dissolved. Thereafter, no
steps were taken for the liquidation of the conjugal
partnership.
Finding that defendant-appellee is entitled to at least
half of the separation/retirement benefits which
plaintiff-appellant received from Far East Bank & Trust
Company upon his retirement as Vice-President of said
company for the reason that the benefits accrued from
plaintiffappellants service for the bank for a number of
years, most of which while he was married to
defendant-appellee, the trial court adjudicated the
same. The same is true with the outstanding shares of
plaintiff-appellant in Manila Memorial Park and
Provident Group of Companies. As these were
acquired by the plaintiff-appellant at the time he was
married to defendant-appellee, the latter is entitled to
one-half thereof as her share in the conjugal
partnership. We find no reason to disturb the ruling of
the trial court.[23]
Since the present case does not involve the annulment
of a bigamous marriage, the provisions of Article 50 in
relation to Articles 41, 42 and 43 of the Family Code,
providing for the dissolution of the absolute community
or conjugal partnership of gains, as the case may be,
do not apply. Rather, the general rule applies, which is
that in case a marriage is declared void ab initio, the
property regime applicable and to be liquidated,
partitioned and distributed is that of equal co-
ownership.
In Valdes v. Regional Trial Court, Branch 102, Quezon
City,[24] this Court expounded on the consequences of
a void marriage on the property relations of the
spouses and specified the applicable provisions of law:
The trial court correctly applied the law. In a void
marriage, regardless of the cause thereof, the property
relations of the parties during the period of cohabitation
is governed by the provisions of Article 147 or Article
148, such as the case may be, of the Family Code.
Article 147 is a remake of Article 144 of the Civil Code
as interpreted and so applied in previous cases; it
provides:
ART. 147. When a man and a woman who are
capacitated to marry each other, live exclusively with
each other as husband and wife without the benefit of
marriage or under a void marriage, their wages and
salaries shall be owned by them in equal shares and
the property acquired by both of them through their
work or industry shall be governed by the rules on co-
ownership.
In the absence of proof to the contrary, properties
acquired while they lived together shall be presumed to
have been obtained by their joint efforts, work or
industry, and shall be owned by them in equal shares.
For purposes of this Article, a party who did not
participate in the acquisition by the other party of any
property shall be deemed to have contributed jointly in
the acquisition thereof if the former's efforts consisted
in the care and maintenance of the family and of the
household.
Neither party can encumber or dispose by acts inter
vivos of his or her share in the property acquired during
cohabitation and owned in common, without the
consent of the other, until after the termination of their
cohabitation.
When only one of the parties to a void marriage is in
good faith, the share of the party in bad faith in the co-
ownership shall be forfeited in favor of their common
children. In case of default of or waiver by any or all of
the common children or their descendants, each
vacant share shall belong to the respective surviving
descendants. In the absence of descendants, such
share shall belong to the innocent party. In all cases,
the forfeiture shall take place upon termination of the
cohabitation.
This peculiar kind of co-ownership applies when a man
and a woman, suffering no legal impediment to marry
each other, so exclusively live together as husband
and wife under a void marriage or without the benefit of
marriage. The term "capacitated" in the provision (in
the first paragraph of the law) refers to the legal
capacity of a party to contract marriage, i.e., any "male
or female of the age of eighteen years or upwards not
under any of the impediments mentioned in Articles 37
and 38" of the Code.
Under this property regime, property acquired by both
spouses through their work and industry shall be
governed by the rules on equal co-ownership. Any
property acquired during the union is prima facie
presumed to have been obtained through their joint
efforts. A party who did not participate in the
acquisition of the property shall still be considered as
having contributed thereto jointly if said party's "efforts
consisted in the care and maintenance of the family
household." Unlike the conjugal partnership of gains,
the fruits of the couple's separate property are not
included in the co-ownership.
Article 147 of the Family Code, in substance and to the
above extent, has clarified Article 144 of the Civil
Code; in addition, the law now expressly provides that
(a) Neither party can dispose or encumber by act[s]
inter vivos [of] his or her share in co-ownership
property, without the consent of the other, during the
period of cohabitation; and
(b) In the case of a void marriage, any party in bad
faith shall forfeit his or her share in the co-ownership in
favor of their common children; in default thereof or
waiver by any or all of the common children, each
vacant share shall belong to the respective surviving
descendants, or still in default thereof, to the innocent
party. The forfeiture shall take place upon the
termination of the cohabitation or declaration of nullity
of the marriage.
In deciding to take further cognizance of the issue on
the settlement of the parties' common property, the trial
court acted neither imprudently nor precipitately; a
court which had jurisdiction to declare the marriage a
nullity must be deemed likewise clothed with authority
to resolve incidental and consequential matters. Nor
did it commit a reversible error in ruling that petitioner
and private respondent own the "family home" and all
their common property in equal shares, as well as in
concluding that, in the liquidation and partition of the
property owned in common by them, the provisions on
co-ownership under the Civil Code, not Articles 50, 51
and 52, in relation to Articles 102 and 129, of the
Family Code, should aptly prevail. The rules set up to
govern the liquidation of either the absolute community
or the conjugal partnership of gains, the property
regimes recognized for valid and voidable marriages
(in the latter case until the contract is annulled), are
irrelevant to the liquidation of the co-ownership that
exists between common-law spouses. The first
paragraph of Article 50 of the Family Code, applying
paragraphs (2), (3), (4) and (5) of Article 43, relates
only, by its explicit terms, to voidable marriages and,
exceptionally, to void marriages under Article 40 of the
Code, i.e., the declaration of nullity of a subsequent
marriage contracted by a spouse of a prior void
marriage before the latter is judicially declared void.
The latter is a special rule that somehow recognizes
the philosophy and an old doctrine that void marriages
are inexistent from the very beginning and no judicial
decree is necessary to establish their nullity. In now
requiring for purposes of remarriage, the declaration of
nullity by final judgment of the previously contracted
void marriage, the present law aims to do away with
any continuing uncertainty on the status of the second
marriage. It is not then illogical for the provisions of
Article 43, in relation to Articles 41 and 42, of the
Family Code, on the effects of the termination of a
subsequent marriage contracted during the
subsistence of a previous marriage to be made
applicable pro hac vice. In all other cases, it is not to
be assumed that the law has also meant to have
coincident property relations, on the one hand,
between spouses in valid and voidable marriages
(before annulment) and, on the other, between
common-law spouses or spouses of void marriages,
leaving to ordain, in the latter case, the ordinary rules
on co-ownership subject to the provision of Article 147
and Article 148 of the Family Code. It must be
stressed, nevertheless, even as it may merely state the
obvious, that the provisions of the Family Code on the
"family home," i.e., the provisions found in Title V,
Chapter 2, of the Family Code, remain in force and
effect regardless of the property regime of the
spouses.[25]
Since the properties ordered to be distributed by the
court a quo were found, both by the trial court and the
Court of Appeals, to have been acquired during the
union of the parties, the same would be covered by the
co-ownership. No fruits of a separate property of one of
the parties appear to have been included or involved in
said distribution. The liquidation, partition and
distribution of the properties owned in common by the
parties herein as ordered by the court a quo should,
therefore, be sustained, but on the basis of co-
ownership and not of the regime of conjugal
partnership of gains.
As to the issue on custody of the parties over their only
child, Javy Singh Buenaventura, it is now moot since
he is about to turn twenty-five years of age on May 27,
2005[26] and has, therefore, attained the age of
majority.
With regard to the issues on support raised in the
Petition for Certiorari, these would also now be moot,
owing to the fact that the son, Javy Singh
Buenaventura, as previously stated, has attained the
age of majority.
WHEREFORE, the Decision of the Court of Appeals
dated October 8, 1996 and its Resolution dated
December 10, 1996 which are contested in the Petition
for Review (G.R. No. 127449), are hereby MODIFIED,
in that the award of moral and exemplary damages,
attorneys fees, expenses of litigation and costs are
deleted. The order giving respondent one-half of the
retirement benefits of petitioner from Far East Bank
and Trust Co. and one-half of petitioners shares of
stock in Manila Memorial Park and in the Provident
Group of Companies is sustained but on the basis of
the liquidation, partition and distribution of the co-
ownership and not of the regime of conjugal
partnership of gains. The rest of said Decision and
Resolution are AFFIRMED.

The Petition for Review on Certiorari (G.R. No.
127358) contesting the Court of Appeals Resolutions
of September 2, 1996 and November 13, 1996 which
increased the support pendente lite in favor of the
parties son, Javy Singh Buenaventura, is now MOOT
and ACADEMIC and is, accordingly, DISMISSED. No
costs. SO ORDERED.
ARTICLE 22 UNJUST ENRICHMENT
a.) FILINVEST vs Ngilay
For this Court's consideration is the Petition for Review
on Certiorari under Rule 45, dated November 9, 2006,
of petitioner Filinvest Land, Inc., which seeks to set
aside the Decision1 dated March 30, 2006 and
Resolution2 dated September 18, 2006 of the Court of
Appeals (CA) partially reversing the Decision3 dated
October 1, 2003 of the Regional Trial Court, Las Pias,
Branch 253 (RTC).
The factual antecedents, as found in the records
follow.
Respondents were grantees of agricultural public lands
located in Tambler, General Santos City through
Homestead and Fee patents sometime in 1986 and
1991 which are covered by and specifically described
in the following Original Certificates of Title issued by
the Register of Deeds of General Santos City:
Negotiations were made by petitioner, represented by
Lina de Guzman-Ferrer with the patriarch of the
Ngilays, Hadji Gulam Ngilay sometime in 1995.
Eventually, a Deed of Conditional Sale of the above-
enumerated properties in favor of petitioner Filinvest
Land, Inc. was executed. Upon its execution,
respondents were asked to deliver to petitioner the
original owner's duplicate copy of the certificates of title
of their respective properties. Respondents received
the downpayment for the properties on October 28,
1995.
A few days after the execution of the aforestated deeds
and the delivery of the corresponding documents to
petitioner, respondents came to know that the sale of
their properties was null and void, because it was done
within the period that they were not allowed to do so
and that the sale did not have the approval of the
Secretary of the Department of Environment and
Natural Resources (DENR) prompting them to file a
case for the declaration of nullity of the deeds of
conditional and absolute sale of the questioned
properties and the grant of right of way with the RTC,
Las Pias, Branch 253.
On the other hand, petitioner claims that sometime in
1995, the representative of Hadji Ngilay approached
petitioner to propose the sale of a portion of his
properties. Thereafter, representatives of petitioner
flew to General Santos City from Manila to conduct an
ocular inspection of the subject properties. Petitioner
was willing to purchase the properties but seeing that
some of the properties were registered as land grants
through homestead patents, representatives of
petitioner informed Ngilay that they would return to
General Santos City in a few months to finalize the
sale as ten (10) certificates of title were issued on
November 24, 1991.
According to petitioner, Ngilay and his children
prevailed upon the representatives of petitioner to
make an advance payment. To accommodate the
Ngilays, petitioner acceded to making an advance with
the understanding that petitioner could demand
anytime the return of the advance payment should
Ngilay not be able to comply with the conditions of the
sale. The Ngilays likewise undertook to secure the
necessary approvals of the DENR before the
consummation of the sale.
The RTC ruled in favor of Filinvest Land, Inc. and
upheld the sale of all the properties in litigation. It found
that the sale of those properties whose original
certificates of title were issued by virtue of the 1986
Patents was valid, considering that the prohibitory
period ended in 1991, or way before the transaction
took place. As to those patents awarded in 1991, the
same court opined that since those properties were the
subject of a deed of conditional sale, compliance with
those conditions is necessary for there to be a
perfected contract between the parties. The RTC also
upheld the grant of right of way as it adjudged that the
right of way agreement showed that the right of way
was granted to provide access from the highway to the
properties to be purchased. The dispositive portion of
the Decision dated October 1, 2003 reads:
WHEREFORE, premises considered, the Court
upholds the sale of all the properties in litigation. It
likewise upholds the grant of right of way in favor of the
respondent. Consequently, the petition is DISMISSED.
No pronouncement as to damages for failure to prove
the same.
Costs against the petitioners.
SO ORDERED.4
Respondents elevated the case to the CA in which the
latter modified the judgment of the RTC.1wphi1 While
the CA upheld the validity of the sale of the properties
the patents of which were awarded in 1986, including
the corresponding grant of right of way for the same
lots, it nullified the disposition of those properties
granted through patents in 1991 and the right of way
on the same properties. As to the "1991 Patents," the
CA ruled that the contract of sale between the parties
was a perfected contract, hence, the parties entered
into a prohibited conveyance of a homestead within the
prohibitive period of five years from the issuance of the
patent. The CA Decision dated March 30, 2006
disposed the case as follows:
WHEREFORE, the assailed Decision dated October 1,
2003 is MODIFIED:
a) The Deed of Conditional Sale and Deed of Absolute
Sale for the properties covered by the "1991 Patents",
as well as the Right of Way Agreement thereto, are
declared null and void. The Register of Deeds of
General Santos City is consequently directed to cancel
the certificates of title covered by the "1991 Patents"
issued in favor of appellee Filinvest and to issue new
titles in favor of herein appellants.
b) The sale of the properties covered by the "1986
Patents", including the corresponding grant of way for
said lots, are declared valid.
SO ORDERED.5
Petitioners filed a Motion for Partial Reconsideration,
but it was denied by the CA.
Hence, the present petition.
The grounds relied upon are:
1. A CONDITIONAL SALE INVOLVING THE 1991
PATENTS DID NOT VIOLATE THE PROHIBITION
AGAINST ALIENATION OF HOMESTEADS UNDER
THE PUBLIC LAND ACT SINCE NO ACTUAL
TRANSFER OR DISPOSITION WAS PERFECTED
UNTIL ALL THE CONDITIONS OF THE DEED ARE
FULFILLED.
2. REGISTRATION IS THE OPERATIVE ACT THAT
CONVEYS OR DISPOSES RIGHTS IN REAL
PROPERTY. BEING UNREGISTERED, THE DEED
OF CONDITIONAL SALE DID NOT CONVEY OR
DISPOSE OF THE 1991 HOMESTEADS OR ANY
RIGHTS THEREIN IN VIOLATION OF THE PUBLIC
LAND ACT.
3.ASSUMING THE NULLITY OF THE SALE OF THE
1991 PATENTS, THE HONORABLE COURT OF
APPEALS SHOULD HAVE ORDERED
RESPONDENTS AS A MATTER OF LAW TO
RETURN TO PETITIONERS WHAT THEY HAVE
RECEIVED.6
In their Comment7 dated March 5, 2007, respondents
stated the following counter-arguments:
(1) The Honorable Court of Appeals did not err in
holding that the Deed of Conditional Sale and Deed of
Absolute Sale for the properties covered by the 1991
Patents, as well as the Right of Way Agreement
thereto is null and void for the simplest reason that the
said transactions were volatile of the Public Land Act.
(2) The questions raised by the Petitioner, Filinvest
Land Inc. (FLI) are unsubstantial to require
consideration.8
In its Reply9 dated July 30, 2007, petitioner insists that
the prohibition against alienation and disposition of
land covered by Homestead Patents is a prohibition
against the actual loss of the homestead within the
five-year prohibitory period, not against all contracts
including those that do not result in such an actual loss
of ownership or possession. It also points out that
respondents themselves admit that the transfer
certificates of title covering the ten parcels of land are
all dated 1998, which confirms its declaration that the
lands covered by 1991 Homestead Patents were not
conveyed to Filinvest until after the five-year prohibitory
period.
The petition is unmeritorious.
The five-year prohibitory period following the issuance
of the homestead patent is provided under Section 118
of Commonwealth Act No. 141, as amended by
Commonwealth Act No. 456, otherwise known as the
Public Land Act.10 It bears stressing that the law was
enacted to give the homesteader or patentee every
chance to preserve for himself and his family the land
that the State had gratuitously given to him as a reward
for his labour in cleaning and cultivating it.11 Its basic
objective, as the Court had occasion to stress, is to
promote public policy that is to provide home and
decent living for destitute, aimed at providing a class of
independent small landholders which is the bulwark of
peace and order.12 Hence, any act which would have
the effect of removing the property subject of the
patent from the hands of a grantee will be struck down
for being violative of the law.13
In the present case, the negotiations for the purchase
of the properties covered by the patents issued in 1991
were made in 1995 and, eventually, an undated Deed
of Conditional Sale was executed. On October 28,
1995, respondents received the downpayment of
P14,000.000.00 for the properties covered by the
patents issued in 1991. Applying the five-year
prohibition, the properties covered by the patent issued
on November 24, 1991 could only be alienated after
November 24, 1996. Therefore, the sale, having been
consummated on October 28, 1995, or within the five-
year prohibition, is as ruled by the CA, void.
Petitioner argues that the correct formulation of the
issue is not whether there was a perfected contract
between the parties during the period of prohibition, but
whether by such deed of conditional sale there was
"alienation or encumbrance" within the contemplation
of the law. This is wrong. The prohibition does not
distinguish between consummated and executory sale.
The conditional sale entered into by the parties is still a
conveyance of the homestead patent. As correctly
ruled by the CA, citing Ortega v. Tan:14
And, even assuming that the disputed sale was not yet
perfected or consummated, still, the transaction cannot
be validated. The prohibition of the law on the sale or
encumbrance of the homestead within five years after
the grant is MANDATORY. The purpose of the law is to
promote a definite policy, i.e., "to preserve and keep in
the family of the homesteader that portion of the public
land which the State has gratuitously given to him."
Thus, the law does not distinguish between executory
and consummated sales. Where the sale of a
homestead was perfected within the prohibitory period
of five years, the fact that the formal deed of sale was
executed after the expiration of the staid period DID
NOT and COULD NOT legalize a contract that was
void from its inception. To hold valid such arrangement
would be to throw the door open to all possible
fraudulent subterfuges and schemes which persons
interested in the land given to a homesteader may
devise in circumventing and defeating the legal
provisions prohibiting their alienation within five years
from the issuance of the patent.15
To repeat, the conveyance of a homestead before the
expiration of the five-year prohibitory period following
the issuance of the homestead patent is null and void
and cannot be enforced, for it is not within the
competence of any citizen to barter away what public
policy by law seeks to preserve.16
Nevertheless, petitioner does not err in seeking the
return of the down payment as a consequence of the
sale having been declared void. The rule is settled that
the declaration of nullity of a contract which is void ab
initio operates to restore things to the state and
condition in which they were found before the
execution thereof.17 Petitioner is correct in its
argument that allowing respondents to keep the
amount received from petitioner is tantamount to
judicial acquiescence to unjust enrichment. Unjust
enrichment exists "when a person unjustly retains a
benefit to the loss of another, or when a person retains
money or property of another against the fundamental
principles of justice, equity and good conscience."18
There is unjust enrichment under Article 22 of the Civil
Code when (1) a person is unjustly benefited, and (2)
such benefit is derived at the expense of or with
damages to another.19 Thus, the sale which created
the obligation of petitioner to pay the agreed amount
having been declared void, respondents have the duty
to return the down payment as they no longer have the
right to keep it. The principle of unjust enrichment
essentially contemplates payment when there is no
duty to pay, and the person who receives the payment
has no right to receive it.20 As found by the CA and
undisputed by the parties, the amount or the down
payment made is P14,000,000.00 which shall also be
the amount to be returned by respondents.
WHEREFORE, the Petition for Review on Certiorari
dated November 9, 2006 or petitioner Filinvest Land,
Inc. is hereby DENIED. Consequently, the Decision
dated March 30, 2006 and Resolution dated
September 18, 2006 or the Court of Appeals are
hereby AFFIRMED with the MODIFICATION that
respondents return the amount of P14,000,000.00
given by petitioner as down payment for the sale which
is ruled to be void ab initio. SO ORDERED.
b.) Gonzalo vs Tarnate, Jr.
The doctrine of in pari delicto which stipulates that the
guilty parties to an illegal contract are not entitled to
any relief, cannot prevent a recovery if doing so
violates the public policy against unjust enrichment.
Antecedents
After the Department of Public Works and Highways
(DPWH) had awarded on July 22, 1997 the contract for
the improvement of the Sadsadan-Maba-ay Section of
the Mountain Province-Benguet Road in the total
amount of 7 014 963 33 to his company, Gonzalo
Construction,1 petitioner Domingo Gonzalo (Gonzalo)
subcontracted to respondent John Tarnate, Jr.
(Tarnate) on October 15, 1997, the supply of materials
and labor for the project under the latter s business
known as JNT Aggregates. Their agreement stipulated,
among others, that Tarnate would pay to Gonzalo eight
percent and four percent of the contract price,
respectively, upon Tarnate s first and second billing in
the project.2
In furtherance of their agreement, Gonzalo executed
on April 6, 1999 a deed of assignment whereby he, as
the contractor, was assigning to Tarnate an amount
equivalent to 10% of the total collection from the
DPWH for the project. This 10% retention fee
(equivalent to P233,526.13) was the rent for Tarnates
equipment that had been utilized in the project. In the
deed of assignment, Gonzalo further authorized
Tarnate to use the official receipt of Gonzalo
Construction in the processing of the documents
relative to the collection of the 10% retention fee and in
encashing the check to be issued by the DPWH for
that purpose.3 The deed of assignment was submitted
to the DPWH on April 15, 1999. During the processing
of the documents for the retention fee, however,
Tarnate learned that Gonzalo had unilaterally
rescinded the deed of assignment by means of an
affidavit of cancellation of deed of assignment dated
April 19, 1999 filed in the DPWH on April 22, 1999;4
and that the disbursement voucher for the 10%
retention fee had then been issued in the name of
Gonzalo, and the retention fee released to him.5
Tarnate demanded the payment of the retention fee
from Gonzalo, but to no avail. Thus, he brought this
suit against Gonzalo on September 13, 1999 in the
Regional Trial Court (RTC) in Mountain Province to
recover the retention fee of P233,526.13, moral and
exemplary damages for breach of contract, and
attorneys fees.6
In his answer, Gonzalo admitted the deed of
assignment and the authority given therein to Tarnate,
but averred that the project had not been fully
implemented because of its cancellation by the DPWH,
and that he had then revoked the deed of assignment.
He insisted that the assignment could not stand
independently due to its being a mere product of the
subcontract that had been based on his contract with
the DPWH; and that Tarnate, having been fully aware
of the illegality and ineffectuality of the deed of
assignment from the time of its execution, could not go
to court with unclean hands to invoke any right based
on the invalid deed of assignment or on the product of
such deed of assignment.7
Ruling of the RTC
On January 26, 2001, the RTC, opining that the deed
of assignment was a valid and binding contract, and
that Gonzalo must comply with his obligations under
the deed of assignment, rendered judgment in favor of
Tarnate as follows:
WHEREFORE, premises considered and as prayed for
by the plaintiff, John Tarnate, Jr. in his Complaint for
Sum of Money, Breach of Contract With Damages is
hereby RENDERED in his favor and against the
above-named defendant Domingo Gonzalo, the Court
now hereby orders as follows:
1. Defendant Domingo Gonzalo to pay the Plaintiff,
John Tarnate, Jr., the amount of TWO HUNDRED
THIRTY THREE THOUSAND FIVE HUNDRED
TWENTY SIX and 13/100 PESOS (P233,526.13)
representing the rental of equipment;
2. Defendant to pay Plaintiff the sum of THIRTY
THOUSAND (P30,000.00) PESOS by way of
reasonable Attorneys Fees for having
forced/compelled the plaintiff to litigate and engage the
services of a lawyer in order to protect his interest and
to enforce his right. The claim of the plaintiff for
attorneys fees in the amount of FIFTY THOUSAND
PESOS (P50,000.00) plus THREE THOUSAND
PESOS (P3,000.00) clearly appears to be
unconscionable and therefore reduced to Thirty
Thousand Pesos (P30,000.00) as aforestated making
the same to be reasonable;
3. Defendant to pay Plaintiff the sum of FIFTEEN
THOUSAND PESOS (P15,000.00) by way of litigation
expenses;
4. Defendant to pay Plaintiff the sum of TWENTY
THOUSAND PESOS (P20,000.00) for moral damages
and for the breach of contract; and
5. To pay the cost of this suit.
Award of exemplary damages in the instant case is not
warranted for there is no showing that the defendant
acted in a wanton, fraudulent, reckless, oppressive or
malevolent manner analogous to the case of Xentrex
Automotive, Inc. vs. Court of Appeals, 291 SCRA 66.8
Gonzalo appealed to the Court of Appeals (CA).
Decision of the CA
On February 18, 2003, the CA affirmed the RTC.9
Although holding that the subcontract was an illegal
agreement due to its object being specifically
prohibited by Section 6 of Presidential Decree No.
1594; that Gonzalo and Tarnate were guilty of entering
into the illegal contract in violation of Section 6 of
Presidential Decree No. 1594; and that the deed of
assignment, being a product of and dependent on the
subcontract, was also illegal and unenforceable, the
CA did not apply the doctrine of in pari delicto,
explaining that the doctrine applied only if the fault of
one party was more or less equivalent to the fault of
the other party. It found Gonzalo to be more guilty than
Tarnate, whose guilt had been limited to the execution
of the two illegal contracts while Gonzalo had gone to
the extent of violating the deed of assignment. It
declared that the crediting of the 10% retention fee
equivalent to P233,256.13 to his account had unjustly
enriched Gonzalo; and ruled, accordingly, that Gonzalo
should reimburse Tarnate in that amount because the
latters equipment had been utilized in the project.
Upon denial of his motion for reconsideration,10
Gonzalo has now come to the Court to seek the review
and reversal of the decision of the CA.
Issues
Gonzalo contends that the CA erred in affirming the
RTC because: (1) both parties were in pari delicto; (2)
the deed of assignment was void; and (3) there was no
compliance with the arbitration clause in the
subcontract.
Gonzalo submits in support of his contentions that the
subcontract and the deed of assignment, being
specifically prohibited by law, had no force and effect;
that upon finding both him and Tarnate guilty of
violating the law for executing the subcontract, the
RTC and the CA should have applied the rule of in pari
delicto, to the effect that the law should not aid either
party to enforce the illegal contract but should leave
them where it found them; and that it was erroneous to
accord to the parties relief from their predicament.11
Ruling
We deny the petition for review, but we delete the grant
of moral damages, attorneys fees and litigation
expenses.
There is no question that every contractor is prohibited
from subcontracting with or assigning to another
person any contract or project that he has with the
DPWH unless the DPWH Secretary has approved the
subcontracting or assignment. This is pursuant to
Section 6 of Presidential Decree No. 1594, which
provides:
Section 6. Assignment and Subcontract. The
contractor shall not assign, transfer, pledge,
subcontract or make any other disposition of the
contract or any part or interest therein except with the
approval of the Minister of Public Works,
Transportation and Communications, the Minister of
Public Highways, or the Minister of Energy, as the case
may be. Approval of the subcontract shall not relieve
the main contractor from any liability or obligation
under his contract with the Government nor shall it
create any contractual relation between the
subcontractor and the Government.
Gonzalo, who was the sole contractor of the project in
question, subcontracted the implementation of the
project to Tarnate in violation of the statutory
prohibition. Their subcontract was illegal, therefore,
because it did not bear the approval of the DPWH
Secretary. Necessarily, the deed of assignment was
also illegal, because it sprung from the subcontract. As
aptly observed by the CA:
x x x. The intention of the parties in executing the Deed
of Assignment was merely to cover up the illegality of
the sub-contract agreement. They knew for a fact that
the DPWH will not allow plaintiff-appellee to claim in
his own name under the Sub-Contract Agreement.
Obviously, without the Sub-Contract Agreement there
will be no Deed of Assignment to speak of. The
illegality of the Sub-Contract Agreement necessarily
affects the Deed of Assignment because the rule is
that an illegal agreement cannot give birth to a valid
contract. To rule otherwise is to sanction the act of
entering into transaction the object of which is
expressly prohibited by law and thereafter execute an
apparently valid contract to subterfuge the illegality.
The legal proscription in such an instance will be easily
rendered nugatory and meaningless to the prejudice of
the general public.12
Under Article 1409 (1) of the Civil Code, a contract
whose cause, object or purpose is contrary to law is a
void or inexistent contract. As such, a void contract
cannot produce a valid one.13 To the same effect is
Article 1422 of the Civil Code, which declares that "a
contract, which is the direct result of a previous illegal
contract, is also void and inexistent."
We do not concur with the CAs finding that the guilt of
Tarnate for violation of Section 6 of Presidential
Decree No. 1594 was lesser than that of Gonzalo, for,
as the CA itself observed, Tarnate had voluntarily
entered into the agreements with Gonzalo.14 Tarnate
also admitted that he did not participate in the bidding
for the project because he knew that he was not
authorized to contract with the DPWH.15 Given that
Tarnate was a businessman who had represented
himself in the subcontract as "being financially and
organizationally sound and established, with the
necessary personnel and equipment for the
performance of the project,"16 he justifiably presumed
to be aware of the illegality of his agreements with
Gonzalo. For these reasons, Tarnate was not less
guilty than Gonzalo.
According to Article 1412 (1) of the Civil Code, the
guilty parties to an illegal contract cannot recover from
one another and are not entitled to an affirmative relief
because they are in pari delicto or in equal fault. The
doctrine of in pari delicto is a universal doctrine that
holds that no action arises, in equity or at law, from an
illegal contract; no suit can be maintained for its
specific performance, or to recover the property agreed
to be sold or delivered, or the money agreed to be
paid, or damages for its violation; and where the
parties are in pari delicto, no affirmative relief of any
kind will be given to one against the other.17
Nonetheless, the application of the doctrine of in pari
delicto is not always rigid.1wphi1 An accepted
exception arises when its application contravenes well-
established public policy.18 In this jurisdiction, public
policy has been defined as "that principle of the law
which holds that no subject or citizen can lawfully do
that which has a tendency to be injurious to the public
or against the public good."19
Unjust enrichment exists, according to Hulst v. PR
Builders, Inc.,20 "when a person unjustly retains a
benefit at the loss of another, or when a person retains
money or property of another against the fundamental
principles of justice, equity and good conscience." The
prevention of unjust enrichment is a recognized public
policy of the State, for Article 22 of the Civil Code
explicitly provides that "[e]very person who through an
act of performance by another, or any other means,
acquires or comes into possession of something at the
expense of the latter without just or legal ground, shall
return the same to him." It is well to note that Article 22
"is part of the chapter of the Civil Code on Human
Relations, the provisions of which were formulated as
basic principles to be observed for the rightful
relationship between human beings and for the stability
of the social order; designed to indicate certain norms
that spring from the fountain of good conscience;
guides for human conduct that should run as golden
threads through society to the end that law may
approach its supreme ideal which is the sway and
dominance of justice."21
There is no question that Tarnate provided the
equipment, labor and materials for the project in
compliance with his obligations under the subcontract
and the deed of assignment; and that it was Gonzalo
as the contractor who received the payment for his
contract with the DPWH as well as the 10% retention
fee that should have been paid to Tarnate pursuant to
the deed of assignment.22 Considering that Gonzalo
refused despite demands to deliver to Tarnate the
stipulated 10% retention fee that would have
compensated the latter for the use of his equipment in
the project, Gonzalo would be unjustly enriched at the
expense of Tarnate if the latter was to be barred from
recovering because of the rigid application of the
doctrine of in pari delicto. The prevention of unjust
enrichment called for the exception to apply in
Tarnates favor. Consequently, the RTC and the CA
properly adjudged Gonzalo liable to pay Tarnate the
equivalent amount of the 10% retention fee (i.e.,
P233,526.13).
Gonzalo sought to justify his refusal to turn over the
P233,526.13 to Tarnate by insisting that he (Gonzalo)
had a debt of P200,000.00 to Congressman Victor
Dominguez; that his payment of the 10% retention fee
to Tarnate was conditioned on Tarnate paying that
debt to Congressman Dominguez; and that he refused
to give the 10% retention fee to Tarnate because
Tarnate did not pay to Congressman Dominguez.23
His justification was unpersuasive, however, because,
firstly, Gonzalo presented no proof of the debt to
Congressman Dominguez; secondly, he did not
competently establish the agreement on the condition
that supposedly bound Tarnate to pay to Congressman
Dominguez;24 and, thirdly, burdening Tarnate with
Gonzalos personal debt to Congressman Dominguez
to be paid first by Tarnate would constitute another
case of unjust enrichment.
The Court regards the grant of moral damages,
attorneys fees and litigation expenses to Tarnate to be
inappropriate. We have ruled that no damages may be
recovered under a void contract, which, being
nonexistent, produces no juridical tie between the
parties involved.25 It is notable, too, that the RTC and
the CA did not spell out the sufficient factual and legal
justifications for such damages to be granted.
Lastly, the letter and spirit of Article 22 of the Civil
Code command Gonzalo to make a full reparation or
compensation to Tarnate. The illegality of their contract
should not be allowed to deprive Tarnate from being
fully compensated through the imposition of legal
interest. Towards that end, interest of 6% per annum
reckoned from September 13, 1999, the time of the
judicial demand by Tarnate, is imposed on the amount
of P233,526.13. Not to afford this relief will make a
travesty of the justice to which Tarnate was entitled for
having suffered too long from Gonzalos unjust
enrichment.
WHEREFORE, we AFFIRM the decision promulgated
on February 18, 2003, but DELETE the awards of
moral damages, attorneys fees and litigation
expenses; IMPOSE legal interest of 6% per annum on
the principal oLP233,526.13 reckoned from September
13, 1999; and DIRECT the petitioner to pay the costs
of suit. SO ORDERED.
ARTICLE 26 ACTION FOR DAMAGES
a.) Jerome Castro vs People
This petition for review on certiorari1 emanated from
the complaint for grave oral defamation2 filed by Albert
P. Tan against petitioner Jerome Castro.
The facts follow.
On November 11, 2002, Reedley International School
(RIS) dismissed Tans son, Justin Albert (then a Grade
12 student), for violating the terms of his disciplinary
probation.3 Upon Tans request, RIS reconsidered its
decision but imposed "non-appealable" conditions such
as excluding Justin Albert from participating in the
graduation ceremonies.
Aggrieved, Tan filed a complaint in the Department of
Education (Dep-Ed) for violation of the Manual of
Regulation of Private Schools, Education Act of 1982
and Article 19 of the Civil Code4 against RIS. He
alleged that the dismissal of his son was undertaken
with malice, bad faith and evident premeditation. After
investigation, the Dep-Ed found that RIS code violation
point system allowed the summary imposition of
unreasonable sanctions (which had no basis in fact
and in law). The system therefore violated due
process. Hence, the Dep-Ed nullified it. 5
Meanwhile, on November 20, 2002, the Dep-Ed
ordered RIS to readmit Justin Albert without any
condition.6 Thus, he was able to graduate from RIS
and participate in the commencement ceremonies held
on March 30, 2003.
After the graduation ceremonies, Tan met Bernice C.
Ching, a fellow parent at RIS. In the course of their
conversation, Tan intimated that he was contemplating
a suit against the officers of RIS in their personal
capacities, including petitioner who was the assistant
headmaster.
Ching telephoned petitioner sometime the first week of
April and told him that Tan was planning to sue the
officers of RIS in their personal capacities. Before they
hung up, petitioner told Ching:
Okay, you too, take care and be careful talking to
[Tan], thats dangerous.
Ching then called Tan and informed him that petitioner
said "talking to him was dangerous."
Insulted, Tan filed a complaint for grave oral
defamation in the Office of the City Prosecutor of
Mandaluyong City against petitioner on August 21,
2003.
On November 3, 2003, petitioner was charged with
grave oral defamation in the Metropolitan Trial Court
(MeTC) of Mandaluyong City, Branch 607 under the
following Information:
That on or about the 13th day of March, 2003 in the
City of Mandaluyong, Philippines, a place within the
jurisdiction of this Honorable Court, the above-named
[petitioner], with deliberate intent of bringing ATTY.
ALBERT P. TAN, into discredit, dishonor, disrepute
and contempt, did then and there, willfully, unlawfully
and feloniously speak and utter the following words to
Ms. Bernice C. Ching:
"OK, YOU TOO, YOU TAKE CARE AND BE
CAREFUL TALKING TO [TAN], THATS
DANGEROUS."
and other words of similar import of a serious and
insulting nature.
CONTRARY TO LAW.
Petitioner pleaded not guilty during arraignment.
The prosecution essentially tried to establish that
petitioner depicted Tan as a "dangerous person."
Ching testified that petitioner warned her that talking to
Tan was dangerous. Tan, on the other hand, testified
that petitioners statement shocked him as it portrayed
him as "someone capable of committing undesirable
acts." He added that petitioner probably took offense
because of the complaint he filed against RIS in the
Dep-Ed.
For his defense, petitioner denied harboring ill-feelings
against Tan despite the latters complaint against RIS
in the Dep-Ed. Although he admitted conversing with
Ching (whom he considered as a close acquaintance)
on the telephone a few days after RIS 2003
commencement exercises, petitioner asserted that he
never said or insinuated that Tan or talking to Tan was
dangerous. On cross-examination, however, he did not
categorically deny the veracity of Chings statement.
The MeTC found that Chings statements in her
affidavit and in open court were consistent and that she
did not have any motive to fabricate a false statement.
Petitioner, on the other hand, harbored personal
resentment, aversion and ill-will against Tan since the
Dep-Ed compelled RIS to readmit his son. Thus, the
MeTC was convinced that petitioner told Ching talking
to Tan was dangerous and that he uttered the
statement with the intention to insult Tan and tarnish
his social and professional reputation.
In a decision dated December 27, 2005, the MeTC
found petitioner guilty beyond reasonable doubt of
grave oral defamation:8
WHEREFORE, judgment is hereby rendered finding
accused, Jerome Castro GUILTY beyond reasonable
doubt of the crime of Grave Oral Defamation,
sentencing him therefore, in accordance to Article
358(1) of the Revised Penal Code and applying the
Indeterminate Sentence Law to suffer the penalty of
imprisonment of 1 month and 1 day of arresto mayor
as minimum to 4 months and 1 day of arresto mayor as
maximum.
On appeal, the Regional Trial Court (RTC) affirmed the
factual findings of the MeTC. However, in view of the
animosity between the parties, it found petitioner guilty
only of slight oral defamation. But because Tan filed
his complaint in the Office of the City Prosecutor of
Mandaluyong City only on August 21, 2003 (or almost
five months from discovery), the RTC ruled that
prescription had already set in; it therefore acquitted
petitioner on that ground. 9
On April 19, 2007, the Office of the Solicitor General
(OSG) filed a petition for certiorari in the Court of
Appeals (CA) assailing the decision of the RTC.10 It
contended that the RTC acted with grave abuse of
discretion when it downgraded petitioners offense to
slight oral defamation. The RTC allegedly
misappreciated the antecedents which provoked
petitioner to utter the allegedly defamatory statement
against Tan.
The CA found that the RTC committed grave abuse of
discretion when it misapprehended the totality of the
circumstances and found petitioner guilty only of slight
oral defamation. Thus, the CA reinstated the MeTC
decision.11
Petitioner moved for reconsideration but it was
denied.12 Hence, this recourse.
Petitioner basically contends that the CA erred in
taking cognizance of the petition for certiorari inasmuch
as the OSG raised errors of judgment (i.e., that the
RTC misappreciated the evidence presented by the
parties) but failed to prove that the RTC committed
grave abuse of discretion. Thus, double jeopardy
attached when the RTC acquitted him.
We grant the petition.
No person shall be twice put in jeopardy of punishment
for the same offense.13 This constitutional mandate is
echoed in Section 7 of Rule 117 of the Rules of Court
which provides:
Section 7. Former conviction or acquittal; double
jeopardy. When an accused has been convicted or
acquitted or the case against him dismissed or
otherwise terminated without his express consent by a
court of competent jurisdiction, upon a valid complaint
or in information or other formal charge sufficient in
form and substance to sustain a conviction and after
the accused had pleaded to the charge, the conviction
or acquittal of the accused or the dismissal of the case
shall be a bar to another prosecution for the offense
charged or for any attempt to commit the same or
frustration thereof, or for any offense which necessarily
includes or is necessarily included in the offense
charged in the former complaint or information.
xxx xxx xxx
Under this provision, double jeopardy occurs upon (1)
a valid indictment (2) before a competent court (3) after
arraignment (4) when a valid plea has been entered
and (5) when the accused was acquitted or convicted
or the case was dismissed or otherwise terminated
without the express consent of the accused.14 Thus,
an acquittal, whether ordered by the trial or appellate
court, is final and unappealable on the ground of
double jeopardy.15
The only exception is when the trial court acted with
grave abuse of discretion or, as we held in Galman v.
Sandiganbayan,16 when there was mistrial. In such
instances, the OSG can assail the said judgment in a
petition for certiorari establishing that the State was
deprived of a fair opportunity to prosecute and prove its
case.17
The rationale behind this exception is that a judgment
rendered by the trial court with grave abuse of
discretion was issued without jurisdiction. It is, for this
reason, void. Consequently, there is no double
jeopardy.
In this case, the OSG merely assailed the RTCs
finding on the nature of petitioners statement, that is,
whether it constituted grave or slight oral defamation.
The OSG premised its allegation of grave abuse of
discretion on the RTCs "erroneous" evaluation and
assessment of the evidence presented by the
parties.1awph!1
What the OSG therefore questioned were errors of
judgment (or those involving misappreciation of
evidence or errors of law). However, a court, in a
petition for certiorari, cannot review the public
respondents evaluation of the evidence and factual
findings.18 Errors of judgment cannot be raised in a
Rule 65 petition as a writ of certiorari can only correct
errors of jurisdiction (or those involving the commission
of grave abuse of discretion).19
Because the OSG did not raise errors of jurisdiction,
the CA erred in taking cognizance of its petition and,
worse, in reviewing the factual findings of the RTC.20
We therefore reinstate the RTC decision so as not to
offend the constitutional prohibition against double
jeopardy.
At most, petitioner could have been liable for damages
under Article 26 of the Civil Code21 :
Article 26. Every person shall respect the dignity,
personality, privacy and peace of mind of his neighbors
and other persons. The following and similar acts,
though they may not constitute a criminal offense, shall
produce a cause of action for damages, prevention and
other relief:
xxx xxx xxx
(3) Intriguing to cause another to be alienated from his
friends;
xxx xxx xxx
Petitioner is reminded that, as an educator, he is
supposed to be a role model for the youth. As such, he
should always act with justice, give everyone his due
and observe honesty and good faith.22
WHEREFORE, the petition is hereby GRANTED. The
August 29, 2007 decision and December 5, 2007
resolution of the Court of Appeals in CA-G.R. SP No.
98649 are REVERSED and SET ASIDE. The
November 20, 2006 decision of the Regional Trial
Court of Mandaluyong City, Branch 212 is
REINSTATED. Petitioner Jerome Castro is
ACQUITTED of slight oral defamation as defined and
penalized in Article 358 of the Revised Penal Code. No
pronouncement as to costs. SO ORDERED.
ARTICLE 27 LIABILTY OF PUBLIC SERVANTS
a.) Ledesma vs CA and Delmo
This petition seeks to reverse the decision of the
respondent Court of Appeals which afirmed the
decision of the Court of First Instance of Iloilo,
adjudging the petitioner, who was then the President of
the West Visayas College liable for damages under
Article 27 of the Civil Code of the Philippines for failure
to graduate a student with honors.
The facts are not disputed.
An organization named Student Leadership Club was
formed by some students of the West Visayas College.
They elected the late Violets Delmo as the treasurer. In
that capacity, Delmo extended loans from the funds of
the club to some of the students of the school. "the
petitioner claims that the said act of extending loans
was against school rules and regulations. Thus, the
petitioner, as President of the School, sent a letter to
Delmo informing her that she was being dropped from
the membership of the club and that she would not be
a candidate for any award or citation from the school.
Delmo asked for a reconsideration of the decision but
the petitioner denied it. Delmo, thus, appealed to the
Office of the Director of the Bureau of Public Schools.
The Director after due investigation, rendered a
decison on April 13, 1966 which provided:
Records of the preliminary investigation conducted by
one of the legal officers of this Office disclosed the
following: That Violeta Delmo was the treasurer of the
Student Leadership Club, an exclusive student
organization; that pursuant to Article IX of the of the
Constitution and By-Laws of the club, it passed
Resolution No. 2, authorizing the treasurer to disburse
funds of the Club to student for financial aid and other
humanitarian purposes; that in compliance with said
resolution and as treasurer of the Club, Violeta Delmo
extended loans to some officers and members of the
Club upon proper application duly approved by the
majority of the members of the Executive Board; and
that upon receiving the report from Mr. Jesse Dagoon,
adviser of the funds of the Club, that Office conducted
an investigation on the matter and having been
convinced of the guilt of Violets Delmo and the other
officers and members of the Club, that Office rendered
the order or decision in question. In justifying that
Office's order or decision, it is contended that approval
by that Office of the Constitution and By-Laws of the
Club is necessary for its effectivity and validity and
since it was never submitted to that Office, the Club
had no valid constitution and By-Laws and that as a
consequence, Resolution No. 2 which was passed
based on the Constitution and By-Laws- is without any
force and effect and the treasurer, Violeta Delmo, who
extended loans to some officers and members of the
Club pursuant thereto are illegal (sic), hence, she and
the other students involved are deemed guilty of
misappropriating the funds of the Club. On the other
hand, Raclito Castaneda, Nestor Golez and Violeta
Delmo, President, Secretary and Treasurer of the Club,
respectively, testified that the Club had adopted its
Constitution and By-Laws in a meeting held last
October 3, 1965, and that pursuant to Article I of said
Constitution and By-Laws, the majority of the members
of the Executive Board passed Resolution No. 2, which
resolution became the basis for the extension on of
loans to some officers and members of the Club, that
the Club honestly believed that its Constitution and By-
Laws has been approved by the superintendent
because the adviser of the Club, Mr. Jesse Dagoon,
assured the President of the Club that he will cause the
approval of the Constitution and By-Laws by the
Superintendent; the officers of the Club have been
inducted to office on October 9,1965 by the
Superintendent and that the Club had been likewise
allowed to cosponsor the Education Week Celebration.
After a careful study of the records, this Office sustains
the action taken by the Superintendent in penalizing
the adviser of the Club as well as the officers and
members thereof by dropping them from membership
therein. However, this Office is convinced that Violets
M. Delmo had acted in good faith, in her capacity as
Club Treasurer, in extending loans to the officers and
members of the Student partnership Club. Resolution
No. 2 authorizing the Club treasurer to discharge finds
to students in need of financial assistance and other
humanitarian purposes had been approved by the Club
adviser, Mr. Jesse Dagoon, with the notation that
approval was given in his capacity as adviser of the
Club and extension of the Superintendent's personality.
Aside from misleading the officers and members of the
Club, Mr. Dagoon, had unsatisfactorily explained why
he failed to give the Constitution and By-Laws of the
Club to the Superintendent for approval despite his
assurance to the Club president that he would do so.
With this finding of negligence on the part of the Club
adviser, not to mention laxity in the performance of his
duties as such, this Office considers as too severe and
unwarranted that portion of the questioned order
stating that Violeta Delmo "shall not be a candidate for
any award or citation from this school or any
organization in this school." Violeta Delmo, it is noted,
has been a consistent full scholar of the school and
she alone has maintained her scholarship. The
decision in question would, therefore, set at naught all
her sacrifice and frustrate her dreams of graduating
with honors in this year's commencement exercises.
In view of all the foregoing, this Office believes and so
holds and hereby directs that appellant Violeta. M.
Delmo, and for that matter all other Club members or
officers involved in this case, be not deprived of any
award, citation or honor from the school, if they are
otherwise entitled thereto. (Rollo, pp. 28-30)
On April 27, 1966, the petitioner received by mail the
decision of the Director and all the records of the case.
On the same day, petitioner received a telegram
stating the following:
"AIRMAIL RECORDS DELMO CASE MISSENT THAT
OFFICE"
The Director asked for the return only of the records
but the petitioner allegedly mistook the telegram as
ordering him to also send the decision back. On the
same day, he returned by mail all the records plus the
decision of the Director to the Bureau of Public
Schools.
The next day, the petitioner received another telegram
from the Director order him to furnish Delmo with a
copy of the decision. The petitioner, in turn, sent a
night letter to the Director informing the latter that he
had sent the decision back and that he had not
retained a copy thereof..
On May 3, 1966, the day of the graduation, the
petitioner received another telegram from the Director
ordering him not to deprive Delmo of any honors due
her. As it was impossible by this time to include
Delmo's name in the program as one of the honor
students, the petitioner let her graduate as a plain
student instead of being awarded the Latin honor of
Magna Cum Laude.
To delay the matter further, the petitioner on May 5,
1966, wrote the Director for a reconsideration of the
latters" decision because he believed that Delmo
should not be allowed to graduate with honors. The
Director denied the petitioner's request.
On July 12, 1966, the petitioner finally instructed the
Registrar of the school to enter into the scholastic
records of Delmo the honor, "Magna Cum Laude."
On July 30, 1966, Delmo, then a minor, was joined by
her parents in flag action for damages against the
petitioner. During the pendency of the action, however,
Delmo passed away, and thus, an Amended and
Supplemental Complaint was filed by her parents as
her sole and only heirs.
The trial court after hearing rendered judgment against
the petitioner and in favor of the spouses Delmo. The
court said:
Let us go to specific badges of the defendants (now
petitioners) bad faith. Per investigation of Violeta
Delmo's appeal to Director Vitaliano Bernardino of the
Bureau of Public Schools (Exhibit L it was the
defendant who inducted the officers of the Student
Leadership Club on October 9, 1965. In fact the Club
was allowed to cosponsor the Education Week
Celebration. (Exh. "L"). If the defendant he not approve
of the constitution and by-laws of the Club, why did he
induct the officers into office and allow the Club to
sponsor the Education Week Celebration"? It was
through his own act that the students were misled to do
as they did. Coupled with the defendants tacit
recognition of the Club was the assurance of Mr. Jemm
Dagoon, Club Adviser, who made the students believe
that he was acting as an extension of Mr. Ledesma's
personality. (Exhibit "L").
Another badge of the defendan'ts want of good faith is
the fact that, although, he kaew as early as April
27,1966 that per on of r Bernardino, Exhibit "L," he was
directed to give honors to Miss Delmo, he kept Id
information to . He told the Court that he knew that the
letter of Director Bernardino directed him not to deprive
Miss Delmo the honors due her, but she (sic) says that
he has not finished reading the letter-decision, Exhibit
"L," of Director Bernardino 0, him to give honors to
Miss Delmo. (Tsn, Feb. 5, 1974, testimony of Mr.
Ledesma, pp. .33-35). It could not be true that he has
not finished reading the letter-decision, Exh. "L,"
because said letter consisted of only three pages, and
the portion which directed that Miss Delmo "be not
deprived of any award, citation or honor from the
school, if otherwise entitled thereto is found at the last
paragraph of the same. How did he know the last
paragraph if he did not read the letter.
Defendants actuations regarding Miss Delmo's cam
had been one of bias and prejudice. When his action
would favor him, he was deliberate and aspect to the
utter prejudice and detriment of Miss Delmo. Thus,
although, as early as April 27, 1966, he knew of the
exoneration of Miss Delino by Director Bernardino, he
withheld the information from Miss Delmo. This is
eloquently dramatized by Exh. "11" and Exh. "13" On
April 29,1966, Director Bernardino cabled him to
furnish Violeta Delmo copy of the Decision, Exh. "L,"
but instead of informing Miss Delmo about the
decision, since he said he mailed back the decision on
April 28,1966, he sent a night letter on April 29,1966, to
Director Bernardino, informing the latter that he had
returned the decision (Exh. "l3"), together with the
record. Why a night letter when the matter was of
utmost urgency to the parties in the case, because
graduation day was only four days ahead? An
examination of the telegrams sent by the defendant
shows that he had been sending ordinary telegram and
not night letters. (Exh. "5", Exhibit "7"). At least, if the
defendant could not furnish a copy of the decision,
(Exh. "L"), to Miss Delmo, he should have told her
about it or that Miss Delmo's honors and citation in the
commencement be announced or indicated. But Mr.
Ledesma is one who cannot admit a mistake. Very
ungentlemanly this is home out by his own testimony
despite his knowledge that his decision to deprive Miss
Delmo of honors due to her was overturned by Director
Bernardino, he on his wrong belief. To quote the
defendant,1 believed that she did not deserve those
honors(Tsn Feb. 5, 1974, p. 43,Empasized supplied).
Despite the telegram of Director Bernardino which the
defendant received hours before the commencement
executory on May 3-4,1966, he did not obey Director
Bernardino because he said in his testimony that he
would be embarrassment . Tan Feb 5,1974, P. 46).
Evidently, he knew only his embarrassment and not
that of r Bernardino whose order was being flagrantly
and wantonly disregarded by bim And certainly, not the
least of Miss Delmo's embarrassment. His acts speak
eloquently of ho bad faith and unjust of mindwarped by
his delicate sensitivity for having been challenged by
Miss Delmo, a mere student.
xxx xxx xxx
Finally the defendant's behaviour relative to Miss s
case smacks of contemptuous arrogance, oppression
and abuse of power. Come to think of it. He refused to
obey the directive of Be o and instead, chose to feign
ignorance of it." (Reward on Appeal, p. 72-76).
The trial court awarded P20,000.00 to the estate of
Violeta Delmo and P10,000.00 to her parents for moral
damages; P5,000.00 for nominal damages to Violeta's
estate; exemplary damages of P10,000.00 and
P2,000.00 attorney's fees.
On appeal, the Court of Appeals affirmed the decision.
Hence, this petition.
The issues raised in this petition can be reduced to the
sole question of whether or not the respondent Court of
Appeals erred in affirming the trial court's finding that
petitioner is liable for damages under Article 27 of the
New Civil Code.
We find no reason why the findings of the trial and
appellate courts should be reversed. It cannot be
disputed that Violeta Delmo went through a painful
ordeal which was brought about by the petitioner's
neglect of duty and callousness. Thus, moral damages
are but proper. As we have affirmed in the case of
(Prudenciado v. Alliance Transport System, Inc., 148
SCRA 440, 448):
There is no argument that moral damages include
physical suffering, mental anguish, fright, serious
anxiety, besmirched reputation, wounded feelings,
moral shock, social humiliation, and similar injury.
Though incapable of pecuniary computation, moral
damages may be recovered if they are the proximate
result of defendant's wrongly act or omission." (People
v. Baylon, 129 SCRA 62 (1984).
The Solicitor-General tries to cover-up the petitioner's
deliberate omission to inform Miss Delmo by stating
that it was not the duty of the petitioner to furnish her a
copy of the Director's decision. Granting this to be true,
it was nevertheless the petitioner's duty to enforce the
said decision. He could have done so considering that
he received the decision on April 27, 1966 and even
though he sent it back with the records of the case, he
undoubtedly read the whole of it which consisted of
only three pages. Moreover, the petitioner should have
had the decency to meet with Mr. Delmo, the girl's
father, and inform the latter, at the very least of the
decision. This, the petitioner likewise failed to do, and
not without the attendant bad faith which the appellate
court correctly pointed out in its decision, to wit:
Third, assuming that defendant could not furnish Miss
Delmo of a copy of the decision, he could have used
his discretion and plain common sense by informing
her about it or he could have directed the inclusion of
Miss Delmo's honor in the printed commencement
program or announced it during the commencement
exercises.
Fourth, defendant despite receipt of the telegram of
Director Benardino hours before the commencement
exercises on May 3-4, 1966, disobeyed his superior by
refusing to give the honors due Miss Delmo with a
lame excuse that he would be embarrassed if he did
so, to the prejudice of and in complete disregard of
Miss Delmo's rights.
Fifth, defendant did not even extend the courtesy of
meeting Mr. Pacifico Delmo, father of Miss Delmo, who
tried several times to see defendant in his office thus
Mr. Delmo suffered extreme disappointment and
humiliation.
xxx xxx xxx
Defendant, being a public officer should have acted
with circumspection and due regard to the rights of
Miss Delmo. Inasmuch as he exceeded the scope of
his authority by defiantly disobeying the lawful directive
of his superior, Director Bernardino, defendant is liable
for damages in his personal capacity. . . . (Rollo, pp-
57-58)
Based on the undisputed facts, exemplary damages
are also in order. In the same case of Prudenciado v.
Alliance Transport System, Inc., supra., at p. 450, we
ruled:
The rationale behind exemplary or corrective damages
is, as the name implies, to provide an example or
correction for the public good (Lopez, et al. v. Pan
American World Airways, 16 SCRA 431).
However, we do not deem it appropriate to award the
spouses Delmo damages in the amount of P10,000.00
in their individual capacity, separately from and in
addition to what they are already entitled to as sole
heirs of the deceased Violeta Delmo. Thus, the
decision is modified insofar as moral damages are
awarded to the spouses in their own behalf.
WHEREFORE, the petition is DISMISSED for lack of
merit. The decision of the Court of Appeals is
AFFIRMED with the slight modification as stated in the
preceding paragraph. This decision is immediately
executory. SO ORDERED.
b.) Campugan vs Tolentino, Jr.
In this consolidated administrative case, complainants
Jessie T. Campugan and Robert C. Torres seek the
disbarment of respondents Atty. Federico S. Tolentino,
Jr., Atty. Daniel F. Victorio, Jr., Atty. Renato G.
Cunanan, Atty. Elbert T. Quilala and Atty. Constante P.
Caluya, Jr. for allegedly falsifying a court order that
became the basis for the cancellation of their
annotation of the notice ofadverse claim and the notice
of lis pendens in the Registry of Deeds in Quezon City.
Antecedents
Atty. Victorio, Jr. had replaced Atty. Edgardo Abad as
counsel of the complainants in a civil action they
brought to seek the annulment of Transfer Certificate
of Title (TCT) No. N-290546 of the Registry of Deeds
of Quezon City in the first week of January 2007 in the
Regional Trial Court (RTC) in Quezon City (Civil Case
No. Q-07-59598). They impleaded as defendants
Ramon and Josefina Ricafort, Juliet Vargas and the
Register of Deeds of Quezon City. They caused to be
annotated on TCT No. N-290546 their affidavit of
adverse claim, as well as the notice of lis pendens.1
Atty. Tolentino, Jr. was the counsel of defendant
Ramon and Josefina Ricafort.
In their sworn complaint for disbarment dated April 23,
2009 (later docketed as A.C. No. 8261),2 the
complainants narrated that as the surviving children of
the late Spouses Antonio and Nemesia Torres, they
inherited upon the deaths of their parents a residential
lot located at No. 251 Boni Serrano Street, Murphy,
Cubao, Quezon City registered under Transfer
Certificate of Title (TCT) No. RT-64333(35652) of the
Register of Deeds of Quezon City;3 that on August 24,
2006, they discovered that TCT No. RT-64333(35652)
had been unlawfully cancelled and replaced by TCT
No. N-290546 of the Register of Deeds of Quezon City
under the names of Ramon and Josefina Ricafort;4
and that, accordingly, they immediately caused the
annotation of their affidavit of adverse claim on TCT
No. N-290546.
It appears that the parties entered into an amicable
settlement during the pendency of Civil Case No. Q-
07-59598 in order to end their dispute,5 whereby the
complainants agreed to sell the property and the
proceeds thereof would be equally divided between the
parties, and the complaint and counterclaim would be
withdrawn respectively by the complainants (as the
plaintiffs) and the defendants. Pursuant to the terms of
the amicable settlement, Atty. Victorio, Jr. filed a
Motion to Withdraw Complaint dated February 26,
2008,6 which the RTC granted in its order dated May
16, 2008 upon noting the defendants lack of objection
thereto and the defendants willingness to similarly
withdraw their counterclaim.7
The complainants alleged that from the time of the
issuance by the RTC of the order dated May 16, 2008,
they could no longer locate or contact Atty. Victorio, Jr.
despite making several phone calls and visits to his
office; that they found out upon verification at the
Register of Deeds of Quezon City that new annotations
were made on TCT No. N-290546, specifically: (1) the
annotation of the letter-request appearing to be filed by
Atty. Tolentino, Jr.8 seeking the cancellation of the
affidavit of adverse claim and the notice of lis pendens
annotated on TCT No. N-290546; and (2) the
annotation of the decision dated May 16, 2008
rendered in Civil Case No. Q-07-59598 by the RTC,
Branch 95, in Quezon City, granting the complainants
Motion to Withdraw Complaint;9 and that a copy of the
letter request dated June 30, 2008 addressed to Atty.
Quilala, Registrar of Deeds of Quezon City, disclosed
that it was defendant Ramon Ricafort who had signed
the letter.
Feeling aggrieved by their discovery, the complainants
filed an appeal en consulta with the Land Registration
Authority (LRA), docketed as Consulta No. 4707,
assailing the unlawful cancellation of their notice of
adverse claim and their notice of lis pendens under
primary entries PE-2742 and PE-3828-9, respectively.
The LRA set Consulta No. 4707 for hearing on March
30, 2009, and directed the parties to submit their
respective memoranda and/or supporting documents
on or beforesuch scheduled hearing.10 However, the
records do not disclose whether Consulta No. 4707
was already resolved, or remained pending at the LRA.
Unable to receive any response or assistance from
Atty. Victorio, Jr. despite their having paid him for his
professional services, the complainants felt that said
counsel had abandoned their case. They submitted
that the cancellation of their notice of adverse claim
and their notice of lis pendens without a court order
specifically allowing such cancellation resulted from the
connivance and conspiracy between Atty. Victorio, Jr.
and Atty. Tolentino, Jr., and from the taking advantage
of their positions as officials in the Registry of Deeds
by respondents Atty. Quilala, the Chief Registrar, and
Atty. Cunanan, the acting Registrar and signatory of
the new annotations. Thus, they claimed to be thereby
prejudiced.
On July 6, 2009, the Court required the respondents to
comment on the verified complaint.11 Atty. Victorio, Jr.
asserted in his Comment dated August 17, 200912 that
complainant Robert Torres had been actively involved
in the proceedings in Civil Case No. Q-07-59598,
which included the mediation process; that the
complainants, after having aggressively participated in
the drafting of the amicable settlement, could not now
claim that they had been deceived into entering the
agreement in the same way that they could not feign
ignorance of the conditions contained therein; that he
did not commit any abandonment as alleged, but had
performed in good faith his duties as the counsel for
the complainants in Civil Case No. Q-07-59598; that he
should not be held responsible for their representation
in other proceedings, such as that before the LRA,
which required a separate engagement; and that the
only payment he had received from the complainants
were those for his appearance fees of P1,000.00 for
every hearing in the RTC.
In his Comment dated August 24, 2009,13 Atty.
Tolentino, Jr. refuted the charge of conspiracy,
stressing that he was not acquainted with the other
respondents, except Atty. Victorio, Jr. whom he had
met during the hearings in Civil Case No. Q-07-59598;
that although he had notarized the letter request dated
June 30, 2008 of Ramon Ricafort to the Register of
Deeds, he had no knowledge about how said letter-
request had been disposed of by the Register of
Deeds; and that the present complaint was the second
disbarment case filed by the complainants against him
with no other motive except to harass and intimidate
him.
Atty. Quilala stated in his Comment dated September
1, 200914 that it was Atty. Caluya, Jr., another Deputy
Register of Deeds, who was the actual signing
authority of the annotations that resulted in the
cancellation of the affidavit of adverse claim and the
notice of lis pendens on TCT No. N-290546; that the
cancellation of the annotations was undertaken in the
regular course of official duty and in the exercise of the
ministerial duty of the Register of Deeds; that no
irregularity occurred or was performed in the
cancellation of the annotations; and that the Register of
Deeds was impleaded in Civil Case No. Q-07-59598
only as a nominal party, thereby discounting any
involvement in the proceedings in the case.
Atty. Cunanan did not file any comment.15
As the result of Atty. Quilalas allegation in his
Comment in A.C. No. 8261 that it had been Atty.
Caluya, Jr.s signature that appeared below the
cancelled entries, the complainants filed another sworn
disbarment complaint dated August 26, 2010 alleging
that Atty. Caluya, Jr. had forged the signature of Atty.
Cunanan.16 This disbarment complaint was docketed
as A.C. No. 8725, and was later on consolidated with
A.C. No. 826117 because the complaints involved the
same parties and rested on similar allegations against
the respondents.
Atty. Quilala filed his Comment in A.C. No. 8725 to
belie the allegation of forgery and to reiterate the
arguments he had made in A.C. No. 8261.18 On his
part, Atty. Caluya, Jr. manifested that he adopted Atty.
Quilalas Comment.19
Ruling
We dismiss the complaints for disbarment for being
bereft of merit.
Well entrenched in this jurisdiction is the rule that a
lawyer may be disciplined for misconduct committed
either in his professional or private capacity. The test is
whether his conduct shows him to be wanting in moral
character, honesty, probity, and good demeanor, or
whether his conduct renders him unworthy to continue
as an officer of the Court.20 Verily, Canon 7 of the
Code of Professional Responsibility mandates all
lawyers to uphold at all times the dignity and integrity
of the Legal Profession. Lawyers are similarly required
under Rule 1.01, Canon 1 of the same Code not to
engage in any unlawful, dishonest and immoral or
deceitful conduct. Failure to observe these tenets of
the Code of Professional Responsibility exposes the
lawyer to disciplinary sanctions as provided in Section
27, Rule 138 of the Rules of Court, as amended, viz.:
Section 27. Disbarment or suspension of attorneys by
Supreme Court, grounds therefor. A member of the
bar may be disbarred or suspended from his office as
attorney by the Supreme Court for any deceit,
malpractice, or other gross misconduct in such office,
grossly immoral conduct, or by reason of his conviction
of a crime involving moral turpitude, or for any violation
of the oath which he is required to take before the
admission to practice, or for a wilful disobedience
appearing as an attorney for a party to a case without
authority so to do. The practice of soliciting cases at
law for the purpose of gain, either personally or
through paid agents or brokers, constitutes
malpractice.
The complainants allegations of the respondents acts
and omissions are insufficient to establish any
censurable conduct against them.
Section 10 of Presidential Decree No. 1529 (Property
Registration Decree) enumerates the general duties of
the Register of Deeds, as follows:
Section 10. General functions of Registers of Deeds.
xxx
It shall be the duty of the Register of Deeds to
immediately register an instrument presented for
registration dealing with real or personal property
which complies with all the requisites for registration.
He shall see to it that said instrument bears the proper
documentary science stamps and that the same are
properly canceled. If the instrument is not registrable,
he shall forthwith deny registration thereof and inform
the present or of such denial in writing, stating the
ground or reason therefor, and advising him of his right
to appeal by consulta in accordance with Section 117
of this Decree. (Emphasis supplied)
The aforementioned duty of the Register of Deeds is
ministerial in nature.21 A purely ministerial act or duty
is one that an officer or tribunal performs in a given
state of facts, in a prescribed manner, in obedience to
the mandate of a legal authority, without regard to or
the exercise of his own judgment upon the propriety or
impropriety of the act done. If the law imposes a duty
upon a public officer and gives him the right to decide
how or when the duty shall be performed, such duty is
discretionary, not ministerial. The duty is ministerial
only when its discharge requires neither the exercise of
official discretion nor the exercise of judgment.22
In Gabriel v. Register of Deeds of Rizal,23 the Court
underscores that registration is a merely ministerial act
of the Register of Deeds, explaining:
x x x [W]hether the document is invalid, frivolous or
intended to harass, is not the duty of a Register of
Deeds to decide, but a court of competent jurisdiction,
and that it is his concern to see whether the documents
sought to be registered conform with the formal and
legal requirements for such documents.
In view of the foregoing, we find no abuse of authority
or irregularity committed by Atty. Quilala, Atty.
Cunanan, and Atty. Caluya, Jr. with respect to the
cancellation of the notice of adverse claim and the
notice of lis pendens annotated on TCT No. N-290546.
Whether or not the RTC order dated May 16, 2008 or
the letter-request dated June 30,2008 had been
falsified, fraudulent or invalid was not for them to
determine inasmuch as their duty to examine
documents presented for registration was limited only
to what appears on the face of the documents. If, upon
their evaluation of the letter-request and the RTC
order, they found the same to be sufficient in law and
to be in conformity with existing requirements, it
became obligatory for them to perform their ministerial
duty without unnecessary delay.24
Should they be aggrieved by said respondents
performance of duty, the complainants were not bereft
of any remedy because they could challenge the
performance of duty by bringing the matter by way of
consulta with the LRA, as provided by Section 11725
of Presidential Decree No. 1529. But, as enunciated in
Gabriel v. Register of Deeds of Rizal,26 it was
ultimately within the province of a court of competent
jurisdiction to resolve issues concerning the validity or
invalidity of a document registered by the Register of
Deeds.
The complainants charge Atty. Victorio, Jr. and Atty.
Tolentino, Jr. with having conspired with each other to
guarantee that the parties in Civil Case No. Q-59598
would enter into the amicable settlement, and then to
cause the cancellation of the affidavit of adverse claim
and notice of lis pendens annotated on TCT No. N-
290546. The complainants further fault Atty. Victorio,
Jr. with having abandoned their cause since the
issuance of the RTC of its order dated May 16, 2008.
The complainants charges are devoid of substance.
Although it is not necessary to prove a formal
agreement in order to establish conspiracy because
conspiracy may be inferred from the circumstances
attending the commission of an act, it is nonetheless
essential that conspiracy be established by clear and
convincing evidence.27 The complainants failed in this
regard. Outside of their bare assertions that Atty.
Victorio, Jr. and Atty. Tolentino, Jr. had conspired with
each other in order to cause the dismissal of the
complaint and then discharge of the annotations, they
presented no evidence to support their allegation of
conspiracy. On the contrary, the records indicated their
own active participation in arriving at the amicable
settlement with the defendants in Civil Case No. Q-07-
59598. Hence, they could not now turn their backs on
the amicable settlement that they had themselves
entered into.
Even assuming that Atty. Victorio, Jr. and Atty.
Tolentino, Jr. initiated and participated in the
settlement of the case, there was nothing wrong in
their doing so. It was actually their obligation as
lawyers to do so, pursuant to Rule 1.04, Canon 1 of the
Code of Professional Responsibility, viz.:
RULE 1.04 A lawyer shall encourage his clients to
avoid, end or settle a controversy if it will admit of a fair
settlement.1wphi1
In fine, the presumption of the validity of the amicable
settlement of the complainants and the defendants in
Civil Case No. Q-07-59598 subsisted.28
Anent the complainants charge of abandonment
against Atty. Victorio, Jr., Rule 18.03 and Rule 18.04,
Canon 18 of the Code of Professional Responsibility
are applicable, to wit:
CANON 18 A lawyer shall serve his client with
competence and diligence.
Rule 18.03 A lawyer shall not neglecta legal matter
entrusted to him, and his negligence in connection
therewith shall render him liable.
Rule 18.04 A lawyer shall keep the client informed of
the status of his case and shall respond within a
reasonable time to the clients request for information.
There is no issue that the complainants engaged the
services of Atty. Victorio, Jr. as their counsel in Civil
Case No. Q-07-59598. Atty. Victorio, Jr. served as
such counsel. With Atty. Victorio, Jr. assistance, the
complainants obtained a fair settlement consisting in
receiving half of the proceeds of the sale of the
property in litis, without any portion of the proceeds
accruing to counsel as his legal fees. The
complainants did not competently and persuasively
show any unfaithfulness on the part of Atty. Victorio, Jr.
as far as their interest in the litigation was concerned.
Hence, Atty. Victorio, Jr. was not liable for
abandonment.
Atty. Victorio, Jr. could not be faulted for the perceived
inattention to any other matters subsequent to the
termination of Civil Case No. Q-07-59598. Unless
otherwise expressly stipulated between them at any
time during the engagement, the complainants had no
right to assume that Atty. Victorio, Jr.s legal
representation was indefinite as to extend to his
representation of them in the LRA. The Law Profession
did not burden its members with the responsibility of
indefinite service to the clients; hence, the rendition of
professional services depends on the agreement
between the attorney and the client. Atty. Victorio, Jr.s
alleged failure to respond to the complainants calls or
visits, or to provide them with his whereabouts to
enable them to have access to him despite the
termination of his engagement in Civil Case No. Q-07-
59598 did not equate to abandonment without the
credible showing that he continued to come under the
professional obligation towards them after the
termination of Civil Case No. Q-07-59598.
WHEREFORE, the Court DISMISSES the baseless
disbarment complaints against Atty. Federico S.
Tolentino, Jr., Atty. Renato G. Cunanan, Atty. Daniel F.
Victoria, Jr., Atty. Elbert T. Quilala and Atty. Constante
P. Caluya, Jr. SO ORDERED.
ART. 29-35 CIVIL LIABILTY FROM CRIMINAL
OFFENSE
a.) People vs Bayotas
In Criminal Case No. C-3217 filed before Branch 16,
RTC Roxas City, Rogelio Bayotas y Cordova was
charged with Rape and eventually convicted thereof on
June 19, 1991 in a decision penned by Judge Manuel
E. Autajay. Pending appeal of his conviction, Bayotas
died on February 4, 1992 at
the National Bilibid Hospital due to cardio respiratory
arrest secondary to hepatic encephalopathy secondary
to hipato carcinoma gastric malingering. Consequently,
the Supreme Court in its Resolution of May 20, 1992
dismissed the criminal aspect of the appeal. However,
it required the Solicitor General to file its comment with
regard to Bayotas' civil liability arising from his
commission of the offense charged.
In his comment, the Solicitor General expressed his
view that the death of accused-appellant did not
extinguish his civil liability as a result of his commission
of the offense charged. The Solicitor General, relying
on the case of People v. Sendaydiego 1 insists that the
appeal should still be resolved for the purpose of
reviewing his conviction by the lower court on which
the civil liability is based.
Counsel for the accused-appellant, on the other hand,
opposed the view of the Solicitor General arguing that
the death of the accused while judgment of conviction
is pending appeal extinguishes both his criminal and
civil penalties. In support of his position, said counsel
invoked the ruling of the Court of Appeals in People v.
Castillo and Ocfemia 2 which held that the civil
obligation in a criminal case takes root in the criminal
liability and, therefore, civil liability is extinguished if
accused should die before final judgment is rendered.
We are thus confronted with a single issue: Does death
of the accused pending appeal of his conviction
extinguish his civil liability?
In the aforementioned case of People v. Castillo, this
issue was settled in the affirmative. This same issue
posed therein was phrased thus: Does the death of
Alfredo Castillo affect both his criminal responsibility
and his civil liability as a consequence of the alleged
crime?
It resolved this issue thru the following disquisition:
Article 89 of the Revised Penal Code is the controlling
statute. It reads, in part:
Art. 89. How criminal liability is totally extinguished.
Criminal liability is totally extinguished:
1. By the death of the convict, as to the personal
penalties; and as to the pecuniary penalties liability
therefor is extinguished only when the death of the
offender occurs before final judgment;
With reference to Castillo's criminal liability, there is no
question. The law is plain. Statutory construction is
unnecessary. Said liability is extinguished.
The civil liability, however, poses a problem. Such
liability is extinguished only when the death of the
offender occurs before final judgment. Saddled upon
us is the task of ascertaining the legal import of the
term "final judgment." Is it final judgment as
contradistinguished from an interlocutory order? Or, is
it a judgment which is final and executory?
We go to the genesis of the law. The legal precept
contained in Article 89 of the Revised Penal Code
heretofore transcribed is lifted from Article 132 of the
Spanish El Codigo Penal de 1870 which, in part,
recites:
La responsabilidad penal se extingue.
1. Por la muerte del reo en cuanto a las penas
personales siempre, y respecto a las pecuniarias, solo
cuando a su fallecimiento no hubiere recaido sentencia
firme.
xxx xxx xxx
The code of 1870 . . . it will be observed employs the
term "sentencia firme." What is "sentencia firme" under
the old statute?
XXVIII Enciclopedia Juridica Espaola, p. 473,
furnishes the ready answer: It says:
SENTENCIA FIRME. La sentencia que adquiere la
fuerza de las definitivas por no haberse utilizado por
las partes litigantes recurso alguno contra ella dentro
de los terminos y plazos legales concedidos al efecto.
"Sentencia firme" really should be understood as one
which is definite. Because, it is only when judgment is
such that, as Medina y Maranon puts it, the crime is
confirmed "en condena determinada;" or, in the
words of Groizard, the guilt of the accused becomes
"una verdad legal." Prior thereto, should the accused
die, according to Viada, "no hay legalmente, en tal
caso, ni reo, ni delito, ni responsabilidad criminal de
ninguna clase." And, as Judge Kapunan well
explained, when a defendant dies before judgment
becomes executory, "there cannot be any
determination by final judgment whether or not the
felony upon which the civil action might arise exists,"
for the simple reason that "there is no party defendant."
(I Kapunan, Revised Penal Code, Annotated, p. 421.
Senator Francisco holds the same view. Francisco,
Revised Penal Code, Book One, 2nd ed., pp. 859-860)
The legal import of the term "final judgment" is similarly
reflected in the Revised Penal Code. Articles 72 and
78 of that legal body mention the term "final judgment"
in the sense that it is already enforceable. This also
brings to mind Section 7, Rule 116 of the Rules of
Court which states that a judgment in a criminal case
becomes final "after the lapse of the period for
perfecting an appeal or when the sentence has been
partially or totally satisfied or served, or the defendant
has expressly waived in writing his right to appeal."
By fair intendment, the legal precepts and opinions
here collected funnel down to one positive conclusion:
The term final judgment employed in the Revised
Penal Code means judgment beyond recall. Really, as
long as a judgment has not become executory, it
cannot be truthfully said that defendant is definitely
guilty of the felony charged against him.
Not that the meaning thus given to final judgment is
without reason. For where, as in this case, the right to
institute a separate civil action is not reserved, the
decision to be rendered must, of necessity, cover "both
the criminal and the civil aspects of the case." People
vs. Yusico (November 9, 1942), 2 O.G., No. 100, p.
964. See also: People vs. Moll, 68 Phil., 626, 634;
Francisco, Criminal Procedure, 1958 ed., Vol. I, pp.
234, 236. Correctly, Judge Kapunan observed that as
"the civil action is based solely on the felony committed
and of which the offender might be found guilty, the
death of the offender extinguishes the civil liability." I
Kapunan, Revised Penal Code, Annotated, supra.
Here is the situation obtaining in the present case:
Castillo's criminal liability is out. His civil liability is
sought to be enforced by reason of that criminal
liability. But then, if we dismiss, as we must, the
criminal action and let the civil aspect remain, we will
be faced with the anomalous situation whereby we will
be called upon to clamp civil liability in a case where
the source thereof criminal liability does not exist.
And, as was well stated in Bautista, et al. vs. Estrella,
et al., CA-G.R.
No. 19226-R, September 1, 1958, "no party can be
found and held criminally liable in a civil suit," which
solely would remain if we are to divorce it from the
criminal proceeding."
This ruling of the Court of Appeals in the Castillo case
3 was adopted by the Supreme Court in the cases of
People of the Philippines v. Bonifacio Alison, et al., 4
People of the Philippines v. Jaime Jose, et al. 5 and
People of the Philippines v. Satorre 6 by dismissing the
appeal in view of the death of the accused pending
appeal of said cases.
As held by then Supreme Court Justice Fernando in
the Alison case:
The death of accused-appellant Bonifacio Alison
having been established, and considering that there is
as yet no final judgment in view of the pendency of the
appeal, the criminal and civil liability of the said
accused-appellant Alison was extinguished by his
death (Art. 89, Revised Penal Code; Reyes' Criminal
Law, 1971 Rev. Ed., p. 717, citing People v. Castillo
and Ofemia C.A., 56 O.G. 4045); consequently, the
case against him should be dismissed.
On the other hand, this Court in the subsequent cases
of Buenaventura Belamala v. Marcelino Polinar 7 and
Lamberto Torrijos v. The Honorable Court of Appeals 8
ruled differently. In the former, the issue decided by
this court was: Whether the civil liability of one accused
of physical injuries who died before final judgment is
extinguished by his demise to the extent of barring any
claim therefore against his estate. It was the contention
of the administrator-appellant therein that the death of
the accused prior to final judgment extinguished all
criminal and civil liabilities resulting from the offense, in
view of Article 89, paragraph 1 of the Revised Penal
Code. However, this court ruled therein:
We see no merit in the plea that the civil liability has
been extinguished, in view of the provisions of the Civil
Code of the Philippines of 1950 (Rep. Act No. 386) that
became operative eighteen years after the revised
Penal Code. As pointed out by the Court below, Article
33 of the Civil Code establishes a civil action for
damages on account of physical injuries, entirely
separate and distinct from the criminal action.
Art. 33. In cases of defamation, fraud, and physical
injuries, a civil action for damages, entirely separate
and distinct from the criminal action, may be brought
by the injured party. Such civil action shall proceed
independently of the criminal prosecution, and shall
require only a preponderance of evidence.
Assuming that for lack of express reservation,
Belamala's civil action for damages was to be
considered instituted together with the criminal action
still, since both proceedings were terminated without
final adjudication, the civil action of the offended party
under Article 33 may yet be enforced separately.
In Torrijos, the Supreme Court held that:
xxx xxx xxx
It should be stressed that the extinction of civil liability
follows the extinction of the criminal liability under
Article 89, only when the civil liability arises from the
criminal act as its only basis. Stated differently, where
the civil liability does not exist independently of the
criminal responsibility, the extinction of the latter by
death, ipso facto extinguishes the former, provided, of
course, that death supervenes before final judgment.
The said principle does not apply in instant case
wherein the civil liability springs neither solely nor
originally from the crime itself but from a civil contract
of purchase and sale. (Emphasis ours)
xxx xxx xxx
In the above case, the court was convinced that the
civil liability of the accused who was charged with
estafa could likewise trace its genesis to Articles 19, 20
and 21 of the Civil Code since said accused had
swindled the first and second vendees of the property
subject matter of the contract of sale. It therefore
concluded: "Consequently, while the death of the
accused herein extinguished his criminal liability
including fine, his civil liability based on the laws of
human relations remains."
Thus it allowed the appeal to proceed with respect to
the civil liability of the accused, notwithstanding the
extinction of his criminal liability due to his death
pending appeal of his conviction.
To further justify its decision to allow the civil liability to
survive, the court relied on the following ratiocination:
Since Section 21, Rule 3 of the Rules of Court 9
requires the dismissal of all money claims against the
defendant whose death occurred prior to the final
judgment of the Court of First Instance (CFI), then it
can be inferred that actions for recovery of money may
continue to be heard on appeal, when the death of the
defendant supervenes after the CFI had rendered its
judgment. In such case, explained this tribunal, "the
name of the offended party shall be included in the title
of the case as plaintiff-appellee and the legal
representative or the heirs of the deceased-accused
should be substituted as defendants-appellants."
It is, thus, evident that as jurisprudence evolved from
Castillo to Torrijos, the rule established was that the
survival of the civil liability depends on whether the
same can be predicated on sources of obligations
other than delict. Stated differently, the claim for civil
liability is also extinguished together with the criminal
action if it were solely based thereon, i.e., civil liability
ex delicto.
However, the Supreme Court in People v.
Sendaydiego, et al. 10 departed from this long-
established principle of law. In this case, accused
Sendaydiego was charged with and convicted by the
lower court of malversation thru falsification of public
documents. Sendaydiego's death supervened during
the pendency of the appeal of his conviction.
This court in an unprecedented move resolved to
dismiss Sendaydiego's appeal but only to the extent of
his criminal liability. His civil liability was allowed to
survive although it was clear that such claim thereon
was exclusively dependent on the criminal action
already extinguished. The legal import of such decision
was for the court to continue exercising appellate
jurisdiction over the entire appeal, passing upon the
correctness of Sendaydiego's conviction despite
dismissal of the criminal action, for the purpose of
determining if he is civilly liable. In doing so, this Court
issued a Resolution of July 8, 1977 stating thus:
The claim of complainant Province of Pangasinan for
the civil liability survived Sendaydiego because his
death occurred after final judgment was rendered by
the Court of First Instance of Pangasinan, which
convicted him of three complex crimes of malversation
through falsification and ordered him to indemnify the
Province in the total sum of P61,048.23 (should be
P57,048.23).
The civil action for the civil liability is deemed impliedly
instituted with the criminal action in the absence of
express waiver or its reservation in a separate action
(Sec. 1, Rule 111 of the Rules of Court). The civil
action for the civil liability is separate and distinct from
the criminal action (People and Manuel vs. Coloma,
105 Phil. 1287; Roa vs. De la Cruz, 107 Phil. 8).
When the action is for the recovery of money and the
defendant dies before final judgment in the Court of
First Instance, it shall be dismissed to be prosecuted in
the manner especially provided in Rule 87 of the Rules
of Court (Sec. 21, Rule 3 of the Rules of Court).
The implication is that, if the defendant dies after a
money judgment had been rendered against him by
the Court of First Instance, the action survives him. It
may be continued on appeal (Torrijos vs. Court of
Appeals, L-40336, October 24, 1975; 67 SCRA 394).
The accountable public officer may still be civilly liable
for the funds improperly disbursed although he has no
criminal liability (U.S. vs. Elvina, 24 Phil. 230;
Philippine National Bank vs. Tugab, 66 Phil. 583).
In view of the foregoing, notwithstanding the dismissal
of the appeal of the deceased Sendaydiego insofar as
his criminal liability is concerned, the Court Resolved to
continue exercising appellate jurisdiction over his
possible civil liability for the money claims of the
Province of Pangasinan arising from the alleged
criminal acts complained of, as if no criminal case had
been instituted against him, thus making applicable, in
determining his civil liability, Article 30 of the Civil Code
. . . and, for that purpose, his counsel is directed to
inform this Court within ten (10) days of the names and
addresses of the decedent's heirs or whether or not his
estate is under administration and has a duly
appointed judicial administrator. Said heirs or
administrator will be substituted for the deceased
insofar as the civil action for the civil liability is
concerned (Secs. 16 and 17, Rule 3, Rules of Court).
Succeeding cases 11 raising the identical issue have
maintained adherence to our ruling in Sendaydiego; in
other words, they were a reaffirmance of our
abandonment of the settled rule that a civil liability
solely anchored on the criminal (civil liability ex delicto)
is extinguished upon dismissal of the entire appeal due
to the demise of the accused.
But was it judicious to have abandoned this old ruling?
A re-examination of our decision in Sendaydiego
impels us to revert to the old ruling.
To restate our resolution of July 8, 1977 in
Sendaydiego: The resolution of the civil action
impliedly instituted in the criminal action can proceed
irrespective of the latter's extinction due to death of the
accused pending appeal of his conviction, pursuant to
Article 30 of the Civil Code and Section 21, Rule 3 of
the Revised Rules of Court.
Article 30 of the Civil Code provides:
When a separate civil action is brought to demand civil
liability arising from a criminal offense, and no criminal
proceedings are instituted during the pendency of the
civil case, a preponderance of evidence shall likewise
be sufficient to prove the act complained of.
Clearly, the text of Article 30 could not possibly lend
support to the ruling in Sendaydiego. Nowhere in its
text is there a grant of authority to continue exercising
appellate jurisdiction over the accused's civil liability ex
delicto when his death supervenes during appeal.
What Article 30 recognizes is an alternative and
separate civil action which may be brought to demand
civil liability arising from a criminal offense
independently of any criminal action. In the event that
no criminal proceedings are instituted during the
pendency of said civil case, the quantum of evidence
needed to prove the criminal act will have to be that
which is compatible with civil liability and that is,
preponderance of evidence and not proof of guilt
beyond reasonable doubt. Citing or invoking Article 30
to justify the survival of the civil action despite
extinction of the criminal would in effect merely beg the
question of whether civil liability ex delicto survives
upon extinction of the criminal action due to death of
the accused during appeal of his conviction. This is
because whether asserted in
the criminal action or in a separate civil action, civil
liability ex delicto is extinguished by the death of the
accused while his conviction is on appeal. Article 89 of
the Revised Penal Code is clear on this matter:
Art. 89. How criminal liability is totally extinguished.
Criminal liability is totally extinguished:
1. By the death of the convict, as to the personal
penalties; and as to pecuniary penalties, liability
therefor is extinguished only when the death of the
offender occurs before final judgment;
xxx xxx xxx
However, the ruling in Sendaydiego deviated from the
expressed intent of Article 89. It allowed claims for civil
liability ex delicto to survive by ipso facto treating the
civil action impliedly instituted with the criminal, as one
filed under Article 30, as though no criminal
proceedings had been filed but merely a separate civil
action. This had the effect of converting such claims
from one which is dependent on the outcome of the
criminal action to an entirely new and separate one,
the prosecution of which does not even necessitate the
filing of criminal proceedings. 12 One would be hard
put to pinpoint the statutory authority for such a
transformation. It is to be borne in mind that in
recovering civil liability ex delicto, the same has
perforce to be determined in the criminal action, rooted
as it is in the court's pronouncement of the guilt or
innocence of the accused. This is but to render fealty
to the intendment of Article 100 of the Revised Penal
Code which provides that "every person criminally
liable for a felony is also civilly liable." In such cases,
extinction of the criminal action due to death of the
accused pending appeal inevitably signifies the
concomitant extinction of the civil liability. Mors Omnia
Solvi. Death dissolves all things.
In sum, in pursuing recovery of civil liability arising from
crime, the final determination of the criminal liability is a
condition precedent to the prosecution of the civil
action, such that when the criminal action is
extinguished by the demise of accused-appellant
pending appeal thereof, said civil action cannot
survive. The claim for civil liability springs out of and is
dependent upon facts which, if true, would constitute a
crime. Such civil liability is an inevitable consequence
of the criminal liability and is to be declared and
enforced in the criminal proceeding. This is to be
distinguished from that which is contemplated under
Article 30 of the Civil Code which refers to the
institution of a separate civil action that does not draw
its life from a criminal proceeding. The Sendaydiego
resolution of July 8, 1977, however, failed to take note
of this fundamental distinction when it allowed the
survival of the civil action for the recovery of civil
liability ex delicto by treating the same as a separate
civil action referred to under Article 30. Surely, it will
take more than just a summary judicial pronouncement
to authorize the conversion of said civil action to an
independent one such as that contemplated under
Article 30.
Ironically however, the main decision in Sendaydiego
did not apply Article 30, the resolution of July 8, 1977
notwithstanding. Thus, it was held in the main decision:
Sendaydiego's appeal will be resolved only for the
purpose of showing his criminal liability which is the
basis of the civil liability for which his estate would be
liable. 13
In other words, the Court, in resolving the issue of his
civil liability, concomitantly made a determination on
whether Sendaydiego, on the basis of evidenced
adduced, was indeed guilty beyond reasonable doubt
of committing the offense charged. Thus, it upheld
Sendaydiego's conviction and pronounced the same
as the source of his civil liability. Consequently,
although Article 30 was not applied in the final
determination of Sendaydiego's civil liability, there was
a reopening of the criminal action already extinguished
which served as basis for Sendaydiego's civil liability.
We reiterate: Upon death of the accused pending
appeal of his conviction, the criminal action is
extinguished inasmuch as there is no longer a
defendant to stand as the accused; the civil action
instituted therein for recovery of civil liability ex delicto
is ipso facto extinguished, grounded as it is on the
criminal.
Section 21, Rule 3 of the Rules of Court was also
invoked to serve as another basis for the Sendaydiego
resolution of July 8, 1977. In citing Sec. 21, Rule 3 of
the Rules of Court, the Court made the inference that
civil actions of the type involved in Sendaydiego
consist of money claims, the recovery of which may be
continued on appeal if defendant dies pending appeal
of his conviction by holding his estate liable therefor.
Hence, the Court's conclusion:
"When the action is for the recovery of money" "and
the defendant dies before final judgment in the court of
First Instance, it shall be dismissed to be prosecuted in
the manner especially provided" in Rule 87 of the
Rules of Court (Sec. 21, Rule 3 of the Rules of Court).
The implication is that, if the defendant dies after a
money judgment had been rendered against him by
the Court of First Instance, the action survives him. It
may be continued on appeal.
Sadly, reliance on this provision of law is misplaced.
From the standpoint of procedural law, this course
taken in Sendaydiego cannot be sanctioned. As
correctly observed by Justice Regalado:
xxx xxx xxx
I do not, however, agree with the justification advanced
in both Torrijos and Sendaydiego which, relying on the
provisions of Section 21, Rule 3 of the Rules of Court,
drew the strained implication therefrom that where the
civil liability instituted together with the criminal
liabilities had already passed beyond the judgment of
the then Court of First Instance (now the Regional Trial
Court), the Court of Appeals can continue to exercise
appellate jurisdiction thereover despite the
extinguishment of the component criminal liability of
the deceased. This pronouncement, which has been
followed in the Court's judgments subsequent and
consonant to Torrijos and Sendaydiego, should be set
aside and abandoned as being clearly erroneous and
unjustifiable.
Said Section 21 of Rule 3 is a rule of civil procedure in
ordinary civil actions. There is neither authority nor
justification for its application in criminal procedure to
civil actions instituted together with and as part of
criminal actions. Nor is there any authority in law for
the summary conversion from the latter category of an
ordinary civil action upon the death of the offender. . . .
Moreover, the civil action impliedly instituted in a
criminal proceeding for recovery of civil liability ex
delicto can hardly be categorized as an ordinary
money claim such as that referred to in Sec. 21, Rule 3
enforceable before the estate of the deceased
accused.
Ordinary money claims referred to in Section 21, Rule
3 must be viewed in light of the provisions of Section 5,
Rule 86 involving claims against the estate, which in
Sendaydiego was held liable for Sendaydiego's civil
liability. "What are contemplated in Section 21 of Rule
3, in relation to Section 5 of Rule 86, 14 are contractual
money claims while the claims involved in civil liability
ex delicto may include even the restitution of personal
or real property." 15 Section 5, Rule 86 provides an
exclusive enumeration of what claims may be filed
against the estate. These are: funeral expenses,
expenses for the last illness, judgments for money and
claim arising from contracts, expressed or implied. It is
clear that money claims arising from delict do not form
part of this exclusive enumeration. Hence, there could
be no legal basis in (1) treating a civil action ex delicto
as an ordinary contractual money claim referred to in
Section 21, Rule 3 of the Rules of Court and (2)
allowing it to survive by filing a claim therefor before
the estate of the deceased accused. Rather, it should
be extinguished upon extinction of the criminal action
engendered by the death of the accused pending
finality of his conviction.
Accordingly, we rule: if the private offended party, upon
extinction of the civil liability ex delicto desires to
recover damages from the same act or omission
complained of, he must subject to Section 1, Rule 111
16 (1985 Rules on Criminal Procedure as amended)
file a separate civil action, this time predicated not on
the felony previously charged but on other sources of
obligation. The source of obligation upon which the
separate civil action is premised determines against
whom the same shall be enforced.

If the same act or omission complained of also arises
from quasi-delict or may, by provision of law, result in
an injury to person or property (real or personal), the
separate civil action must be filed against the executor
or administrator 17 of the estate of the accused
pursuant to Sec. 1, Rule 87 of the Rules of Court:
Sec. 1. Actions which may and which may not be
brought against executor or administrator. No action
upon a claim for the recovery of money or debt or
interest thereon shall be commenced against the
executor or administrator; but actions to recover real or
personal property, or an interest therein, from the
estate, or to enforce a lien thereon, and actions to
recover damages for an injury to person or property,
real or personal, may be commenced against him.
This is in consonance with our ruling in Belamala 18
where we held that, in recovering damages for injury to
persons thru an independent civil action based on
Article 33 of the Civil Code, the same must be filed
against the executor or administrator of the estate of
deceased accused and not against the estate under
Sec. 5, Rule 86 because this rule explicitly limits the
claim to those for funeral expenses, expenses for the
last sickness of the decedent, judgment for money and
claims arising from contract, express or implied.
Contractual money claims, we stressed, refers only to
purely personal obligations other than those which
have their source in delict or tort.
Conversely, if the same act or omission complained of
also arises from contract, the separate civil action must
be filed against the estate of the accused, pursuant to
Sec. 5, Rule 86 of the Rules of Court.
From this lengthy disquisition, we summarize our ruling
herein:
1. Death of the accused pending appeal of his
conviction extinguishes his criminal liability as well as
the civil liability based solely thereon. As opined by
Justice Regalado, in this regard, "the death of the
accused prior to final judgment terminates his criminal
liability and only the civil liability directly arising from
and based solely on the offense committed, i.e., civil
liability ex delicto in senso strictiore."
2. Corollarily, the claim for civil liability survives
notwithstanding the death of accused, if the same may
also be predicated on a source of obligation other than
delict. 19 Article 1157 of the Civil Code enumerates
these other sources of obligation from which the civil
liability may arise as a result of the same act or
omission:
a) Law 20
b) Contracts
c) Quasi-contracts
d) . . .
e) Quasi-delicts
3. Where the civil liability survives, as explained in
Number 2 above, an action for recovery therefor may
be pursued but only by way of filing a separate civil
action and subject to Section 1, Rule 111 of the 1985
Rules on Criminal Procedure as amended. This
separate civil action may be enforced either against the
executor/administrator or the estate of the accused,
depending on the source of obligation upon which the
same is based as explained above.
4. Finally, the private offended party need not fear a
forfeiture of his right to file this separate civil action by
prescription, in cases where during the prosecution of
the criminal action and prior to its extinction, the
private-offended party instituted together therewith the
civil action. In such case, the statute of limitations on
the civil liability is deemed interrupted during the
pendency of the criminal case, conformably with
provisions of Article 1155 21 of the Civil Code, that
should thereby avoid any apprehension on a possible
privation of right by prescription. 22
Applying this set of rules to the case at bench, we hold
that the death of appellant Bayotas extinguished his
criminal liability and the civil liability based solely on the
act complained of, i.e., rape. Consequently, the appeal
is hereby dismissed without qualification.
WHEREFORE, the appeal of the late Rogelio Bayotas
is DISMISSED with costs de oficio. SO ORDERED.
b.) Frias vs San Diego-Sison
Before us is a Petition for Review on Certiorari filed by
Bobie Rose V. Frias represented by her Attorney-in-
fact, Marie Regine F. Fujita (petitioner) seeking to
annul the Decision1 dated June 18, 2002 and the
Resolution2 dated September 11, 2002 of the Court of
Appeals (CA) in CA-G.R. CV No. 52839.
Petitioner is the owner of a house and lot located at
No. 589 Batangas East, Ayala Alabang, Muntinlupa,
Metro Manila, which she acquired from Island Masters
Realty and Development Corporation (IMRDC) by
virtue of a Deed of Sale dated Nov. 16, 1990.3 The
property is covered by TCT No. 168173 of the Register
of Deeds of Makati in the name of IMRDC.4
On December 7, 1990, petitioner, as the FIRST
PARTY, and Dra. Flora San Diego-Sison (respondent),
as the SECOND PARTY, entered into a Memorandum
of Agreement5 over the property with the following
terms:
NOW, THEREFORE, for and in consideration of the
sum of THREE MILLION PESOS (P3,000,000.00)
receipt of which is hereby acknowledged by the FIRST
PARTY from the SECOND PARTY, the parties have
agreed as follows:
1. That the SECOND PARTY has a period of Six (6)
months from the date of the execution of this contract
within which to notify the FIRST PARTY of her
intention to purchase the aforementioned parcel of land
together within (sic) the improvements thereon at the
price of SIX MILLION FOUR HUNDRED THOUSAND
PESOS (P6,400,000.00). Upon notice to the FIRST
PARTY of the SECOND PARTYs intention to
purchase the same, the latter has a period of another
six months within which to pay the remaining balance
of P3.4 million.
2. That prior to the six months period given to the
SECOND PARTY within which to decide whether or
not to purchase the above-mentioned property, the
FIRST PARTY may still offer the said property to other
persons who may be interested to buy the same
provided that the amount of P3,000,000.00 given to the
FIRST PARTY BY THE SECOND PARTY shall be paid
to the latter including interest based on prevailing
compounded bank interest plus the amount of the sale
in excess of P7,000,000.00 should the property be sold
at a price more than P7 million.
3. That in case the FIRST PARTY has no other buyer
within the first six months from the execution of this
contract, no interest shall be charged by the SECOND
PARTY on the P3 million however, in the event that on
the sixth month the SECOND PARTY would decide not
to purchase the aforementioned property, the FIRST
PARTY has a period of another six months within
which to pay the sum of P3 million pesos provided that
the said amount shall earn compounded bank interest
for the last six months only. Under this circumstance,
the amount of P3 million given by the SECOND
PARTY shall be treated as [a] loan and the property
shall be considered as the security for the mortgage
which can be enforced in accordance with law.
x x x x.
Petitioner received from respondent two million pesos
in cash and one million pesos in a post-dated check
dated February 28, 1990, instead of 1991, which
rendered said check stale.7 Petitioner then gave
respondent TCT No. 168173 in the name of IMRDC
and the Deed of Absolute Sale over the property
between petitioner and IMRDC.
Respondent decided not to purchase the property and
notified petitioner through a letter8 dated March 20,
1991, which petitioner received only on June 11,
1991,9 reminding petitioner of their agreement that the
amount of two million pesos which petitioner received
from respondent should be considered as a loan
payable within six months. Petitioner subsequently
failed to pay respondent the amount of two million
pesos.
On April 1, 1993, respondent filed with the Regional
Trial Court (RTC) of Manila, a complaint10 for sum of
money with preliminary attachment against petitioner.
The case was docketed as Civil Case No. 93-65367
and raffled to Branch 30. Respondent alleged the
foregoing facts and in addition thereto averred that
petitioner tried to deprive her of the security for the
loan by making a false report11 of the loss of her
owners copy of TCT No. 168173 to the Tagig Police
Station on June 3, 1991, executing an affidavit of loss
and by filing a petition12 for the issuance of a new
owners duplicate copy of said title with the RTC of
Makati, Branch 142; that the petition was granted in an
Order13 dated August 31, 1991; that said Order was
subsequently set aside in an Order dated April 10,
199214 where the RTC Makati granted respondents
petition for relief from judgment due to the fact that
respondent is in possession of the owners duplicate
copy of TCT No. 168173, and ordered the provincial
public prosecutor to conduct an investigation of
petitioner for perjury and false testimony. Respondent
prayed for the ex-parte issuance of a writ of preliminary
attachment and payment of two million pesos with
interest at 36% per annum from December 7, 1991,
P100,000.00 moral, corrective and exemplary
damages and P200,000.00 for attorneys fees.
In an Order dated April 6, 1993, the Executive Judge of
the RTC of Manila issued a writ of preliminary
attachment upon the filing of a bond in the amount of
two million pesos.15
Petitioner filed an Amended Answer16 alleging that the
Memorandum of Agreement was conceived and
arranged by her lawyer, Atty. Carmelita Lozada, who is
also respondents lawyer; that she was asked to sign
the agreement without being given the chance to read
the same; that the title to the property and the Deed of
Sale between her and the IMRDC were entrusted to
Atty. Lozada for safekeeping and were never turned
over to respondent as there was no consummated sale
yet; that out of the two million pesos cash paid, Atty.
Lozada took the one million pesos which has not been
returned, thus petitioner had filed a civil case against
her; that she was never informed of respondents
decision not to purchase the property within the six
month period fixed in the agreement; that when she
demanded the return of TCT No. 168173 and the Deed
of Sale between her and the IMRDC from Atty. Lozada,
the latter gave her these documents in a brown
envelope on May 5, 1991 which her secretary placed in
her attache case; that the envelope together with her
other personal things were lost when her car was
forcibly opened the following day; that she sought the
help of Atty. Lozada who advised her to secure a
police report, to execute an affidavit of loss and to get
the services of another lawyer to file a petition for the
issuance of an owners duplicate copy; that the petition
for the issuance of a new owners duplicate copy was
filed on her behalf without her knowledge and neither
did she sign the petition nor testify in court as falsely
claimed for she was abroad; that she was a victim of
the manipulations of Atty. Lozada and respondent as
shown by the filing of criminal charges for perjury and
false testimony against her; that no interest could be
due as there was no valid mortgage over the property
as the principal obligation is vitiated with fraud and
deception. She prayed for the dismissal of the
complaint, counter-claim for damages and attorneys
fees.
Trial on the merits ensued. On January 31, 1996, the
RTC issued a decision,17 the dispositive portion of
which reads:
WHEREFORE, judgment is hereby RENDERED:
1) Ordering defendant to pay plaintiff the sum of P2
Million plus interest thereon at the rate of thirty two
(32%) per cent per annum beginning December 7,
1991 until fully paid.
2) Ordering defendant to pay plaintiff the sum of
P70,000.00 representing premiums paid by plaintiff on
the attachment bond with legal interest thereon
counted from the date of this decision until fully paid.
3) Ordering defendant to pay plaintiff the sum of
P100,000.00 by way of moral, corrective and
exemplary damages.
4) Ordering defendant to pay plaintiff attorneys fees of
P100,000.00 plus cost of litigation.18
The RTC found that petitioner was under obligation to
pay respondent the amount of two million pesos with
compounded interest pursuant to their Memorandum of
Agreement; that the fraudulent scheme employed by
petitioner to deprive respondent of her only security to
her loaned money when petitioner executed an
affidavit of loss and instituted a petition for the
issuance of an owners duplicate title knowing the
same was in respondents possession, entitled
respondent to moral damages; and that petitioners
bare denial cannot be accorded credence because her
testimony and that of her witness did not appear to be
credible.
The RTC further found that petitioner admitted that she
received from respondent the two million pesos in cash
but the fact that petitioner gave the one million pesos
to Atty. Lozada was without respondents knowledge
thus it is not binding on respondent; that respondent
had also proven that in 1993, she initially paid the sum
of P30,000.00 as premium for the issuance of the
attachment bond, P20,000.00 for its renewal in 1994,
and P20,000.00 for the renewal in 1995, thus plaintiff
should be reimbursed considering that she was
compelled to go to court and ask for a writ of
preliminary attachment to protect her rights under the
agreement.
Petitioner filed her appeal with the CA. In a Decision
dated June 18, 2002, the CA affirmed the RTC
decision with modification, the dispositive portion of
which reads:
WHEREFORE, premises considered, the decision
appealed from is MODIFIED in the sense that the rate
of interest is reduced from 32% to 25% per annum,
effective June 7, 1991 until fully paid.19
The CA found that: petitioner gave the one million
pesos to Atty. Lozada partly as her commission and
partly as a loan; respondent did not replace the
mistakenly dated check of one million pesos because
she had decided not to buy the property and petitioner
knew of her decision as early as April 1991; the award
of moral damages was warranted since even granting
petitioner had no hand in the filing of the petition for the
issuance of an owners copy, she executed an affidavit
of loss of TCT No. 168173 when she knew all along
that said title was in respondents possession;
petitioners claim that she thought the title was lost
when the brown envelope given to her by Atty. Lozada
was stolen from her car was hollow; that such deceitful
conduct caused respondent serious anxiety and
emotional distress.
The CA concluded that there was no basis for
petitioner to say that the interest should be charged for
six months only and no more; that a loan always bears
interest otherwise it is not a loan; that interest should
commence on June 7, 199120 with compounded bank
interest prevailing at the time the two million was
considered as a loan which was in June 1991; that the
bank interest rate for loans secured by a real estate
mortgage in 1991 ranged from 25% to 32% per annum
as certified to by Prudential Bank,21 that in fairness to
petitioner, the rate to be charged should be 25% only.
Petitioners motion for reconsideration was denied by
the CA in a Resolution dated September 11, 2002.
Hence the instant Petition for Review on Certiorari filed
by petitioner raising the following issues:
(A) WHETHER OR NOT THE COMPOUNDED BANK
INTEREST SHOULD BE LIMITED TO SIX (6)
MONTHS AS CONTAINED IN THE MEMORANDUM
OF AGREEMENT.
(B) WHETHER OR NOT THE RESPONDENT IS
ENTITLED TO MORAL DAMAGES.
(C) WHETHER OR NOT THE GRANT OF
CORRECTIVE AND EXEMPLARY DAMAGES AND
ATTORNEYS FEES IS PROPER EVEN IF NOT
MENTIONED IN THE TEXT OF THE DECISION.22
Petitioner contends that the interest, whether at 32%
per annum awarded by the trial court or at 25% per
annum as modified by the CA which should run from
June 7, 1991 until fully paid, is contrary to the parties
Memorandum of Agreement; that the agreement
provides that if respondent would decide not to
purchase the property, petitioner has the period of
another six months to pay the loan with compounded
bank interest for the last six months only; that the CAs
ruling that a loan always bears interest otherwise it is
not a loan is contrary to Art. 1956 of the New Civil
Code which provides that no interest shall be due
unless it has been expressly stipulated in writing.
We are not persuaded.
While the CAs conclusion, that a loan always bears
interest otherwise it is not a loan, is flawed since a
simple loan may be gratuitous or with a stipulation to
pay interest,23 we find no error committed by the CA in
awarding a 25% interest per annum on the two-million
peso loan even beyond the second six months
stipulated period.
The Memorandum of Agreement executed between
the petitioner and respondent on December 7, 1990 is
the law between the parties. In resolving an issue
based upon a contract, we must first examine the
contract itself, especially the provisions thereof which
are relevant to the controversy.24 The general rule is
that if the terms of an agreement are clear and leave
no doubt as to the intention of the contracting parties,
the literal meaning of its stipulations shall prevail.25 It
is further required that the various stipulations of a
contract shall be interpreted together, attributing to the
doubtful ones that sense which may result from all of
them taken jointly.26
In this case, the phrase "for the last six months only"
should be taken in the context of the entire agreement.
We agree with and adopt the CAs interpretation of the
phrase in this wise:
Their agreement speaks of two (2) periods of six
months each. The first six-month period was given to
plaintiff-appellee (respondent) to make up her mind
whether or not to purchase defendant-appellants
(petitioner's) property. The second six-month period
was given to defendant-appellant to pay the P2 million
loan in the event that plaintiff-appellee decided not to
buy the subject property in which case interest will be
charged "for the last six months only", referring to the
second six-month period. This means that no interest
will be charged for the first six-month period while
appellee was making up her mind whether to buy the
property, but only for the second period of six months
after appellee had decided not to buy the property.
This is the meaning of the phrase "for the last six
months only". Certainly, there is nothing in their
agreement that suggests that interest will be charged
for six months only even if it takes defendant-appellant
an eternity to pay the loan.27
The agreement that the amount given shall bear
compounded bank interest for the last six months only,
i.e., referring to the second six-month period, does not
mean that interest will no longer be charged after the
second six-month period since such stipulation was
made on the logical and reasonable expectation that
such amount would be paid within the date stipulated.
Considering that petitioner failed to pay the amount
given which under the Memorandum of Agreement
shall be considered as a loan, the monetary interest for
the last six months continued to accrue until actual
payment of the loaned amount.
The payment of regular interest constitutes the price or
cost of the use of money and thus, until the principal
sum due is returned to the creditor, regular interest
continues to accrue since the debtor continues to use
such principal amount.28 It has been held that for a
debtor to continue in possession of the principal of the
loan and to continue to use the same after maturity of
the loan without payment of the monetary interest,
would constitute unjust enrichment on the part of the
debtor at the expense of the creditor.29
Petitioner and respondent stipulated that the loaned
amount shall earn compounded bank interests, and per
the certification issued by Prudential Bank, the interest
rate for loans in 1991 ranged from 25% to 32% per
annum. The CA reduced the interest rate to 25%
instead of the 32% awarded by the trial court which
petitioner no longer assailed.1awphi1.nt
In Bautista v. Pilar Development Corp.,30 we upheld
the validity of a 21% per annum interest on a
P142,326.43 loan. In Garcia v. Court of Appeals,31 we
sustained the agreement of the parties to a 24% per
annum interest on an P8,649,250.00 loan. Thus, the
interest rate of 25% per annum awarded by the CA to a
P2 million loan is fair and reasonable.
Petitioner next claims that moral damages were
awarded on the erroneous finding that she used a
fraudulent scheme to deprive respondent of her
security for the loan; that such finding is baseless since
petitioner was acquitted in the case for perjury and
false testimony filed by respondent against her.
We are not persuaded.
Article 31 of the Civil Code provides that when the civil
action is based on an obligation not arising from the act
or omission complained of as a felony, such civil action
may proceed independently of the criminal
proceedings and regardless of the result of the
latter.32
While petitioner was acquitted in the false testimony
and perjury cases filed by respondent against her,
those actions are entirely distinct from the collection of
sum of money with damages filed by respondent
against petitioner.
We agree with the findings of the trial court and the CA
that petitioners act of trying to deprive respondent of
the security of her loan by executing an affidavit of loss
of the title and instituting a petition for the issuance of a
new owners duplicate copy of TCT No. 168173 entitles
respondent to moral damages.1a\^/phi1.net Moral
damages may be awarded in culpa contractual or
breach of contract cases when the defendant acted
fraudulently or in bad faith. Bad faith does not simply
connote bad judgment or negligence; it imports a
dishonest purpose or some moral obliquity and
conscious doing of wrong. It partakes of the nature of
fraud.33
The Memorandum of Agreement provides that in the
event that respondent opts not to buy the property, the
money given by respondent to petitioner shall be
treated as a loan and the property shall be considered
as the security for the mortgage. It was testified to by
respondent that after they executed the agreement on
December 7, 1990, petitioner gave her the owners
copy of the title to the property, the Deed of Sale
between petitioner and IMRDC, the certificate of
occupancy, and the certificate of the Secretary of the
IMRDC who signed the Deed of Sale.34 However,
notwithstanding that all those documents were in
respondents possession, petitioner executed an
affidavit of loss that the owners copy of the title and
the Deed of Sale were lost.
Although petitioner testified that her execution of the
affidavit of loss was due to the fact that she was of the
belief that since she had demanded from Atty. Lozada
the return of the title, she thought that the brown
envelope with markings which Atty. Lozada gave her
on May 5, 1991 already contained the title and the
Deed of Sale as those documents were in the same
brown envelope which she gave to Atty. Lozada prior
to the transaction with respondent.35 Such statement
remained a bare statement. It was not proven at all
since Atty. Lozada had not taken the stand to
corroborate her claim. In fact, even petitioners own
witness, Benilda Ynfante (Ynfante), was not able to
establish petitioner's claim that the title was returned by
Atty. Lozada in view of Ynfante's testimony that after
the brown envelope was given to petitioner, the latter
passed it on to her and she placed it in petitioners
attach case36 and did not bother to look at the
envelope.37
It is clear therefrom that petitioners execution of the
affidavit of loss became the basis of the filing of the
petition with the RTC for the issuance of new owners
duplicate copy of TCT No. 168173. Petitioners
actuation would have deprived respondent of the
security for her loan were it not for respondents timely
filing of a petition for relief whereby the RTC set aside
its previous order granting the issuance of new title.
Thus, the award of moral damages is in order.
The entitlement to moral damages having been
established, the award of exemplary damages is
proper.38 Exemplary damages may be imposed upon
petitioner by way of example or correction for the
public good.39 The RTC awarded the amount of
P100,000.00 as moral and exemplary damages. While
the award of moral and exemplary damages in an
aggregate amount may not be the usual way of
awarding said damages,40 no error has been
committed by CA. There is no question that respondent
is entitled to moral and exemplary damages.
Petitioner argues that the CA erred in awarding
attorneys fees because the trial courts decision did
not explain the findings of facts and law to justify the
award of attorneys fees as the same was mentioned
only in the dispositive portion of the RTC decision.
We agree.
Article 220841 of the New Civil Code enumerates the
instances where such may be awarded and, in all
cases, it must be reasonable, just and equitable if the
same were to be granted.42 Attorney's fees as part of
damages are not meant to enrich the winning party at
the expense of the losing litigant. They are not
awarded every time a party prevails in a suit because
of the policy that no premium should be placed on the
right to litigate.43 The award of attorney's fees is the
exception rather than the general rule. As such, it is
necessary for the trial court to make findings of facts
and law that would bring the case within the exception
and justify the grant of such award. The matter of
attorney's fees cannot be mentioned only in the
dispositive portion of the decision.44 They must be
clearly explained and justified by the trial court in the
body of its decision. On appeal, the CA is precluded
from supplementing the bases for awarding attorneys
fees when the trial court failed to discuss in its Decision
the reasons for awarding the same. Consequently, the
award of attorney's fees should be deleted.
WHEREFORE, in view of all the foregoing, the
Decision dated June 18, 2002 and the Resolution
dated September 11, 2002 of the Court of Appeals in
CA-G.R. CV No. 52839 are AFFIRMED with
MODIFICATION that the award of attorneys fees is
DELETED.
No pronouncement as to costs. SO ORDERED.
ART 36 PREJUDICIAL QUESTION
a.) Tuanda vs SANDIGANBAYAN
Petitioners institute this special civil action for certiorari
and prohibition under Rule 65 of the Revised Rules of
Court to set aside the resolution of the Sandiganbayan
dated 17 February 1992 and its orders dated 19
August 1992 and 13 May 1993 in Criminal Case No.
16936 entitled "People of the Philippines versus
Reynaldo Tuanda, et al." denying petitioners' motion
for suspension of their arraignment.
The present controversy arose from the following
antecedents:
On 9 February 1989, private respondents Delia
Estrellanes and Bartolome Binaohan were designated
as industrial labor sectoral representative and
agricultural labor sectoral representative respectively,
for the Sangguniang Bayan of Jimalalud, Province of
Negros Oriental by then Secretary Luis T. Santos of
the Department of Local Government. Private
respondents Binaohan and Estrellanes took their oath
of office on 16 February 1989 and 17 February 1989,
respectively.
Subsequently, petitioners filed an undated petition with
the Office of the President for review and recall of said
designations. The latter, however, in a letter dated 20
March 1989, denied the petition and enjoined Mayor
Reynaldo Tuanda to recognize private respondents as
sectoral representatives.
On 4 May 1990, private respondents filed a petition for
mandamus with the Regional Trial Court of Negros
Oriental, Branch 35, docketed as Special Civil Action
No. 9661, for recognition as members of the
Sangguniang Bayan. It was dismissed on 23 July
1991.
Thereafter, on 20 June 1991, petitioners filed an action
with the Regional Trial Court of Dumaguete City to
declare null and void the designations of private
respondents as sectoral representatives, docketed as
Civil Case No. 9955 entitled "Reynaldo Tuanda, et al.
versus Secretary of the Department of Local
Government, et al."
On 21 July 1991, an information was filed before the
Sandiganbayan, docketed as Criminal Case No. 16936
entitled "People of the Philippines versus Reynaldo
Tuanda, et al." charging petitioners thus:
INFORMATION
The undersigned Special Prosecution Officer of the
Special Prosecutor, hereby accuses REYNALDO V.
TUANDA, HERMENEGILDO G. FABURADA,
MANUEL LIM, NICANOR P. AGOSTO, ERENIETA K.
MENDOZA, MAXIMO VIERNES, HACUBINA V.
SERILLO, and SANTOS A. VILLANUEVA of Violation
of Section 3(e) of R.A. No. 3019, as amended,
committed as follows:
That during the period from February 1989 to February
1991 and subsequent thereto, in the Municipality of
Jimalalud, Negros Oriental, and within the jurisdiction
of this Honorable Court, accused, all public officers,
Mayor REYNALDO V. TUANDA, Vice-Mayor
HERMENEGILDO G. FABURADA, Sangguniang
Members MANUEL LIM, NICANOR P. AGOSTO,
ERENIETA K. MENDOZA, MAXIMO A. VIERNES,
HACUBINA V. SERILLO, ILUMINADO D.
ESTRELLANES and SANTOS A. VILLANUEVA while
in the performance of their official functions and taking
advantage of their public positions, with evident bad
faith, manifest partiality, and conspiring and
confederating with each other did, then and there,
wilfully and unlawfully cause undue injury to Sectoral
Members Bartolome M. Binaohan and Delia T.
Estrellanes by refusing to pay despite demand the
amount of NINETY FIVE THOUSAND THREE
HUNDRED FIFTY PESOS (P95,350.00) and ONE
HUNDRED EIGHT THOUSAND NINE HUNDRED
PESOS (P108,900.00) representing respectively their
per diems, salaries and other privileges and benefits,
and such undue injury continuing to the present to the
prejudice and damage of Bartolome Binaohan and
Delia Estrellanes.
CONTRARY TO LAW. 1
On 9 September 1991, petitioners filed a motion with
the Sandiganbayan for suspension of the proceedings
in Criminal Case No. 16936 on the ground that a
prejudicial question exists in Civil Case No. 9955
pending before the Regional Trial Court of Dumaguete
City. 2
On 16 January 1992, the Regional Trial Court rendered
a decision declaring null and void ab initio the
designations issued by the Department of Local
Government to the private respondents as sectoral
representatives for having been done in violation of
Section 146 (2) of B.P. Blg. 337, otherwise known as
the Local Government Code. 3
The trial court expounded thus:
The Supreme Court in the case of Johnny D.
Supangan Jr. v. Luis T. Santos, et al., G.R. No. 84663,
along with 7 companion cases of similar import, (G.R.
Nos. 05012, 87601, 87602, 87792, 87935, 88072, and
90205) all promulgated on August 24, 1990, ruled that:
B.P. Blg. 337 explicitly required that before the
President (or the Secretary of the Department of Local
Government) may appoint members of the local
legislative bodies to represent the Industrial and
Agricultural Labor Sectors, there must be a
determination to be made by the Sanggunian itself that
the said sectors are of sufficient number in the city or
municipality to warrant representation after
consultation with associations and persons belonging
to the sector concerned.
The Supreme Court further ruled
For that matter, the Implementing Rules and
Regulations of the Local Government Code even
prescribe the time and manner by which such
determination is to be conducted by the Sanggunian.
Consequently, in cases where the Sanggunian
concerned has not yet determined that the Industrial
and Agricultural Labor Sectors in their particular city or
municipality are of sufficient number to warrant
representation, there will absolutely be no basis for the
designation/appointments.
In the process of such inquiry as to the sufficiency in
number of the sector concerned to warrant
representation, the Sanggunian is enjoined by law
(B.P. Blg. 337) to consult with associations and
persons belonging to the sector concerned.
Consultation with the sector concerned is made a pre-
requisite. This is so considering that those who belong
to the said sector are the ones primarily interested in
being represented in the Sanggunian. In the same
aforecited case, the Supreme Court considers such
prior determination by the Sanggunian itself (not by
any other person or body) as a condition sine qua non
to a valid appointment or designation.
Since in the present case, there was total absence of
the required prior determination by the Sangguniang
Bayan of Jimalalud, this Court cannot help but declare
the designations of private defendants as sectoral
representatives null and void.
This verdict is not without precedence. In several
similar cases, the Supreme Court invariably nullified
the designations where the requirements of Sec. 146
(2), B.P. Blg. 337 were not complied with. Just to cite
one case, the Supreme Court ruled:
There is no certification from the Sangguniang Bayan
of Valenzuela that the sectors concerned are of
sufficient number to warrant representation and there
was no consultation whatsoever with the associations
and persons belonging to the Industrial and Agricultural
Labor Sectors. Therefore, the appointment of private
respondents Romeo F. Bularan and Rafael Cortez are
null and void (Romeo Llanado, et al. v. Hon. Luis
Santos, et al., G.R. No. 86394, August 24, 1990). 4
Private respondents appealed the aforestated decision
to the Court of Appeals, docketed as CA-G.R. CV No.
36769, where the same is currently pending resolution.
Meanwhile, on 17 February 1992, respondent
Sandiganbayan issued a resolution denying the motion
for suspension of proceedings filed by petitioners. Said
respondent Sandiganbayan:
Despite the pendency of Civil Case No. 9955 of the
Regional Trial Court of Negros Oriental, it appears,
nevertheless, that the private complainants have been
rendering services on the basis of their respective
appointments as sectoral members of the
Sangguniang Bayan of the Municipality of Jimalalud,
Negros Oriental; and that their said appointments enjoy
the presumption of regularity. Having rendered such
services, the private complainants are entitled to the
salaries attached to their office. Even assuming
arguendo that the said Regional Trial Court shall later
decide that the said appointments of the private
complainants are null and void, still the private
complainants are entitled to their salaries and
compensation for service they have actually rendered,
for the reason that before such judicial declaration of
nullity, the private complainants are considered at least
de facto public officers acting as such on the basis of
apparently valid appointments issued by competent
authorities. In other words, regardless of the decision
that may be rendered in Civil Case
No. 9955, the private complainants are entitled to their
withheld salaries for the services they have actually
rendered as sectoral representatives of the said
Sangguniang Bayan. Hence, the decision that may be
rendered by the Regional Trial Court in Civil Case No.
9955 would not be determinative of the innocence or
guilt of the accused.
WHEREFORE, the subject Petition for the Suspension
of Proceedings in Virtue of Prejudicial Question filed by
the accused through counsel, is hereby DENIED for
lack of merit.
SO ORDERED. 5
Petitioners filed a motion for reconsideration of the
aforementioned resolution in view of the decision
promulgated by the trial court nullifying the
appointments of private respondents but it was,
likewise, denied in an order issued by respondent
Sandiganbayan on 19 August 1992 on the justification
that the grounds stated in the said motion were a mere
rehash of petitioners' original motion to hold the case in
abeyance. 6 The dispositive portion of its order reads
as follows:
WHEREFORE, in view of the foregoing, the
arraignment of the accused which was scheduled
today is cancelled. Mayor Reynaldo Tuanda,
Hermenegildo Faburada, Nicanor P. Agosto, Erenieta
K. Mendoza, Hacubina V. Serillo and Iluminado
Estrellanes are, however, hereby ordered to show
cause in writing within ten (10) days from service
hereof why they should not be cited for contempt of
court for their failure to appear in court today for
arraignment.
In case of an adverse resolution on the motion to
quash which is to be filed by the counsel for the
defense, set this case for arraignment, pre-trial and
trial on January 4 & 5, 1993, on all dates the trial to
start at 8:30 o'clock in the morning.
SO ORDERED. 7
On 19 February 1993, respondent Sandiganbayan
issued an order holding consideration of all incidents
pending the issuance of an extended resolution. 8
No such resolution, however, was issued and in its
assailed order dated 13 May 1992, respondent
Sandiganbayan set the arraignment of petitioners on
30 June 1993. The dispositive portion of the order
reads:
WHEREFORE, considering the absence of the
accused from the scheduled hearing today which We
deem to be excusable, reset this case for arraignment
on June 30, 1993 and for trial on the merits on June 30
and July 1 and 2, 1993, on all dates the trial to start at
8:30 o'clock in the morning.
Give proper notice to the accused and principal
counsel, Atty. Alfonso Briones. Considering that the
accused come all the way from Himalalud, Negros
Oriental, no postponement will be allowed.
SO ORDERED. 9
Hence, this special civil action for certiorari and
prohibition where petitioners attribute to respondent
Sandiganbayan the following errors:
A. The Respondent Court committed grave abuse of
discretion in denying petitioners' motions for the
suspension of the proceedings in Criminal Case No.
16936 in spite of the pendency of a prejudicial issue
before the Court of Appeals in CA-G.R. CV No. 36769;
B. The Respondent Court acted without or in excess of
jurisdiction in refusing to suspend the proceedings that
would entail a retrial and rehearing by it of the basic
issue involved, i.e., the validity of the appointments of
private respondents and their entitlement to
compensation which is already pending resolution by
the Court of Appeals in C.A. G.R. CV No. 36769; and
C. The Respondent Court committed grave abuse of
discretion and/or acted without or in excess of
jurisdiction in effectively allowing petitioners to be
prosecuted under two alternative theories that private
respondents are de jure and/or de facto officers in
violation of petitioners' right to due process. 10
In sum, the only issue in the case at bench is whether
or not the legality or validity of private respondents'
designation as sectoral representatives which is
pending resolution in CA-G.R. No. 36769 is a
prejudicial question justifying suspension of the
proceedings in the criminal case against petitioners.
A prejudicial question is one that must be decided
before any criminal prosecution may be instituted or
before it may proceed (see Art. 36, Civil Code)
because a decision on that point is vital to the eventual
judgment in the criminal case. Thus, the resolution of
the prejudicial question is a logical antecedent of the
issues involved in said criminal case. 11
A prejudicial question is defined as that which arises in
a case the resolution of which is a logical antecedent of
the issue involved therein, and the cognizance of which
pertains to another tribunal. The prejudicial question
must be determinative of the case before the court but
the jurisdiction to try and resolve the question must be
lodged in another court or tribunal. 12 It is a question
based on a fact distinct and separate from "the crime
but so intimately connected with it that it determines
the guilt or innocence of the accused, and for it to
suspend the criminal action, it must appear not only
that said case involves facts intimately related to those
upon which the criminal prosecution would be based
but also that in the resolution of the issue or issues
raised in the civil case, the guilt or innocence of the
accused would necessarily be determined. It comes
into play generally in a situation where a civil action
and a criminal action are both pending and there exists
in the former an issue which must be preemptively
resolved before the criminal action may proceed,
because howsoever the issue raised in the civil action
is resolved would be determinative juris et de jure of
the guilt or innocence of the accused in the criminal
case." 13
The rationale behind the principle of prejudicial
question is to avoid two conflicting decisions. 14 It has
two essential elements:
(a) the civil action involves an issue similar or
intimately related to the issue raised in the criminal
action; and
(b) the resolution of such issue determines
whether or not the criminal action may proceed. 15
Applying the foregoing principles to the case at bench,
we find that the issue in the civil case, CA-G.R. CV No.
36769, constitutes a valid prejudicial question to
warrant suspension of the arraignment and further
proceedings in the criminal case against petitioners.
All the elements of a prejudicial question are clearly
and unmistakably present in this case. There is no
doubt that the facts and issues involved in the civil
action (No. 36769) and the criminal case (No. 16936)
are closely related. The filing of the criminal case was
premised on petitioners' alleged partiality and evident
bad faith in not paying private respondents' salaries
and per diems as sectoral representatives, while the
civil action was instituted precisely to resolve whether
or not the designations of private respondents as
sectoral representatives were made in accordance with
law.
More importantly, ,the resolution of the civil case will
certainly determine if there will still be any reason to
proceed with the criminal action.
Petitioners were criminally charged under the Anti-
Graft & Corrupt Practices Act (RA 3019, sec, 3[e]) due
to their refusal, allegedly in bad faith and with manifest
partiality, to pay private respondents' salaries as
sectoral representatives. This refusal, however, was
anchored on petitioners' assertion that said
designations were made in violation of the Local
Government Code (B.P. Blg. 337) and thus, were null
and void. Therefore, should the Court of Appeals
uphold the trial court's decision declaring null and void
private respondents' designations as sectoral
representatives for failure to comply with the provisions
of the Local Government Code (B.P. Blg. 337, sec.
146[2]), the charges against petitioners would no
longer, so to speak, have a leg to stand on. Petitioners
cannot be accused of bad faith and partiality there
being in the first place no obligation on their part to pay
private respondents' claims. Private respondents do
not have any legal right to demand salaries, per diems
and other benefits. In other words, the Court of
Appeals' resolution of the issues raised in the civil
action will ultimately determine whether or not there is
basis to proceed with the criminal case.
Private respondents insist that even if their
designations are nullified, they are entitled to
compensation for actual services rendered. 16 We
disagree. As found by the trial court and as borne out
by the records, from the start, private respondents'
designations as sectoral representatives have been
challenged by petitioners. They began with a petition
filed with the Office of the President copies of which
were received by private respondents on 26 February
1989, barely eight (8) days after they took their oath of
office. 17 Hence, private respondents' claim that they
have actually rendered services as sectoral
representatives has not been established.
Finally, we find unmeritorious respondent
Sandiganbayan's thesis that even in the event that
private respondents' designations are finally declared
invalid, they may still be considered de facto public
officers entitled to compensation for services actually
rendered.
The conditions and elements of de facto officership are
the following:
1) There must be a de jure office;
2) There must be color of right or general
acquiescence by the public; and
3) There must be actual physical possession of the
office in good faith. 18
One can qualify as a de facto officer only if all the
aforestated elements are present. There can be no de
facto officer where there is no de jure office, although
there may be a de facto officer in a de jure office. 19
WHEREFORE, the resolution dated 17 February 1992
and orders dated 19 August 1992 and 13 May 1993 of
respondent Sandiganbayan in Criminal Case No.
16936 are hereby SET ASIDE. Respondent
Sandiganbayan is enjoined from proceeding with the
arraignment and trial of petitioners in Criminal Case
No. 16936 pending final resolution of CA-G.R. CV No.
36769. SO ORDERED.
b.) Beltran vs People
This petition for review, filed under Rule 45 of the 1997
Rules of Civil Procedure, seeks to review and set aside
the Order dated January 28, 1999 issued by Judge
Florentino A. Tuazon, Jr. of the Regional Trial Court of
Makati City, Branch 139 in Special Civil Case No. 98-
3056, entitled "Meynardo Beltran vs. People of the
Philippines and Hon. Judge Alden Cervantes of the
Metropolitan Trial Court of Makati city, Branch 61." The
said Order denied petitioners prayer for the issuance of
a writ of preliminary injunction to enjoin Judge
Cervantes from proceeding with the trial of Criminal
Case No. 236176, a concubinage case against
petitioner on the ground that the pending petition for
declaration of nullity of marriage filed by petitioner
against his wife constitutes a prejudicial question.
The antecedent facts of the case are undisputed:
Petitioner Meynardo Beltran and wife Charmaine E.
Felix were married on June 16, 1973 at the Immaculate
Concepcion Parish Church in Cubao, Quezon City.[1]
On February 7, 1997, after twenty-four years of
marriage and four children,[2] petitioner filed a petition
for nullity of marriage on the ground of psychological
incapacity under Article 36 of the Family Code before
Branch 87 of the Regional Trial Court of Quezon City.
The case was docketed as Civil Case No. Q-97-
30192.[3]
In her Answer to the said petition, petitioner's wife
Charmaine Felix alleged that it was petitioner who
abandoned the conjugal home and lived with a certain
woman named Milagros Salting.[4] Charmaine
subsequently filed a criminal complaint for
concubinage[5] under Article 334 of the Revised Penal
Code against petitioner and his paramour before the
City Prosecutor's Office of Makati who, in a Resolution
dated September 16, 1997, found probable cause and
ordered the filing of an Information[6] against them.
The case, docketed as Criminal Case No. 236176, was
filed before the Metropolitan Trial Court of Makati City,
Branch 61.
On March 20, 1998, petitioner, in order to forestall the
issuance of a warrant for his arrest, filed a Motion to
Defer Proceedings Including the Issuance of the
Warrant of Arrest in the criminal case. Petitioner
argued that the pendency of the civil case for
declaration of nullity of his marriage posed a prejudicial
question to the determination of the criminal case.
Judge Alden Vasquez Cervantes denied the foregoing
motion in the Order[7] dated August 31, 1998.
Petitioner's motion for reconsideration of the said Order
of denial was likewise denied in an Order dated
December 9, 1998.
In view of the denial of his motion to defer the
proceedings in the concubinage case, petitioner went
to the Regional Trial Court of Makati City, Branch 139
on certiorari, questioning the Orders dated August 31,
1998 and December 9, 1998 issued by Judge
Cervantes and praying for the issuance of a writ of
preliminary injunction.[8] In an Order[9] dated January
28, 1999, the Regional Trial Court of Makati denied the
petition for certiorari. Said Court subsequently issued
another Order[10] dated February 23, 1999, denying
his motion for reconsideration of the dismissal of his
petition.
Undaunted, petitioner filed the instant petition for
review.
Petitioner contends that the pendency of the petition
for declaration of nullity of his marriage based on
psychological incapacity under Article 36 of the Family
Code is a prejudicial question that should merit the
suspension of the criminal case for concubinage filed
against him by his wife.
Petitioner also contends that there is a possibility that
two conflicting decisions might result from the civil case
for annulment of marriage and the criminal case for
concubinage. In the civil case, the trial court might
declare the marriage as valid by dismissing petitioner's
complaint but in the criminal case, the trial court might
acquit petitioner because the evidence shows that his
marriage is void on ground of psychological incapacity.
Petitioner submits that the possible conflict of the
courts' ruling regarding petitioner's marriage can be
avoided, if the criminal case will be suspended, until
the court rules on the validity of marriage; that if
petitioner's marriage is declared void by reason of
psychological incapacity then by reason of the
arguments submitted in the subject petition, his
marriage has never existed; and that, accordingly,
petitioner could not be convicted in the criminal case
because he was never before a married man.
Petitioner's contentions are untenable.
The rationale behind the principle of prejudicial
question is to avoid two conflicting decisions. It has two
essential elements: (a) the civil action involves an
issue similar or intimately related to the issue raised in
the criminal action; and (b) the resolution of such issue
determines whether or not the criminal action may
proceed.[11]
The pendency of the case for declaration of nullity of
petitioner's marriage is not a prejudicial question to the
concubinage case. For a civil case to be considered
prejudicial to a criminal action as to cause the
suspension of the latter pending the final determination
of the civil case, it must appear not only that the said
civil case involves the same facts upon which the
criminal prosecution would be based, but also that in
the resolution of the issue or issues raised in the
aforesaid civil action, the guilt or innocence of the
accused would necessarily be determined.
Article 40 of the Family Code provides:
"The absolute nullity of a previous marriage may be
invoked for purposes of remarriage on the basis solely
of a final judgment declaring such previous marriage
void."
In Domingo vs. Court of Appeals,[12] this Court ruled
that the import of said provision is that for purposes of
remarriage, the only legally acceptable basis for
declaring a previous marriage an absolute nullity is a
final judgment declaring such previous marriage void,
whereas, for purposes of other than remarriage, other
evidence is acceptable. The pertinent portions of said
Decision read:
"xxx Undoubtedly, one can conceive of other instances
where a party might well invoke the absolute nullity of a
previous marriage for purposes other than remarriage,
such as in case of an action for liquidation, partition,
distribution and separation of property between the
erstwhile spouses, as well as an action for the custody
and support of their common children and the delivery
of the latters' presumptive legitimes. In such cases,
evidence needs must be adduced, testimonial or
documentary, to prove the existence of grounds
rendering such a previous marriage an absolute nullity.
These needs not be limited solely to an earlier final
judgment of a court declaring such previous marriage
void."
So that in a case for concubinage, the accused, like
the herein petitioner need not present a final judgment
declaring his marriage void for he can adduce
evidence in the criminal case of the nullity of his
marriage other than proof of a final judgment declaring
his marriage void.
With regard to petitioner's argument that he could be
acquitted of the charge of concubinage should his
marriage be declared null and void, suffice it to state
that even a subsequent pronouncement that his
marriage is void from the beginning is not a defense.
Analogous to this case is that of Landicho vs.
Reloval[13] cited in Donato vs. Luna[14] where this
Court held that:
"xxx Assuming that the first marriage was null and void
on the ground alleged by petitioner, that fact would not
be material to the outcome of the criminal case. Parties
to the marriage should not be permitted to judge for
themselves its nullity, for the same must be submitted
to the judgment of the competent courts and only when
the nullity of the marriage is so declared can it be held
as void, and so long as there is no such declaration the
presumption is that the marriage exists. Therefore, he
who contracts a second marriage before the judicial
declaration of nullity of the first marriage assumes the
risk of being prosecuted for bigamy."
Thus, in the case at bar it must also be held that
parties to the marriage should not be permitted to
judge for themselves its nullity, for the same must be
submitted to judgment of the competent courts and
only when the nullity of the marriage is so declared can
it be held as void, and so long as there is no such
declaration the presumption is that the marriage exists
for all intents and purposes. Therefore, he who
cohabits with a woman not his wife before the judicial
declaration of nullity of the marriage assumes the risk
of being prosecuted for concubinage. The lower court
therefore, has not erred in affirming the Orders of the
judge of the Metropolitan Trial Court ruling that
pendency of a civil action for nullity of marriage does
not pose a prejudicial question in a criminal case for
concubinage.
WHEREFORE, for lack of merit, the instant petition is
DISMISSED. SO ORDERED.
c.) PASI vs Lichauco
This Petition for Review on Certiorari seeks the
reversal of the Decision1 dated 21 February 2000 of
the Court of Appeals in C.A. G.R. No. SP 49422. The
assailed Decision authorized the dismissal of a civil
complaint against respondent Josefina Trinidad-
Lichauco (Lichauco), former Undersecretary for
Communications of the Department of Transportation
and Communication (DOTC), on the premise that the
complaint constituted a suit against the State.
A brief rundown of the relevant facts is in order.
Petitioner Philippine Agila Satellite Inc. (PASI) is a duly
organized corporation, whose President and Chief
Executive Officer is co-petitioner Michael C.U. De
Guzman. PASI was established by a consortium of
private telecommunications carriers2 which in 1994
had entered into a Memorandum of Understanding
(MOU) with the DOTC, through its then Secretary
Jesus Garcia, concerning the planned launch of a
Philippine-owned satellite into outer space. Under the
MOU, the launch of the satellite was to be an endeavor
of the private sector, and the satellite itself to be owned
by the Filipino-owned consortium (subsequently
organized as PASI).3 The consortium was to grant the
Philippine government one (1) transponder free of
charge for the government's exclusive use for non-
commercial purpose, as well as the right of first refusal
to another one (1) transponder in the Philippine
satellite, if available.4 The Philippine government,
through the DOTC, was tasked under the MOU to
secure from the International Telecommunication
Union the required orbital slot(s) and frequency
assignment(s) for the Philippine satellite.
PASI itself was organized by the consortium in 1996.
The government, together with PASI, coordinated
through the International Telecommunication Union
two (2) orbital slots, designated as 161 East Longitude
and 153 East Longitude, for Philippine satellites. On
28 June 1996, PASI wrote then DOTC Secretary
Amado S. Lagdameo, Jr., seeking for official Philippine
government confirmation on the assignment of the two
aforementioned Philippine orbital slots to PASI for its
satellites, which PASI had designated as the Agila
satellites.5 Secretary Lagdameo, Jr. replied in a letter
dated 3 July 1996, confirming "the Philippine
Government's assignment of Philippine orbital slots
161E and 153E to [PASI] for its [Agila] satellites."6
PASI avers that after having secured the confirmation
from the Philippine government, it proceeded with
preparations for the launching, operation and
management of its satellites, including the availment of
loans, the increase in its capital, negotiation with
business partners, and an initial payment of US$3.5
Million to the French satellite manufacturer. However,
respondent Lichauco, then DOTC Undersecretary for
Communications, allegedly "embarked on a crusade to
malign the name of [Michael de Guzman] and
sabotage the business of PASI." Lichauco's purported
efforts against PASI culminated allegedly in her
offering orbital slot 153 East Longitude
for bidding to other parties sometime in December
1997, despite the prior assignment to PASI of the said
slot.7 It was later claimed by PASI that Lichauco
subsequently awarded the orbital slot to an entity
whose indentity was unknown to PASI.8
Aggrieved by Lichauco's actions, PASI and De
Guzman instituted on 23 January 1998 a civil
complaint against Lichauco, by then the Acting
Secretary of the DOTC, and the "Unknown Awardee"
who was to be the recipient of orbital slot 153 East
Longitude. The complaint, alleging three (3) causes of
action, was for injunction, declaration of nullity of
award, and damages. The first cause of action, for
injunction, sought to establish that the award of orbital
slot 153 East Longitude should be enjoined since the
DOTC had previously assigned the same orbital slot to
PASI. The second cause of action, for declaration of
nullity of award, averred that the award to the unknown
bidder is null and void, as it was rendered by Lichauco
beyond her authority.9
The third cause of action, for damages, imputed
several acts to Lichauco as part of her alleged
"crusade" to malign the name of plaintiff [D]e Guzman
and sabotage the business of [PASI]:
12. xxx
(a) On 4 December 1996, in a meeting with the
members of the Board of Directors of plaintiff
corporation, defendant Lichauco then uttered
disparaging and defamatory comments against plaintiff
de Guzman. These defamatory remarks triggered
efforts from within the plaintiff corporation aimed at
ousting plaintiff de Guzman from his position.
(b) Defendant Lichauco, then an undersecretary of
DOTC, wrote Mr. Jesli Lapuz on 5 December 1996
(barely two days after plaintiff de Guzman wrote him)
to deny that the DOTC has assigned the two (2)
Philippine orbital slots to plaintiff corporation.
Defendant Lichauco falsely asserted that only orbital
slot 161 E was assigned to plaintiff, orbital slot 153 E
was not.
In the same letter, defendant Lichauco branded as
FALSE plaintiff de Guzman's claim that "Agila" is a
registered corporate name of plaintiff corporation.
A copy of the letter is attached as Annex E.
(c) Not contented, defendant Lichauco, again for
reasons known only to her, and with malice
aforethought, made defamatory remarks against
plaintiffs during a telecommunications forum held in
Makati City sometime in October 1997 in the presence
of public officials and business executives.
(d) Defendant Lichauco did not spare plaintiff
corporation from her unprovoked defamation.
Defendant Lichauco arrogantly said that she had asked
President Fidel V. Ramos to sue plaintiff Michael de
Guzman. With the same degree of arrogance she
threatened plaintiff corporation not to use the name
"Agila", otherwise she would fight plaintiff corporation
and would make sure that the name of Agila would
never be given back to plaintiff corporation.
(e) To top it all, defendant Lichauco without basis and
with evident bad faith, said that plaintiff corporation will
never pay its contractors.
(f) In December 1997, defendant Lichauco delivered
the coup de' grace. Again, acting unilaterally, without
prior notice to plaintiff corporation and in gross violation
of DOTC's earlier assignment to plaintiff corporation of
orbital slot 153 E, defendant Lichauco offered said slot
to interested applicants. A copy of the notice of offer is
attached as Annex F.
13. Plaintiffs learned of defendant Lichauco's acts after
orbital slot 153 E was offered for bidding. To plaintiff
coproration's knowledge, the orbital slot was eventually
awarded to defendant Unknown Awardee.
x x x x10
The complaint alleged that since Lichauco's act of
offering and awarding orbital slot 153 East Longitude
was patently illegal and violative of DOTC's prior
commitment to PASI, Lichauco should be enjoined
from performing any acts and entering into or
executing any agreement or arrangement of whatever
nature in connection with the said orbital slot. The
complaint also averred that the purported award of the
orbital slot to the "Unknown Awardee was illegal, and
thus should be declared null and void. Finally, the
complaint alleged a cause of action for damages
against Lichauco, cast in the following manner:
xxxx
21. Defendant Lichauco attacked the good name and
reputation of plaintiffs.
22. She willfully caused damage to plaintiffs by
orchestrating the above-described acts which are
contrary to law; morals and basic norms of good faith.
23. She interefered with and violated plaintiff
corporation's contract with DOTC by offering and
awarding orbital slot 153 E to defendant Unknown
Awardee.
24. Because of defendant Lichauco's reprehensible
acts, plaintiffs suffered actual damages of at least P10
million each, for all of which defendant Lichauco should
be held liable to pay.
25. By reason of defendant Lichauco's illegal and
malicious acts, plaintiff corporation's business name
and goodwill was tarnished, for which plaintiff
corporation should be indemnified by way of moral
damages in the amount of at least P10 million.
26. For the same reasons, plaintiff de Guzman suffered
and continue to suffer extreme mental anguish, serious
anxiety, wounded feelings, moral shock and
besmirched reputation, for all of which plaintiff de
Guzman should be indemnified in the amount of at
least P10 million.
27. Defendant Lichauco should also be sanctioned, as
a deterrent for public good, to pay each plaintiff
exemplary damages in the amount of at least P5
million.
28. In order to protect and enforce their rights, plaintiffs
were compelled to institute this suit, engage the
services of counsel and incur litigation expenses, for all
of which plaintiffs should be indemnified in the amount
of at least P500 Thousand each.11
xxxx
In sum, petitioners sought the following reliefs for the
three (3) causes of action:
xxxx
3. After trial of the issues, render judgment as follows:
[a] On the first cause of action, making permanent the
writ of preliminary injunction;
[b] On the second cause of action, declaring the offer
and award of orbital slot 153 E to defendant Unknown
Awardee null and void.
[c] On the third cause of action, directing defendant
Lichauco to pay the following sums:
i. P10 million each to plaintiffs as actual damages;
ii. P10 million to plaintiff corporation as moral
damages;
iii. P10 million to plaintiff de Guzman as moral
damages;
iv. P5 million each to plaintiffs as exemplary damages;
v. P500 Thousand each to plaintiffs as attorney's fees
and litigation expenses.
x x x x12
The complaint was filed before the Regional Trial Court
(RTC) of Mandaluyong City, and subsequently raffled
to Branch 214. On 2 February 1998, the RTC issued a
temporary restraining order against Lichauco, who
received the summons together with the complaint on
28 January 1998. Lichauco failed to file an answer
within the reglementary period, but eight (8) days after
the lapse thereof, she filed a Manifestation and Motion
asking for a new five (5)-day period, or until 25
February 1998, to file a responsive pleading to the
complaint. However, she filed instead a Motion to
Admit with attached Motion to Dismiss on 27 February
1998. She rooted her prayer for the dismissal of the
complaint primarily on the grounds that the suit is a suit
against the State which may not be sued without its
consent; that the complaint stated no cause of action;
and that the petitioners had failed to exhaust
administrative remedies by failing to seek recourse
with the Office of the President.
In an order13 dated 14 August 1998, the RTC denied
the motion to dismiss. It characterized the defense of
state immunity as "at very least a contentious issue
which can not be resolved by mere allegations in the
pleadings but which can be best threshed out in a
litig[i]ous forum where parties are accorded enormous
(sic) opportunity to argue for the ascertainment of
whether the act complained of are indeed within the
parameters and prerogatives of the authority exercising
the same."14 The RTC also noted that the allegations
in the complaint regarding the ultimate facts sufficiently
presented an ultra vires act of Lichauco, and that she
was being sued in her personal capacity. As to the
argument pertaining to the non-exhaustion of
administrative remedies, the RTC noted that the
principle is not an inflexible rule, and may be
dispensed with when its application would cause great
and irreparable damage or when it would not constitute
a plain, speedy and adequate remedy.15
Lichauco assailed the RTC order through a Petition for
Certiorari under Rule 65 before the Court of Appeals,
which subsequently nullified the RTC order in the
Decision now assailed before us. The Court of Appeals
sustained the contention that the complaint is a suit
against the State with the following ratiocination:
The suit is to the mind of this court a suit against the
state.1avvphil.net
The notice of offer signed by herein petitioner allegedly
tainted with bad faith was done in the exercise of and
in pursuance of an official duty. Her duties are as
follows:
SEC. 10. Powers and Duties of the Undersecretary.
The Undersecretary shall:
(1) Advise and assist the Secretary in the formulation
and implementation of department objectives and
policies;
(2) Oversee all the operational activities of the
department for which he shall be responsible to the
Secretary;
(3) Coordinate the programs and projects of the
department and be responsible for its economical,
efficient and effective administration:
xxxxxxxxx
It is apparent from the above enumeration that the
petitioner is directly under and answerable to the
DOTC Secretary. We can therefore conclude that her
official acts such as the said "notice of offer" was with
the blessing and prior approval of the DOTC Secretary
himself.
Being an official act, it is also protected by the
presumption that the same was performed in good faith
and in the regular performance of official duty.
"Acts in Line of Duty or under Color of Authority. - As a
rule, a public officer, whether judicial, quasi-judicial, or
executive, is not personally liable to one injured in
consequence of an act performed within the scope of
his official authority, and in the line of his official duty.
In order that acts may be done within the scope of
official authority, it is not necessary that they be
prescribed by statute, or even that they be specifically
directed or requested by a superior officer, but it is
sufficient if they are done by an officer in relation to
matters committed by law to his control or supervision,
or that they have more or less connection with such
matters, or that they are governed by a lawful
requirement of the department under whose authority
the officer is acting. Under this principle, state building
commissioners who, in obedience to a stature,
discharge one who has been employed to construct a
state building, take possession of the work, and place it
in the hands of another contractor, are not liable to the
former contractor in damages, since in so doing they
are merely acting in the line of their duty. An officer is
not personally responsible for the necessary and
unavoidable destruction of goods stored in buildings,
when such buildings were destroyed by him in the
lawful performance of a public duty imposed on him by
a valid and constitutional statute."
xxxxxxxxx
Error or Mistake in Exercise of Authority. - Where an
officer is invested with discretion and is empowered to
exercise his judgment in matters brought before him he
is sometimes called a quasi-judicial officer, and when
so acting he is usually given immunity from liability to
persons who may be injured as the result of an
erroneous or mistaken decision, however, erroneous
judgment may be, provided the acts complained of are
done within the scope of the officer's authority, and
without willfulness, malice, or corruption." (43 Am. Jur.,
pp. 85-86).
In Sanders vs. Veridiano[16], the Supreme Court held:
"Given the official character of the above-described
letters, we have to conclude that the petitioners were,
legally speaking, being sued as officers of the United
States government. As they have acted on behalf of
that government, and within the scope of their
authority, it is that government and not the petitioners
personally, that is responsible for their acts. Assuming
that the trial can proceed and it is proved that the
claimants have a right to the payment of damages,
such award will have to be satisfied not by the
petitioners in their personal capacities but by the
United States government as their principal. This will
require that government, viz.: the appropriation of the
necessary amount to cover the damages awarded,
thus making the action a suit against that government
without its consent.
There should be no question by now that such
complaint cannot prosper unless the government
sought to be held ultimately liable has given its consent
to be sued. So we have ruled not only in Baer but in
many other decisions where we upheld the doctrine of
state immunity as applicable not only to our own
government but also to foreign States sought to be
subjected to the jurisdiction of our courts.
xxxxxxxxx
The Court finds that, even under the law of public
officers, the acts of the petitioners are protected by the
presumption of good faith, which has not been
overturned by the private respondents. Even mistakes
concededly committed by such public officers are not
actionable as long as it is not shown that they were
motivated by malice or gross negligence amounting to
bad faith. This too is well-settled."17
Preliminarily, we discuss the procedural grounds cited
by petitioners which they assert are sufficient to have
caused the dismissal of Lichauco's petition before the
Court of Appeals. Petitioners claim that contrary to
Section 1, Rule 65 of the 1997 Rules of Civil
Procedure, Lichauco failed to attach all pleadings and
documents relevant to her petition, and that those that
were attached were merely "duplicate original copies."
Lichauco counters that for the viability of her petition
for certiorari, all that she needed to attach were her
motion to dismiss, the RTC orders acting on such
motion, her motion for reconsideration of the denial of
her motion to dismiss, and petitioners' opposition to
said motion for reconsideration. She claims that only
these motions and submission were relevant to the
resolution of her petition.18
In her comment, Lichaucho claims that she did not
have to attach the complaint to the copy of the petition
she sent to the petitioners herein, since the latter
obviously retained the original copy of the complaint
they filed.19 However, her petition before the appellate
court does not indicate that the same complaint was
included as an attachment, and indeed, there is a
curious absence of any averment on Lichuaco's part
that she indeed attached the said complaint to her
petition.20 Certainly, in a petition for certiorari assailing
the denial of a motion to dismiss a complaint, the very
complaint itself is a document relevant and pertinent to
the special civil action. It should be remembered that
unlike in an ordinary appeal that is given due course,21
the case record is not automatically elevated to the
court exercising jurisdiction over a special civil action
for certiorari; hence there is an even more impelling
need to attach all pleadings and documents to the
special civil action, as mandated under Section 1, Rule
65 of the 1997 Rules of Civil Procedure. After all, how
could the court a quo properly ascertain whether or not
the motion to dismiss itself should have been granted if
it did not have a copy of the complaint sought to be
dismissed itself.
Nonetheless, the requirement to attach such relevant
pleadings under Section 1, Rule 65 is read in relation
to Section 3, Rule 46, which states that the failure of
the petitioner to comply with any of the documentary
requirements, such as the attachment of such relevant
pleadings, "shall be sufficient ground for the dismissal
of the petition." The procedural rule accords sufficient
discretion to the court hearing the special civil action
whether or not to dismiss the petition outright for failure
to comply with said requirement. If the court does
dismiss the petition on that ground, the dismissal would
be justifiable under Section 3, Rule 46, and generally
such action of the court cannot be assailed as
constituting either grave abuse of discretion or
reversible error of law. If the court, on the other hand,
takes cognizance of the petition despite such lapses,
the phrasing of Section 3, Rule 46 sufficiently justifies
such adjudicative recourse. Indeed, the ultimate logic
behind rules of procedure being the promotion of the
objective of securing a just, speedy and inexpensive
disposition of every action and proceeding,22 the
higher interests of justice may at times sufficiently
warrant the allowance of the petition for certiorari
despite such lapses, especially if they are nonetheless
correctible through subsequent submissions.
In any event, the Court is willing to overlook Lichauco's
failure to attach the complaint in her petition for
certiorari before the Court of Appeals, an oversight
sadly ignored by the appellate court. There are weighty
issues at hand relating to the doctrine of state immunity
from suit and the requisites of a motion to dismiss.
There is a connective issue between these two aspects
in that if the State is sued without its consent, the
corresponding suit must be dismissed. At times, it
would be teasingly obvious, even from the moment of
the filing of the complaint, that the suit is one against
the State. A cursory examination of the caption of the
complaint can sometimes betray such proscribed
intent, as when the suit is directly initiated against the
Republic of the Philippines, any foreign government, or
an unincorporated government agency as the named
respondents. In such cases, obviously there is need for
immediate caution, although if it is somehow
established that those respondents had given their
consent to be sued, the suit may nonetheless prosper.
The present action was denominated against Lichauco
and the unknown awardee, Lichauco was identified in
the complaint as "acting Secretary of the [DOTC]."23
The hornbook rule is that a suit for acts done in the
performance of official functions against an officer of
the government by a private citizen which would result
in a charge against or financial liability to the
government must be regarded as a suit against the
State itself, although it has not been formally
impleaded.24 However, government immunity from suit
will not shield the public official being sued if the
government no longer has an interest to protect in the
outcome of a suit; or if the liability of the officer is
personal because it arises from a tortious act in the
performance of his/her duties.
Petitioner insists that Lichauco is being sued for her
acts committed in excess of her authority, ultra vires in
nature, and tortious in character. The Court of Appeals
responded that such acts fell within Lichauco's official
duties as DOTC Undersecretary, thus enjoying the
presumption that they were performed in good faith
and in the regular performance of official duty. This
rationale is pure sophistry and must be rejected
outright.
We do not doubt the existence of the presumptions of
"good faith" or "regular performance of official duty",
yet these presumptions are disputable25 and may be
contradicted and overcome by other evidence.26 Many
civil actions are oriented towards overcoming any
number of these presumptions, and a cause of action
can certainly be geared towards such effect. The very
purpose of trial is to allow a party to present evidence
overcome the disputable presumptions involved.
Otherwise, if trial is deemed irrelevant or unnecessary,
owing to the perceived indisputability of the
presumptions, the judicial exercise would be relegated
to a mere ascertainment of what presumptions apply in
a given case, nothing more. Consequently, the entire
Rules of Court is rendered as excess verbiage, save
perhaps for the provisions laying down the legal
presumptions.
If this reasoning of the Court of Appeals were ever
adopted as a jurisprudential rule, no public officer could
ever be sued for acts executed beyond their official
functions or authority, or for tortious conduct or
behavior, since such acts would "enjoy the
presumption of good faith and in the regular
performance of official duty". Indeed, few civil actions
of any nature would ever reach the trial stage, if a case
can be adjudicated by a mere determination from the
complaint or answer as to which legal presumptions
are applicable. For example, the presumption that a
person is innocent of a wrong is a disputable
presumption on the same level as that of the regular
performance of official duty.27 A civil complaint for
damages necessarily alleges that the defendant
committed a wrongful act or omission that would serve
as basis for the award of damages. With the rationale
of the Court of Appeals, such complaint can be
dismissed upon a motion to dismiss solely on the
ground that the presumption is that a person is
innocent of a wrong.
So obviously, the Decision of the Court of Appeals
cannot receive the imprimatur of this Court. Still, the
question of whether Lichauco may validly invoke state
immunity from suit to secure the outright dismissal of
petitioners' complaint warrants closer examination.
As earlier noted, the complaint alleges three (3) causes
of action against Lichauco: one for injunction against
her performing any act in relation to orbital slot 153
East Longitude; one for declaration of nullity of award,
seeking to nullify the alleged award of orbital slot 153
East Longitude; and one for damages against Lichauco
herself. Evidently, the first two causes of action stem
from Lichauco's act of offering orbital slot 153 East
Longitude for bidding, through the Notice of Offer
which was attached to the complaint.
In her Motion to Dismiss, Lichauco asserts that she is
being sued for issuing the aforementioned Notice of
Offer, which fell within her official functions as DOTC
Undersecretary for Communications. She claims that it
was Secretary Lagdameo who authorized her to offer
orbital slot 153 East Longitude for bidding, and she
thus acted well within the scope of her authority to
advise and assist the DOTC Secretary in the
formulation and implementation of department
objectives and policies.
The Notice of Offer cites Department Circular 97-01,
signed by then DOTC Secretary Arturo Enrile, as
authority for it. The Court has examined the
aforementioned Department Circular, issued on 17
October 1997, which establishes the "Guidelines on
the Procurement of Orbital Slots and Frequency
Registration of Philippine Satellites". Therein, the
DOTC is mandated "to conduct a bidding process in
case there are competing applications for any one of
the assigned or applied-for-orbital slots"28. Further, the
Department Circular states that "the DOTC shall
publish in three newspapers of general circulation a
notice of offer for the government assigned, initiated
and applied for orbital slots."29
Thus, insofar as the first two causes of action are
concerned, Lichauco may have a point when she
asserts that they were based on acts which she
performed in her capacity as DOTC Undersecretary.
But does this necessarily mean that these two causes
of action may thus be dismissed on the basis of state
immunity of suit?
As stated earlier, it is when the acts done in the
performance of official functions by an officer of the
government will result in a charge against or financial
liability to the government that the complaint must be
regarded as a suit against the State itself. However,
the distinction must also be raised between where the
government official concerned performs an act in
his/her official and jurisdictional capacity and where he
performs an act that constitutes grave abuse of
discretion tantamount to lack of jurisdiction. In the latter
case, the Constitution itself assures the availability of
judicial review, and it is the official concerned who
should be impleaded as the proper party- defendant or
respondent.
On this point, our ruling in J.M. Tuazon & Co. v. Land
Tenure Administration30 is material. Petitioners therein
had filed a special civil action for prohibition to nullify
Republic Act No. 2616, or law that directed the
expropriation of the Tatalon Estate in Quezon City.
Impleaded as respondents were the officials and
government agency tasked to undertake such
expropriation. The respondents alleged that the petition
for prohibition was actually a suit against the State
without its consent. The Court, through then Associate
Justice (later Chief Justice) Enrique Fernando,
debunked the argument, ruling instead that the petition
was within the ambit of judicial review:
[T]he power of judicial review is granted, if not
expressly, at least by clear implication from the
relevant provisions of the Constitution. This power may
be exercised when the party adversely affected by
either a legislative or executive act, or a municipal
ordinance for that matter, files the appropriate suit to
test its validity. The special civil action of prohibition
has been relied upon precisely to restrain the
enforcement of what is alleged to be an
unconstitutional statute. As it is a fundamental
postulate that the Constitution as the supreme law is
binding on all governmental agencies, failure to
observe the limitations found therein furnishes a
sufficient ground for a declaration of nullity of the
government measure challenged. The argument then
that the government is the adverse party and that,
therefore, must consent to its being sued certainly is
far from persuasive. x x x x31
The Court further noted that it was well-settled for the
purpose of obtaining a judicial declaration of nullity, "it
is enough if the respondents or defendants named be
the government officials who would give operation and
effect to official action allegedly tainted with
unconstitutionality."32
Unlike in J.M. Tuason, the case at bar does not seek to
nullify an unconstitutional law or measure. However,
the first two causes of action do sufficiently impute
grave abuse of discretion against Lichauco in her
official capacity. Since judicial review of acts alleged to
have been tainted with grave abuse of discretion is
guaranteed by the Constitution, it necessarily follows in
such instances that it is the official concerned who
should be impleaded as defendant or respondent in the
appropriate suit.
Moreover, if the suit had been directed against
Lichauco alone, and in her personal capacity, yet it
sought, as it now does, the nullification of the Notice of
Offer or the awards thereon, such remedy could not
avail even if granted. Lichauco, in her personal
capacity, cannot be directed to set aside the Notice of
Offer, the award of the bid, or to issue a new award
herself. It is only because Lichauco was sued in her
official capacity as the DOTC Undersecretary that she,
or her successors in office, could be judicially
compelled to act in such fashion.
As to the first two (2) causes of action, the Court rules
that the defense of state immunity from suit do not
apply since said causes of action cannot be properly
considered as suits against the State in constitutional
contemplation. These causes of action do not seek to
impose a charge or financial liability against the State,
but merely the nullification of state action. The prayers
attached to these two causes of action are for the
revocation of the Notice of Bid and the nullification of
the purported award, nothing more. Had it been so that
petitioner additionally sought damages in relation to
said causes of action, the suit would have been
considered as one against the State. Had the petitioner
impleaded the DOTC itself, an unincorporated
government agency, and not Lichauco herself, the suit
would have been considered as one against the State.
But neither circumstance obtains in this case.
Parenthetically, it may be noted that at the time of the
filing of the complaint, Lichauco herself was already
the acting head of the DOTC, owing to the sudden
death of then Secretary Enrile a few days before. At
that stage, any suit seeking to nullify the Notice of Bid
and the alleged award to the "Unknown Bidder" should
have properly denominated Lichauco as the
respondent, and not the DOTC.
Nonetheless, as to the first two causes of action, there
was a viable ground to dismiss the complaint: the non-
exhaustion of administrative remedies. Indeed, such
ground was alleged by Lichauco in her Motion to
Dismiss. Yet the principle of non-exhaustion of
administrative remedies admits to several exceptions.
In its Order denying the motion to dismiss the
complaint, the RTC adequately dispensed with the
objection, applying the established exceptions to the
rule of non-exhaustion of administrative remedies. To
wit:
Turning to the matter pertaining to non-exhaustion of
administrative remedies, it is fundamental that this
principle is not an inflexible rule. It yields to many
accepted exceptions. (Rocamora vs. RTC - Cebu, G.R.
No. 65307). As in this case, this principle can be
dispensed with when its application would cause great
and irreparable damage and when it does not provide
a plain, speedy and adequate remedy.
When the subject orbital slot 153 E was bidded out to
other applicants, the damage and injury plaintiffs stand
to suffer was clear, present, and substantiated that this
Court was impelled to provide urgent needed measure
such as the issuance of writ of injunction against the
public defendant. Indeed, under the circumstances
then obtaining it was impractical for the plaintiffs to first
proceed to the administrative official concerned before
taking court action.33
A different set of principles applies to the third cause of
action, anchored as it is on alleged acts that are
tortious in character or otherwise beyond the scope of
Lichauco's official duties. The complaint alleges that
Lichauco uttered several disparaging and defamatory
remarks against petitioners and made false assertions
against them in her letter to the Land Bank President.
The veracity of those allegations is of course presented
at the trial to be determined on the basis of the
evidence. However, if proven, they would establish
liability on the part of Lichauco that is not shielded by
the doctrine of state immunity from suit. The doctrine,
as summarized in Shauf v. Court of Appeals :34
While the doctrine appears to prohibit only suits
against the state without its consent, it is also
applicable to complaints filed against officials of the
state for acts allegedly performed by them in the
discharge of their duties. The rule is that if the
judgment against such officials will require the state
itself to perform an affirmative act to satisfy the same,
such as the appropriation of the amount needed to pay
the damages awarded against them, the suit must be
regarded as against the state itself although it has not
been formally impleaded. It must be noted, however,
that the rule is not so all-encompassing as to be
applicable under all circumstances.
It is a different matter where the public official is made
to account in his capacity as such for acts contrary to
law and injurious to the rights of plaintiff. As was clearly
set forth by Justice Zaldivar in Director of the Bureau of
Telecommunications, et al. vs. Aligaen, etc., et al.
'Inasmuch as the State authorizes only legal acts by its
officers, unauthorized acts of government officials or
officers are not acts of the State, and an action against
the officials or officers by one whose rights have been
invaded or violated by such acts, for the protection of
his rights, is not a suit against the State within the rule
of immunity of the State from suit. In the same tenor, it
has been said that an action at law or suit in equity
against a State officer or the director of a State
department on the ground that, while claiming to act for
the State, he violates or invades the personal and
property rights or the plaintiff, under an unconstitutional
act or under an assumption of authority which he does
not have, is not a suit against the State within the
constitutional provision that the State may not be sued
without its consent.' The rationale for this ruling is that
the doctrine of state immunity cannot be used as an
instrument for perpetrating an injustice.35
The doctrine poses no controversy if after trial on the
merits, it is established that the public official
concerned had committed illegal or tortious acts
against the plaintiff. How does it apply in relation to a
motion to dismiss on the ground of state immunity from
suit, necessarily lodged before trial on the merits?
Our ruling in United States of America v. Reyes36
warrants due consideration. The Court therein, through
then Associate Justice (later Chief Justice) Hilario G.
Davide, Jr., ruled that a motion to dismiss averring
immunity from suit of a State and its functionaries was
actually grounded on the specific ground for dismissal
of the lack of cause of action, for even assuming that
the defendants had committed the injurious acts
complained of, "no action may be maintained thereon,
because of the principle of state immunity."37
Pertinently, the Court noted that "a motion to dismiss
on the ground of failure to state a cause of action
hypothetically admits the truth of the allegations in the
complaint."
Thus, Lichauco, in alleging in her Motion to Dismiss
that she is shielded by the State's immunity from suit,
to hypothetically admitted the truth of the allegations in
the complaint. Such hypothetical admission has to be
deemed a concession on her part that she had
performed the tortious or damaging acts against the
petitioners, which if true, would hold her liable for
damages.
Of course, Lichauco could very well raise the defense
of state immunity from suit in regard to the third cause
of action with the assertion that the acts complained of
constituting said cause of action fell within her official
functions and were not tortuous in character. Still, to
establish such assertions of fact, a full-blown trial on
the merits would be necessary, as would the case be if
Lichauco raised the defense that she did not commit
these acts complained of. Certainly, these defenses
cannot be accorded merit before trial, factual as they
are in character.
All told, contrary to the ruling of the Court of Appeals,
we find no grave abuse of discretion on the part of the
RTC in denying Lichauco's Motion to Dismiss.
WHEREFORE, the PETITION is GRANTED. The
Decision of the Court of Appeals dated 21 February
2000 is SET ASIDE and the Order dated 14 August
1998 of the Regional Trial Court of Mandaluyong City
is REINSTATED. The Regional Trial Court is ordered
to try and decide the case on the merits with deliberate
dispatch. No costs. SO ORDERED.
d.) Yap vs Cabales
This is a petition for review on certiorari under Rule 45
of the Rules of Court with prayer for the issuance of a
writ of preliminary injunction and/or issuance of status
quo order seeking to annul and set aside the
Resolution1 of the Court of Appeals (CA) dated July
17, 2003 denying petitioner's motion for
reconsideration of the Decision2 dated April 30, 2003
in CA-G.R. SP No. 68250.
The facts of the case are as follows:
Petitioner Jesse Y. Yap and his spouse Bessie Yap are
engaged in the real estate business through their
company Primetown Property Group.
Sometime in 1996, petitioner purchased several real
properties from a certain Evelyn Te (Evelyn). In
consideration of said purchases, petitioner issued
several Bank of the Philippine Islands (BPI) postdated
checks to Evelyn. Thereafter, spouses Orlando and
Mergyl Mirabueno and spouses Charlie and Jovita
Dimalanta, rediscounted the checks from Evelyn.
In the beginning, the first few checks were honored by
the bank, but in the early part of 1997, when the
remaining checks were deposited with the drawee
bank, they were dishonored for the reason that the
"Account is Closed." Demands were made by Spouses
Mirabueno and Spouses Dimalanta to the petitioner to
make good the checks. Despite this, however, the
latter failed to pay the amounts represented by the said
checks.
On December 8, 1997, Spouses Mirabueno filed a civil
action for collection of sum of money, damages and
attorney's fee with prayer for the issuance of a writ of
preliminary attachment against petitioner before the
Regional Trial Court (RTC) of General Santos City,
docketed as Civil Case No. 6231.3 On December 15,
1997, Spouses Dimalanta followed suit and instituted a
similar action, which was docketed as Civil Case No.
6238.4
Subsequently, on various dates, the Office of the City
Prosecutor of General Santos City filed several
informations for violation of Batas Pambansa Bilang
(B.P. Blg.) 22 against the petitioner with the Municipal
Trial Court in Cities (MTCC), General Santos City. The
criminal complaints were docketed as Criminal Case
Nos. 34873, 34874, 34862 to 34869, and Criminal
Case No. 35522-I.5
In the criminal cases, petitioner filed separate motions
to suspend proceedings on account of the existence of
a prejudicial question and motion to exclude the private
prosecutor from participating in the proceedings.6
Petitioner prayed that the proceedings in the criminal
cases be suspended until the civil cases pending
before the RTC were finally resolved.
The MTCC, in its Orders7 dated June 21, 2000 and
July 4, 2000, denied the motions for lack of merit.
Petitioner filed a Partial Motion for Reconsideration8
relative to Criminal Case Nos. 34873, 34874, 34862 to
34869 and a Motion for Reconsideration of the Part of
the Order Denying the Motion to Suspend Proceedings
on Account of the Existence of a Prejudicial Question
relative to Criminal Case No. 35522-I.9 The
subsequent motions were denied in the Order10 dated
October 18, 2000.
Aggrieved, petitioner filed a Petition for Certiorari with a
Prayer for the Issuance of a Writ of Preliminary
Injunction11 before the RTC, docketed as SPL. Civil
Case No. 539, imputing grave abuse of discretion on
the part of the MTCC Judge. On July 2, 2001, the RTC
issued an Order12 denying the petition.
Petitioner then filed a Motion for Reconsideration,13
which was denied in an Order dated October 18,
2001.14
Thereafter, petitioner filed with the CA a Petition for
Certiorari Prohibition and Mandamus with Urgent
Prayer for the Issuance of Status Quo Order and Writ
of Preliminary Injunction,15 docketed as CA-G.R. SP
No. 68250.
On April 30, 2003, the CA rendered a Decision16
dismissing the petition for lack of merit. The CA opined
that Civil Case Nos. 6231 and 6238 did not pose a
prejudicial question to the prosecution of the petitioner
for violation of B.P. Blg. 22.
The CA ruled:
In the instant case, a careful perusal of Civil Cases
Nos. 6231 and 6238 reveals that the issue involved
therein is not the validity of the sale as incorrectly
pointed out by the petitioner, but it is, whether or not
the complainants therein are entitled to collect from the
petitioner the sum or the value of the checks which
they have rediscounted from Evelyn Te. It behooves
this Court to state that the sale and the rediscounting
of the checks are two transactions, separate and
distinct from each other. It so happened that in the
subject civil cases it is not the sale that is in question,
but rather the rediscounting of the checks. Therefore,
petitioner's contention that the main issue involved in
said civil cases is the validity of the sale stands on
hollow ground. Furthermore, if it is indeed the validity
of the sale that is contested in the subject civil cases,
then, We cannot fathom why the petitioner never
contested such sale by filing an action for the
annulment thereof or at least invoked or prayed in his
answer that the sale be declared null and void.
Accordingly, even if Civil Cases Nos. 6231 and 6238
are tried and the resolution of the issues therein is had,
it cannot be deduced therefrom that the petitioner
cannot be held liable anymore for violation of B.P. Blg.
22.17
Petitioner filed a Motion for Reconsideration,18 which
was denied in the Order19 dated July 17, 2003.
Hence, the petition assigning the following errors:
1. THE HONORABLE COURT OF APPEALS ERRED
IN RULING THAT THERE IS NO PREJUDICIAL
QUESTION IN THE CIVIL CASES (FOR
COLLECTION OF SUMS OF MONEY INSTITUTED
BY PRIVATE RESPONDENTS OVER CHECKS
ISSUED BY THE PETITIONER, CIVIL CASE NOS.
6238 AND 6231) THAT WOULD WARRANT
SUSPENSION OF THE CRIMINAL CASES (CASE
NO. 35522-1, FOR VIOLATION OF B.P. 22, SUBJECT
OF WHICH ARE THE VERY SAME CHECKS).
2. THE HONORABLE COURT OF APPEALS ERRED
IN NOT GRANTING THE PRAYER FOR THE
ISSUANCE OF A WRIT OF PRELIMINARY
INJUNCTION AND/OR STATUS QUO ORDER.20
The main contention of the petitioner is that a
prejudicial question, as defined by law and
jurisprudence, exists in the present case. It is the
petitioner's assertion that Civil Case Nos. 6231 and
6238 for collection of sum of money and damages
were filed ahead of the criminal cases for violation of
B.P. Blg. 22. He further alleged that, in the pending
civil cases, the issue as to whether private respondents
are entitled to collect from the petitioner despite the
lack of consideration, is an issue that is a logical
antecedent to the criminal cases for violation of B.P.
Blg. 22. For if the court rules that there is no valid
consideration for the check's issuance, as petitioner
contends, then it necessarily follows that he could not
also be held liable for violation of B.P. Blg. 22.
Petitioner further avers that B.P. Blg. 22 specifically
requires, among other elements, that the check should
have been issued for account or for value. There must
be a valid consideration; otherwise, no violation of the
said law could be rightfully pursued. Petitioner said that
the reason for the dishonor of the checks was his order
to the drawee bank to stop payment and to close his
account in order to avoid necessary penalty from the
bank. He made this order due to the failure of Evelyn to
deliver to him the titles to the purchased properties to
him.
On the other hand, the Office of the Solicitor General
(OSG) contends that there is no prejudicial question in
Civil Case Nos. 6231 and 6238 which would warrant
the suspension of the proceedings in the criminal
cases for violation of B.P. Blg. 22 against the
petitioner. The issue in the civil cases is not the validity
of the sale between the petitioner and Evelyn, but
whether the complainants therein are entitled to
damages arising from the checks. These checks were
issued by the petitioner in favor of Evelyn, who,
thereafter, negotiated the same checks to private
complainants. The checks were subsequently
dishonored due to insufficiency of funds. The OSG
maintains that the resolution of such issue has
absolutely no bearing on the issue of whether
petitioner may be held liable for violation of B.P. Blg.
22.21
The present case hinges on the determination of
whether there exists a prejudicial question that
necessitates the suspension of the proceedings in the
MTCC.
We find that there is none and, thus, we resolve to
deny the petition.
A prejudicial question generally exists in a situation
where a civil action and a criminal action are both
pending, and there exists in the former an issue that
must be preemptively resolved before the latter may
proceed, because howsoever the issue raised in the
civil action is resolved would be determinative juris et
de jure of the guilt or innocence of the accused in the
criminal case. The rationale behind the principle of
prejudicial question is to avoid two conflicting
decisions. It has two essential elements: (i) the civil
action involves an issue similar or intimately related to
the issue raised in the criminal action; and (ii) the
resolution of such issue determines whether or not the
criminal action may proceed.22

If both civil and criminal cases have similar issues, or
the issue in one is intimately related to the issues
raised in the other, then a prejudicial question would
likely exist, provided the other element or characteristic
is satisfied. It must appear not only that the civil case
involves the same facts upon which the criminal
prosecution would be based, but also that the
resolution of the issues raised in the civil action would
be necessarily determinative of the guilt or innocence
of the accused. If the resolution of the issue in the civil
action will not determine the criminal responsibility of
the accused in the criminal action based on the same
facts, or if there is no necessity that the civil case be
determined first before taking up the criminal case, the
civil case does not involve a prejudicial question.23
Neither is there a prejudicial question if the civil and the
criminal action can, according to law, proceed
independently of each other.24
The issue in the criminal cases is whether the
petitioner is guilty of violating B.P. Blg. 22, while in the
civil case, it is whether the private respondents are
entitled to collect from the petitioner the sum or the
value of the checks that they have rediscounted from
Evelyn.lavvphil
The resolution of the issue raised in the civil action is
not determinative of the guilt or innocence of the
accused in the criminal cases against him, and there is
no necessity that the civil case be determined first
before taking up the criminal cases.
In the aforementioned civil actions, even if petitioner is
declared not liable for the payment of the value of the
checks and damages, he cannot be adjudged free from
criminal liability for violation of B.P. Blg. 22. The mere
issuance of worthless checks with knowledge of the
insufficiency of funds to support the checks is in itself
an offense.25
In Jose v. Suarez,26 the prejudicial question under
determination was whether the daily interest rate of 5%
was void, such that the checks issued by respondents
to cover said interest were likewise void for being
contra bonos mores, and thus the cases for B.P. Blg.
22 will no longer prosper. In resolving the issue, We
ruled that "whether or not the interest rate imposed by
petitioners is eventually declared void for being contra
bonos mores will not affect the outcome of the BP Blg.
22 cases because what will ultimately be penalized is
the mere issuance of bouncing checks. In fact, the
primordial question posed before the court hearing the
B.P. Blg. 22 cases is whether the law has been
breached; that is, if a bouncing check has been
issued."
Further, We held in Ricaforte v. Jurado,27 that:
The gravamen of the offense punished by B.P. Blg. 22
is the act of making and issuing a worthless check; that
is, a check that is dishonored upon its presentation for
payment. In Lozano v. Martinez, we have declared that
it is not the non-payment of an obligation which the law
punishes. The law is not intended or designed to
coerce a debtor to pay his debt. The thrust of the law is
to prohibit, under pain of penal sanctions, the making
and circulation of worthless checks. Because of its
deleterious effects on the public interest, the practice is
proscribed by the law. The law punishes the act not as
an offense against property, but an offense against
public order. In People v. Nitafan, we said that a check
issued as an evidence of debt - though not intended to
be presented for payment - has the same effect as an
ordinary check and would fall within the ambit of B.P.
Blg. 22.
xxxx
x x x The mere act of issuing a worthless check -
whether as a deposit, as a guarantee or even as
evidence of pre-existing debt - is malum prohibitum.
To determine the reason for which checks are issued,
or the terms and conditions for their issuance, will
greatly erode the faith the public reposes in the stability
and commercial value of checks as currency
substitutes, and bring about havoc in trade and in
banking communities. So what the law punishes is the
issuance of a bouncing check and not the purpose for
which it was issued or the terms and conditions relating
to its issuance. The mere act of issuing a worthless
check is malum prohibitum.28
Moreover, petitioner's reliance on Ras v. Rasul29 is
misplaced. The case of Ras involves a complaint for
nullification of a deed of sale on the ground of an
alleged double sale. While the civil case was pending,
an information for estafa was filed against Ras (the
defendant in the civil case) arising from the same
alleged double sale, subject matter of the civil
complaint. The Court ruled that there was a prejudicial
question considering that the defense in the civil case
was based on the very same facts that would be
determinative of the guilt or innocence of the accused
in the estafa case.
The instant case is different from Ras, inasmuch as the
determination of whether the petitioner is liable to pay
the private respondents the value of the checks and
damages, will not affect the guilt or innocence of the
petitioner because the material question in the criminal
cases is whether petitioner had issued bad checks,
regardless of the purpose or condition of its issuance.
Guided by the following legal precepts, it is clear that
the determination of the issues involved in Civil Case
Nos. 6231 and 6238 for collection of sum of money
and damages is irrelevant to the guilt or innocence of
the petitioner in the criminal cases for violation of B.P.
Blg. 22.
In addition, petitioner's claim of lack of consideration
may be raised as a defense during the trial of the
criminal cases against him. The validity and merits of a
partys defense and accusation, as well as the
admissibility and weight of testimonies and evidence
brought before the court, are better ventilated during
trial proper.
Precisely, the reason why a state has courts of law is
to ascertain the respective rights of the parties, to
examine and to put to test all their respective
allegations and evidence through a well designed
machinery termed "trial." Thus, all the defenses
available to the accused should be invoked in the trial
of the criminal cases. This court is not the proper forum
that should ascertain the facts and decide the case for
violation of B.P. Blg. 22 filed against the petitioner.
In fine, the CA committed no reversible error in
affirming the decision of the RTC.
WHEREFORE, the petition is DENIED and the
Decision dated April 30, 2003 and the Resolution dated
July 17, 2003 of the Court of Appeals in CA-G.R. SP
No. 68250 are AFFIRMED. SO ORDERED.
e.) Dreamwork Construction, Inc. vs Janiola
Petitioner Dreamwork Construction, Inc. seeks the
reversal of the August 26, 2008 Decision[1] in SCA No.
08-0005 of the Regional Trial Court (RTC), Branch 253
in Las Pias City. The Decision affirmed the Orders
dated October 16, 2007[2] and March 12, 2008[3] in
Criminal Case Nos. 55554-61 issued by the
Metropolitan Trial Court (MTC), Branch 79 in Las Pias
City.
The Facts
On October 18, 2004, petitioner, through its President,
Roberto S. Concepcion, and Vice-President for
Finance and Marketing, Normandy P. Amora, filed a
Complaint Affidavit dated October 5, 2004[4] for
violation of Batas Pambansa Bilang 22 (BP 22) against
private respondent Cleofe S. Janiola with the Office of
the City Prosecutor of Las Pias City. The case was
docketed as I.S. No. 04-2526-33. Correspondingly,
petitioner filed a criminal information for violation of BP
22 against private respondent with the MTC on
February 2, 2005 docketed as Criminal Case Nos.
55554-61, entitled People of the Philippines v. Cleofe
S. Janiola.
On September 20, 2006, private respondent, joined by
her husband, instituted a civil complaint against
petitioner by filing a Complaint dated August 2006[5]
for the rescission of an alleged construction agreement
between the parties, as well as for damages. The case
was filed with the RTC, Branch 197 in Las Pias City
and docketed as Civil Case No. LP-06-0197. Notably,
the checks, subject of the criminal cases before the
MTC, were issued in consideration of the construction
agreement.
Thereafter, on July 25, 2007, private respondent filed a
Motion to Suspend Proceedings dated July 24, 2007[6]
in Criminal Case Nos. 55554-61, alleging that the civil
and criminal cases involved facts and issues similar or
intimately related such that in the resolution of the
issues in the civil case, the guilt or innocence of the
accused would necessarily be determined. In other
words, private respondent claimed that the civil case
posed a prejudicial question as against the criminal
cases.
Petitioner opposed the suspension of the proceedings
in the criminal cases in an undated
Comment/Opposition to Accuseds Motion to Suspend
Proceedings based on Prejudicial Question[7] on the
grounds that: (1) there is no prejudicial question in this
case as the rescission of the contract upon which the
bouncing checks were issued is a separate and distinct
issue from the issue of whether private respondent
violated BP 22; and (2) Section 7, Rule 111 of the
Rules of Court states that one of the elements of a
prejudicial question is that the previously instituted civil
action involves an issue similar or intimately related to
the issue raised in the subsequent criminal action;
thus, this element is missing in this case, the criminal
case having preceded the civil case.
Later, the MTC issued its Order dated October 16,
2007, granting the Motion to Suspend Proceedings,
and reasoned that:
Should the trial court declare the rescission of contract
and the nullification of the checks issued as the same
are without consideration, then the instant criminal
cases for alleged violation of BP 22 must be dismissed.
The belated filing of the civil case by the herein
accused did not detract from the correctness of her
cause, since a motion for suspension of a criminal
action may be filed at any time before the prosecution
rests (Section 6, Rule 111, Revised Rules of Court).[8]
In an Order dated March 12, 2008,[9] the MTC denied
petitioners Motion for Reconsideration dated
November 29, 2007.
Petitioner appealed the Orders to the RTC with a
Petition dated May 13, 2008. Thereafter, the RTC
issued the assailed decision dated August 26, 2008,
denying the petition. On the issue of the existence of a
prejudicial question, the RTC ruled:
Additionally, it must be stressed that the requirement of
a previously filed civil case is intended merely to
obviate delays in the conduct of the criminal
proceedings. Incidentally, no clear evidence of any
intent to delay by private respondent was shown. The
criminal proceedings are still in their initial stages when
the civil action was instituted. And, the fact that the civil
action was filed after the criminal action was instituted
does not render the issues in the civil action any less
prejudicial in character.[10]
Hence, we have this petition under Rule 45.
The Issue
WHETHER OR NOT THE COURT A QUO
SERIOUSLY ERRED IN NOT PERCEIVING GRAVE
ABUSE OF DISCRETION ON THE PART OF THE
INFERIOR COURT, WHEN THE LATTER RULED TO
SUSPEND PROCEEDINGS IN CRIM. CASE NOS.
55554-61 ON THE BASIS OF PREJUDICIAL
QUESTION IN CIVIL CASE NO. LP-06-0197.[11]
The Courts Ruling: This petition must be granted.
The Civil Action Must Precede the Filing of the
Criminal Action for a Prejudicial Question to Exist
Under the 1985 Rules on Criminal Procedure, as
amended by Supreme Court Resolutions dated June
17, 1988 and July 7, 1988, the elements of a
prejudicial question are contained in Rule 111, Sec. 5,
which states:
SEC. 5. Elements of prejudicial question. The two (2)
essential elements of a prejudicial question are: (a) the
civil action involves an issue similar or intimately
related to the issue raised in the criminal action; and
(b) the resolution of such issue determines whether or
not the criminal action may proceed.
Thus, the Court has held in numerous cases[12] that
the elements of a prejudicial question, as stated in the
above-quoted provision and in Beltran v. People,[13]
are:
The rationale behind the principle of prejudicial
question is to avoid two conflicting decisions. It has two
essential elements: (a) the civil action involves an
issue similar or intimately related to the issue raised in
the criminal action; and (b) the resolution of such issue
determines whether or not the criminal action may
proceed.
On December 1, 2000, the 2000 Rules on Criminal
Procedure, however, became effective and the above
provision was amended by Sec. 7 of Rule 111, which
applies here and now provides:
SEC. 7. Elements of prejudicial question.The elements
of a prejudicial question are: (a) the previously
instituted civil action involves an issue similar or
intimately related to the issue raised in the subsequent
criminal action, and (b) the resolution of such issue
determines whether or not the criminal action may
proceed. (Emphasis supplied.)
Petitioner interprets Sec. 7(a) to mean that in order for
a civil case to create a prejudicial question and, thus,
suspend a criminal case, it must first be established
that the civil case was filed previous to the filing of the
criminal case. This, petitioner argues, is specifically to
guard against the situation wherein a party would
belatedly file a civil action that is related to a pending
criminal action in order to delay the proceedings in the
latter.
On the other hand, private respondent cites Article 36
of the Civil Code which provides:
Art. 36. Pre-judicial questions which must be decided
before any criminal prosecution may be instituted or
may proceed, shall be governed by rules of court which
the Supreme Court shall promulgate and which shall
not be in conflict with the provisions of this Code.
(Emphasis supplied.)
Private respondent argues that the phrase before any
criminal prosecution may be instituted or may proceed
must be interpreted to mean that a prejudicial question
exists when the civil action is filed either before the
institution of the criminal action or during the pendency
of the criminal action. Private respondent concludes
that there is an apparent conflict in the provisions of
the Rules of Court and the Civil Code in that the latter
considers a civil case to have presented a prejudicial
question even if the criminal case preceded the filing of
the civil case.
We cannot agree with private respondent.
First off, it is a basic precept in statutory construction
that a change in phraseology by amendment of a
provision of law indicates a legislative intent to change
the meaning of the provision from that it originally
had.[14] In the instant case, the phrase, previously
instituted, was inserted to qualify the nature of the civil
action involved in a prejudicial question in relation to
the criminal action. This interpretation is further
buttressed by the insertion of subsequent directly
before the term criminal action. There is no other
logical explanation for the amendments except to
qualify the relationship of the civil and criminal actions,
that the civil action must precede the criminal action.
Thus, this Court ruled in Torres v. Garchitorena[15]
that:
Even if we ignored petitioners procedural lapse and
resolved their petition on the merits, we hold that
Sandiganbayan did not abuse its discretion amounting
to excess or lack of jurisdiction in denying their
omnibus motion for the suspension of the proceedings
pending final judgment in Civil Case No. 7160. Section
6, Rule lll of the Rules of Criminal Procedure, as
amended, reads:
Sec. 6. Suspension by reason of prejudicial question. -
A petition for suspension of the criminal action based
upon the pendency of a prejudicial question in a civil
action may be filed in the office of the prosecutor or the
court conducting the preliminary investigation. When
the criminal action has been filed in court for trial, the
petition to suspend shall be filed in the same criminal
action at any time before the prosecution rests.
Sec. 7. Elements of prejudicial question. - The
elements of a prejudicial question are: (a) the
previously instituted civil action involves an issue
similar or intimately related to the issue raised in the
subsequent criminal action, and (b) the resolution of
such issue determines whether or not the criminal
action may proceed.
Under the amendment, a prejudicial question is
understood in law as that which must precede the
criminal action and which requires a decision before a
final judgment can be rendered in the criminal action
with which said question is closely connected. The civil
action must be instituted prior to the institution of the
criminal action. In this case, the Information was filed
with the Sandiganbayan ahead of the complaint in Civil
Case No. 7160 filed by the State with the RTC in Civil
Case No. 7160. Thus, no prejudicial question exists.
(Emphasis supplied.)
Additionally, it is a principle in statutory construction
that a statute should be construed not only to be
consistent with itself but also to harmonize with other
laws on the same subject matter, as to form a
complete, coherent and intelligible system.[16] This
principle is consistent with the maxim, interpretare et
concordare leges legibus est optimus interpretandi
modus or every statute must be so construed and
harmonized with other statutes as to form a uniform
system of jurisprudence.[17]
In other words, every effort must be made to
harmonize seemingly conflicting laws. It is only when
harmonization is impossible that resort must be made
to choosing which law to apply.
In the instant case, Art. 36 of the Civil Code and Sec. 7
of Rule 111 of the Rules of Court are susceptible of an
interpretation that would harmonize both provisions of
law. The phrase previously instituted civil action in Sec.
7 of Rule 111 is plainly worded and is not susceptible
of alternative interpretations. The clause before any
criminal prosecution may be instituted or may proceed
in Art. 36 of the Civil Code may, however, be
interpreted to mean that the motion to suspend the
criminal action may be filed during the preliminary
investigation with the public prosecutor or court
conducting the investigation, or during the trial with the
court hearing the case.
This interpretation would harmonize Art. 36 of the Civil
Code with Sec. 7 of Rule 111 of the Rules of Court but
also with Sec. 6 of Rule 111 of the Civil Code, which
provides for the situations when the motion to suspend
the criminal action during the preliminary investigation
or during the trial may be filed. Sec. 6 provides:
SEC. 6. Suspension by reason of prejudicial
question.A petition for suspension of the criminal action
based upon the pendency of a prejudicial question in a
civil action may be filed in the office of the prosecutor
or the court conducting the preliminary investigation.
When the criminal action has been filed in court for
trial, the petition to suspend shall be filed in the same
criminal action at any time before the prosecution
rests.
Thus, under the principles of statutory construction, it is
this interpretation of Art. 36 of the Civil Code that
should govern in order to give effect to all the relevant
provisions of law.
It bears pointing out that the circumstances present in
the instant case indicate that the filing of the civil action
and the subsequent move to suspend the criminal
proceedings by reason of the presence of a prejudicial
question were a mere afterthought and instituted to
delay the criminal proceedings.
In Sabandal v. Tongco,[18] we found no prejudicial
question existed involving a civil action for specific
performance, overpayment, and damages, and a
criminal complaint for BP 22, as the resolution of the
civil action would not determine the guilt or innocence
of the accused in the criminal case. In resolving the
case, we said:
Furthermore, the peculiar circumstances of the case
clearly indicate that the filing of the civil case was a
ploy to delay the resolution of the criminal cases.
Petitioner filed the civil case three years after the
institution of the criminal charges against him.
Apparently, the civil action was instituted as an
afterthought to delay the proceedings in the criminal
cases.[19]
Here, the civil case was filed two (2) years after the
institution of the criminal complaint and from the time
that private respondent allegedly withdrew its
equipment from the job site. Also, it is worth noting that
the civil case was instituted more than two and a half
(2 ) years from the time that private respondent
allegedly stopped construction of the proposed building
for no valid reason. More importantly, the civil case
praying for the rescission of the construction
agreement for lack of consideration was filed more
than three (3) years from the execution of the
construction agreement.
Evidently, as in Sabandal, the circumstances
surrounding the filing of the cases involved here show
that the filing of the civil action was a mere afterthought
on the part of private respondent and interposed for
delay. And as correctly argued by petitioner, it is this
scenario that Sec. 7 of Rule 111 of the Rules of Court
seeks to prevent. Thus, private respondents positions
cannot be left to stand.
The Resolution of the Civil Case Is Not
Determinative of the Prosecution of the Criminal Action
In any event, even if the civil case here was instituted
prior to the criminal action, there is, still, no prejudicial
question to speak of that would justify the suspension
of the proceedings in the criminal case.
To reiterate, the elements of a prejudicial question
under Sec. 7 of Rule 111 of the Rules of Court are: (1)
the previously instituted civil action involves an issue
similar or intimately related to the issue raised in the
subsequent criminal action; and (2) the resolution of
such issue determines whether or not the criminal
action may proceed.
Petitioner argues that the second element of a
prejudicial question, as provided in Sec. 7 of Rule 111
of the Rules, is absent in this case. Thus, such rule
cannot apply to the present controversy.
Private respondent, on the other hand, claims that if
the construction agreement between the parties is
declared null and void for want of consideration, the
checks issued in consideration of such contract would
become mere scraps of paper and cannot be the basis
of a criminal prosecution.
We find for petitioner.
It must be remembered that the elements of the crime
punishable under BP 22 are as follows:
(1) the making, drawing, and issuance of any check to
apply for account or for value;
(2) the knowledge of the maker, drawer, or issuer that
at the time of issue there are no sufficient funds in or
credit with the drawee bank for the payment of such
check in full upon its presentment; and
(3) the subsequent dishonor of the check by the
drawee bank for insufficiency of funds or credit, or
dishonor for the same reason had not the drawer,
without any valid cause, ordered the bank to stop
payment.[20]
Undeniably, the fact that there exists a valid contract or
agreement to support the issuance of the check/s or
that the checks were issued for valuable consideration
does not make up the elements of the crime. Thus, this
Court has held in a long line of cases[21] that the
agreement surrounding the issuance of dishonored
checks is irrelevant to the prosecution for violation of
BP 22. In Mejia v. People,[22] we ruled:
It must be emphasized that the gravamen of the
offense charge is the issuance of a bad check. The
purpose for which the check was issued, the terms and
conditions relating to its issuance, or any agreement
surrounding such issuance are irrelevant to the
prosecution and conviction of petitioner. To determine
the reason for which checks are issued, or the terms
and conditions for their issuance, will greatly erode the
faith the public reposes in the stability and commercial
value of checks as currency substitutes, and bring
havoc in trade and in banking communities. The clear
intention of the framers of B.P. 22 is to make the mere
act of issuing a worthless check malum prohibitum.
Lee v. Court of Appeals[23] is even more poignant. In
that case, we ruled that the issue of lack of valuable
consideration for the issuance of checks which were
later on dishonored for insufficient funds is immaterial
to the success of a prosecution for violation of BP 22,
to wit:
Third issue. Whether or not the check was issued on
account or for value.
Petitioners claim is not feasible. We have held that
upon issuance of a check, in the absence of evidence
to the contrary, it is presumed that the same was
issued for valuable consideration. Valuable
consideration, in turn, may consist either in some right,
interest, profit or benefit accruing to the party who
makes the contract, or some forbearance, detriment,
loss or some responsibility, to act, or labor, or service
given, suffered or undertaken by the other side. It is an
obligation to do, or not to do in favor of the party who
makes the contract, such as the maker or indorser.
In this case, petitioner himself testified that he signed
several checks in blank, the subject check included, in
exchange for 2.5% interest from the proceeds of loans
that will be made from said account. This is a valuable
consideration for which the check was issued. That
there was neither a pre-existing obligation nor an
obligation incurred on the part of petitioner when the
subject check was given by Bautista to private
complainant on July 24, 1993 because petitioner was
no longer connected with Unlad or Bautista starting
July 1989, cannot be given merit since, as earlier
discussed, petitioner failed to adequately prove that he
has severed his relationship with Bautista or Unlad.
At any rate, we have held that what the law punishes is
the mere act of issuing a bouncing check, not the
purpose for which it was issued nor the terms and
conditions relating to its issuance. This is because the
thrust of the law is to prohibit the making of worthless
checks and putting them into circulation.[24] (Emphasis
supplied.)
Verily, even if the trial court in the civil case declares
that the construction agreement between the parties is
void for lack of consideration, this would not affect the
prosecution of private respondent in the criminal case.
The fact of the matter is that private respondent indeed
issued checks which were subsequently dishonored for
insufficient funds. It is this fact that is subject of
prosecution under BP 22.
Therefore, it is clear that the second element required
for the existence of a prejudicial question, that the
resolution of the issue in the civil action would
determine whether the criminal action may proceed, is
absent in the instant case. Thus, no prejudicial
question exists and the rules on it are inapplicable to
the case before us.
WHEREFORE, we GRANT this petition. We hereby
REVERSE and SET ASIDE the August 26, 2008
Decision in SCA No. 08-0005 of the RTC, Branch 253
in Las Pias City and the Orders dated October 16,
2007 and March 12, 2008 in Criminal Case Nos.
55554-61 of the MTC, Branch 79 in Las Pias City. We
order the MTC to continue with the proceedings in
Criminal Case Nos. 55554-61 with dispatch. No costs.
SO ORDERED.
f.) Pimentel vs Pimentel
Before the Court is a petition for review[1] assailing the
Decision[2] of the Court of Appeals, promulgated on 20
March 2006, in CA-G.R. SP No. 91867.
The Antecedent Facts
The facts are stated in the Court of Appeals decision:
On 25 October 2004, Maria Chrysantine Pimentel y
Lacap (private respondent) filed an action for frustrated
parricide against Joselito R. Pimentel (petitioner),
docketed as Criminal Case No. Q-04-130415, before
the Regional Trial Court of Quezon City, which was
raffled to Branch 223 (RTC Quezon City).
On 7 February 2005, petitioner received summons to
appear before the Regional Trial Court of Antipolo City,
Branch 72 (RTC Antipolo) for the pre-trial and trial of
Civil Case No. 04-7392 (Maria Chrysantine Lorenza L.
Pimentel v. Joselito Pimentel) for Declaration of Nullity
of Marriage under Section 36 of the Family Code on
the ground of psychological incapacity.
On 11 February 2005, petitioner filed an urgent motion
to suspend the proceedings before the RTC Quezon
City on the ground of the existence of a prejudicial
question. Petitioner asserted that since the relationship
between the offender and the victim is a key element in
parricide, the outcome of Civil Case No. 04-7392 would
have a bearing in the criminal case filed against him
before the RTC Quezon City.
The Decision of the Trial Court
The RTC Quezon City issued an Order dated 13 May
2005[3] holding that the pendency of the case before
the RTC Antipolo is not a prejudicial question that
warrants the suspension of the criminal case before it.
The RTC Quezon City held that the issues in Criminal
Case No. Q-04-130415 are the injuries sustained by
respondent and whether the case could be tried even if
the validity of petitioners marriage with respondent is in
question. The RTC Quezon City ruled:
WHEREFORE, on the basis of the foregoing, the
Motion to Suspend Proceedings On the [Ground] of the
Existence of a Prejudicial Question is, for lack of merit,
DENIED.
SO ORDERED.[4]
Petitioner filed a motion for reconsideration. In its 22
August 2005 Order,[5] the RTC Quezon City denied
the motion.
Petitioner filed a petition for certiorari with application
for a writ of preliminary injunction and/or temporary
restraining order before the Court of Appeals, assailing
the 13 May 2005 and 22 August 2005 Orders of the
RTC Quezon City.
The Decision of the Court of Appeals
In its 20 March 2006 Decision, the Court of Appeals
dismissed the petition. The Court of Appeals ruled that
in the criminal case for frustrated parricide, the issue is
whether the offender commenced the commission of
the crime of parricide directly by overt acts and did not
perform all the acts of execution by reason of some
cause or accident other than his own spontaneous
desistance. On the other hand, the issue in the civil
action for annulment of marriage is whether petitioner
is psychologically incapacitated to comply with the
essential marital obligations. The Court of Appeals
ruled that even if the marriage between petitioner and
respondent would be declared void, it would be
immaterial to the criminal case because prior to the
declaration of nullity, the alleged acts constituting the
crime of frustrated parricide had already been
committed. The Court of Appeals ruled that all that is
required for the charge of frustrated parricide is that at
the time of the commission of the crime, the marriage
is still subsisting.
Petitioner filed a petition for review before this Court
assailing the Court of Appeals decision.
The Issue
The only issue in this case is whether the resolution of
the action for annulment of marriage is a prejudicial
question that warrants the suspension of the criminal
case for frustrated parricide against petitioner.
The Ruling of this Court
The petition has no merit.
Civil Case Must be Instituted
Before the Criminal Case
Section 7, Rule 111 of the 2000 Rules on Criminal
Procedure[6] provides:
Section 7. Elements of Prejudicial Question. - The
elements of a prejudicial question are: (a) the
previously instituted civil action involves an issue
similar or intimately related to the issue raised in the
subsequent criminal action and (b) the resolution of
such issue determines whether or not the criminal
action may proceed.
The rule is clear that the civil action must be instituted
first before the filing of the criminal action. In this case,
the Information[7] for Frustrated Parricide was dated
30 August 2004. It was raffled to RTC Quezon City on
25 October 2004 as per the stamped date of receipt on
the Information. The RTC Quezon City set Criminal
Case No. Q-04-130415 for pre-trial and trial on 14
February 2005. Petitioner was served summons in Civil
Case No. 04-7392 on 7 February 2005.[8]
Respondents petition[9] in Civil Case No. 04-7392 was
dated 4 November 2004 and was filed on 5 November
2004. Clearly, the civil case for annulment was filed
after the filing of the criminal case for frustrated
parricide. As such, the requirement of Section 7, Rule
111 of the 2000 Rules on Criminal Procedure was not
met since the civil action was filed subsequent to the
filing of the criminal action.
Annulment of Marriage is not a Prejudicial Question
in Criminal Case for Parricide
Further, the resolution of the civil action is not a
prejudicial question that would warrant the suspension
of the criminal action.
There is a prejudicial question when a civil action and a
criminal action are both pending, and there exists in
the civil action an issue which must be preemptively
resolved before the criminal action may proceed
because howsoever the issue raised in the civil action
is resolved would be determinative of the guilt or
innocence of the accused in the criminal case.[10] A
prejudicial question is defined as:
x x x one that arises in a case the resolution of which is
a logical antecedent of the issue involved therein, and
the cognizance of which pertains to another tribunal. It
is a question based on a fact distinct and separate
from the crime but so intimately connected with it that it
determines the guilt or innocence of the accused, and
for it to suspend the criminal action, it must appear not
only that said case involves facts intimately related to
those upon which the criminal prosecution would be
based but also that in the resolution of the issue or
issues raised in the civil case, the guilt or innocence of
the accused would necessarily be determined.[11]
The relationship between the offender and the victim is
a key element in the crime of parricide,[12] which
punishes any person who shall kill his father, mother,
or child, whether legitimate or illegitimate, or any of his
ascendants or descendants, or his spouse.[13] The
relationship between the offender and the victim
distinguishes the crime of parricide from murder[14] or
homicide.[15] However, the issue in the annulment of
marriage is not similar or intimately related to the issue
in the criminal case for parricide. Further, the
relationship between the offender and the victim is not
determinative of the guilt or innocence of the accused.
The issue in the civil case for annulment of marriage
under Article 36 of the Family Code is whether
petitioner is psychologically incapacitated to comply
with the essential marital obligations. The issue in
parricide is whether the accused killed the victim. In
this case, since petitioner was charged with frustrated
parricide, the issue is whether he performed all the
acts of execution which would have killed respondent
as a consequence but which, nevertheless, did not
produce it by reason of causes independent of
petitioners will.[16] At the time of the commission of the
alleged crime, petitioner and respondent were married.
The subsequent dissolution of their marriage, in case
the petition in Civil Case No. 04-7392 is granted, will
have no effect on the alleged crime that was committed
at the time of the subsistence of the marriage. In short,
even if the marriage between petitioner and
respondent is annulled, petitioner could still be held
criminally liable since at the time of the commission of
the alleged crime, he was still married to respondent.
We cannot accept petitioners reliance on Tenebro v.
Court of Appeals[17] that the judicial declaration of the
nullity of a marriage on the ground of psychological
incapacity retroacts to the date of the celebration of the
marriage insofar as the vinculum between the spouses
is concerned x x x. First, the issue in Tenebro is the
effect of the judicial declaration of nullity of a second or
subsequent marriage on the ground of psychological
incapacity on a criminal liability for bigamy. There was
no issue of prejudicial question in that case. Second,
the Court ruled in Tenebro that [t]here is x x x a
recognition written into the law itself that such a
marriage, although void ab initio, may still produce
legal consequences.[18] In fact, the Court declared in
that case that a declaration of the nullity of the second
marriage on the ground of psychological incapacity is
of absolutely no moment insofar as the States penal
laws are concerned.[19]
In view of the foregoing, the Court upholds the decision
of the Court of Appeals. The trial in Criminal Case No.
Q-04-130415 may proceed as the resolution of the
issue in Civil Case No. 04-7392 is not determinative of
the guilt or innocence of petitioner in the criminal case.
WHEREFORE, we DENY the petition. We AFFIRM the
20 March 2006 Decision of the Court of Appeals in CA-
G.R. SP No. 91867.
SO ORDERED.
g.) Consing, Jr. vs People
An independent civil action based on fraud initiated by
the defrauded party does not raise a prejudicial
question to stop the proceedings in a pending criminal
prosecution of the defendant for estafa through
falsification. This is because the result of the
independent civil action is irrelevant to the issue of guilt
or innocence of the accused.
The Case
On appeal is the amended decision promulgated on
August 18, 2003,1 whereby the Court of Appeals (CA)
granted the writ of certiorari upon petition by the State
in C.A.-G.R. No. 71252 entitled People v. Han. Winlove
M Dumayas, Presiding Judge, Branch 59, Regional
Trial Court, Makati City and Rafael Consing, Jr., and
set aside the assailed order issued on November 26,
2001 by the Regional Trial Court (RTC), Branch 59, in
Makati City deferring the arraignment of petitioner in
Criminal Case No. 00-120 entitled People v. Rafael
Consing, Jr. upon his motion on the ground of the
existence of a prejudicial question in the civil cases
pending between him and the complainant in the trial
courts in Pasig City and Makati City.
Antecedents
Petitioner negotiated with and obtained for himself and
his mother, Cecilia de la Cruz (de la Cruz) various
loans totaling P18,000,000.00 from Unicapital Inc.
(Unicapital). The loans were secured by a real estate
mortgage constituted on a parcel of land (property)
covered by Transfer Certificate of Title (TCT) No. T-
687599 of the Registry of Deeds for the Province of
Cavite registered under the name of de la Cruz.2 In
accordance with its option to purchase the mortgaged
property, Unicapital agreed to purchase one-half of the
property for a total consideration of P21,221,500.00.
Payment was effected by off-setting the amounts due
to
Unicapital under the promissory notes of de la Cruz
and Consing in the amount of P18,000,000.00 and
paying an additional amount of P3,145,946.50. The
other half of the property was purchased by Plus
Builders, Inc. (Plus Builders), a joint venture partner of
Unicapital.3
Before Unicapital and Plus Builders could develop the
property, they learned that the title to the property was
really TCT No. 114708 in the names of Po Willie Yu
and Juanito Tan Teng, the parties from whom the
property had been allegedly acquired by de la Cruz.
TCT No. 687599 held by De la Cruz appeared to be
spurious.4
On its part, Unicapital demanded the return of the total
amount of P41,377,851.48 as of April 19, 1999 that
had been paid to and received by de la Cruz and
Consing, but the latter ignored the demands.5
On July 22, 1999, Consing filed Civil Case No. 1759 in
the Pasig City Regional Trial Court (RTC) (Pasig civil
case) for injunctive relief, thereby seeking to enjoin
Unicapital from proceeding against him for the
collection of the P41,377,851.48 on the ground that he
had acted as a mere agent of his mother.
On the same date, Unicapital initiated a criminal
complaint for estafa through falsification of public
document against Consing and de la Cruz in the
Makati City Prosecutors Office.6
On August 6, 1999, Unicapital sued Consing in the
RTC in Makati City (Civil Case No. 99-1418) for the
recovery of a sum of money and damages, with an
application for a writ of preliminary attachment (Makati
civil case).7
On January 27, 2000, the Office of the City Prosecutor
of Makati City filed against Consing and De la Cruz an
information for estafa through falsification of public
document in the RTC in Makati City (Criminal Case No.
00-120), which was assigned to Branch 60 (Makati
criminal case).8
On February 15, 2001, Consing moved to defer his
arraignment in the Makati criminal case on the ground
of existence of a prejudicial question due to the
pendency of the Pasig and Makati civil cases. On
September 25, 2001, Consing reiterated his motion for
deferment of his arraignment, citing the additional
ground of pendency of CA-G.R. SP No. 63712 in the
CA. On November 19, 2001, the Prosecution opposed
the motion.9
On November 26, 2001, the RTC issued an order
suspending the proceedings in the Makati criminal
case on the ground of the existence of a prejudicial
question, and on March 18, 2001, the RTC denied the
Prosecutions motion for reconsideration.10
The State thus assailed in the CA the last two orders of
the RTC in the Makati criminal case via petition for
certiorari (C.A.-G.R. SP No. 71252).
On May 20, 2003, the CA promulgated its decision in
C.A.-G.R. SP No. 71252,11 dismissing the petition for
certiorari and upholding the RTCs questioned orders,
explaining:
Is the resolution of the Pasig civil case prejudicial to
the Cavite and Makati criminal cases?
We hold that it is. The resolution of the issue in the
Pasig case, i.e. whether or not private respondent may
be held liable in the questioned transaction, will
determine the guilt or innocence of private respondent
Consing in both the Cavite and Makati criminal cases.
The analysis and comparison of the Pasig civil case,
Makati criminal case, Makati civil case and Cavite
criminal case show that: (1) the parties are identical;
(2) the transactions in controversy are identical; (3) the
Transfer Certificate of Titles (TCT) involved are
identical; (4) the questioned Deeds of Sale/Mortgage
are identical; (5) the dates in question are identical;
and (6) the issue of private respondents culpability for
the questioned transactions is identical in all the
proceedings.
As discussed earlier, not only was the issue raised in
the Pasig civil case identical to or intimately related to
the criminal cases in Cavite and Makati. The
similarities also extend to the parties in the cases and
the TCT and Deed of Sale/ Mortgage involved in the
questioned transactions.
The respondent Judge, in ordering the suspension of
the arraignment of private respondent in the Makati
case, in view of CA-G.R. SP No. 63712, where
Unicapital was not a party thereto, did so pursuant to
its mandatory power to take judicial notice of an official
act of another judicial authority. It was also a better
legal tack to prevent multiplicity of action, to which our
legal system abhors.
Applying the Tuanda ruling, the pendency of CA-G.R.
SP No. 63712 may be validly invoked to suspend
private respondents arraignment in the Makati City
criminal case, notwithstanding the fact that CA-G.R.
SP No. 63712 was an offshoot, merely, in the Cavite
criminal case.12
In the meanwhile, on October 13, 1999, Plus Builders
commenced its own suit for damages against Consing
(Civil Case No. 99-95381) in the RTC in Manila (Manila
civil case).13
On January 21, 2000, an information for estafa through
falsification of public document was filed against
Consing and De la Cruz in the RTC in Imus, Cavite,
docketed as Criminal Case No. 7668-00 and assigned
to Branch 21 (Cavite criminal case). Consing filed a
motion to defer the arraignment on the ground of the
existence of a prejudicial question, i.e., the pendency
of the Pasig and Manila civil cases. On January 27,
2000, however, the RTC handling the Cavite criminal
case denied Consings motion. Later on, it also denied
his motion for reconsideration. Thereafter, Consing
commenced in the CA a special civil action for
certiorari with prayer for the issuance of a temporary
restraining order (TRO) and/or writ of preliminary
injunction (C.A.-G.R. SP No. 63712), seeking to enjoin
his arraignment and trial in the Cavite criminal case.
The CA granted the TRO on March 19, 2001, and later
promulgated its decision on May 31, 2001, granting
Consing petition for certiorari and setting aside the
January 27, 2000 order of the RTC, and permanently
enjoining the RTC from proceeding with the
arraignment and trial until the Pasig and Manila civil
cases had been finally decided.
Not satisfied, the State assailed the decision of the CA
in this Court (G.R. No. 148193), praying for the
reversal of the May 31, 2001 decision of the CA. On
January 16, 2003, the Court granted the petition for
review in G.R. No. 148193, and reversed and set aside
the May 31, 2001 decision of the CA,14 viz:
In the case at bar, we find no prejudicial question that
would justify the suspension of the proceedings in the
criminal case (the Cavite criminal case). The issue in
Civil Case No. SCA 1759 (the Pasig civil case) for
Injunctive Relief is whether or not respondent
(Consing) merely acted as an agent of his mother,
Cecilia de la Cruz; while in Civil Case No. 99-95381
(the Manila civil case), for Damages and Attachment,
the question is whether respondent and his mother are
liable to pay damages and to return the amount paid by
PBI for the purchase of the disputed lot. Even if
respondent is declared merely an agent of his mother
in the transaction involving the sale of the questioned
lot, he cannot be adjudged free from criminal liability.
An agent or any person may be held liable for
conspiring to falsify public documents. Hence, the
determination of the issue involved in Civil Case No.
SCA 1759 for Injunctive Relief is irrelevant to the guilt
or innocence of the respondent in the criminal case for
estafa through falsification of public document.
Likewise, the resolution of PBIs right to be paid
damages and the purchase price of the lot in question
will not be determinative of the culpability of the
respondent in the criminal case for even if PBI is held
entitled to the return of the purchase price plus
damages, it does not ipso facto follow that respondent
should be held guilty of estafa through falsification of
public document. Stated differently, a ruling of the court
in the civil case that PBI should not be paid the
purchase price plus damages will not necessarily
absolve respondent of liability in the criminal case
where his guilt may still be established under penal
laws as determined by other evidence.
Moreover, neither is there a prejudicial question if the
civil and the criminal action can, according to law,
proceed independently of each other. Under Rule 111,
Section 3 of the Revised Rules on Criminal Procedure,
in the cases provided in Articles 32, 33, 34 and 2176 of
the Civil Code, the independent civil action may be
brought by the offended party. It shall proceed
independently of the criminal action and shall require
only a preponderance of evidence. In no case,
however, may the offended party recover damages
twice for the same act or omission charged in the
criminal action.
Thus, in Rojas v. People, the petitioner was accused in
a criminal case for violation of Article 319 of the
Revised Penal Code, for executing a new chattel
mortgage on personal property in favor of another
party without consent of the previous mortgagee.
Thereafter, the offended party filed a civil case for
termination of management contract, one of the causes
of action of which consisted of petitioner having
executed a chattel mortgage while the previous chattel
mortgage was still valid and subsisting. Petitioner
moved that the arraignment and trial of the criminal
case be held in abeyance on the ground that the civil
case was a prejudicial question, the resolution of which
was necessary before the criminal proceedings could
proceed. The trial court denied the suspension of the
criminal case on the ground that no prejudicial question
exist. We affirmed the order of the trial court and ruled
that:
the resolution of the liability of the defendant in the
civil case on the eleventh cause of action based on the
fraudulent misrepresentation that the chattel mortgage
the defendant executed in favor of the said CMS
Estate, Inc. on February 20, 1957, that his D-6
"Caterpillar" Tractor with Serial No. 9-U-6565 was "free
from all liens and encumbrances" will not determine the
criminal liability of the accused in the said Criminal
Case No. 56042 for violation of paragraph 2 of Article
319 of the Revised Penal Code. . . . (i) That, even
granting for the sake of argument, a prejudicial
question is involved in this case, the fact remains that
both the crime charged in the information in the
criminal case and the eleventh cause of action in the
civil case are based upon fraud, hence both the civil
and criminal cases could proceed independently of the
other pursuant to Article 33 of the new Civil Code
which provides: "In cases of defamation, fraud and
physical injuries, a civil action for damages, entirely
separate and distinct from the criminal action shall
proceed independently of the criminal prosecution, and
shall require only a preponderance of evidence." (j)
That, therefore, the act of respondent judge in issuing
the orders referred to in the instant petition was not
made with "grave abuse of discretion."
In the instant case, Civil Case No. 99-95381, for
Damages and Attachment on account of the alleged
fraud committed by respondent and his mother in
selling the disputed lot to PBI is an independent civil
action under Article 33 of the Civil Code. As such, it will
not operate as a prejudicial question that will justify the
suspension of the criminal case at bar.15
Turning back to the Makati criminal case, the State
moved for the reconsideration of the adverse decision
of the CA, citing the ruling in G.R. No. 148193, supra,
to the effect that the Pasig and Manila civil cases did
not present a prejudicial question that justified the
suspension of the proceedings in the Cavite criminal
case, and claiming that under the ruling in G.R. No.
148193, the Pasig and Makati civil cases did not raise
a prejudicial question that would cause the suspension
of the Makati criminal case.
In his opposition to the States motion for
reconsideration, Consing contended that the ruling in
G.R. No. 148193 was not binding because G.R. No.
148193 involved Plus Builders, which was different
from Unicapital, the complainant in the Makati criminal
case. He added that the decision in G.R. No. 148193
did not yet become final and executory, and could still
be reversed at any time, and thus should not control as
a precedent to be relied upon; and that he had acted
as an innocent attorney-in-fact for his mother, and
should not be held personally liable under a contract
that had involved property belonging to his mother as
his principal.
On August 18, 2003, the CA amended its decision,
reversing itself. It relied upon the ruling in G.R. No.
148193, and held thusly:
CA-G.R. SP No. 63712 is similar with the case at
bench. The transactions in controversy, the documents
involved; the issue of the respondents culpability for
the questioned transactions are all identical in all the
proceedings; and it deals with the same parties with
the exception of private complainant Unicapital.
However, the Supreme Court, upon review of CA-G.R.
SP No. 63712, People of the Philippines vs. Rafael
Jose Consing, Jr. (G.R. No. 148193, January 16, 2003)
held that "Civil Case No. 99-95381, for Damages and
attachment on account of alleged fraud committed by
respondent and his mother in selling the disputed lot to
Plus Builders, Inc. is an independent civil action under
Article 33 of the Civil Code. As such, it will not operate
as a prejudicial question that will justify the suspension
of the criminal case at bar." In view of the
aforementioned decision of the Supreme Court, We
are thus amending Our May 20, 2003 decision.
WHEREFORE, the petitioners motion for
reconsideration is GRANTED. The Orders dated
November 26, 2001 and March 18, 2002 issued by the
respondent Judge are hereby REVERSED and SET
ASIDE. Respondent Judge is hereby ordered to
proceed with the hearing of Criminal Case No. 00-120
with dispatch.
SO ORDERED.16
Consing filed a motion for reconsideration,17 but the
CA denied the motion through the second assailed
resolution of December 11, 2003.18
Hence, this appeal by petition for review on certiorari.
Issue
Petitioner reiterates his contention that the decision in
G.R. No. 148193 was not controlling in relation to C.A.-
G.R. No. 71252, which involved Plus Builders, not
Unicapital, the complainant in Criminal Case No. 00-
120. He posits that in arriving at its amended decision,
the CA did not consider the pendency of the Makati
civil case (Civil Case No. 99-1418), which raised a
prejudicial question, considering that the resolution of
such civil action would include the issue of whether he
had falsified a certificate of title or had willfully
defrauded Unicapital, the resolution of either of which
would determine his guilt or innocence in Criminal
Case No. 00-120.
In its comment,19 the Office of the Solicitor General
(OSG) counters that Unicapital brought the Makati civil
case as an independent civil action intended to exact
civil liability separately from Criminal Case No. 00-120
in a manner fully authorized under Section 1(a) and
Section 2, Rule 111 of the Rules of Court.20 It argues
that the CA correctly took cognizance of the ruling in
G.R. No. 148193, holding in its challenged amended
decision that the Makati civil case, just like the Manila
civil case, was an independent civil action instituted by
virtue of Article 33 of the Civil Code; that the Makati
civil case did not raise a prejudicial question that
justified the suspension of Criminal Case No. 00-120;
and that as finally settled in G.R. No. 148193, the
Pasig civil case did not also raise any prejudicial
question, because the sole issue thereat was whether
Consing, as the mere agent of his mother, had any
obligation or liability toward Unicapital.
In his reply,21 Consing submits that the Pasig civil
case that he filed and Unicapitals Makati civil case
were not intended to delay the resolution of Criminal
Case No. 00-120, nor to pre-empt such resolution; and
that such civil cases could be validly considered
determinative of whether a prejudicial question existed
to warrant the suspension of Criminal Case No. 00-
120.
Did the CA err in reversing itself on the issue of the
existence of a prejudicial question that warranted the
suspension of the proceedings in the Makati criminal
case?
Ruling
The petition for review on certiorari is absolutely
meritless.
Consing has hereby deliberately chosen to ignore the
firm holding in the ruling in G.R. No. 148193 to the
effect that the proceedings in Criminal Case No. 00-
120 could not be suspended because the Makati civil
case was an independent civil action, while the Pasig
civil case raised no prejudicial question. That was
wrong for him to do considering that the ruling fully
applied to him due to the similarity between his case
with Plus Builders and his case with Unicapital.
A perusal of Unicapitals complaint in the Makati civil
case reveals that the action was predicated on fraud.
This was apparent from the allegations of Unicapital in
its complaint to the effect that Consing and de la Cruz
had acted in a "wanton, fraudulent, oppressive, or
malevolent manner in offering as security and later
object of sale, a property which they do not own, and
foisting to the public a spurious title."22 As such, the
action was one that could proceed independently of
Criminal Case No. 00-120 pursuant to Article 33 of the
Civil Code, which states as follows:
Article 33. In cases of defamation, fraud, and physical
injuries a civil action for damages, entirely separate
and distinct from the criminal action, may be brought
by the injured party. Such civil action shall proceed
independently of the criminal prosecution, and shall
require only a preponderance of evidence.
It is well settled that a civil action based on defamation,
fraud and physical injuries may be independently
instituted pursuant to Article 33 of the Civil Code, and
does not operate as a prejudicial question that will
justify the suspension of a criminal case.23 This was
precisely the Courts thrust in G.R. No. 148193, thus:
Moreover, neither is there a prejudicial question if the
civil and the criminal action can, according to law,
proceed independently of each other. Under Rule 111,
Section 3 of the Revised Rules on Criminal Procedure,
in the cases provided in Articles 32, 33, 34 and 2176 of
the Civil Code, the independent civil action may be
brought by the offended party. It shall proceed
independently of the criminal action and shall require
only a preponderance of evidence. In no case,
however, may the offended party recover damages
twice for the same act or omission charged in the
criminal action.
xxxx
In the instant case, Civil Case No. 99-95381, for
Damages and Attachment on account of the alleged
fraud committed by respondent and his mother in
selling the disputed lot to PBI is an independent civil
action under Article 33 of the Civil Code. As such, it will
not operate as a prejudicial question that will justify the
suspension of the criminal case at bar.24
Contrary to Consings stance, it was not improper for
the CA to apply the ruling in G.R. No. 148193 to his
case with Unicapital, for, although the Manila and
Makati civil cases involved different complainants (i.e.,
Plus Builders and Unicapital), the civil actions Plus
Builders and Unicapital had separately instituted
against him were undeniably of similar mold, i.e., they
were both based on fraud, and were thus covered by
Article 33 of the Civil Code. Clearly, the Makati criminal
case could not be suspended pending the resolution of
the Makati civil case that Unicapital had filed.
As far as the Pasig civil case is concerned, the issue of
Consings being a mere agent of his mother who
should not be criminally liable for having so acted due
to the property involved having belonged to his mother
as principal has also been settled in G.R. No. 148193,
to wit:
In the case at bar, we find no prejudicial question that
would justify the suspension of the proceedings in the
criminal case (the Cavite criminal case). The issue in
Civil Case No. SCA 1759 (the Pasig civil case) for
Injunctive Relief is whether or not respondent
(Consing) merely acted as an agent of his mother,
Cecilia de la Cruz; while in Civil Case No. 99-95381
(the Manila civil case), for Damages and Attachment,
the question is whether respondent and his mother are
liable to pay damages and to return the amount paid by
PBI for the purchase of the disputed lot. Even if
respondent is declared merely an agent of his mother
in the transaction involving the sale of the questioned
lot, he cannot be adjudged free from criminal liability.
An agent or any person may be held liable for
conspiring to falsify public documents. Hence, the
determination of the issue involved in Civil Case No.
SCA 1759 for Injunctive Relief is irrelevant to the guilt
or innocence of the respondent in the criminal case for
estafa through falsification of public document.25
(Words in parentheses supplied; bold underscoring
supplied for emphasis)
WHEREFORE, the Court AFFIRMS the amended
decision promulgated on August 18, 2003; and
ORDERS petitioner to pay the costs of suit. SO
ORDERED.
ART. 40-41 PERSONALITY SPRINGS FROM
BIRTH
a.) Quimiging vs Icao
Appeal on points of law from an order of the Court of
First Instance of Zamboanga del Norte (Judge Onofre
Sison Abalos, presiding), in its Civil Case No. 1590,
dismissing a complaint for support and damages, and
another order denying amendment of the same
pleading.
The events in the court of origin can be summarized as
follows:
Appellant, Carmen Quimiguing, assisted by her
parents, sued Felix Icao in the court below. In her
complaint it was averred that the parties were
neighbors in Dapitan City, and had close and
confidential relations; that defendant Icao, although
married, succeeded in having carnal intercourse with
plaintiff several times by force and intimidation, and
without her consent; that as a result she became
pregnant, despite efforts and drugs supplied by
defendant, and plaintiff had to stop studying. Hence,
she claimed support at P120.00 per month, damages
and attorney's fees.
Duly summoned, defendant Icao moved to dismiss for
lack of cause of action since the complaint did not
allege that the child had been born; and after hearing
arguments, the trial judge sustained defendant's
motion and dismissed the complaint.
Thereafter, plaintiff moved to amend the complaint to
allege that as a result of the intercourse, plaintiff had
later given birth to a baby girl; but the court, sustaining
defendant's objection, ruled that no amendment was
allowable, since the original complaint averred no
cause of action. Wherefore, the plaintiff appealed
directly to this Court.
We find the appealed orders of the court below to be
untenable. A conceived child, although as yet unborn,
is given by law a provisional personality of its own for
all purposes favorable to it, as explicitly provided in
Article 40 of the Civil Code of the Philippines. The
unborn child, therefore, has a right to support from its
progenitors, particularly of the defendant-appellee
(whose paternity is deemed admitted for the purpose of
the motion to dismiss), even if the said child is only "en
ventre de sa mere;" just as a conceived child, even if
as yet unborn, may receive donations as prescribed by
Article 742 of the same Code, and its being ignored by
the parent in his testament may result in preterition of a
forced heir that annuls the institution of the
testamentary heir, even if such child should be born
after the death of the testator Article 854, Civil Code).
ART. 742. Donations made to conceived and unborn
children may be accepted by those persons who would
legally represent them if they were already born.
ART. 854. The preterition or omission of one, some, or
all of the compulsory heirs in the direct line, whether
living at the time of the execution of the will or born
after the death of the testator, shall annul the institution
of heir; but the devises and legacies shall be valid
insofar as they are not inofficious.
If the omitted compulsory heirs should die before the
testator, the institution shall be effectual, without
prejudice to the right of 'representation.
It is thus clear that the lower court's theory that Article
291 of the Civil Code declaring that support is an
obligation of parents and illegitimate children "does not
contemplate support to children as yet unborn,"
violates Article 40 aforesaid, besides imposing a
condition that nowhere appears in the text of Article
291. It is true that Article 40 prescribing that "the
conceived child shall be considered born for all
purposes that are favorable to it" adds further
"provided it be born later with the conditions specified
in the following article" (i.e., that the foetus be alive at
the time it is completely delivered from the mother's
womb). This proviso, however, is not a condition
precedent to the right of the conceived child; for if it
were, the first part of Article 40 would become entirely
useless and ineffective. Manresa, in his Commentaries
(5th Ed.) to the corresponding Article 29 of the Spanish
Civil Code, clearly points this out:
Los derechos atribuidos al nasciturus no son simples
expectativas, ni aun en el sentido tecnico que la
moderna doctrina da a esta figura juridica sino que
constituyen un caso de los propiamente Ilamados
'derechos en estado de pendenci'; el nacimiento del
sujeto en las condiciones previstas por el art. 30, no
determina el nacimiento de aquellos derechos (que ya
existian de antemano), sino que se trata de un hecho
que tiene efectos declarativos. (1 Manresa, Op. cit.,
page 271)
A second reason for reversing the orders appealed
from is that for a married man to force a woman not his
wife to yield to his lust (as averred in the original
complaint in this case) constitutes a clear violation of
the rights of his victim that entitles her to claim
compensation for the damage caused. Says Article 21
of the Civil Code of the Philippines:
ART. 21. Any person who wilfully causes loss or injury
to another in a manner that is contrary to morals, good
customs or public policy shall compensate the latter for
the damage.
The rule of Article 21 is supported by Article 2219 of
the same Code:
ART 2219. Moral damages may be recovered in the
following and analogous cases:
(3) Seduction, abduction, rape or other lascivious acts:
xxx xxx xxx
(10) Acts and actions referred to in Articles 21, 26, 27,
28 ....
Thus, independently of the right to Support of the child
she was carrying, plaintiff herself had a cause of action
for damages under the terms of the complaint; and the
order dismissing it for failure to state a cause of action
was doubly in error.
WHEREFORE, the orders under appeal are reversed
and set aside. Let the case be remanded to the court
of origin for further proceedings conformable to this
decision. Costs against appellee Felix Icao. So
ordered.
b.) Continental Steel vs Montano
Before Us is a Petition for Review on Certiorari, under
Rule 45 of the Rules of Court, assailing the Decision[1]
dated 27 February 2008 and the Resolution[2] dated 9
May 2008 of the Court of Appeals in CA-G.R. SP No.
101697, affirming the Resolution[3] dated 20
November 2007 of respondent Accredited Voluntary
Arbitrator Atty. Allan S. Montao (Montao) granting
bereavement leave and other death benefits to
Rolando P. Hortillano (Hortillano), grounded on the
death of his unborn child.
The antecedent facts of the case are as follows:
Hortillano, an employee of petitioner Continental Steel
Manufacturing Corporation (Continental Steel) and a
member of respondent Nagkakaisang Manggagawa ng
Centro Steel Corporation-Solidarity of Trade Unions in
the Philippines for Empowerment and Reforms (Union)
filed on 9 January 2006, a claim for Paternity Leave,
Bereavement Leave and Death and Accident
Insurance for dependent, pursuant to the Collective
Bargaining Agreement (CBA) concluded between
Continental and the Union, which reads:
ARTICLE X: LEAVE OF ABSENCE
xxxx
Section 2. BEREAVEMENT LEAVEThe Company
agrees to grant a bereavement leave with pay to any
employee in case of death of the employees legitimate
dependent (parents, spouse, children, brothers and
sisters) based on the following:
2.1 Within Metro Manila up to Marilao, Bulacan - 7
days
2.2 Provincial/Outside Metro Manila - 11 days
xxxx
ARTICLE XVIII: OTHER BENEFITS
xxxx
Section 4. DEATH AND ACCIDENT INSURANCEThe
Company shall grant death and accidental insurance to
the employee or his family in the following manner:
xxxx
4.3 DEPENDENTSEleven Thousand Five Hundred
Fifty Pesos (Php11,550.00) in case of death of the
employees legitimate dependents (parents, spouse,
and children). In case the employee is single, this
benefit covers the legitimate parents, brothers and
sisters only with proper legal document to be
presented (e.g. death certificate).[4]
The claim was based on the death of Hortillanos
unborn child. Hortillanos wife, Marife V. Hortillano, had
a premature delivery on 5 January 2006 while she was
in the 38th week of pregnancy.[5] According to the
Certificate of Fetal Death dated 7 January 2006, the
female fetus died during labor due to fetal Anoxia
secondary to uteroplacental insufficiency.[6]
Continental Steel immediately granted Hortillanos
claim for paternity leave but denied his claims for
bereavement leave and other death benefits,
consisting of the death and accident insurance.[7]
Seeking the reversal of the denial by Continental Steel
of Hortillanos claims for bereavement and other death
benefits, the Union resorted to the grievance
machinery provided in the CBA. Despite the series of
conferences held, the parties still failed to settle their
dispute,[8] prompting the Union to file a Notice to
Arbitrate before the National Conciliation and
Mediation Board (NCMB) of the Department of Labor
and Employment (DOLE), National Capital Region
(NCR).[9] In a Submission Agreement dated 9 October
2006, the Union and Continental Steel submitted for
voluntary arbitration the sole issue of whether
Hortillano was entitled to bereavement leave and other
death benefits pursuant to Article X, Section 2
and Article XVIII, Section 4.3 of the CBA.[10] The
parties mutually chose Atty. Montao, an Accredited
Voluntary Arbitrator, to resolve said issue.[11]
When the preliminary conferences again proved futile
in amicably settling the dispute, the parties proceeded
to submit their respective Position Papers, [12]
Replies,[13] and Rejoinders[14] to Atty. Montao.
The Union argued that Hortillano was entitled to
bereavement leave and other death benefits pursuant
to the CBA. The Union maintained that Article X,
Section 2 and Article XVIII, Section 4.3 of the CBA did
not specifically state that the dependent should have
first been born alive or must have acquired juridical
personality so that his/her subsequent death could be
covered by the CBA death benefits. The Union cited
cases wherein employees of MKK Steel Corporation
(MKK Steel) and Mayer Steel Pipe Corporation (Mayer
Steel), sister companies of Continental Steel, in similar
situations as Hortillano were able to receive death
benefits under similar provisions of their CBAs.
The Union mentioned in particular the case of Steve L.
Dugan (Dugan), an employee of Mayer Steel, whose
wife also prematurely delivered a fetus, which had
already died prior to the delivery. Dugan was able to
receive paternity leave, bereavement leave, and
voluntary contribution under the CBA between his
union and Mayer Steel.[15] Dugans child was only 24
weeks in the womb and died before labor, as opposed
to Hortillanos child who was already 37-38 weeks in
the womb and only died during labor.
The Union called attention to the fact that MKK Steel
and Mayer Steel are located in the same compound as
Continental Steel; and the representatives of MKK
Steel and Mayer Steel who signed the CBA with their
respective employees unions were the same as the
representatives of Continental Steel who signed the
existing CBA with the Union.
Finally, the Union invoked Article 1702 of the Civil
Code, which provides that all doubts in labor
legislations and labor contracts shall be construed in
favor of the safety of and decent living for the laborer.
On the other hand, Continental Steel posited that the
express provision of the CBA did not contemplate the
death of an unborn child, a fetus, without legal
personality. It claimed that there are two elements for
the entitlement to the benefits, namely: (1) death and
(2) status as legitimate dependent, none of which
existed in Hortillanos case. Continental Steel, relying
on Articles 40, 41 and 42[16] of the Civil Code,
contended that only one with civil personality could die.
Hence, the unborn child never died because it never
acquired juridical personality. Proceeding from the
same line of thought, Continental Steel reasoned that a
fetus that was dead from the moment of delivery was
not a person at all. Hence, the term dependent could
not be applied to a fetus that never acquired juridical
personality. A fetus that was delivered dead could not
be considered a dependent, since it never needed any
support, nor did it ever acquire the right to be
supported.
Continental Steel maintained that the wording of the
CBA was clear and unambiguous. Since neither of the
parties qualified the terms used in the CBA, the legally
accepted definitions thereof were deemed
automatically accepted by both parties. The failure of
the Union to have unborn child included in the
definition of dependent, as used in the CBA the death
of whom would have qualified the parent-employee for
bereavement leave and other death benefits bound the
Union to the legally accepted definition of the latter
term.
Continental Steel, lastly, averred that similar cases
involving the employees of its sister companies, MKK
Steel and Mayer Steel, referred to by the Union, were
irrelevant and incompetent evidence, given the
separate and distinct personalities of the companies.
Neither could the Union sustain its claim that the grant
of bereavement leave and other death benefits to the
parent-employee for the loss of an unborn child
constituted company practice.
On 20 November 2007, Atty. Montao, the appointed
Accredited Voluntary Arbitrator, issued a
Resolution[17] ruling that Hortillano was entitled to
bereavement leave with pay and death benefits.
Atty. Montao identified the elements for entitlement to
said benefits, thus:
This Office declares that for the entitlement of the
benefit of bereavement leave with pay by the covered
employees as provided under Article X, Section 2 of
the parties CBA, three (3) indispensable elements
must be present: (1) there is death; (2) such death
must be of employees dependent; and (3) such
dependent must be legitimate.
On the otherhand, for the entitlement to benefit for
death and accident insurance as provided under Article
XVIII, Section 4, paragraph (4.3) of the parties CBA,
four (4) indispensable elements must be present: (a)
there is death; (b) such death must be of employees
dependent; (c) such dependent must be legitimate; and
(d) proper legal document to be presented.[18]
Atty. Montao found that there was no dispute that the
death of an employees legitimate dependent occurred.
The fetus had the right to be supported by the parents
from the very moment he/she was conceived. The
fetus had to rely on another for support; he/she could
not have existed or sustained himself/herself without
the power or aid of someone else, specifically, his/her
mother. Therefore, the fetus was already a dependent,
although he/she died during the labor or delivery.
There was also no question that Hortillano and his wife
were lawfully married, making their dependent, unborn
child, legitimate.
In the end, Atty. Montao decreed:
WHEREFORE, premises considered, a resolution is
hereby rendered ORDERING [herein petitioner
Continental Steel] to pay Rolando P. Hortillano the
amount of Four Thousand Nine Hundred Thirty-Nine
Pesos (P4,939.00), representing his bereavement
leave pay and the amount of Eleven Thousand Five
Hundred Fifty Pesos (P11,550.00) representing death
benefits, or a total amount of P16,489.00
The complaint against Manuel Sy, however, is
ORDERED DISMISSED for lack of merit.
All other claims are DISMISSED for lack of merit.
Further, parties are hereby ORDERED to faithfully
abide with the herein dispositions.
Aggrieved, Continental Steel filed with the Court of
Appeals a Petition for Review on Certiorari,[19] under
Section 1, Rule 43 of the Rules of Court, docketed as
CA-G.R. SP No. 101697.
Continental Steel claimed that Atty. Montao erred in
granting Hortillanos claims for bereavement leave with
pay and other death benefits because no death of an
employees dependent had occurred. The death of a
fetus, at whatever stage of pregnancy, was excluded
from the coverage of the CBA since what was
contemplated by the CBA was the death of a legal
person, and not that of a fetus, which did not acquire
any juridical personality. Continental Steel pointed out
that its contention was bolstered by the fact that the
term death was qualified by the phrase legitimate
dependent. It asserted that the status of a child could
only be determined upon said childs birth, otherwise,
no such appellation can be had. Hence, the conditions
sine qua non for Hortillanos entitlement to
bereavement leave and other death benefits under the
CBA were lacking.
The Court of Appeals, in its Decision dated 27
February 2008, affirmed Atty. Montaos Resolution
dated 20 November 2007. The appellate court
interpreted death to mean as follows:
[Herein petitioner Continental Steels] exposition on the
legal sense in which the term death is used in the CBA
fails to impress the Court, and the same is irrelevant
for ascertaining the purpose, which the grant of
bereavement leave and death benefits thereunder, is
intended to serve. While there is no arguing with
[Continental Steel] that the acquisition of civil
personality of a child or fetus is conditioned on being
born alive upon delivery, it does not follow that such
event of premature delivery of a fetus could never be
contemplated as a death as to be covered by the CBA
provision, undoubtedly an event causing loss and grief
to the affected employee, with whom the dead fetus
stands in a legitimate relation. [Continental Steel] has
proposed a narrow and technical significance to the
term death of a legitimate dependent as condition for
granting bereavement leave and death benefits under
the CBA. Following [Continental Steels] theory, there
can be no experience of death to speak of. The Court,
however, does not share this view. A dead fetus simply
cannot be equated with anything less than loss of
human life, especially for the expectant parents. In this
light, bereavement leave and death benefits are meant
to assuage the employee and the latters immediate
family, extend to them solace and support, rather than
an act conferring legal status or personality upon the
unborn child. [Continental Steels] insistence that the
certificate of fetal death is for statistical purposes only
sadly misses this crucial point.[20]
Accordingly, the fallo of the 27 February 2008 Decision
of the Court of Appeals reads:
WHEREFORE, premises considered, the present
petition is hereby DENIED for lack of merit. The
assailed Resolution dated November 20, 2007 of
Accredited Voluntary Arbitrator Atty. Allan S. Montao is
hereby AFFIRMED and UPHELD.
With costs against [herein petitioner Continental
Steel].[21]
In a Resolution[22] dated 9 May 2008, the Court of
Appeals denied the Motion for Reconsideration[23] of
Continental Steel.
Hence, this Petition, in which Continental Steel
persistently argues that the CBA is clear and
unambiguous, so that the literal and legal meaning of
death should be applied. Only one with juridical
personality can die and a dead fetus never acquired a
juridical personality.
We are not persuaded.
As Atty. Montao identified, the elements for
bereavement leave under Article X, Section 2 of the
CBA are: (1) death; (2) the death must be of a
dependent, i.e., parent, spouse, child, brother, or
sister, of an employee; and (3) legitimate relations of
the dependent to the employee. The requisites for
death and accident insurance under Article XVIII,
Section 4(3) of the CBA are: (1) death; (2) the death
must be of a dependent, who could be a parent,
spouse, or child of a married employee; or a parent,
brother, or sister of a single employee; and (4)
presentation of the proper legal document to prove
such death, e.g., death certificate.
It is worthy to note that despite the repeated assertion
of Continental Steel that the provisions of the CBA are
clear and unambiguous, its fundamental argument for
denying Hortillanos claim for bereavement leave and
other death benefits rests on the purportedly proper
interpretation of the terms death and dependent as
used in the CBA. If the provisions of the CBA are
indeed clear and unambiguous, then there is no need
to resort to the interpretation or construction of the
same. Moreover, Continental Steel itself admitted that
neither management nor the Union sought to define
the pertinent terms for bereavement leave and other
death benefits during the negotiation of the CBA.
The reliance of Continental Steel on Articles 40, 41 and
42 of the Civil Code for the legal definition of death is
misplaced. Article 40 provides that a conceived child
acquires personality only when it is born, and Article 41
defines when a child is considered born. Article 42
plainly states that civil personality is extinguished by
death.
First, the issue of civil personality is not relevant
herein. Articles 40, 41 and 42 of the Civil Code on
natural persons, must be applied in relation to Article
37 of the same Code, the very first of the general
provisions on civil personality, which reads:
Art. 37. Juridical capacity, which is the fitness to be the
subject of legal relations, is inherent in every natural
person and is lost only through death. Capacity to act,
which is the power to do acts with legal effect, is
acquired and may be lost.

We need not establish civil personality of the unborn
child herein since his/her juridical capacity and
capacity to act as a person are not in issue. It is not a
question before us whether the unborn child acquired
any rights or incurred any obligations prior to his/her
death that were passed on to or assumed by the childs
parents. The rights to bereavement leave and other
death benefits in the instant case pertain directly to the
parents of the unborn child upon the latters death.
Second, Sections 40, 41 and 42 of the Civil Code do
not provide at all a definition of death. Moreover, while
the Civil Code expressly provides that civil personality
may be extinguished by death, it does not explicitly
state that only those who have acquired juridical
personality could die.
And third, death has been defined as the cessation of
life.[24] Life is not synonymous with civil personality.
One need not acquire civil personality first before
he/she could die. Even a child inside the womb already
has life. No less than the Constitution recognizes the
life of the unborn from conception,[25] that the State
must protect equally with the life of the mother. If the
unborn already has life, then the cessation thereof
even prior to the child being delivered, qualifies as
death.
Likewise, the unborn child can be considered a
dependent under the CBA. As Continental Steel itself
defines, a dependent is one who relies on another for
support; one not able to exist or sustain oneself without
the power or aid of someone else. Under said general
definition,[26] even an unborn child is a dependent of
its parents. Hortillanos child could not have reached
38-39 weeks of its gestational life without depending
upon its mother, Hortillanos wife, for sustenance.
Additionally, it is explicit in the CBA provisions in
question that the dependent may be the parent,
spouse, or child of a married employee; or the parent,
brother, or sister of a single employee. The CBA did
not provide a qualification for the child dependent, such
that the child must have been born or must have
acquired civil personality, as Continental Steel avers.
Without such qualification, then child shall be
understood in its more general sense, which includes
the unborn fetus in the mothers womb.
The term legitimate merely addresses the dependent
childs status in relation to his/her parents. In Angeles v.
Maglaya,[27] we have expounded on who is a
legitimate child, viz:
A legitimate child is a product of, and, therefore,
implies a valid and lawful marriage. Remove the
element of lawful union and there is strictly no
legitimate filiation between parents and child. Article
164 of the Family Code cannot be more emphatic on
the matter: Children conceived or born during the
marriage of the parents are legitimate. (Emphasis
ours.)
Conversely, in Briones v. Miguel,[28] we identified an
illegitimate child to be as follows:
The fine distinctions among the various types of
illegitimate children have been eliminated in the Family
Code. Now, there are only two classes of children --
legitimate (and those who, like the legally adopted,
have the rights of legitimate children) and illegitimate.
All children conceived and born outside a valid
marriage are illegitimate, unless the law itself gives
them legitimate status. (Emphasis ours.)
It is apparent that according to the Family Code and
the afore-cited jurisprudence, the legitimacy or
illegitimacy of a child attaches upon his/her conception.
In the present case, it was not disputed that Hortillano
and his wife were validly married and that their child
was conceived during said marriage, hence, making
said child legitimate upon her conception.
Also incontestable is the fact that Hortillano was able to
comply with the fourth element entitling him to death
and accident insurance under the CBA, i.e.,
presentation of the death certificate of his unborn child.
Given the existence of all the requisites for
bereavement leave and other death benefits under the
CBA, Hortillanos claims for the same should have been
granted by Continental Steel.
We emphasize that bereavement leave and other
death benefits are granted to an employee to give aid
to, and if possible, lessen the grief of, the said
employee and his family who suffered the loss of a
loved one. It cannot be said that the parents grief and
sense of loss arising from the death of their unborn
child, who, in this case, had a gestational life of 38-39
weeks but died during delivery, is any less than that of
parents whose child was born alive but died
subsequently.
Being for the benefit of the employee, CBA provisions
on bereavement leave and other death benefits should
be interpreted liberally to give life to the intentions
thereof. Time and again, the Labor Code is specific in
enunciating that in case of doubt in the interpretation of
any law or provision affecting labor, such should be
interpreted in favor of labor.[29] In the same way, the
CBA and CBA provisions should be interpreted in favor
of labor. In Marcopper Mining v. National Labor
Relations Commission,[30] we pronounced:
Finally, petitioner misinterprets the declaration of the
Labor Arbiter in the assailed decision that "when the
pendulum of judgment swings to and fro and the forces
are equal on both sides, the same must be stilled in
favor of labor." While petitioner acknowledges that all
doubts in the interpretation of the Labor Code shall be
resolved in favor of labor, it insists that what is
involved-here is the amended CBA which is essentially
a contract between private persons. What petitioner
has lost sight of is the avowed policy of the State,
enshrined in our Constitution, to accord utmost
protection and justice to labor, a policy, we are,
likewise, sworn to uphold.
In Philippine Telegraph & Telephone Corporation v.
NLRC [183 SCRA 451 (1990)], we categorically stated
that:
When conflicting interests of labor and capital are to be
weighed on the scales of social justice, the heavier
influence of the latter should be counter-balanced by
sympathy and compassion the law must accord the
underprivileged worker.
Likewise, in Terminal Facilities and Services
Corporation v. NLRC [199 SCRA 265 (1991)], we
declared:
Any doubt concerning the rights of labor should be
resolved in its favor pursuant to the social justice
policy.

IN VIEW WHEREOF, the Petition is DENIED. The

Decision dated 27 February 2008 and Resolution
dated 9 May 2008 of the Court of Appeals in CA-G.R.
SP No. 101697, affirming the Resolution dated 20
November 2007 of Accredited Voluntary Arbitrator Atty.
Allan S. Montao, which granted to Rolando P.
Hortillano bereavement leave pay and other death
benefits in the amounts of Four Thousand Nine
Hundred Thirty-Nine Pesos (P4,939.00) and Eleven
Thousand Five Hundred Fifty Pesos (P11,550.00),
respectively, grounded on the death of his unborn
child, are AFFIRMED. Costs against Continental Steel
Manufacturing Corporation. SO ORDERED.