Class,

I apologize for not being able to see you for the past
couple of meetings as I have not been feeling well
and am presently undergoing medical treatment.
To get us back on track, Ive attached Part 3 of our
syllabus containing additional readings.
I would like you to focus on the following cases:
1. Silverio v. Republic
2. Republic v. Cagandahan
3. Tenchavez v. Escao (focus on the authority of the
solemnizing officer and on the parties good faith)
4. Navaro v. Domagtoy
5. Alcantara v. Alcantara
(*Just know the basic facts and rulings in these
cases; we will not dwell too long on them)
6. Madridejos v. De Leon (insofar as a Marriage
Certificate is not an essential requisite of a valid
marriage)
7. Lim Tanhu v. Ramolete (but a Marriage Certificate
is the primary or best evidence of marriage)
8. Trinidad v. CA (nevertheless, the existence of
marriage may be proven in other ways)
9. Vda. De Chua v. CA (Transfer Certificates of Title,
Residence Certificates, passports and other similar
documents do not prove marriage)
10. Nial v. Badayog (G.R. No. 133778, March 14,
2000) this is not included in the syllabus but please
add the same
We will have classes tomorrow, Thursday, and wrap
up our discussion on Marriage and its requisites.
Please prepare for an exam on Tuesday next week.
The exam will cover Articles 1-43 of the Civil Code
and Articles 1-34 of the Family Code. Ill discuss with
you the topics you need to know for the exam.
Thank you and see you all tomorrow.
J. Mike Francisco
G.R. No. 174689. October 19, 2007.*
ROMMEL JACINTO DANTES SILVERIO, petitioner,
vs. REPUBLIC OF THE PHILIPPINES, respondent.
Change of Name; The State has an interest in the
names borne by individuals and entities for purposes
of identification; A change of name is a privilege, not
a right.The State has an interest in the names
borne by individuals and entities for purposes of
identification. A change of name is a privilege, not a
right. Petitions for change of name are controlled by
statutes. In this connection, Article 376 of the Civil

Code provides: ART. 376. No person can change his

name or surname without judicial authority.
Same; Clerical Error Law (RA 9048); Administrative
Law; Jurisdictions; RA 9048 now governs the change
of first name, and vests the power and authority to
entertain petitions for change of first name to the
city or municipal civil registrar or consul general
concerned; 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 deniedin sum, the remedy
and the proceedings regulating change of first name
are primarily administrative in nature, not judicial.
RA 9048 now governs the change of first name. 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. It likewise lays
down the corresponding venue, form and procedure.
In sum, the remedy and the proceedings regulating
change of first name are primarily administrative in
nature, not judicial.
Same; Same; Same; Same; Sex Change; A change of
name does not alter ones legal capacity or civil
statusRA 9048 does not sanction a change of first
name on the ground of sex reassignment.
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. 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. In addition, he must show
that he will be prejudiced by the use of his true and
official name. 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.

Same; Same; A petition in the trial court in so far as

it prays for change of first name is not within that
courts primary jurisdiction as the petition should be
filed with the local civil registrar concerned, namely,
where the birth certificate is kept.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.
Same; Same; Sex Change; No law allows the change
of entry in the birth certificate as to sex on the
ground of sex reassignment; Under RA 9048, a
correction in the civil registry involving the change of
sex is not a mere clerical or typographical errorit is
a substantial change for which the applicable
procedure is Rule 108 of the Rules of Court.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: x x x
xx
x
x x x (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.
Same; Same; Same; Words and Phrases; Statutory
Construction; No reasonable interpretation of Art.
407 of the Civil Code 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.The acts, events or
factual errors contemplated under Article 407 of the
Civil Code include even those that occur after birth.
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. 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.
Same; Same; Same; Same; 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.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. 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. (emphasis
supplied)
Same; Same; Same; Same; A persons sex is an
essential factor in marriage and family relationsit is
a part of a persons legal capacity and civil status;
There is no such special law in the Philippines
governing sex reassignment and its effects.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.

Same; Same; Same; Same; Civil Register Law (Act

3753); Under the Civil Register Law, a birth
certificate is a historical record of the facts as they
existed at the time of birththus, 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, is
immutable.Under the Civil Register Law, a birth
certificate is a historical record of the facts as they
existed at the time of birth. 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, is
immutable.
Same; Same; Same; Same; Same; Statutory
Construction; 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; Sex is defined as
the sum of peculiarities of structure and function
that distinguish a male from a female or the
distinction between male and female; The words
male and female in everyday understanding do
not include persons who have undergone sex
reassignment; While a person 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. 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 or the
distinction between male and female. Female is the
sex that produces ova or bears young and male is
the sex that has organs to produce spermatozoa for
fertilizing ova. 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. 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.
Same; Same; Same; Marriage; To grant the changes
in name and sex sought by petitioner will
substantially reconfigure and greatly alter the laws
on marriage and family relationsit will allow the
union of a man with another man who has undergone
sex reassignment (a male-to-female post-operative
transsexual).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. One of its
essential requisites is the legal capacity of the
contracting parties who must be a male and a
female. 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 postoperative transsexual). Second, there are various
laws which apply particularly to women such as the
provisions of the Labor Code on employment of
women, certain felonies under the Revised Penal
Code and the presumption of survivorship in case of
calamities under Rule 131 of the Rules of Court,
among others. These laws underscore the public
policy in relation to women which could be
substantially affected if petitioners petition were to
be granted.
Same; Same; Same; Separation of Powers; Judicial
Legislation; Article 9 of the Civil Code which
mandates that [n]o judge or court shall decline to
render judgment by reason of the silence, obscurity
or insufficiency of the law is not a license for courts
to engage in judicial legislation; 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.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 statutebased.
Same; Same; Same; Same; Same; 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; The
Supreme Court cannot enact a law where no law
exists.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.
Same; Same; Same; Same; 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, but the remedies
involve questions of public policy to be addressed
solely by the legislature, not by the courts.
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.
PETITION for review on certiorari of a decision of the
Court of Appeals.
The facts are stated in the opinion of the Court.
Benito R. Cuesta for petitioner.
The Solicitor General for respondent.
CORONA, J.:
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.
_______________
Master of Arts in Sociology and Doctor of Philosophy
in Sociology at the University of Hawaii, in Manoa,
Hawaii, U.S.A. Rollo, p. 48.
2 This consisted of penectomy [surgical removal of
penis] bilateral oschiectomy [or orchiectomy which is
the surgical excision of the testes] penile skin
inversion vaginoplasty [plastic surgery of the vagina]
clitoral hood reconstruction and augmentation
mammoplasty [surgical enhancement of the size and
shape of the breasts]. Id.
3 On January 23, 2003, January 30, 2003 and
February 6, 2003.
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 [reassignment], 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:

person, with the local civil registrar of the place

where the interested party is presently residing or
domiciled. The two (2) local civil registrars concerned
will then communicate to facilitate the processing of
the petition.
Citizens of the Philippines who are presently residing
or domiciledin foreign countries may file their
petition, in person, with the nearest Philippine
Consulates.
The petitions filed with the city or municipal civil
registrar or the consul general shall be processed in
accordance with this Act and its implementing rules
and regulations.
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:
_______________
All petitions for the clerical or typographical errors
and/or change of first names or nicknames may be
availed of only once.

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.

17 SECTION 5. Form and Contents of the Petition.

The petition shall be in the form of an affidavit,
subscribed and sworn to before any person
authorized by the law to administer oaths. The
affidavit shall set forth facts necessary to establish
the merits of the petition and shall show affirmatively
that the petitioner is competent to testify to the
matters stated. The petitioner shall state the
particular erroneous entry or entries, which are
sought to be corrected and/or the change sought to
be made.

RA 9048 now governs the change of first name.14 It

vests the power and authority to entertain petitions
for change of

The petition shall be supported with the following

documents:

In case the petitioner has already migrated to

another place in the country and it would not be
practical for such party, in terms of transportation
expenses, time and effort to appear in person before
the local civil registrar keeping the documents to be
corrected or changed, the petition may be filed, in

(1) A certified true machine copy of the certificate

or of the page of the registry book containing the
entry or entries sought to be corrected or changed;
(2) At least two (2) public or private documents
showing the correct entry or entries upon which the
correction or change shall be based; and
(3) Other documents which the petitioner or the
city or municipal civil registrar or the consul general

may consider relevant and necessary for the

approval of the petition.
In case of change of first name or nickname, the
petition shall likewise be supported with the
documents mentioned in the immediately preceding
paragraph. In addition, the petition shall be published
at least once a week for two (2) consecutive weeks in
a newspaper of general circulation. Furthermore, the
petitioner shall submit a certification from the
appropriate law enforcement agencies that he has no
pending case or no criminal record.
(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 doe snot 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 removedfrom the ambit of Rule 108 of the
Rules of Court the correction of such errors.22 Rule
108 now applies only to substantialchanges and
corrections in entries in the civil register.23
Section 2(c) of RA 9048 defines what a clerical or
typographicalerror 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.
_______________
24 Co v. Civil Register of Manila, G.R. No. 138496, 23
February 2004, 423 SCRA 420.
25 Id.
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
governingsex reassignment and its effects. This is
fatal to petitionerscause.
Moreover, Section 5 of Act 3753 (the Civil Register
Law) provides:
SEC. 5. Registration and certification of births.The
declarationof 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.
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 female32 or the distinction between
male and female.33 Female is the sex that
produces
ova or bears young34 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 postoperative 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 postoperative 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
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.
Costs against petitioner.
SO ORDERED.
Notes.Petitions for adoption and change of name
have no relation to each other, nor are they of the
same nature or character, much less do they present
any common question of fact or lawin short, they
do not rightly meet the underlying test of conceptual
unity demanded to sanction their joinder under the
Rules. (Republic vs. Hernandez, 253 SCRA 509
[1996])
The touchstone for the grant of a change of name is
that there be proper and reasonable cause for which
the change is sought. Legitimate children shall
principally use the surname of their father. (Republic
vs. Court of Appeals, 300 SCRA 138 [1998])
The subject of rights must have a fixed symbol for
individualization which serves to distinguish him from
all othersthis symbol is his name. (Republic vs.
Capote, 514 SCRA 76 [2007]) [Silverio vs. Republic,
537 SCRA 373(2007)]
G.R. No. 166676.September 12, 2008.*
REPUBLIC OF THE PHILIPPINES, petitioner, vs.
JENNIFER B. CAGANDAHAN, respondent.
Civil Registry; Correction of Entries in Birth
Certificates; Clerical Error Law (R.A. No. 9048); R.A.
No. 9048 removed from the ambit of Rule 108 of the
Rules of Court the correction of such errorsRule 108
now applies only to substantial changes and
corrections in entries in the civil register.The
determination of a persons sex appearing in his birth
certificate is a legal issue and the court must look to
the statutes. In this connection, Article 412 of the
Civil Code provides: ART. 412. No entry in a civil

register shall be changed or corrected without a

judicial order. Together with Article 376 of the Civil
Code, this provision was amended by Republic Act
No. 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, Rep. Act No. 9048 removed from the ambit
of Rule 108 of the Rules of Court the correction of
such errors. Rule 108 now applies only to substantial
changes and corrections in entries in the civil
register.
Same; Same; 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; The acts, events or factual
errors contemplated under Article 407 of the Civil
Code include even those that occur after birth.
Under Rep. Act No. 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: 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.
Same; Same; Intersexuality; Congenital Adrenal
Hyperplasia (CAH); Words and Phrases; During the
twentieth century, medicine adopted the term
intersexuality to apply to human beings who
cannot be classified as either male or femalean
organism with intersex may have biological
characteristics of both male and female sexes.
Respondent undisputedly has CAH. This condition
causes the early or inappropriate appearance of
male characteristics. A person, like respondent, with
this condition produces too much androgen, a male
hormone. A newborn who has XX chromosomes
coupled with CAH usually has a (1) swollen clitoris
with the urethral opening at the base, an ambiguous

genitalia often appearing more male than female; (2)

normal internal structures of the female reproductive
tract such as the ovaries, uterus and fallopian tubes;
as the child grows older, some features start to
appear male, such as deepening of the voice, facial
hair, and failure to menstruate at puberty. About 1 in
10,000 to 18,000 children are born with CAH. CAH is
one of many conditions that involve intersex
anatomy. During the twentieth century, medicine
adopted the term intersexuality to apply to human
beings who cannot be classified as either male or
female. The term is now of widespread use.
According to Wikipedia, intersexuality is the state of
a living thing of a gonochoristic species whose sex
chromosomes, genitalia, and/or secondary sex
characteristics are determined to be neither
exclusively male nor female. An organism with
intersex may have biological characteristics of both
male and female sexes.
Same; Same; Same; Same; The current state of
Philippine statutes apparently compels that a person
be classified either as a male or as a female, but this
Court is not controlled by mere appearances when
nature itself fundamentally negates such rigid
classification.Intersex individuals are treated in
different ways by different cultures. In most societies,
intersex individuals have been expected to conform
to either a male or female gender role. Since the rise
of modern medical science in Western societies,
some intersex people with ambiguous external
genitalia have had their genitalia surgically modified
to resemble either male or female genitals. More
commonly, an intersex individual is considered as
suffering from a disorder which is almost always
recommended to be treated, whether by surgery
and/or by taking lifetime medication in order to mold
the individual as neatly as possible into the category
of either male or female. In deciding this case, we
consider the compassionate calls for recognition of
the various degrees of intersex as variations which
should not be subject to outright denial. It has been
suggested that there is some middle ground between
the sexes, a no-mans land for those individuals who
are neither truly male nor truly female. The
current state of Philippine statutes apparently
compels that a person be classified either as a male
or as a female, but this Court is not controlled by
mere appearances when nature itself fundamentally
negates such rigid classification.
Same; Same; Same; Same; Where the person is
biologically or naturally intersex the determining
factor in his gender classification would be what the
individual, having reached the age of majority, with
good reason thinks of his/her sex; Sexual
development in cases of intersex persons makes the

gender classification at birth inconclusiveit is at

maturity that the gender of such persons, like
respondent, is fixed.Biologically, nature endowed
respondent with a mixed (neither consistently and
categorically female nor consistently and
categorically male) composition. Respondent has
female (XX) chromosomes. However, respondents
body system naturally produces high levels of male
hormones (androgen). As a result, respondent has
ambiguous genitalia and the phenotypic features of a
male. Ultimately, we are of the view that where the
person is biologically or naturally intersex the
determining factor in his gender classification would be what the individual, like respondent,
having reached the age of majority, with good reason
thinks of his/her sex. Respondent here thinks of
himself as a male and considering that his body
produces high levels of male hormones (androgen)
there is preponderant biological support for
considering him as being male. Sexual development
in cases of intersex persons makes the gender
classification at birth inconclusive. It is at maturity
that the gender of such persons, like respondent, is
fixed.
Same; Same; Same; Same; To the person with
Congenital Adrenal Hyperplasia (CAH) belongs the
human right to the pursuit of happiness and of
health, and to him should belong the primordial
choice of what courses of action to take along the
path of his sexual development and maturation.In
the absence of a law on the matter, the Court will not
dictate on respondent concerning a matter so
innately private as ones sexuality and lifestyle
preferences, much less on whether or not to undergo
medical treatment to reverse the male tendency due
to CAH. The Court will not consider respondent as
having erred in not choosing to undergo treatment in
order to become or remain as a female. Neither will
the Court force respondent to undergo treatment and
to take medication in order to fit the mold of a
female, as society commonly currently knows this
gender of the human species. Respondent is the one
who has to live with his intersex anatomy. To him
belongs the human right to the pursuit of happiness
and of health. Thus, to him should belong the
primordial choice of what courses of action to take
along the path of his sexual development and
maturation. In the absence of evidence that
respondent is an incompetent and in the absence
of evidence to show that classifying respondent as a
male will harm other members of society who are
equally entitled to protection under the law, the
Court affirms as valid and justified the respondents
position and his personal judgment of being a male.

Same; Same; Names; There is merit in the change of

name of a person with Congenital Adrenal
Hyperplasia (CAH) where the same is the
consequence of the recognition of his preferred
gender.As for respondents change of name under
Rule 103, this Court has held that a change of name
is not a matter of right but of judicial discretion, to be
exercised in the light of the reasons adduced and the
consequences that will follow. The trial courts grant
of respondents change of name from Jennifer to Jeff
implies a change of a feminine
name to a masculine name. Considering the
consequence that respondents change of name
merely recognizes his preferred gender, we find merit
in respondents change of name. Such a change will
conform with the change of the entry in his birth
certificate from female to male.
PETITION for review on certiorari of a decision of the
Regional Trial Court of Siniloan, Laguna, Br. 33.
The facts are stated in the opinion of the Court.
The Solicitor General for petitioner.
Edgard N. Smith for respondent.
QUISUMBING,J.:
This is a petition for review under Rule 45 of the
Rules of Court raising purely questions of law and
seeking a reversal of the Decision1 dated January 12,
2005 of the Regional Trial Court (RTC), Branch 33 of
Siniloan, Laguna, which granted the Petition for
Correction of Entries in Birth Certificate filed by
Jennifer B. Cagandahan and ordered the following
changes of entries in Cagandahans birth certificate:
(1) the name Jennifer Cagandahan changed to Jeff
Cagandahan and (2) gender from female to
male.
The facts are as follows.
On December 11, 2003, respondent Jennifer
Cagandahan filed a Petition for Correction of Entries
in Birth Certificate2 before the RTC, Branch 33 of
Siniloan, Laguna.
In her petition, she alleged that she was born on
January 13, 1981 and was registered as a female in
the Certificate of Live Birth but while growing up, she
developed secondary male characteristics and was
diagnosed to have Congenital Adrenal Hyperplasia
(CAH) which is a condition where persons thus
afflicted possess both male and female
characteristics. She further alleged that she was
diagnosed to have clitoral hyperthropy in her early

years and at age six, underwent an ultrasound where

it was discovered that she has small ovaries. At age
thirteen, tests revealed that her ovarian structures
had minimized, she has stopped growing and she has
no breast or menstrual development. She then
alleged that for all interests and appearances as well
as in mind and emotion, she has become a male
person. Thus, she prayed that her birth certificate be
corrected such that her gender be changed from
female to male and her first name be changed from
Jennifer to Jeff.
The petition was published in a newspaper of general
circulation for three (3) consecutive weeks and was
posted in conspicuous places by the sheriff of the
court. The Solicitor General entered his appearance
and authorized the Assistant Provincial Prosecutor to
appear in his behalf.
To prove her claim, respondent testified and
presented the testimony of Dr. Michael Sionzon of the
Department of Psychiatry, University of the
Philippines-Philippine General Hospital. Dr. Sionzon
issued a medical certificate stating that respondents
condition is known as CAH. He explained that
genetically respondent is female but because her
body secretes male hormones, her female organs did
not develop normally and she has two sex organs
female and male. He testified that this condition is
very rare, that respondents uterus is not fully
developed because of lack of female hormones, and
that she has no monthly period. He further testified
that respondents condition is permanent and
recommended the change of gender because
respondent has made up her mind, adjusted to her
chosen role as male, and the gender change would
be advantageous to her.
The RTC granted respondents petition in a Decision
dated January 12, 2005 which reads:
The Court is convinced that petitioner has
satisfactorily shown that he is entitled to the reliefs
prayed [for]. Petitioner has adequately presented to
the Court very clear and convincing proofs 78
78

SUPREME COURT REPORTS ANNOTATED

Republic vs. Cagandahan
for the granting of his petition. It was medically
proven that petitioners body produces male
hormones, and first his body as well as his action and
feelings are that of a male. He has chosen to be

male. He is a normal person and wants to be

acknowledged and identified as a male.
WHEREFORE, premises considered, the Civil Register
of Pakil, Laguna is hereby ordered to make the
following corrections in the birth [c]ertificate of
Jennifer Cagandahan upon payment of the prescribed
fees:
a)By changing the name from Jennifer Cagandahan
to JEFF CAGANDAHAN; and
b)By changing the gender from female to MALE.
It is likewise ordered that petitioners school records,
voters registry, baptismal certificate, and other
pertinent records are hereby amended to conform
with the foregoing corrected data.
SO ORDERED.3
Thus, this petition by the Office of the Solicitor
General (OSG) seeking a reversal of the
abovementioned ruling.
The issues raised by petitioner are:

Rule 108 of the Rules of Court, respondents petition

before the court a quo did not implead the local civil
registrar.5 The OSG further contends respondents
petition is fatally defective since it failed to state that
respondent is a bona fide resident of the province
where the petition was filed for at least three (3)
years prior to the date of such filing as mandated
under Section 2(b), Rule 103 of the Rules of Court.6
The OSG argues that Rule 108 does not allow change
of sex or gender in the birth certificate and
respondents claimed medical condition known as
CAH does not make her a male.7
On the other hand, respondent counters that
although the Local Civil Registrar of Pakil, Laguna
was not formally named a party in the Petition for
Correction of Birth Certificate, nonetheless the Local
Civil Registrar was furnished a copy of the Petition,
the Order to publish on December 16, 2003 and all
pleadings, orders or processes in the course of the
proceedings,8 respondent is actually a male person
and hence his birth certificate has to be corrected to
reflect his true sex/gender,9 change of sex or gender
is allowed under
Rule 108,10 and respondent substantially complied
with the requirements of Rules 103 and 108 of the
Rules of Court.11

order reciting the purpose of the petition, shall fix a

date and place for the hearing thereof, and shall
direct that a copy of the order be published before
the hearing at least once a week for three (3)
successive weeks in some newspaper of general
circulation published in the province, as the court
shall deem best. The date set for the hearing shall
not be within thirty (30) days prior to an election nor
within four (4) months after the last publication of
the notice.
Sec.4.Hearing.Any interested person may
appear at the hearing and oppose the petition. The
Solicitor General or the proper provincial or city fiscal
shall appear on behalf of the Government of the
Republic.
Sec.5.Judgment.Upon satisfactory proof in open
court on the date fixed in the order that such order
has been published as
directed and that the allegations of the petition are
true, the court shall, if proper and reasonable cause
appears for changing the name of the petitioner,
adjudge that such name be changed in accordance
with the prayer of the petition.

I.

Rule103

Sec.6.Service of judgment.Judgments or orders

rendered in connection with this rule shall be
furnished the civil registrar of the municipality or city
where the court issuing the same is situated, who
shall forthwith enter the same in the civil register.

THE REQUIREMENTS OF RULES 103 AND 108 OF THE

RULES OF COURT HAVE NOT BEEN COMPLIED WITH;
AND,

CHANGE OF NAME

Rule 108

Section1.Venue.A person desiring to change his

name shall present the petition to the Regional Trial
Court of the province in which he resides, [or, in the
City of Manila, to the Juvenile and Domestic Relations
Court].

CANCELLATION OR CORRECTION OF ENTRIES

THE TRIAL COURT ERRED IN GRANTING THE PETITION

CONSIDERING THAT:

II.
CORRECTION OF ENTRY UNDER RULE 108 DOES NOT
ALLOW CHANGE OF SEX OR GENDER IN THE
BIRTH CERTIFICATE, WHILE RESPONDENTS MEDICAL
CONDITION, i.e., CONGENITAL ADRENAL
HYPERPLASIA DOES NOT MAKE HER A MALE.
Simply stated, the issue is whether the trial court
erred in ordering the correction of entries in the birth
certificate of respondent to change her sex or
gender, from female to male, on the ground of her
medical condition known as CAH, and her name from
Jennifer to Jeff, under Rules 103 and 108 of the
Rules of Court.
The OSG contends that the petition below is fatally
defective for non-compliance with Rules 103 and 108
of the Rules of Court because while the local civil
registrar is an indispensable party in a petition for
cancellation or correction of entries under Section 3,

Rules 103 and 108 of the Rules of Court provide:

Sec.2.Contents of petition.A petition for change

of name shall be signed and verified by the person
desiring his name changed, or some other person on
his behalf, and shall set forth:
(a)That the petitioner has been a bona fide
resident of the province where the petition is filed for
at least three (3) years prior to the date of such
filing;
(b)The cause for which the change of the
petitioners name is sought;
(c)The name asked for.
Sec.3.Order for hearing.If the petition filed is
sufficient in form and substance, the court, by an

IN THE CIVIL REGISTRY

Section1.Who may file petition.Any person
interested in any act, event, order or decree
concerning the civil status of persons which has been
recorded in the civil register, may file a verified
petition for the cancellation or correction of any entry
relating thereto, with the Regional Trial Court of the
province where the corresponding civil registry is
located.
Sec.2.Entries subject to cancellation or correction.
Upon good and valid grounds, the following entries
in the civil register may be cancelled or corrected: (a)
births; (b) marriages; (c) deaths; (d) legal
separations; (e) judgments of annulments of
marriage; (f) judgments declaring marriages void
from the beginning; (g) legitimations; (h) adoptions;
(i) acknowledgments of natural children; (j)
naturalization; (k) election, loss or recovery of
citizenship; (l) civil interdiction; (m) judicial

determination of filiation; (n) voluntary emancipation

of a minor; and (o) changes of name.

any interest that would be affected thereby.14

Respondent, however,

16 Art.376.No person can change his name or

surname without judicial authority.

Sec.3.Parties.When cancellation or correction of

an entry in the civil register is sought, the civil
registrar and all persons who have or claim any
interest which would be affected thereby shall be
made parties to the proceeding.

_______________

13 Ceruila v. Delantar, G.R. No. 140305, December 9,

2005, 477 SCRA 134, 147.

17 An Act Authorizing the City or Municipal Civil

Registrar or the Consul General to Correct a Clerical
or Typographical Error in an Entry and/or Change of
First Name or Nickname in the Civil Registrar Without
Need of a Judicial Order, Amending for this Purpose
Articles 376 and 412 of the Civil Code of the
Philippines. Approved, March 22, 2001.

14 Republic v. Benemerito, G.R. No. 146963, March

15, 2004, 425 SCRA 488, 492.

applies only to substantial changes and corrections in

entries in the civil register.18

83

Under Rep. Act No. 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.19

Sec.4.Notice and publication.Upon the filing of

the petition, the court shall, by an order, fix the time
and place for the hearing of the same, and cause
reasonable notice thereof to be given to the persons
named in the petition. The court shall also cause the
order to be published once a week for three (3)
consecutive weeks in a newspaper of general
circulation in the province.
Sec.5.Opposition.The civil registrar and any
person having or claiming any interest under the
entry whose cancellation or correction is sought may,
within fifteen (15) days from notice of the petition, or
from the last date of publication of such notice, file
his opposition thereto.
Sec.6.Expediting proceedings.The court in which
the proceedings is brought may make orders
expediting the proceedings, and may also grant
preliminary injunction for the preservation of the
rights of the parties pending such proceedings.
Sec.7.Order.After hearing, the court may either
dismiss the petition or issue an order granting the
cancellation or correction prayed for. In either case, a
certified copy of the judgment shall be served upon
the civil registrar concerned who shall annotate the
same in his record.
The OSG argues that the petition below is fatally
defective for non-compliance with Rules 103 and 108
of the Rules of Court because respondents petition
did not implead the local civil registrar. Section 3,
Rule 108 provides that the civil registrar and all
persons who have or claim any interest which would
be affected thereby shall be made parties to the
proceedings. Likewise, the local civil registrar is
required to be made a party in a proceeding for the
correction of name in the civil registry. He is an
indispensable party without whom no final
determination of the case can be had.12 Unless all
possible indispensable parties were duly notified of
the proceedings, the same shall be considered as
falling much too short of the requirements of the
rules.13 The corresponding petition should also
implead as respondents the civil registrar and all
other persons who may have or may claim to have

12 Republic v. Court of Appeals, G.R. No. 103695,

March 15, 1996, 255 SCRA 99, 106.

VOL. 565, SEPTEMBER 12, 2008

83
Republic vs. Cagandahan
invokes Section 6,15 Rule 1 of the Rules of Court
which states that courts shall construe the Rules
liberally to promote their objectives of securing to
the parties a just, speedy and inexpensive disposition
of the matters brought before it. We agree that there
is substantial compliance with Rule 108 when
respondent furnished a copy of the petition to the
local civil registrar.
The determination of a persons sex appearing in his
birth certificate is a legal issue and the court must
look to the statutes. In this connection, Article 412 of
the Civil Code provides:
ART.412.No entry in a civil register shall be
changed or corrected without a judicial order.
Together with Article 37616 of the Civil Code, this
provision was amended by Republic Act No. 904817
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, Rep. Act No. 9048 removed from the ambit
of Rule 108 of the Rules of Court the correction of
such errors. Rule 108 now
_______________
15 SEC.6.Construction.These Rules shall be
liberally construed in order to promote their objective
of securing a just, speedy and inexpensive
disposition of every action and proceeding.

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:
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.20
Respondent undisputedly has CAH. This condition
causes the early or inappropriate appearance of
male characteristics. A person, like respondent, with
this condition produces too much androgen, a male
hormone. A newborn who has XX chromosomes
coupled with CAH usually has a (1) swollen clitoris
with the urethral opening at the base, an ambiguous
genitalia often appearing more male than female; (2)
normal internal structures of the female reproductive
tract such as

the ovaries, uterus and fallopian tubes; as the child

grows older, some features start to appear male,
such as deepening of the voice, facial hair, and
failure to menstruate at puberty. About 1 in 10,000 to
18,000 children are born with CAH.
CAH is one of many conditions21 that involve
intersex anatomy. During the twentieth century,
medicine adopted the term intersexuality to apply
to human beings who cannot be classified as either
male or female.22 The term is now of widespread
use. According to Wikipedia, intersexuality is the
state of a living thing of a gonochoristic species
whose sex chromosomes, genitalia, and/or secondary
sex characteristics are determined to be neither
exclusively male nor female. An organism with
intersex may have biological characteristics of both
male and female sexes.
Intersex individuals are treated in different ways by
different cultures. In most societies, intersex
individuals have been expected to conform to either
a male or female gender role.23 Since the rise of
modern medical science in Western societies, some
intersex people with ambiguous external genitalia
have had their genitalia surgically modified to
resemble either male or female genitals.24 More
commonly, an intersex individual is considered as
suffering from a disorder which is almost always
recommended to be treated, whether by surgery
and/or by taking lifetime medication in order to mold
the individual as neatly as possible into the category
of either male or female.
In deciding this case, we consider the compassionate
calls for recognition of the various degrees of
intersex as variations which should not be subject to
outright denial. It has been suggested that there is
some middle ground between the sexes, a no-mans
land for those individuals who are neither truly
male nor truly female. 25 The current state of
Philippine statutes apparently compels that a person
be classified either as a male or as a female, but this
Court is not controlled by mere appearances when
nature itself fundamentally negates such rigid
classification.
In the instant case, if we determine respondent to be
a female, then there is no basis for a change in the
birth certificate entry for gender. But if we determine,
based on medical testimony and scientific
development showing the respondent to be other
than female, then a change in the subjects birth
certificate entry is in order.

Biologically, nature endowed respondent with a

mixed (neither consistently and categorically female
nor consistently and categorically male) composition.
Respondent has female (XX) chromosomes. However,
respondents body system naturally produces high
levels of male hormones (androgen). As a result,
respondent has ambiguous genitalia and the
phenotypic features of a male.
Ultimately, we are of the view that where the person
is biologically or naturally intersex the determining
factor in his gender classification would be what the
individual, like respondent, having reached the age
of majority, with good reason thinks of his/her sex.
Respondent here thinks of himself as a male and
considering that his body produces high levels
of male hormones (androgen) there is preponderant
biological support for considering him as being male.
Sexual development in cases of intersex persons
makes the gender classification at birth inconclusive.
It is at maturity that the gender of such persons, like
respondent, is fixed.
Respondent here has simply let nature take its
course and has not taken unnatural steps to arrest or
interfere with what he was born with. And
accordingly, he has already ordered his life to that of
a male. Respondent could have undergone treatment
and taken steps, like taking lifelong medication,26 to
force his body into the categorical mold of a female
but he did not. He chose not to do so. Nature has
instead taken its due course in respondents
development to reveal more fully his male
characteristics.
In the absence of a law on the matter, the Court will
not dictate on respondent concerning a matter so
innately private as ones sexuality and lifestyle
preferences, much less on whether or not to undergo
medical treatment to reverse the male tendency due
to CAH. The Court will not consider respondent as
having erred in not choosing to undergo treatment in
order to become or remain as a female. Neither will
the Court force respondent to undergo treatment and
to take medication in order to fit the mold of a
female, as society commonly currently knows this
gender of the human species. Respondent is the one
who has to live with his intersex anatomy. To him
belongs the human right to the pursuit of happiness
and of health. Thus, to him should belong the
primordial choice of what courses of action to take
along the path of his sexual development and
maturation. In the absence of evidence that
respondent is an incompetent27 and in the
absence of evidence to show that classifying
respondent as a male will harm other members of
society who are equally entitled to protection under

the law, the Court affirms as valid and justified the

respondents position and his personal judgment of
being a male.
In so ruling we do no more than give respect to (1)
the diversity of nature; and (2) how an individual
deals with what nature has handed out. In other
words, we respect respondents congenital condition
and his mature decision to be a male. Life is already
difficult for the ordinary person. We cannot but
respect how respondent deals with his unordinary
state and thus help make his life easier, considering
the unique circumstances in this case.
As for respondents change of name under Rule 103,
this Court has held that a change of name is not a
matter of right but of judicial discretion, to be
exercised in the light of the reasons adduced and the
consequences that will follow.28 The trial courts
grant of respondents change of name from Jennifer
to Jeff implies a change of a feminine name to a
masculine name. Considering the consequence that
respondents change of name merely recognizes his
preferred gender, we find merit in respondents
change of name. Such a change will conform with the
change of the entry in his birth certificate from
female to male.
WHEREFORE, the Republics petition is DENIED. The
Decision dated January 12, 2005 of the Regional Trial
Court, Branch 33 of Siniloan, Laguna, is AFFIRMED.
No pronouncement as to costs.
SO ORDERED.
Carpio-Morales, Tinga, Velasco, Jr. and Brion, JJ.,
concur.
Petition denied, judgment of RTC of Siniloan, Laguna,
Br. 33 affirmed.
Notes.The subject of rights must have a fixed
symbol for individualization which serves to
distinguish him from all othersthis symbol is his
name. The appropriate remedy for change of name is
covered by Rule 103, a separate and distinct
proceeding from Rule 108 on mere cancellation and
correction of entries in the civil registry. (Republic vs.
Capote, 514 SCRA 76 [2007])
No law allows the change of entry in the birth
certificate as to sex on the ground of sex
reassignment. (Silverio vs. Republic, 537 SCRA 373
[2007]) [Republic vs. Cagandahan, 565 SCRA
72(2008)]\
No. L-19671. July 26, 1966 *

PASTOR B. TENCHAVEZ, plaintiff and appellant,

vs. VICENTA F. ESCAO, ET AL., defendants and
appellees.
RESOLUTION
Marriage; Church disavowal of marriage should be
proven.
Although it was alleged that papal dispensation for
the first marriage was granted, no such document
appears OR record, To be considered, the Churchs
disavowal of the marriage must be sufficiently
established.
Moral damages; Alienation of affection is
incompatible with allegation of contributory
negligence.Movant plaintiff-appellant poses the
novel theory that the parents of the erring wife are
undeserving of award of damages because they are
guilty of contributory negligence in failing to take
proper and timely measures to dissuade their
daughter f rom leaving her husband, obtaining a
foreign divorce and marrying a foreigner. This theory
cannot be considered, because it contradicts his
previous theory of alienation of affection.
Contributory negligence involves an omission to
perform an act, while alienation of affection involves
the performance of a positive action.
Marriage; Refusal to perform wifely duties and
desertion of husband.The award of moral damages
against the wife is assailed on the ground that her
refusal to perform her wifely duties, her denial of
consortium and desertion of her husband are not
included in the enumeration of cases where moral
damage may lie. The argument is untenable. The
acts of the wife (up to and including her divorce, for
grounds not countenanced by law), constitute a
willful infliction 01 injury upon plaintiffs feelings in a
manner contrary to morals, good customs or public
policy (New Civil Code, Article 21) for which
paragraph 10 of Article 2219, authorizes an award of
moral damages.
Same; Economic sanctions to enforce right of
consortium are not incompatible with individual
liberty.While it is not within the province of courts
to attempt to compel one of the spouses to cohabit
with, and render conjugal rights to, the other (Arroyo
vs. Arroyo, 42 Phil. 54), economic sanctions in civil
cases are not incompatible with the respect accorded
to individual liberty.
Divorce; Non-recognition of foreign decree is not an
impairment of liberty of abode.The decision
(declaring the divorce decree invalid) did not impair

appellees constitutional liberty of abode and

freedom of locomotion. The right of a citizen to
transfer to a foreign country and seek divorce in a
diverse forum is one thing, and the recognition to be
accorded to the divorce decree thus obtained is quite
another.
Same; Foreign decrees in contravention of public
policy can not be enforced or recognized.The public
policy of this forum is adverse to recognition of the
wifes divorce in Nevada. The principle is wellestablished, in private international law, that foreign
decrees cannot be enforced or recognized if they
contravene public policy (Nussbaum, Principles of
Private International Law, p. 232).
Appeals; Question of jurisdiction over the person
must be properly raised on appeal.The issue of
jurisdiction over the person of appellee was not
properly brought to this Court for resolution, either
on appeal or by special remedy, when the lower
court overruled her challenge to its jurisdiction.
Neither was the alleged error of the court put in issue
in her brief as appellee, as it was incumbent upon
her to do (Relativo vs. Castro, 76 Phil. 563; Lucero vs.
De Guzman, 45 Phil. 852). As the point did not affect
the jurisdiction over the subject matter, the court
properly ignored it.
Actions; Jurisdiction; When jurisdiction over the
person of non-resident citizens is not essential.
When the action against the non-resident defendant
affects the personal status of the plaintiff, as, for
instance, an action for separation or for annulment of
marriage, Philippine courts may validly try and
decide the case, because, then, they have
jurisdiction over the res, and jurisdiction over the
person of the non-resident is not essential. The res is
the personal status of the plaintiff domiciled in the
Philippines. (1 Moran 411, 1963 Ed., citing Mabanag
vs. Gallemore, 81 Phil. 254).
Same; Withdrawal of objection to courts jurisdiction
over the person of defendant.The award of
damages was merely incidental to the petition for
legal separation. For this reason, and because she
filed a counterclaim against plaintiff-appellant,
defendant-appellee should be deemed to have
withdrawn the objection to the lower courts
jurisdiction over her person, even though she had
stated in the counterclaim that she was not waiving
her special defense of lack of jurisdiction.
Torts or quasi-delicts; Action based on denial of
cohabitation and desertion of husband; Prescription.
The argument that the action on tort had
prescribed because it was not filed within four years

from the marriage in 1948, is erroneous. The

marriage was not.the cause of appellees wrongful
conduct. Her denial of cohabitation, refusal to render
consortium and desertion of her husband started
right after their wedding, and such wrongs have
continued ever since, so the period of limitation had
never been completed.
Actions; Jurisdiction over person of non-resident
citizen in proceedings in rem: Submission to
jurisdiction by asking court for affirmative relief.The
rule stated in the case of Banco Espaol vs. Palanca,
37 Phil. 921, to the effect that in proceedings in rem
or quasi in rem the relief must be confined to the res,
and the court can not lawfully render a personal
judgment, was laid down for those cases where the
defendant never submitted to the jurisdiction of the
Philippine courts. In the present case, Escao, while
objecting to the jurisdiction of the Court over her
person, also f iled an answer with a counterclaim
asking for an award of damages against plaintiffappellant.
She took the offensive and asked the Court for a
remedy, and this after the court below overruled her
objection that she was not within its jurisdiction. In
asking the Court for affirmative relief, she submitted
to its jurisdiction.
Same; Reason for the rule.The reason for the rule is
that the courts can not look with favor upon a party
adopting not merely inconsistent, but actually
contradictory, positions in one and the same suit,
claiming that a court has no jurisdiction to render
judgment against it, but has such jurisdiction to give
a decision in its favor (Dailey vs. Kennedy, 64 Mich.
208, 31 N.W. 125; Harvey vs. Bishop, 171 Okla. 497,
43 Pac. 2d, 48; Haverstick vs. Southern P. Co. [Calif.],
37 Pac. 2d. 146). In the case at bar, although Escao
made a reservation of her former plea of nonjurisdiction when she filed her counterclaim, such
reservation did not remove the obnoxious
contradictory positions she assumed.
Appeals; Contents of appellees brief; Appellee
cannot ask for reversal or modification of appealed
judgment.An appellee can make counterassignments of error for the purpose of sustaining
the appealed judgment, although it is not allowed to
ask that the same be reversed or modified (Bunge
Corporation vs. Camenforte & Co., 91 Phil. 861;
Cabrera vs. Provincial Treasurer of Tayabas, 75 Phil.
780; Pineda & Ampil vs. Bartolome, 95 Phil. 930;
David vs. De la Cruz, L-11656, April 18, 1958). In the
instant case, appellee failed to do so, and because of
this the Supreme Court had every reason to consider
the issue of jurisdiction abandoned.

RESOLUTION ON
MOTIONS TO RECONSIDER
Isabelo V. Binamira, Filemon B. Barria and Crispin
D. Baizas & Associates for appellants.
Vicente L. Faelnar, for appellee Mamerto Escao
and Mena F. Escao.
Jalandoni & Jamir for appellee Vicenta F. Escao.
Norberto J. Quisumbing for intervenor Russel Leo
Moran.
REYES, J.B.L., J.:
Not satisfied with the decision of this Court,
promulgated on 29 November 1965, in the aboveentitled case, plaintiff-appellant Pastor B. Tenchavez
and defendant-appellee Vicenta F. Escao,
respectively, move for its re
consideration; in addition, Russell Leo Moran, whom
said defendant married in the United States, has
filed, upon leave previously granted, a memorandum
in intervention.
Movant Tenchavez poses the novel theory that
Mamerto and Mina Escao are undeserving of, an
award for damages because they are guilty of
contributory negligence in failing to take up proper
and timely measures to dissuade their daughter
Vicenta from leaving her husband (Tenchavez),
obtaining a foreign divorce and marrying another
man (Moran). This theory cannot be considered: first,
because this was not raised in the court below;
second, there is no evidence to support it; third, it
contradicts plaintiffs previous theory of alienation of
affections in that contributory negligence involves an
omission to perform an act while alienation of
affection involves the performance of a positive act.
The prayer of appellant Tenchavez in his motion for
reconsideration to increase the damages against
Vicenta (P25,000 for damages and attorneys fees
were awarded to Tenchavez in the decision) should,
likewise, be denied, all factors and circumstances in
the case having been duly considered in the main
decision,
In seeking a reexamination of the decision,
defendantappellee Vicenta Escao, in turn, urges a
comparison between the two marriages, stating, in
plainer terms, that the Tenchavez-Escao marriage
was no more than a ceremony, and a faulty one at
that, while the Moran-Escao marriage fits the
concept of a marriage as a social institution because
publicly contracted, recognized by both civil and

ecclesiastical authorities, and blessed by three

children. She concludes that, since the second
marriage is the better one, it deserves the laws
recognition and protection over the other. This is a
dangerous proposition: it legalizes a continuing
polygamy by permitting a spouse to just drop at
pleasure her consort for another in as many
jurisdictions as would grant divorce on the excuse
that the new marriage is better than the previous
one; and, instead of fitting the concept of marriage
as a social institution, the proposition altogether does
away with the social aspects of marriage in favor of
its being a matter of private contract and personal
The said appellee claims that state recognition
should be accorded the Churchs disavowal of her
marriage with Tenchavez. On this point, our main
decision limited itself to the statement, On 10
September 1954, Vicenta sought papal dispensation
of her marriage (Exh. P-2)", without stating that
papal dispensation was actually granted, the reason
being that Vicentas claim that dispensation was
granted was not indubitable, and her counsel, during
the trial in the lower court, did not make good his
promise to submit the document evidencing the
papal dispensation; in fact, no such document
appears on record. The Churchs disavowal of the
marriage, not being sufficiently established, it cannot
be considered. Vicentas belated appeal to Canon
law, after she had sought and failed to obtain
annulment in the civil courts, and after she had
flaunted its principles by obtaining absolute divorce,
does not, and can not, sound convincing. Particularly
when account is taken of the circumstances that she
obtained the Nevada divorce in 1950 and only sought
ecclesiastical release from her marriage to Tenchavez
in 1954.
The award of moral damages against Vicenta Escao
is assailed on the ground that her refusal to perform
her wifely duties, her denial of consortium and
desertion of her husband are not included in the
enumeration of cases where moral damages may lie.
The argument is untenable. The acts of Vicenta (up
to and including her divorce, for grounds not
countenanced by our law, which was hers at the
time) constitute a wilful infliction of injury upon
plaintiffs feelings in a manner contrary to morals,
good customs or public policy (Civ. Code, Art. 21) for
which Article 2219(10) authorizes an award of moral
damages. Neither the case of Ventanilla vs. Centeno,
L-14333, 28 January 1961 (which was a suit filed by a
client against his lawyer for failure to perfect an
appeal on time), nor the case of Malonzo vs. Galang,
L-13851, 27 July 1960 (wherein the precise ruling was
that moral damages may not be recovered for a
clearly unfounded civil action or proceeding), now
invoked by the said defendant-appellee, is in point.

It is also argued that, by the award of moral

damages,
an additional effect of legal separation has been
added to Article 106. Appellee obviously mistakes
our grant of damages as an effect of legal
separation. It was plain in the decision that the
damages attached to her wrongful acts under the
codal article (Article 2176) expressly cited.
Appellee-movant commits a similar mistake by citing
Arroyo vs. Arroyo, 42 Phil. 54, and Ramirez-Cuaderno
vs. Cuaderno, L-20043, 28 November 1964, to
support her argument that moral damages did not
attach to her failure to render consortium because
the sanction therefor is spontaneous mutual
affection, and not any legal mandate or court order.
The Arroyo case did rule that it is not within the
province of courts of this country to attempt to
compel one of the spouses to cohabit with, and
render conjugal rights to, the other, but it referred
to physically coercive means, the Court declaring
that
We are disinclined to sanction the doctrine that an
order, enforcible by process of contempt, may be
entered to compel restitution of the purely personal
right of consortism. (Cas. cit., p. 60) (Italics
supplied)
But economic sanctions are not held in our law to be
incompatible with the respect accorded to individual
liberty in civil cases. Thus, a consort who
unjustifiably deserts the conjugal abode can be
denied support (Art. 178, Civil Code of the Phil.). And
where the wealth of the deserting spouse renders
this remedy illusory, there is no cogent reason why
the court may not award damages, as it may in cases
of breach of other obligations to do intuitu personae
even if in private relations physical coercion be
barred under the old maxim Nemo potest precise
cogi ad factum.
For analogous reasons, the arguments advanced
against the award of attorneys fees must be rejected
as devoid of merit.
. Contrary to intervenor Morans contention, the
decision did not impair appellees constitutional
liberty of abode and freedom of locomotion, as, in
fact, Vicenta Escao did exercise these rights, and
even abused them
by stating in her application for a passport that she
was single, the better to facilitate her flight from
the wrongs she had committed against her husband.
The right of a citizen to transfer to a foreign country
and seek divorce in a diverse forum is one thing, and

the recognition to be accorded to the divorce decree

thus obtained is quite another; and the two should
not be confused.
Intervenor reiterates that recognition of Vicentas
divorce in Nevada is a more enlightened view. The
argument should be addressed to the legislature. As
the case presently stands, the public policy of this
forum is clearly adverse to such recognition, as was
extensively discussed in the decision. The principle is
well-established, in private international law, that
foreign decrees cannot be enforced or recognized if
they contravene public policy (Nussbaum, Principles
of Private International Law, p. 232).
It is thoroughly established as a broad general rule
that foreign law or rights based therein will not be
given effect or enforced if opposed to the settled
public policy of the forum. (15 C.J.S. 853)
SEC. 6. Limitations.In the recognition and
enforcement of foreign laws the Courts are slow to
overrule the positive law of the forum, and they will
never give effect to a foreign law where to do so
would prejudice the states own rights or the rights of
its citizens or where the enforcement of the foreign
law would contravene the positive policy of the law of
the forum whether or not that policy is reflected in
statutory enactments. (11 Am. Jur., 300301).
A judgment affecting the status of persons, such as
a decree confirming or dissolving a marriage, is
recognized as valid in every country, unless contrary
to the policy of its own law. Cottingtons Case, 2
Swan St. 326, note; Roach vs. Garvan, I Ves. St. 157;
Harvey vs. Farnie, LR 8 App. Cas. 43; Cheely vs.
Clayton, 110 U.S. 701 [28:298]." (Hilton vs. Guyot
159 U.S. 113, 167; 40 L. Ed. 95, 110) (Italics
supplied)
It is, therefore, error for the intervenor to ask that
private international lawrather than Philippine civil
lawshould decide the instant case, as if the two
branches of the law contradicted one another.
In a consolidated paper (intervenors rejoinder and
appellee Vicenta Escaos supplemental motion for
reconsideration), the issue is raised that the
Supreme Court cannot reverse the decision of the
lower court dismissing
the complaint nor sentence Vicenta Escao to pay
damages, without resolving the question of lack of
jurisdiction over her person.
A resolution by the Supreme Court of the issue of
jurisdiction over the person of appellee Vicenta

Escao, and which was disallowed by the court

below, was unnecessary because the matter was not
properly brought to us for resolution, either on
appeal or by special remedy which could have been
availed of by the appellee when the lower court, on 1
June 1957, overruled her challenge to its jurisdiction.
Neither was the alleged error of the lower court put
in issue in her brief as appellee, as it was incumbent
upon her to do (Relativo vs. Castro, 76 Phil. 563;
Lucero vs. De Guzman, 45 Phil. 852). Not affecting
the jurisdiction over the subject matter, the court
properly ignored the point (Rev. Rule 51, section 7).
SEC. 7. Questions that may be decided.No error
which does not affect the jurisdiction over the subject
matter will be considered unless stated in the
assignment of errors and properly argued in the brief,
save as the court, at its option, may notice plain
errors not specified, and also clerical errors. At any
rate,
x x x. When, however, the action against the
nonresident defendant affects the personal status of
the plaintiff, as, for instance, an action for separation
or for annulment of marriage, x x x, Philippine courts
may validly try and decide the case, because, then,
they have jurisdiction over the res, and in that event
their jurisdiction over the person of the non-resident
defendant is not essential. The res is the personal
status of the plaintiff domiciled in the Philippines, x x
x, (1 Moran 411, 1963 Ed., citing Mabanag vs.
Gallemore, 81 Phil. 254)
The award of damages, in the present case, was
merely incidental to the petition for legal separation.
For all these reasons, and because she filed a
counterclaim against plaintiff (Rec. App. pp. 205
206), Vicenta should be deemed to have withdrawn
the objection to the lower courts jurisdiction over her
person, even though she had stated in the
counterclaim that she was not waiving her special
defense of lack of jurisdiction.
It is urged that the actions for legal separation and
for quasi-delict have prescribed: the first, because it
was not filed within one year from and after the date
on which
the plaintiff became cognizant of the cause; and, the
second, because it was not filed within four years
since the Tenchavez-Escao marriage in 1948.
The argument on both points is untenable.
The action for legal separation was filed on 31 May
1956. Although in a letter, under date of 10
December 1954, the Department of Foreign Affairs
informed plaintiff Tenchavez that According to

information, she (appellee) secured a decree of

divorce on October 21, 1950 x x x and married an
American citizen, Russel Leo Moran, on September
13, 1954", there is no satisfactory and convincing
evidence as to the time when plaintiff Tenchavez
received the said letter; nor was she duty-bound to
act immediately upon hearsay information. Since
prescription is an affirmative defense, the burden lay
on the defendant to clearly prove it, and her proof on
it was inadequate.
On the argument about the action on tort having
prescribed, the basis thereof is erroneous: the
marriage was not the cause of appellees wrongful
conduct Her denial of cohabitation, refusal to render
consortium and desertion of her husband started
right after their wedding but such wrongs have
continued ever since, She never stopped her
wrongdoings to her husband, so that the period of
limitation has never been completed.
Finally, we see no point in discussing the question of
appellee Escaos criminal intent, since nothing in
the main decision was designed or intended to
prejudge or rule on the criminal aspect of the case, if
any, or any of its constituent elements. It is to be
noted that in this civil case only a preponderance of
evidence is required, and not proof beyond
reasonable doubt. While much could be said as to the
circumstances surrounding the divorce of the
appellee, we prefer to abstain from so doing in order
not to influence luence in any way the criminal case,
should any be instituted.
For the reasons above cited, all motions for
reconsideration are hereby denied.
Chief Justice Concepcion and Justices Barrera, Dizon,
Regala, Makalintal, J.P. Bengzon, Zaldivar and
Sanchez, concur.
RESOLUTION ON THE
SECOND MOTION TO RECONSIDER
OF APPELLEE and INTERVENOR
September 14, 1966
REYES, J.B.L., J.:
Their first motion for reconsideration having been
denied, Vicenta Escao and Russel Leo Moran,
through counsel, have filed a second motion for
reconsideration.
It is first averred that this Courts decision contradicts
the doctrine laid down in Banco Espaol Filipino vs.
Palanca, 37 Phil. 921, that in proceedings in rem or

quasi in rem the relief must be confined to the res,

and the Court cannot lawfully render a personal
judgment.
Movants own quotation from that decision
demonstrates the difference in the facts between the
case at bar and the authority cited. For their own
excerpt shows that the rule now invoked was laid
down for instances where the defendant never
submitted to the jurisdiction of our courts. We said
then:
If, however, the defendant is a non-resident, and
remaining beyond the range of the personal process
of the court refuses to come in voluntarily, the court
never acquires jurisdiction over the person at all. x x
x (Cas. Cit. p. 930)
The defendant Palanca, in 37 Phil 921, so much
refused to come in voluntarily that he was declared
in default. Was this the case of Vicenta Escao? The
records show on their face that it was not. While she
objected to the jurisdiction of the Court over her
person, she also filed an answer with a counterclaim
asking for an award of damages against plaintiffappellant Tenchavez. Instead of refusing to come in
voluntarily, as Palanca did (in 37 Phil. 921), Escao
took the offensive and asked the Court for a remedy,
a judgment against her opponent; and this after the
court below overruled her objection that she was not
within its jurisdiction. In asking the Court for
affirmative relief, Escao submitted to its jurisdiction.
In the United States, whence our adjective law finds
its sources, the Federal Supreme Court has ruled
(Merchants Heat & Light Co. vs, Clow & Sons, 204
U.S. 286, 51 Law Ed. 488):
We assume that the defendant lost no rights by
pleading
to the merits, as required, after saving its rights.
Harkness vs. Hyde, 98 U.S. 476, 25 L. ed. 237;
Southern P. Co. vs. Denton, 146 U.S. 202, 36 L. ed.
943, 13 Sup. Ct. Rep. 44. But by setting up its
counterclaim the defendant became a plaintiff in its
turn, invoked the jurisdiction of the court in same
action, and, by invoking, submitted to it. It is true
that the counterclaim seems to have arisen wholly
out of the same transaction that the plaintiff sued
upon, and so to have been in recoupment rather than
in set-off proper. But, even at common law, since the
doctrine has been developed, a demand in
recoupment is recognized as a cross demand, as
distinguished from a defense. Therefore, although
there has been a difference of opinion as to whether
a defendant, by pleading it, is concluded by the
judgment from bringing a subsequent suit for the
residue of his claim, a judgment in his f avor being

impossible at common law, the authorities agree that

he is not concluded by the judgment if he does not
plead his cross demand, and that whether he shall do
so or not is left wholly to his choice. Davis vs.
Hedges, L.R. 6 Q.B. 687; Mondel vs. Steel, 8 Mees. &
W. 858, 872; OConnor vs. Varney, 10 Gray, 231. This
single fact shows that the defendant, if he elects to
sue upon his claim in the action against him,
assumes the position of an actor and must take the
consequence. The right to do so is of modern growth,
and is merely a convenience that saves bringing
another suit, not a necessity of the defense, (Italics
supplied)

Provincial Treasurer of Tayabas, 75 Phil. 780; Pineda

& Ampil vs. Bartolome, 95 Phil. 930; David vs. De la
Cruz, L-11656, April 18, 1958). Having failed to do so,
this Court had every reason to consider the issue of
jurisdiction abandoned, and appellees belated
attempts to resurrect it, by alleging an imaginary
error on our part, are pointless and vain. The same
thing can be said of her effort to escape the
jurisdiction she had invoked in her counterclaim by
not appealing its rejection by the trial court. At most,
it amounts to equivocal conduct that can not revive
the inconsistent claim of non-jurisdiction, abandoned
by her seeking affirmative relief.

The reason for the rule is manifest. The courts can

not look with favor upon a party adopting not merely
inconsistent, but actually contradictory, positions in
one and the same suit, claiming that a court has no
jurisdiction to render judgment against it, but has
such juristion to give a decision in its favor (Dailey
vs. Kennedy, 64 Mich. 208, 31 N.W. 125; Harvey vs.
Bishop, 171 Okla. 497, 43 Pac. 2d, 48; Haverstick vs.
Southern P. Co. (Calif.) 37 Pac. 2d, 146).

Wherefore, the second motion for reconsideration is

denied.

Another reason, equally valid, is that if such

defendant shall ask for any relief other than that
addressed to his plea, he is seeking to gain an
unconscionable advantage over his adversary,
whereby, if the determination be in his favor, he may
avail himself of it, while if it be against him, he may
fall back upon his plea of lack of jurisdiction of the
person. (Olcese vs. Justices Court, 156 Calif. 82,
103 Pac. 318).
True, Escao made a reservation of her former plea
when she filed her counterclaim; but such
reservation did not remove the obnoxious
contradictory positions she assumed.
Secondly, appellee Vicenta Escao not only adopted
inconsistent positions in the court below but
abandoned all pretense that courts lack of
jurisdiction over her person upon appeal to this
Court. She made no reference whatever to that
question in her brief as appellee. Coupled with her
previous demand for affirmative relief, Vicentas
silence on appeal only confirms her waiver of the
point. Her excuse is that, the lower court having
ruled in her favor, she could not very well assign as
error the overruling of her plea of non-jurisdiction.
That excuse is unserviceable; for this Court has
repeatedly held (and it is now well settled) that an
appellee can make counter assignments of error for
the purpose of sustaining the appealed judgment,
altho it is not allowed to ask that the same be
reversed or modified (Bunge Corp vs. Camenforte
Co., 91 Phil. 861, and cases cited therein; Cabrera vs.

Chief Justice Concepcion and Justices Barrera, Dizon,

Makalintal, J.P. Bengzon, Zaldivar, Sanchez and
Castro, concur. Mr. Justice Regala took no part.
Motion for reconsideration denied. [Tenchavez vs.
Escao, 17 SCRA 674(1966)]
A.M. No. MTJ-96-1088. July 19, 1996.*
(Formerly A.M. No. OCA I.P.I. 95-61-MTJ)
RODOLFO G. NAVARRO, complainant, vs. JUDGE
HERNANDO C. DOMAGTOY, respondent.
Civil Law; Family Code; Marriages; Even if the spouse
present has a well-founded belief that the absent
spouse was already dead, a summary proceeding for
the declaration of presumptive death is necessary in
order to contract a subsequent marriage.There is
nothing ambiguous or difficult to comprehend in this
provision. In fact, the law is clear and simple. Even if
the spouse present has a well-founded belief that the
absent spouse was already dead, a summary
proceeding for the declaration of presumptive death
is necessary in order to contract a subsequent
marriage, a mandatory requirement which has been
precisely incorporated into the Family Code to
discourage subsequent marriages where it is not
proven that the previous marriage has been
dissolved or a missing spouse is factually or
presumptively dead, in accordance with pertinent
provisions of law.
Same; Same; Same; Whether wittingly or unwittingly,
it was manifest error on the part of respondent judge
to have accepted the joint affidavit submitted by the
groom.In the case at bar, Gaspar Tagadan did not
institute a summary proceeding for the declaration of
his first wifes presumptive death. Absent this judicial
declaration, he remains married to Ida Pearanda.
Whether wittingly or unwittingly, it was manifest
error on the part of respondent judge to have
accepted the joint affidavit submitted by the groom.

Such neglect or ignorance of the law has resulted in

a bigamous, and therefore void, marriage. Under
Article 35 of the Family Code, The following
marriage shall be void from the beginning; (4) Those
bigamous x x x marriages not falling under Article
41.
Same; Same; Same; Instances where a marriage can
be held outside of the judges chambers or
courtroom.As the aforequoted provision states, a
marriage can be held outside of the judges
chambers or courtroom only in the following
instances: (1) at the point of death, (2) in remote
places in accordance with Article 29 or (3) upon
request of both parties in writing in a sworn
statement to this effect.
Same; Same; Same; Article 8 which is a directory
provision, refers only to the venue of the marriage
ceremony and does not alter or qualify the authority
of the solemnizing officer.Under Article 3, one of
the formal requisites of marriage is the authority of
the solemnizing officer. Under Article 7, marriage
may be solemnized by, among others, any
incumbent member of the judiciary within the courts
jurisdiction. Article 8, which is a directory provision,
refers only to the venue of the marriage ceremony
and does not alter or qualify the authority of the
solemnizing officer as provided in the preceding
provision. Non-compliance herewith will not
invalidate the marriage.
Same; Same; Same; Where a judge solemnizes a
marriage outside his courts jurisdiction, there is a
resultant irregularity in the formal requisite laid down
in Article 3 which while it may not affect the validity
of the marriage, may subject the officiating official to
administrative liability.A priest who is
commissioned and allowed by his local ordinary to
marry the faithful, is authorized to do so only within
the area of the diocese or place allowed by his
Bishop. An appellate court Justice or a Justice of this
Court has jurisdiction over the entire Philippines to
solemnize marriages, regardless of the venue, as
long as the requisites of the law are complied with.
However, judges who are appointed to specific
jurisdictions, may officiate in weddings only within
said areas and not beyond. Where a judge
solemnizes a marriage outside his courts jurisdiction,
there is a resultant irregularity in the formal requisite
laid down in Article 3, which while it may not affect
the validity of the marriage, may subject the
officiating official to administrative liability.
Same; Same; Same; Administrative Law; Judges; By
citing Article 8 and the exceptions therein as grounds
for the exercise of his misplaced authority,

respondent judge again demonstrated a lack of

understanding of the basic principles of civil law.
Inasmuch as respondent judges jurisdiction covers
the municipalities of Sta. Monica and Burgos, he was
not clothed with authority to solemnize a marriage in
the municipality of Dapa, Surigao del Norte. By citing
Article 8 and the exceptions therein as grounds for
the exercise of his misplaced authority, respondent
judge again demonstrated a lack of understanding of
the basic principles of civil law.
Same; Same; Same; Same; Same; The Court finds
respondent to have acted in gross ignorance of the
law.Accordingly, the Court finds respondent to have
acted in gross ignorance of the law. The legal
principles applicable in the cases brought to our
attention are elementary and uncomplicated,
prompting us to conclude that respondents failure to
apply them is due to a lack of comprehension of the
law.
ADMINISTRATIVE MATTER in the Supreme Court.
Gross Misconduct and Inefficiency.
The facts are stated in the opinion of the Court.
ROMERO, J.:
The complainant in this administrative case is the
Municipal Mayor of Dapa, Surigao del Norte, Rodolfo
G. Navarro. He has submitted evidence in relation to
two specific acts committed by respondent Municipal
Circuit Trial Court Judge Hernando Domagtoy, which,
he contends, exhibits gross misconduct as well as
inefficiency in office and ignorance of the law.
First, on September 27, 1994, respondent judge
solemnized the wedding between Gaspar A. Tagadan
and Arlyn F. Borga, despite the knowledge that the
groom is merely separated from his first wife.
Second, it is alleged that he performed a marriage
ceremony between Floriano Dador Sumaylo and
Gemma G. del Rosario outside his courts jurisdiction
on October 27, 1994. Respondent judge holds office
and has jurisdiction in the Municipal Circuit Trial
Court of Sta. Monica-Burgos, Surigao del Norte. The
wedding was solemnized at the respondent judges
residence in the municipality of Dapa, which does not
fall within his jurisdictional area of the municipalities
of Sta. Monica and Burgos, located some 40 to 45
kilometers away from the municipality of Dapa,
Surigao del Norte.
In his letter-comment to the Office of the Court
Administrator, respondent judge avers that the office
and name of the Municipal Mayor of Dapa have been
used by someone else, who, as the mayors lackey,

is overly concerned with his actuations both as judge

and as a private person. The same person had earlier
filed Administrative Matter No. 94-980-MTC, which
was dismissed for lack of merit on September 15,
1994, and Administrative Matter No. OCA-IPI-95-16,
Antonio Adapon v. Judge Hernando C. Domagtoy,
which is still pending.
In relation to the charges against him, respondent
judge seeks exculpation from his act of having
solemnized the marriage between Gaspar Tagadan, a
married man separated from his wife, and Arlyn F.
Borga by stating that he merely relied on the
Affidavit issued by the Municipal Trial Judge of Basey,
Samar, confirming the fact that Mr. Tagadan and his
first wife have not seen each other for almost seven
years.1 With respect to the second charge, he
maintains that in solemnizing the marriage between
Sumaylo and del Rosario, he did not violate Article 7,
paragraph 1 of the Family Code which states that:
Marriage may be solemnized by: (1) Any incumbent
member of the judiciary within the courts
jurisdiction; and that Article 8 thereof applies to the
case in question.
The complaint was not referred, as is usual, for
investigation, since the pleadings submitted were
considered sufficient for a resolution of the case.2
Since the countercharges of sinister motives and
fraud on the part of complainant have not been
sufficiently proven, they will not be dwelt upon. The
acts complained of and respondent judges answer
thereto will suffice and can be objectively assessed
by themselves to prove the latters malfeasance.
The certified true copy of the marriage contract
between Gaspar Tagadan and Arlyn Borga states that
Tagadans civil status is separated. Despite this
declaration, the wedding ceremony was solemnized
by respondent judge. He presented in evidence a
joint affidavit by Maurecio A. Labado, Sr. and Eugenio
Bullecer, subscribed and sworn to before Judge
Demosthenes C. Duquilla, Municipal Trial Judge of
Basey, Samar.3 The affidavit was not issued by the
latter judge, as claimed by respondent judge, but
merely acknowledged before him. In their affidavit,
the affiants stated that they knew Gaspar Tagadan to
have been civilly married to Ida D. Pearanda in
September 1983; that after thirteen years of
cohabitation and having borne five children, Ida
Pearanda left the conjugal dwelling in Valencia,
Bukidnon and that she has not returned nor been
heard of for almost seven years, thereby giving rise
to the presumption that she is already dead.
In effect, Judge Domagtoy maintains that the
aforementioned joint affidavit is sufficient proof of Ida

Pearandas presumptive death, and ample reason

for him to proceed with the marriage ceremony. We
do not agree.

(1) Any incumbent member of the judiciary within the

courts jurisdiction;

Article 41 of the Family Code expressly provides:

xxx

A marriage contracted by any person during the

subsistence of a previous marriage shall be null and
void, unless before the celebration of the subsequent
marriage, the prior spouse had been absent for four
consecutive years and the spouse present had a wellfounded belief that the absent spouse was already
dead. In case of disappearance where there is danger
of death under the circumstances set forth in the
provisions of Article 391 of the Civil Code, an
absence of only two years shall be sufficient.

Art. 8. The marriage shall be solemnized publicly in

the chambers of the judge or in open court, in the
church, chapel or temple, or in the office of the
consul-general, consul or vice-consul, as the case
may be, and not elsewhere, except in cases of
marriages contracted on the point of death or in
remote places in accordance with Article 29 of this
Code, or where both parties request the solemnizing
officer in writing in which case the marriage may be
solemnized at a house or place designated by them
in a sworn statement to that effect.
Respondent judge points to Article 8 and its
exceptions as the justification for his having
solemnized the marriage between Floriano Sumaylo
and Gemma del Rosario outside of his courts
jurisdiction. As the aforequoted provision states, a
marriage can be held outside of the judges
chambers or courtroom only in the following
instances: (1) at the point of death, (2) in remote
places in accordance with Article 29 or (3) upon
request of both parties in writing in a sworn
statement to this effect. There is no pretense that
either Sumaylo or del Rosario was at the point of
death or in a remote place. Moreover, the written
request presented addressed to the respondent
judge was made by only one party, Gemma del
Rosario.4

For the purpose of contracting the subsequent

marriage under the preceding paragraph, the spouse
present must institute a summary proceeding as
provided in this Code for the declaration of
presumptive death of the absentee, without
prejudice to the effect of reappearance of the absent
spouse. (Emphasis added.)
There is nothing ambiguous or difficult to
comprehend in this provision. In fact, the law is clear
and simple. Even if the spouse present has a wellfounded belief that the absent spouse was already
dead, a summary proceeding for the declaration of
presumptive death is necessary in order to contract a
subsequent marriage, a mandatory requirement
which has been precisely incorporated into the
Family Code to discourage subsequent marriages
where it is not proven that the previous marriage has
been dissolved or a missing spouse is factually or
presumptively dead, in accordance with pertinent
provisions of law.
In the case at bar, Gaspar Tagadan did not institute a
summary proceeding for the declaration of his first
wifes presumptive death. Absent this judicial
declaration, he remains married to Ida Pearanda.
Whether wittingly or unwittingly, it was manifest
error on the part of respondent judge to have
accepted the joint affidavit submitted by the groom.
Such neglect or ignorance of the law has resulted in
a bigamous, and therefore void, marriage. Under
Article 35 of the Family Code, The following
marriage shall be void from the beginning; (4) Those
bigamous x x x marriages not falling under Article
41.
The second issue involves the solemnization of a
marriage ceremony outside the courts jurisdiction,
covered by Articles 7 and 8 of the Family Code, thus:
Art. 7. Marriage may be solemnized by:

xxx

x x x. (Emphasis supplied.)

More importantly, the elementary principle

underlying this provision is the authority of the
solemnizing judge. Under Article 3, one of the formal
requisites of marriage is the authority of the
solemnizing officer. Under Article 7, marriage may
be solemnized by, among others, any incumbent
member of the judiciary within the courts
jurisdiction. Article 8, which is a directory provision,
refers only to the venue of the marriage ceremony
and does not alter or qualify the authority of the
solemnizing officer as provided in the preceding
provision. Non-compliance herewith will not
invalidate the marriage.
A priest who is commissioned and allowed by his
local ordinary to marry the faithful, is authorized to
do so only within the area of the diocese or place
allowed by his Bishop. An appellate court Justice or a
Justice of this Court has jurisdiction over the entire
Philippines to solemnize marriages, regardless of the
venue, as long as the requisites of the law are
complied with. However, judges who are appointed
to specific jurisdictions, may officiate in weddings

only within said areas and not beyond. Where a

judge solemnizes a marriage outside his courts
jurisdiction, there is a resultant irregularity in the
formal requisite laid down in Article 3, which while it
may not affect the validity of the marriage, may
subject the officiating
official to administrative liability.5
Inasmuch as respondent judges jurisdiction covers
the municipalities of Sta. Monica and Burgos, he was
not clothed with authority to solemnize a marriage in
the municipality of Dapa, Surigao del Norte. By citing
Article 8 and the exceptions therein as grounds for
the exercise of his misplaced authority, respondent
judge again demonstrated a lack of understanding of
the basic principles of civil law.
Accordingly, the Court finds respondent to have
acted in gross ignorance of the law. The legal
principles applicable in the cases brought to our
attention are elementary and uncomplicated,
prompting us to conclude that respondents failure to
apply them is due to a lack of comprehension of the
law.
The judiciary should be composed of persons who, if
not experts, are at least, proficient in the law they
are sworn to apply, more than the ordinary laymen.
They should be skilled and competent in
understanding and applying the law. It is imperative
that they be conversant with basic legal principles
like the ones involved in the instant case.6 It is not
too much to expect them to know and apply the law
intelligently.7 Otherwise, the system of justice rests
on a shaky foundation indeed, compounded by the
errors committed by those not learned in the law.
While magistrates may at times make mistakes in
judgment, for which they are not penalized, the
respondent judge exhibited ignorance of elementary
provisions of law, in an area which has greatly
prejudiced the status of married persons.
The marriage between Gaspar Tagadan and Arlyn
Borga is considered bigamous and void, there being
a subsisting marriage between Gaspar Tagadan and
Ida Pearanda.
The Office of the Court Administrator recommends, in
its Memorandum to the Court, a six-month
suspension and a stern warning that a repetition of
the same or similar acts will be dealt with more
severely. Considering that one of the marriages in
question resulted in a bigamous union and therefore
void, and the other lacked the necessary authority of
respondent judge, the Court adopts said
recommendation. Respondent is advised to be more
circumspect in applying the law and to cultivate a
deeper understanding of the law.

IN VIEW OF THE FOREGOING, respondent Judge

Hernando C. Domagtoy is hereby SUSPENDED for a
period of six (6) months and given a STERN
WARNING that a repetition of the same or similar acts
will be dealt with more severely.
SO ORDERED.
Regalado (Chairman), Puno, Mendoza and Torres,
Jr., JJ., concur.
Respondent Judge Hernando C. Domagtoy suspended
for six (6) months with stern warning against
repetition of similar acts.
Note.While an irregularity in the formal requisites
shall not affect the validity of the marriage the party
or parties responsible for the same shall be civilly,
criminally and administratively liable. (Cosca vs.
Palaypayon, Jr., 237 SCRA 249 [1994]) [Navarro vs.
Domagtoy, 259 SCRA 129(1996)]

G.R. No. 167746. August 28, 2007.*

RESTITUTO M. ALCANTARA, petitioner, vs.
ROSITA A. ALCANTARA and HON. COURT OF
APPEALS, respondents.
Civil Law; Marriages; Marriage License; A valid
marriage license is a requisite of marriage under
Article 53 of the Civil Code, the absence of which
renders the marriage void ab initio pursuant to
Article 80(3) in relation to Article 58 of the same
Code.The marriage involved herein having been
solemnized on 8 December 1982, or prior to the
effectivity of the Family Code, the applicable law to
determine its validity is the Civil Code which was the
law in effect at the time of its celebration. A valid
marriage license is a requisite of
marriage under Article 53 of the Civil Code, the
absence of which renders the marriage void ab initio
pursuant to Article 80(3) in relation to Article 58 of
the same Code.
Same; Same; Same; To be considered void on the
ground of ab-sence of a marriage license, the law
requires that the absence of such marriage license
must be apparent on the marriage contract or at the
very least, supported by a certification from the local
civil registrar that no such marriage license was
issued to the parties.From these cases, it can be
deduced that to be considered void on the ground of
absence of a marriage license, the law requires that
the absence of such marriage license must be

apparent on the marriage contract, or at the very

least, supported by a certification from the local civil
registrar that no such marriage license was issued to
the parties. In this case, the marriage contract
between the petitioner and respondent reflects a
marriage license number. A certification to this effect
was also issued by the local civil registrar of
Carmona, Cavite. The certification moreover is
precise in that it specifically identified the parties to
whom the marriage license was issued, namely
Restituto Alcantara and Rosita Almario, further
validating the fact that a license was in fact issued to
the parties herein.
Same; Same; Same; Certification issued by the
Municipal Civil Registrar of Carmona, Cavite enjoys
the presumption that official duty has been regularly
performed and the issuance of the marriage license
was done in the regular conduct of official business.
This certification enjoys the presumption that
official duty has been regularly performed and the
issuance of the marriage license was done in the
regular conduct of official business.The presumption
of regularity of official acts may be rebutted by
affirmative evidence of irregularity or failure to
perform a duty. However, the presumption prevails
until it is overcome by no less than clear and
convincing evidence to the contrary. Thus, unless the
presumption is rebutted, it becomes conclusive.
Every reasonable intendment will be made in support
of the presumption and, in case of doubt as to an
officers act being lawful or unlawful, construction
should be in favor of its lawfulness. Significantly,
apart from these, petitioner, by counsel, admitted
that a marriage license was, indeed, issued in
Carmona, Cavite.
Same; Same; Same; Issuance of a marriage license in
a city or municipality, not the residence of either of
the contracting parties, and issuance of a marriage
license despite the absence of publication or prior to
the completion of the 10-day period for publication
are considered mere irregularities that do not affect
the validity of the marriage; An irregularity in any of
the formal requisites of marriage does not affect its
validity but the party or parties responsible for the
irregularity are civilly, criminally and administratively
liable. Petitioner, in a faint attempt to demolish the
probative value of the marriage license, claims that
neither he nor respondent is a resident of Carmona,
Cavite. Even then, we still hold that there is no
sufficient basis to annul petitioner and respondents
marriage. Issuance of a marriage license in a city or
municipality, not the residence of either of the
contracting parties, and issuance of a marriage
license despite the absence of publication or prior to
the completion of the 10-day period for publication

are considered mere irregularities that do not affect

the validity of the marriage. An irregularity in any of
the formal requisites of marriage does not affect its
validity but the party or parties responsible for the
irregularity are civilly, criminally and administratively
liable.
Same; Same; The authority of the officer or
clergyman shown to have performed a marriage
ceremony will be presumed in the absence of any
showing to the contrary.The issue raised by
petitionerthat they appeared before a fixer who
arranged everything for them and who facilitated the
ceremony before a certain Rev. Aquilino Navarro, a
Minister of the Gospel of the CDCC BR Chapelwill
not strengthen his posture. The authority of the
officer or clergyman shown to have performed a
marriage ceremony will be presumed in the absence
of any showing to the contrary. Moreover, the
solemnizing officer is not duty-bound to investigate
whether or not a marriage license has been duly and
regularly issued by the local civil registrar. All the
solemnizing officer needs to know is that the license
has been issued by the competent official, and it may
be presumed from the issuance of the license that
said official has fulfilled the duty to ascertain whether
the contracting parties had fulfilled the requirements
of law.
Same; Same; Presumption is always in favor of the
validity of the marriage.Semper praesumitur pro
matrimonio. The presumption is always in favor of
the validity of the marriage. Every intendment of the
law or fact leans toward the validity of the marriage
bonds. The Courts look upon this presumption with
great favor. It is not to be lightly repelled; on the
contrary, the presumption is of great weight.
PETITION for review on certiorari of a decision of the
Court of Appeals.
The facts are stated in the opinion of the Court.
Leonardo C. Aguilar, Jr. for petitioner.
Public Attorneys Office for respondent.
CHICO-NAZARIO, J.:
Before this Court is a Petition for Review on Certiorari
filed by petitioner Restituto Alcantara assailing the
Decision1 of the Court of Appeals dated 30
September 2004 in CA-G.R. CV No. 66724 denying
petitioners appeal and affirming the decision2 of the
Regional Trial Court (RTC) of Makati City, Branch 143,
in Civil Case No. 97-1325 dated 14 February 2000,
dismissing his petition for annulment of marriage.

The antecedent facts are:

A petition for annulment of marriage3 was filed by
petitioner against respondent Rosita A. Alcantara
alleging that on 8 December 1982 he and
respondent, without securing the required marriage
license, went to the Manila City Hall for the purpose
of looking for a person who could arrange a marriage
for them. They met a person who, for a fee, arranged
their wedding before a certain Rev. Aquilino Navarro,
a Minister of the Gospel of the CDCC BR Chapel.4
They got married
on the same day, 8 December 1982. Petitioner and
respondent went through another marriage
ceremony at the San Jose de Manuguit Church in
Tondo, Manila, on 26 March 1983. The marriage was
likewise celebrated without the parties securing a
marriage license. The alleged marriage license,
procured in Carmona, Cavite, appearing on the
marriage contract, is a sham, as neither party was a
resident of Carmona, and they never went to
Carmona to apply for a license with the local civil
registrar of the said place. On 14 October 1985,
respondent gave birth to their child Rose Ann
Alcantara. In 1988, they parted ways and lived
separate lives. Petitioner prayed that after due
hearing, judgment be issued declaring their marriage
void and ordering the Civil Registrar to cancel the
corresponding marriage contract5 and its entry on
file.6
Answering petitioners petition for annulment of
marriage, respondent asserts the validity of their
marriage and maintains that there was a marriage
license issued as evidenced by a certification from
the Office of the Civil Registry of Carmona, Cavite.
Contrary to petitioners representation, respondent
gave birth to their first child named Rose Ann
Alcantara on 14 October 1985 and to another
daughter named Rachel Ann Alcantara on 27 October
1992.7 Petitioner has a mistress with whom he has
three children.8 Petitioner only filed the annulment of
their marriage to evade prosecution for
concubinage.9 Respondent, in fact, has filed a case
for concubinage against petitioner before the
Metropolitan Trial Court of Mandaluyong City, Branch
60.10 Respondent prays that the petition for
annulment of marriage be denied for lack of merit.
On 14 February 2000, the RTC of Makati City, Branch
143, rendered its Decision disposing as follows:
The foregoing considered, judgment is rendered as
follows:
1. The Petition is dismissed for lack of merit;

2. Petitioner is ordered to pay respondent the sum

of twenty thousand pesos (P20,000.00) per month as
support for their two (2) children on the first five (5)
days of each month; and
3. To pay the costs.11
As earlier stated, the Court of Appeals rendered its
Decision dismissing the petitioners appeal. His
Motion for Reconsideration was likewise denied in a
resolution of the Court of Appeals dated 6 April
2005.12
The Court of Appeals held that the marriage license
of the parties is presumed to be regularly issued and
petitioner had not presented any evidence to
overcome the presumption. Moreover, the parties
marriage contract being a public document is a
prima facie proof of the questioned marriage under
Section 44, Rule 130 of the Rules of Court.13
In his Petition before this Court, petitioner raises the
following issues for resolution:
a. The Honorable Court of Appeals committed a
reversible error when it ruled that the Petition for
Annulment has no legal and factual basis despite the
evidence on record that there was no marriage
license at the precise moment of the solemnization
of the marriage.
b. The Honorable Court of Appeals committed a
reversible error when it gave weight to the Marriage
License No. 7054133 despite the fact that the same
was not identified and offered as evidence during the
trial, and was not the Marriage license number
appearing on the face of the marriage contract.
c. The Honorable Court of Appeals committed a
reversible error when it failed to apply the ruling laid
down by this Honorable Court in the case of Sy vs.
Court of Appeals. (G.R. No. 127263, 12 April 2000
[330 SCRA 550]).
d. The Honorable Court of Appeals committed a
reversible error when it failed to relax the observance
of procedural rules to protect and promote the
substantial rights of the party litigants.14
We deny the petition.
Petitioner submits that at the precise time that his
marriage with the respondent was celebrated, there
was no marriage license because he and respondent
just went to the Manila City Hall and dealt with a
fixer who arranged everything for them.15 The
wedding took place at the stairs in Manila City Hall
and not in CDCC BR Chapel where Rev. Aquilino
Navarro who solemnized the marriage belongs.16 He
and respondent did not go to Carmona, Cavite, to

apply for a marriage license. Assuming a marriage

license from Carmona, Cavite, was issued to them,
neither he nor the respondent was a resident of the
place. The certification of the Municipal Civil
Registrar of Carmona, Cavite, cannot be given weight
because the certification states that Marriage
License number 7054133 was issued in favor of Mr.
Restituto Alcantara and Miss Rosita Almario17 but
their marriage contract bears the number 7054033
for their marriage license number.
The marriage involved herein having been
solemnized on 8 December 1982, or prior to the
effectivity of the Family Code, the applicable law to
determine its validity is the Civil Code which was the
law in effect at the time of its celebration.
A valid marriage license is a requisite of marriage
under Article 53 of the Civil Code, the absence of
which renders the
marriage void ab initio pursuant to Article 80(3)18 in
relation to Article 58 of the same Code.19
Article 53 of the Civil Code20 which was the law
applicable at the time of the marriage of the parties
states:
Art. 53. No marriage shall be solemnized unless all
these requisites are complied with:
(1) Legal capacity of the contracting parties;
(2) Their consent, freely given;
(3) Authority of the person performing the
marriage; and
(4) A marriage license, except in a marriage of
exceptional character.
_______________
18 (3) Those solemnized without a marriage license,
save marriages of exceptional character.
19 Art. 58. Save marriages of an exceptional
character authorized in Chapter 2 of this Title, but
not those under article 75, no marriage shall be
solemnized without a license first being issued by the
local civil registrar of the municipality where either
contracting party habitually resides.
20 Now Article 3 of the Family Code.
Art. 3. The formal requisites of marriage are:
(1) Authority of the solemnizing officer;
(2) A valid marriage license except in the cases
provided for in Chapter 2 of this Title; and

(3) A marriage ceremony which takes place with

the appearance of the contracting parties before the
solemnizing officer and their personal declaration
that they take each other as husband and wife in the
presence of not less than two witnesses of legal age.
Art. 4. The absence of any of the essential or formal
requisites shall render the marriage void ab initio,
except as stated in Article 35.
A defect in any of the essential requisites shall
render the marriage voidable as provided in Article
45.
The requirement and issuance of a marriage license
is the States demonstration of its involvement and
participation in every marriage, in the maintenance
of which the general public is interested.21
Petitioner cannot insist on the absence of a marriage
license to impugn the validity of his marriage. The
cases where the court considered the absence of a
marriage license as a ground for considering the
marriage void are clear-cut.
In Republic of the Philippines v. Court of Appeals,22
the Local Civil Registrar issued a certification of due
search and inability to find a record or entry to the
effect that Marriage License No. 3196182 was issued
to the parties. The Court held that the certification of
due search and inability to find a record or entry as
to the purported marriage license, issued by the Civil
Registrar of Pasig, enjoys probative value, he being
the officer charged under the law to keep a record of
all data relative to the issuance of a marriage license.
Based on said certification, the Court held that there
is absence of a marriage license that would render
the marriage void ab initio.
In Cario v. Cario,23 the Court considered the
marriage of therein petitioner Susan Nicdao and the
deceased Santiago S. Carino as void ab initio. The
records reveal that the marriage contract of
petitioner and the deceased bears no marriage
license number and, as certified by the Local Civil
Registrar of San Juan, Metro Manila, their office has
no record of such marriage license. The court held
that the certification issued by the local civil registrar
is adequate to prove the non-issuance of the
marriage license. Their marriage having been
solemnized without the necessary marriage license
and not being one of the marriages exempt from the
marriage license
requirement, the marriage of the petitioner and the
deceased is undoubtedly void ab initio.

In Sy v. Court of Appeals,24 the marriage license was

issued on 17 September 1974, almost one year after
the ceremony took place on 15 November 1973. The
Court held that the ineluctable conclusion is that the
marriage was indeed contracted without a marriage
license.
In all these cases, there was clearly an absence of a
marriage license which rendered the marriage void.
Clearly, from these cases, it can be deduced that to
be considered void on the ground of absence of a
marriage license, the law requires that the absence
of such marriage license must be apparent on the
marriage contract, or at the very least, supported by
a certification from the local civil registrar that no
such marriage license was issued to the parties. In
this case, the marriage contract between the
petitioner and respondent reflects a marriage license
number. A certification to this effect was also issued
by the local civil registrar of Carmona, Cavite.25 The
certification moreover is precise in that it specifically
identified the parties to whom the marriage license
was issued, namely Restituto Alcantara and Rosita
Almario, further validating the fact that a license was
in fact issued to the parties herein.
The certification of Municipal Civil Registrar Macrino
L. Diaz of Carmona, Cavite, reads:
This is to certify that as per the registry Records of
Marriage filed in this office, Marriage License No.
7054133 was issued in favor of Mr. Restituto
Alcantara and Miss Rosita Almario on December 8,
1982.
This Certification is being issued upon the request of
Mrs. Rosita A. Alcantara for whatever legal purpose
or intents it may serve.26
This certification enjoys the presumption that official
duty has been regularly performed and the issuance
of the marriage license was done in the regular
conduct of official business.27 The presumption of
regularity of official acts may be rebutted by
affirmative evidence of irregularity or failure to
perform a duty. However, the presumption prevails
until it is overcome by no less than clear and
convincing evidence to the contrary. Thus, unless the
presumption is rebutted, it becomes conclusive.
Every reasonable intendment will be made in support
of the presumption and, in case of doubt as to an
officers act being lawful or unlawful, construction
should be in favor of its lawfulness.28 Significantly,
apart from these, petitioner, by counsel, admitted
that a marriage license was, indeed, issued in
Carmona, Cavite.29

Petitioner, in a faint attempt to demolish the

probative value of the marriage license, claims that
neither he nor respondent is a resident of Carmona,
Cavite. Even then, we still hold that there is no
sufficient basis to annul petitioner and respondents
marriage. Issuance of a marriage license in a city or
municipality, not the residence of either of the
contracting parties, and issuance of a marriage
license despite the absence of publication or prior to
the completion of the 10-day period for publication
are considered mere irregularities that do not affect
the validity of the marriage.30 An irregularity in any
of the formal requisites of marriage does not affect
its validity but the party or parties responsible for the
irregularity are civilly, criminally and administratively
liable.31
Again, petitioner harps on the discrepancy between
the marriage license number in the certification of
the Municipal Civil Registrar, which states that the
marriage license issued to the parties is No.
7054133, while the marriage contract states that the
marriage license number of the parties is number
7054033. Once more, this argument fails to sway us.
It is not impossible to assume that the same is a
mere a typographical error, as a closer scrutiny of
the marriage contract reveals the overlapping of the
numbers 0 and 1, such that the marriage license may
read either as 7054133 or 7054033. It therefore does
not detract from our conclusion regarding the
existence and issuance of said marriage license to
the parties.
Under the principle that he who comes to court must
come with clean hands,32 petitioner cannot pretend
that he was not responsible or a party to the
marriage celebration which he now insists took place
without the requisite marriage license. Petitioner
admitted that the civil marriage took place because
he initiated it.33 Petitioner is an educated person.
He is a mechanical engineer by profession. He
knowingly and voluntarily went to the Manila City
Hall and likewise, knowingly and voluntarily, went
through a marriage ceremony. He cannot benefit
from his action and be allowed to extricate himself
from the marriage bond at his mere say-so when the
situation is no longer palatable to his taste or suited
to his lifestyle. We cannot countenance such
effrontery. His attempt to make a mockery of the
institution of marriage betrays his bad faith.34
Petitioner and respondent went through a marriage
ceremony twice in a span of less than one year
utilizing the same marriage license. There is no claim
that he went through the second wedding ceremony
in church under duress or with a gun to his head.

Everything was executed without nary a whimper on

the part of the petitioner.
In fact, for the second wedding of petitioner and
respondent, they presented to the San Jose de
Manuguit Church the marriage contract executed
during the previous wedding ceremony before the
Manila City Hall. This is confirmed in petitioners
testimony as follows
WITNESS

As I remember your honor, they asked us to get the

necessary document prior to the wedding.
COURT
What particular document did the church asked you
to produce? I am referring to the San Jose de
Manuguit church.
WITNESS
I dont remember your honor.
COURT
Were you asked by the church to present a Marriage
License?
WITNESS
I think they asked us for documents and I said we
have already a Marriage Contract and I dont know if
it is good enough for the marriage and they accepted
it your honor.
COURT
In other words, you represented to the San Jose de
Manuguit church that you have with you already a
Marriage Contract?
WITNESS
Yes your honor.
COURT
That is why the San Jose de Manuguit church copied
the same marriage License in the Marriage Contract
issued which Marriage License is Number 7054033.

WITNESS
Yes your honor.35
The logical conclusion is that petitioner was
amenable and a willing participant to all that took
place at that time. Obviously, the church ceremony
was confirmatory of their civil marriage, thereby
cleansing whatever irregularity or defect attended
the civil wedding.36
Likewise, the issue raised by petitionerthat they
appeared before a fixer who arranged everything
for them and who facilitated the ceremony before a
certain Rev. Aquilino Navarro, a Minister of the
Gospel of the CDCC BR Chapelwill not strengthen
his posture. The authority of the officer or clergyman
shown to have performed a marriage ceremony will
be presumed in the absence of any showing to the
contrary.37 Moreover, the solemnizing officer is not
duty-bound to investigate whether or not a marriage
license has been duly and regularly issued by the
local civil registrar. All the solemnizing officer needs
to know is that the license has been issued by the
competent official, and it may be presumed from the
issuance of the license that said official has fulfilled
the duty to ascertain whether the contracting parties
had fulfilled the requirements of law.38
Semper praesumitur pro matrimonio. The
presumption is always in favor of the validity of the
marriage.39 Every intendment of the law or fact
leans toward the validity of the marriage bonds. The
Courts look upon this presumption with great favor. It
is not to be lightly repelled; on the contrary, the
presumption is of great weight.
WHEREFORE, premises considered, the instant
Petition is DENIED for lack of merit. The decision of
the Court of Appeals dated 30 September 2004
affirming the decision of the Regional Trial Court,
Branch 143 of Makati City, dated 14 February 2000,
are AFFIRMED. Costs against petitioner.
SO ORDERED.
Ynares-Santiago (Chairperson), Austria-Martinez,
Nachura and Reyes, JJ., concur.
Petition denied, judgment affirmed.
Note.Except in cases provided by law, it is the
marriage license that gives the solemnizing officer
the authority to solemnize a marriage. (Araes vs.
Occiano, 380 SCRA 402 [2002]) [Alcantara vs.
Alcantara, 531 SCRA 446(2007)]

No. 32473. October 6, 1930]

MELECIO MADRIDEJO, assisted by his guardian
ad litem, Pedro Madridejo, plaintiff and
appellee, vs. GONZALO DE LEON ET AL.,
defendants and appellants.
1. NATURAL CHILDREN; LEGITIMATION BY
SUBSEQUENT MARRIAGEAccording to the Civil
Code, in order that a natural child may be
legitimated by subsequent marriage, the natural
child born before the celebration of marriage must
have been acknowledged by the parents either
before or after its celebration.
2. MARRIAGE; FORWARDING OF CERTIFICATE TO
MUNICIPAL SECRETARY.. The mere fact that the
parish priest who married the plaintiff's natural father
and mother, while the latter was in artculo mortis,
failed to send a copy of the marriage certificate to
the municipal secretary, does not invalidate said
marriage, since it does not appear that in tlTe
celebration thereof all requisites for its validity were
not present, and the forwarding of a copy of the
marriage certificate not being one of said requisites.
APPEAL from a judgment of the Court of First
Instance of Laguna. Jugo, J.
The facts are stated in the opinion of the court.
L. D. Abaya and S. C. Pamatmat for appellants.
Aurelio Palileo for appellee.
VILLA-REAL, J.:
This is a rehearing of the appeal taken by the
defendants, Gonzalo de Leon et al. from the
judgment of the Court of First Instance of Laguna
holding as follows:
"Wherefore, the court finds that Melecio Madridejo is
Domingo de Leon's next of kin, and hereby orders the
defendants in case No. 5258 to restore and deliver
the ownership and possession of the property
described in the complaint filed in the aforesaid case,
to Melecio Madridejo, without costs. So ordered."
In support of their appeal the def endants assign the
f ollowing alleged errors as committed by the trial
court, to wit:
"1. The lower court erred in holding that the
marriage between Pedro Madridejo and Flaviana
Perez is valid.
"2. The lower court also erred in declaring that
solely because of the subsequent marriage of his

parents, the appellee Melecio Madridejo, a natural

child, was legitimated.
"3. The lower court lastly erred in not rendering
judgment in favor of the defendants and appellants."
The relevant facts necessary for the decision of all
the questions of fact and of law raised herein are as
follows:
Eulogio de Leon and Flaviana Perez, man and wife,
had but one child, Domingo de Leon. The wife and
son survived Eulogio de Leon, who died in the year
1915. During her widowhood, Flaviana Perez lived
with Pedro Madridejo, a bachelor. The registry of
births of the municipality of Siniloan, Laguna, shows
that on June 1, 1917, a child was born to Pedro
Madridejo and Flaviana Perez, which was named
Melecio Madridejo, the necessary data being
furnished by Pedro Madridejo (Exhibit B). On June 17,
1917, a 24-day old child was christened Melecio
Perez at the parish church of Siniloan, Laguna, as a
son of Flaviana Perez, no mention being made of the
father (Exhibit 2). On July 8, 1920, Flaviana Perez,
being at death's door, was married to Pedro
Madridejo, a bachelor, 30 years of age, by the parish
priest of Siniloan (Exhibit A). She died on the
following day, July 9, 1920, leaving Domingo de Leon,
her son by Eulogio de Leon, and the plaintiff-appellee
Melecio Madridejo, as well as her alleged second
husband, Pedro Madridejo. Domingo de Leon died on
the 2d of May, 1928.
With regard to the first assignment of error, the mere
fact that the parish priest of Siniloan, Laguna, who
married Pedro Madridejo and Flaviana Perez, failed to
send a copy of the marriage certificate to the
municipal secretary does not invalidate the marriage
in artcuLo mortis, it not appearing that the essential
requisites required by law for its validity were lacking
in the ceremony, and the forwarding of a copy of the
marriage certificate is not one of said essential
requisites.
Touching the second assignment of error, there has
been no attempt to deny that Melecio Madridejo, the
plaintiffappellee, is the natural son of Pedro
Madridejo and Flaviana Perez. The only question to
be decided is whether the subsequent marriage of
his parents legitimated him.
Article 121 of the Civil Code provides:
"ART. 121. Children shall be considered as
legitimated by a subsequent marriage only when
they have been acknowledged by the parents before
or after the celebration thereof."

According to this legal provision, in order that a

subsequent marriage may be effective as a
legitimation, the natural children born out of wedlock
must have been acknowledged by the parents either
before or after its celebration. The Civil Code has
established two kinds of acknowledgment: voluntary
and compulsory. Article 131 provides for the
voluntary acknowledgment by the father or mother
as follows:
"ART. 131. The acknowledgment of a natural child
must be made in the record of birth, in a will, or in
some other public document."
Article 135 provides for the compulsory
acknowledgment by the father, thus:
"ART. 135. The father may be compelled to
acknowledge his natural child in the f ollowing cases:
"1. When an indisputable paper written by him,
expressly acknowledging his paternity, is in
existence.
"2. When the child has been in the uninterrupted
possession of the status of a natural child of the
defendant father, justified by the conduct of the
father himself or that of his family.
"In cases of rape, seduction, or abduction, the
provisions of the Penal Code with regard to the
acknowledgment of the issue, shall be observed."
Article 136 providing for the compulsory
acknowledgment by the mother, reads:
"ART. 136. The mother may be compelled to
acknowledge her natural child:
"1. When the child is, with respect to the mother,
included in any of the cases mentioned in the next
preceding article.
"2. When the fact of the birth and the identity of
the child are fully proven."
Let us see whether the plaintiff-appellee, Melecio
Madridejo, has been acknowledged by his parents
Pedro Madridejo and Flaviana Perez, under any of the
provisions above quoted.
To begin with the father, no document has been
adduced to show that he has voluntarily
acknowledged Melecio Madridejo as his son, except
the registry certificate of birth, Exhibit B. This, of
course, is not the record of birth mentioned in the
law, for it lacks the requisites of article 48 of the Law
of Civil Registry. It, no doubt, is a public instrument,

but it has neither been executed nor signed by Pedro

Madridejo, and contains no statement by which he
acknowledges Melecio Madridejo to be his son.
Although as Pedro Madridejo testified, he furnished
the municipal secretary of Siniloan with the
necessary data for recording the birth of Melecio
Madridejo, and although said official inscribed the
data thus given in the civil registry of births. this is
not sufficient to bring it under the legal provision
regarding acknowledgment by a public document.
As to the mother, it does not appear that Flaviana
Perez supplied the data set forth in the civil registry
of births;
Exhibit B, or in the baptismal register, whereof
Exhibit 2 is a certificate, and which constitutes final
proof only of the baptism, and not of the kinship or
parentage of the person baptized (Adriano vs. De
Jesus, 23 Phil., 350). Furthermore, church registers of
baptism are no longer considered public documents
(United States vs. Evangelista, 29 Phil., 215).
Melecio Madridejo, then, was not voluntarily
acknowledged by Pedro Madridejo or Flaviana Perez,
either before or after their marriage.
Did Pedro Madridejo acknowledge Melecio Madridejo
as his son, by compulsion?
The compulsory acknowledgment by the father
established in article 135 of the Civil Code, and by
the mother according to article 136, requires that the
natural child take judicial action against the father or
mother, or against the persons setting themselves up
as the heirs of both, for the purpose of compelling
them to acknowledge him as a natural son through a
judgment of the court.
In the instant action brought by Melecio Madridejo
not 'only has he not demanded to be acknowledged
as a natural child, which is the condition precedent to
establishing his legitimation by the subsequent
marriage and his right to the estate of his uterine
brother, Domingo de Leon, but he has not even
impleaded either his father, Pedro Madridejo, or the
heirs of his mother, Flaviana Perez, in order that the
court might have authority to make a valid and
effective pronouncement of his being a natural child,
and to compel them to acknowledge him as such.
The plaintiff-appellee alleges that the second
paragraph of the defendants' answer amounts to an
admission that he is indeed Flaviana Perez's son, and
relieves him of the burden of proving that his mother
acknowledged him as a son before her marriage.
Such an admission would have been effective if the

present action had been brought for the purpose of

compelling Flaviana Perez or her heirs to
acknowledge the appellee as her son.
In view of the foregoing, it is evident that Melecio
Madridejo has not been acknowledged by Pedro
Madridejo and Flaviana Perez, either voluntarily or by
compulsion, before or after their marriage, and
therefore ore said marriage did not legitimate him.
Wherefore, the judgment is reversed, the complaint
dismissed, and the defendants absolved with costs
against the appellee without prejudice to any right he
may have to establish or compel his
acknowledgment as the natural son of Pedro
Madridejo and Flaviana Perez. So ordered.
Avancea, C. J., Street, Malcolm, Villamor, Ostrand,
and Romualdez, JJ., concur.
JOHNS, J., dissenting:
I dissent and the judgment of the lower court should
be affirmed.
Judgment reversed. [Madridejo vs. De Leon, 55 Phil.,
1(1930)]
G.R. No. L-40098 August 29, 1975
ANTONIO LIM TANHU, DY OCHAY, ALFONSO
LEONARDO NG SUA and CO OYO, petitioners,
vs.
HON. JOSE R. RAMOLETE as Presiding Judge,
Branch III, CFI, Cebu and TAN PUT,
respondents.
Zosa, Zosa, Castillo, Alcudia & Koh for
petitioners.
Fidel Manalo and Florido & Associates for
respondents.

BARREDO, J.:
Petition for (1) certiorari to annul and set aside
certain actuations of respondent Court of First
Instance of Cebu Branch III in its Civil Case No.
12328, an action for accounting of properties and
money totalling allegedly about P15 million pesos
filed with a common cause of action against six
defendants, in which after declaring four of the said
defendants herein petitioners, in default and while
the trial as against the two defendants not declared
in default was in progress, said court granted
plaintiff's motion to dismiss the case in so far as the

non-defaulted defendants were concerned and

thereafter proceeded to hear ex-parte the rest of the
plaintiffs evidence and subsequently rendered
judgment by default against the defaulted
defendants, with the particularities that notice of the
motion to dismiss was not duly served on any of the
defendants, who had alleged a compulsory
counterclaim against plaintiff in their joint answer,
and the judgment so rendered granted reliefs not
prayed for in the complaint, and (2) prohibition to
enjoin further proceedings relative to the motion for
immediate execution of the said judgment.
Originally, this litigation was a complaint filed on
February 9, 1971 by respondent Tan Put only against
the spouses-petitioners Antonio Lim Tanhu and Dy
Ochay. Subsequently, in an amended complaint
dated September 26, 1972, their son Lim Teck Chuan
and the other spouses-petitioners Alfonso Leonardo
Ng Sua and Co Oyo and their son Eng Chong
Leonardo were included as defendants. In said
amended complaint, respondent Tan alleged that she
"is the widow of Tee Hoon Lim Po Chuan, who was a
partner in the commercial partnership, Glory
Commercial Company ... with Antonio Lim Tanhu and
Alfonso Ng Sua that "defendant Antonio Lim Tanhu,
Alfonso Leonardo Ng Sua, Lim Teck Chuan, and Eng
Chong Leonardo, through fraud and machination,
took actual and active management of the
partnership and although Tee Hoon Lim Po Chuan
was the manager of Glory Commercial Company,
defendants managed to use the funds of the
partnership to purchase lands and building's in the
cities of Cebu, Lapulapu, Mandaue, and the
municipalities of Talisay and Minglanilla, some of
which were hidden, but the description of those
already discovered were as follows: (list of
properties) ...;" and that:
13. (A)fter the death of Tee Hoon Lim Po Chuan, the
defendants, without liquidation continued the
business of Glory Commercial Company by
purportedly organizing a corporation known as the
Glory Commercial Company, Incorporated, with paid
up capital in the sum of P125,000.00, which money
and other assets of the said Glory Commercial
Company, Incorporated are actually the assets of the
defunct Glory Commercial Company partnership, of
which the plaintiff has a share equivalent to one third
(/ 3) thereof;
14. (P)laintiff, on several occasions after the death of
her husband, has asked defendants of the abovementioned properties and for the liquidation of the
business of the defunct partnership, including
investments on real estate in Hong Kong, but

defendants kept on promising to liquidate said

properties and just told plaintiff to
15. (S)ometime in the month of November, 1967,
defendants, Antonio Lim Tanhu, by means of fraud
deceit and misrepresentations did then and there,
induce and convince the plaintiff to execute a
quitclaim of all her rights and interests, in the assets
of the partnership of Glory Commercial Company,
which is null and void, executed through fraud and
without any legal effect. The original of said quitclaim
is in the possession of the adverse party defendant
Antonio Lim Tanhu.
16. (A)s a matter of fact, after the execution of said
quitclaim, defendant Antonio Lim Tanhu offered to
pay the plaintiff the amount P65,000.00 within a
period of one (1) month, for which plaintiff was made
to sign a receipt for the amount of P65,000.00
although no such amount was given and plaintiff was
not even given a copy of said document;
17. (T)hereafter, in the year 1968-69, the defendants
who had earlier promised to liquidate the aforesaid
properties and assets in favor among others of
plaintiff and until the middle of the year 1970 when
the plaintiff formally demanded from the defendants
the accounting of real and personal properties of the
Glory Commercial Company, defendants refused and
stated that they would not give the share of the
plaintiff. (Pp. 36-37, Record.)
She prayed as follows:
WHEREFORE, it is most respectfully prayed that
judgment be rendered:
a) Ordering the defendants to render an accounting
of the real and personal properties of the Glory
Commercial Company including those registered in
the names of the defendants and other persons,
which properties are located in the Philippines and in
Hong Kong;
b) Ordering the defendants to deliver to the plaintiff
after accounting, one third (/ 3) of the total value of
all the properties which is approximately
P5,000,000.00 representing the just share of the
plaintiff;
c) Ordering the defendants to pay the attorney of the
plaintiff the sum of Two Hundred Fifty Thousand
Pesos (P250,000.00) by way of attorney's fees and
damages in the sum of One Million Pesos
(P1,000,000.00).

This Honorable Court is prayed for other remedies

and reliefs consistent with law and equity and order
the defendants to pay the costs. (Page 38, Record.)

defendants hereby incorporate all facts averred and

alleged in the answer, and further most respectfully
declare:

The admission of said amended complaint was

opposed by defendants upon the ground that there
were material modifications of the causes of action
previously alleged, but respondent judge
nevertheless allowed the amendment reasoning that:

1. That in the event that plaintiff is filing the present

complaint as an heir of Tee Hoon Lim Po Chuan, then,
she has no legal capacity to sue as such, considering
that the legitimate wife, namely: Ang Siok Tin,
together with their children are still alive. Under Sec.
1, (d), Rule 16 of the Revised Rules of Court, lack of
legal capacity to sue is one of the grounds for a
motion to dismiss and so defendants prays that a
preliminary hearing be conducted as provided for in
Sec. 5, of the same rule;

The present action is for accounting of real and

personal properties as well as for the recovery of the
same with damages.
An objective consideration of pars. 13 and 15 of the
amended complaint pointed out by the defendants to
sustain their opposition will show that the allegations
of facts therein are merely to amplify material
averments constituting the cause of action in the
original complaint. It likewise include necessary and
indispensable defendants without whom no final
determination can be had in the action and in order
that complete relief is to be accorded as between
those already parties.
Considering that the amendments sought to be
introduced do not change the main causes of action
in the original complaint and the reliefs demanded
and to allow amendments is the rule, and to refuse
them the exception and in order that the real
question between the parties may be properly and
justly threshed out in a single proceeding to avoid
multiplicity of actions. (Page 40, Record.)
In a single answer with counterclaim, over the
signature of their common counsel, defendants
denied specifically not only the allegation that
respondent Tan is the widow of Tee Hoon because,
according to them, his legitimate wife was Ang Siok
Tin still living and with whom he had four (4)
legitimate children, a twin born in 1942, and two
others born in 1949 and 1965, all presently residing
in Hongkong, but also all the allegations of fraud and
conversion quoted above, the truth being, according
to them, that proper liquidation had been regularly
made of the business of the partnership and Tee
Hoon used to receive his just share until his death, as
a result of which the partnership was dissolved and
what corresponded to him were all given to his wife
and children. To quote the pertinent portions of said
answer:
AND BY WAY OF SPECIAL AND AFFIRMATIVE
DEFENSES,

2. That in the alternative case or event that plaintiff

is filing the present case under Art. 144 of the Civil
Code, then, her claim or demand has been paid,
waived abandoned or otherwise extinguished as
evidenced by the 'quitclaim' Annex 'A' hereof, the
ground cited is another ground for a motion to
dismiss (Sec. 1, (h), Rule 16) and hence defendants
pray that a preliminary hearing be made in
connection therewith pursuant to Section 5 of the
aforementioned rule;
3. That Tee Hoon Lim Po Chuan was legally married
to Ang Siok Tin and were blessed with the following
children, to wit: Ching Siong Lim and Ching Hing Lim
(twins) born on February 16, 1942; Lim Shing Ping
born on March 3, 1949 and Lim Eng Lu born on June
25, 1965 and presently residing in Hongkong;
4. That even before the death of Tee Hoon Lim Po
Chuan, the plaintiff was no longer his common law
wife and even though she was not entitled to
anything left by Tee Hoon Lim Po Chuan, yet, out of
the kindness and generosity on the part of the
defendants, particularly Antonio Lain Tanhu, who,
was inspiring to be monk and in fact he is now a
monk, plaintiff was given a substantial amount
evidenced by the 'quitclaim' (Annex 'A');
5. That the defendants have acquired properties out
of their own personal fund and certainly not from the
funds belonging to the partnership, just as Tee Hoon
Lim Po Chuan had acquired properties out of his
personal fund and which are now in the possession of
the widow and neither the defendants nor the
partnership have anything to do about said
properties;
6. That it would have been impossible to buy
properties from funds belonging to the partnership
without the other partners knowing about it
considering that the amount taken allegedly is quite

big and with such big amount withdrawn the

partnership would have been insolvent;
7. That plaintiff and Tee Hoon Lim Po Chuan were not
blessed with children who would have been lawfully
entitled to succeed to the properties left by the latter
together with the widow and legitimate children;
8. That despite the fact that plaintiff knew that she
was no longer entitled to anything of the shares of
the late Tee Hoon Lim Po Chuan, yet, this suit was
filed against the defendant who have to interpose
the following
COUNTERCLAIM
A. That the defendants hereby reproduced, by way of
reference, all the allegations and foregoing
averments as part of this counterclaim; .
B. That plaintiff knew and was aware she was merely
the common-law wife of Tee Hoon Lim Po Chuan and
that the lawful and legal is still living, together with
the legitimate children, and yet she deliberately
suppressed this fact, thus showing her bad faith and
is therefore liable for exemplary damages in an
amount which the Honorable Court may determine in
the exercise of its sound judicial discretion. In the
event that plaintiff is married to Tee Hoon Lim Po
Chuan, then, her marriage is bigamous and should
suffer the consequences thereof;
C. That plaintiff was aware and had knowledge about
the 'quitclaim', even though she was not entitled to
it, and yet she falsely claimed that defendants
refused even to see her and for filing this unfounded,
baseless, futile and puerile complaint, defendants
suffered mental anguish and torture conservatively
estimated to be not less than P3,000.00;
D. That in order to defend their rights in court,
defendants were constrained to engage the services
of the undersigned counsel, obligating themselves to
pay P500,000.00 as attorney's fees;
E. That by way of litigation expenses during the time
that this case will be before this Honorable Court and
until the same will be finally terminated and
adjudicated, defendants will have to spend at least
P5,000.00. (Pp. 44-47. Record.)
After unsuccessfully trying to show that this
counterclaim is merely permissive and should be
dismissed for non-payment of the corresponding
filing fee, and after being overruled by the court, in
due time, plaintiff answered the same, denying its
material allegations.

On February 3, 1973, however, the date set for the

pre-trial, both of the two defendants-spouses the Lim
Tanhus and Ng Suas, did not appear, for which
reason, upon motion of plaintiff dated February 16,
1973, in an order of March 12, 1973, they were all
"declared in DEFAULT as of February 3, 1973 when
they failed to appear at the pre-trial." They sought to
hive this order lifted thru a motion for
reconsideration, but the effort failed when the court
denied it. Thereafter, the trial started, but at the
stage thereof where the first witness of the plaintiff
by the name of Antonio Nuez who testified that he
is her adopted son, was up for re-cross-examination,
said plaintiff unexpectedly filed on October 19, 1974
the following simple and unreasoned
MOTION TO DROP DEFENDANTS LIM TECK
CHUAN AND ENG CHONG LEONARDO
COMES now plaintiff, through her undersigned
counsel, unto the Honorable Court most respectfully
moves to drop from the complaint the defendants
Lim Teck Chuan and Eng Chong Leonardo and to
consider the case dismissed insofar as said
defendants Lim Teck Chuan and Eng Chong Leonardo
are concerned.
WHEREFORE, it is most respectfully prayed of the
Honorable Court to drop from the complaint the
defendants Lim Teck Chuan and Eng Chong Leonardo
and to dismiss the case against them without
pronouncement as to costs. (Page 50, Record.)
which she set for hearing on December 21, 1974.
According to petitioners, none of the defendants
declared in default were notified of said motion, in
violation of Section 9 of Rule 13, since they had
asked for the lifting of the order of default, albeit
unsuccessfully, and as regards the defendants not
declared in default, the setting of the hearing of said
motion on October 21, 1974 infringed the three-day
requirement of Section 4 of Rule 15, inasmuch as
Atty. Adelino Sitoy of Lim Teck Chuan was served with
a copy of the motion personally only on October 19,
1974, while Atty. Benjamin Alcudia of Eng Chong
Leonardo was served by registered mail sent only on
the same date.
Evidently without even verifying the notices of
service, just as simply as plaintiff had couched her
motion, and also without any legal grounds stated,
respondent court granted the prayer of the above
motion thus:
ORDER

Acting on the motion of the plaintiff praying for the

dismissal of the complaint as against defendants Lim
Teck Chuan and Eng Chong Leonardo.
The same is hereby GRANTED. The complaint as
against defendant Lim Teck Chuan and Eng Chong
Leonardo is hereby ordered DISMISSED without
pronouncement as to costs.
Simultaneously, the following order was also issued:
Considering that defendants Antonio Lim Tanhu and
his spouse Dy Ochay as well as defendants Alfonso
Ng Sua and his spouse Co Oyo have been declared in
default for failure to appear during the pre-trial and
as to the other defendants the complaint had already
been ordered dismissed as against them.
Let the hearing of the plaintiff's evidence ex-parte be
set on November 20, 1974, at 8:30 A.M. before the
Branch Clerk of Court who is deputized for the
purpose, to swear in witnesses and to submit her
report within ten (10) days thereafter. Notify the
plaintiff.
SO ORDERED.
Cebu City, Philippines, October 21, 1974. (Page 52,
Record.)
But, in connection with this last order, the scheduled
ex-parte reception of evidence did not take place on
November 20, 1974, for on October 28, 1974, upon
verbal motion of plaintiff, the court issued the
following self-explanatory order: .
Acting favorably on the motion of the plaintiff dated
October 18, 1974, the Court deputized the Branch
Clerk of Court to receive the evidence of the plaintiff
ex-parte to be made on November 20, 1974.
However, on October 28, 1974, the plaintiff, together
with her witnesses, appeared in court and asked,
thru counsel, that she be allowed to present her
evidence.
Considering the time and expenses incurred by the
plaintiff in bringing her witnesses to the court, the
Branch Clerk of Court is hereby authorized to receive
immediately the evidence of the plaintiff ex-parte.
SO ORDERED.
Cebu City, Philippines, October 28, 1974. (Page 53.
Record.)
Upon learning of these orders on October 23, 1973,
the defendant Lim Teck Cheng, thru counsel, Atty.

Sitoy, filed a motion for reconsideration thereof, and

on November 1, 1974, defendant Eng Chong
Leonardo, thru counsel Atty. Alcudia, filed also his
own motion for reconsideration and clarification of
the same orders. These motions were denied in an
order dated December 6, 1974 but received by the
movants only on December 23, 1974. Meanwhile,
respondent court rendered the impugned decision on
December 20, 1974. It does not appear when the
parties were served copies of this decision.
Subsequently, on January 6, 1975, all the defendants,
thru counsel, filed a motion to quash the order of
October 28, 1974. Without waiting however for the
resolution thereof, on January 13, 1974, Lim Teck
Chuan and Eng Chong Leonardo went to the Court of
Appeals with a petition for certiorari seeking the
annulment of the above-mentioned orders of October
21, 1974 and October 28, 1974 and decision of
December 20, 1974. By resolution of January 24,
1975, the Court of Appeals dismissed said petition,
holding that its filing was premature, considering that
the motion to quash the order of October 28, 1974
was still unresolved by the trial court. This holding
was reiterated in the subsequent resolution of
February 5, 1975 denying the motion for
reconsideration of the previous dismissal.
On the other hand, on January 20, 1975, the other
defendants, petitioners herein, filed their notice of
appeal, appeal bond and motion for extension to file
their record on appeal, which was granted, the
extension to expire after fifteen (15) days from
January 26 and 27, 1975, for defendants Lim Tanhu
and Ng Suas, respectively. But on February 7, 1975,
before the perfection of their appeal, petitioners filed
the present petition with this Court. And with the
evident intent to make their procedural position
clear, counsel for defendants, Atty. Manuel Zosa, filed
with respondent court a manifestation dated
February 14, 1975 stating that "when the nondefaulted defendants Eng Chong Leonardo and Lim
Teck Chuan filed their petition in the Court of
Appeals, they in effect abandoned their motion to
quash the order of October 28, 1974," and that
similarly "when Antonio Lim Tanhu, Dy Ochay,
Alfonso Leonardo Ng Sua and Co Oyo, filed their
petition for certiorari and prohibition ... in the
Supreme Court, they likewise abandoned their
motion to quash." This manifestation was acted upon
by respondent court together with plaintiffs motion
for execution pending appeal in its order of the same
date February 14, 1975 this wise:
ORDER

When these incidents, the motion to quash the order

of October 28, 1974 and the motion for execution
pending appeal were called for hearing today,
counsel for the defendants-movants submitted their
manifestation inviting the attention of this Court that
by their filing for certiorari and prohibition with
preliminary injunction in the Court of Appeals which
was dismissed and later the defaulted defendants
filed with the Supreme Court certiorari with
prohibition they in effect abandoned their motion to
quash.
IN VIEW HEREOF, the motion to quash is ordered
ABANDONED. The resolution of the motion for
execution pending appeal shall be resolved after the
petition for certiorari and prohibition shall have been
resolved by the Supreme Court.
SO ORDERED.
Cebu City, Philippines, February 14, 1975. (Page 216,
Record.)
Upon these premises, it is the position of petitioners
that respondent court acted illegally, in violation of
the rules or with grave abuse of discretion in acting
on respondent's motion to dismiss of October 18,
1974 without previously ascertaining whether or not
due notice thereof had been served on the adverse
parties, as, in fact, no such notice was timely served
on the non-defaulted defendants Lim Teck Chuan and
Eng Chong Leonardo and no notice at all was ever
sent to the other defendants, herein petitioners, and
more so, in actually ordering the dismissal of the
case by its order of October 21, 1974 and at the
same time setting the case for further hearing as
against the defaulted defendants, herein petitioners,
actually hearing the same ex-parte and thereafter
rendering the decision of December 20, 1974
granting respondent Tan even reliefs not prayed for
in the complaint. According to the petitioners, to
begin with, there was compulsory counterclaim in the
common answer of the defendants the nature of
which is such that it cannot be decided in an
independent action and as to which the attention of
respondent court was duly called in the motions for
reconsideration. Besides, and more importantly,
under Section 4 of Rule 18, respondent court had no
authority to divide the case before it by dismissing
the same as against the non-defaulted defendants
and thereafter proceeding to hear it ex-parte and
subsequently rendering judgment against the
defaulted defendants, considering that in their view,
under the said provision of the rules, when a
common cause of action is alleged against several
defendants, the default of any of them is a mere
formality by which those defaulted are not allowed to

take part in the proceedings, but otherwise, all the

defendants, defaulted and not defaulted, are
supposed to have but a common fate, win or lose. In
other words, petitioners posit that in such a situation,
there can only be one common judgment for or
against all the defendant, the non-defaulted and the
defaulted. Thus, petitioners contend that the order of
dismissal of October 21, 1974 should be considered
also as the final judgment insofar as they are
concerned, or, in the alternative, it should be set
aside together with all the proceedings and decision
held and rendered subsequent thereto, and that the
trial be resumed as of said date, with the defendants
Lim Teck Chuan and Eng Chong Leonardo being
allowed to defend the case for all the defendants.
On the other hand, private respondent maintains the
contrary view that inasmuch as petitioners had been
properly declared in default, they have no personality
nor interest to question the dismissal of the case as
against their non-defaulted co-defendants and should
suffer the consequences of their own default.
Respondent further contends, and this is the only
position discussed in the memorandum submitted by
her counsel, that since petitioners have already
made or at least started to make their appeal, as
they are in fact entitled to appeal, this special civil
action has no reason for being. Additionally, she
invokes the point of prematurity upheld by the Court
of Appeals in regard to the above-mentioned petition
therein of the non-defaulted defendants Lim Teck
Chuan and Eng Chong Leonardo. Finally, she argues
that in any event, the errors attributed to respondent
court are errors of judgment and may be reviewed
only in an appeal.
After careful scrutiny of all the above-related
proceedings, in the court below and mature
deliberation, the Court has arrived at the conclusion
that petitioners should be granted relief, if only to
stress emphatically once more that the rules of
procedure may not be misused and abused as
instruments for the denial of substantial justice. A
review of the record of this case immediately
discloses that here is another demonstrative instance
of how some members of the bar, availing of their
proficiency in invoking the letter of the rules without
regard to their real spirit and intent, succeed in
inducing courts to act contrary to the dictates of
justice and equity, and, in some instances, to
wittingly or unwittingly abet unfair advantage by
ironically camouflaging their actuations as earnest
efforts to satisfy the public clamor for speedy
disposition of litigations, forgetting all the while that
the plain injunction of Section 2 of Rule 1 is that the
"rules shall be liberally construed in order to promote
their object and to assist the parties in obtaining not

only 'speedy' but more imperatively, "just ... and

inexpensive determination of every action and
proceeding." We cannot simply pass over the
impression that the procedural maneuvers and
tactics revealed in the records of the case at bar
were deliberately planned with the calculated end in
view of depriving petitioners and their co-defendants
below of every opportunity to properly defend
themselves against a claim of more than substantial
character, considering the millions of pesos worth of
properties involved as found by respondent judge
himself in the impugned decision, a claim that
appears, in the light of the allegations of the answer
and the documents already brought to the attention
of the court at the pre-trial, to be rather dubious.
What is most regrettable is that apparently, all of
these alarming circumstances have escaped
respondent judge who did not seem to have
hesitated in acting favorably on the motions of the
plaintiff conducive to the deplorable objective just
mentioned, and which motions, at the very least,
appeared to be 'of highly controversial' merit,
considering that their obvious tendency and
immediate result would be to convert the
proceedings into a one-sided affair, a situation that
should be readily condemnable and intolerable to
any court of justice.
Indeed, a seeming disposition on the part of
respondent court to lean more on the contentions of
private respondent may be discerned from the
manner it resolved the attempts of defendants Dy
Ochay and Antonio Lim Tanhu to have the earlier
order of default against them lifted. Notwithstanding
that Dy Ochay's motion of October 8, 1971, cosigned by her with their counsel, Atty. Jovencio
Enjambre (Annex 2 of respondent answer herein) was
over the jurat of the notary public before whom she
took her oath, in the order of November 2, 1971,
(Annex 3 id.) it was held that "the oath appearing at
the bottom of the motion is not the one
contemplated by the abovequoted pertinent
provision (See. 3, Rule 18) of the rules. It is not even
a verification. (See. 6, Rule 7.) What the rule requires
as interpreted by the Supreme Court is that the
motion must have to be accompanied by an affidavit
of merits that the defendant has a meritorious
defense, thereby ignoring the very simple legal point
that the ruling of the Supreme Court in Ong Peng vs.
Custodio, 1 SCRA 781, relied upon by His Honor,
under which a separate affidavit of merit is required
refers obviously to instances where the motion is not
over oath of the party concerned, considering that
what the cited provision literally requires is no more
than a "motion under oath." Stated otherwise, when
a motion to lift an order of default contains the
reasons for the failure to answer as well as the facts

constituting the prospective defense of the

defendant and it is sworn to by said defendant,
neither a formal verification nor a separate affidavit
of merit is necessary.
What is worse, the same order further held that the
motion to lift the order of default "is an admission
that there was a valid service of summons" and that
said motion could not amount to a challenge against
the jurisdiction of the court over the person of the
defendant. Such a rationalization is patently specious
and reveals an evident failure to grasp the import of
the legal concepts involved. A motion to lift an order
of default on the ground that service of summons has
not been made in accordance with the rules is in
order and is in essence verily an attack against the
jurisdiction of the court over the person of the
defendant, no less than if it were worded in a manner
specifically embodying such a direct challenge.
And then, in the order of February 14, 1972 (Annex 6,
id.) lifting at last the order of default as against
defendant Lim Tanhu, His Honor posited that said
defendant "has a defense (quitclaim) which renders
the claim of the plaintiff contentious." We have read
defendants' motion for reconsideration of November
25, 1971 (Annex 5, id.), but We cannot find in it any
reference to a "quitclaim". Rather, the allegation of a
quitclaim is in the amended complaint (Pars. 15-16,
Annex B of the petition herein) in which plaintiff
maintains that her signature thereto was secured
through fraud and deceit. In truth, the motion for
reconsideration just mentioned, Annex 5, merely
reiterated the allegation in Dy Ochay's earlier motion
of October 8, 1971, Annex 2, to set aside the order of
default, that plaintiff Tan could be but the common
law wife only of Tee Hoon, since his legitimate wife
was still alive, which allegation, His Honor held in the
order of November 2, 1971, Annex 3, to be "not good
and meritorious defense". To top it all, whereas, as
already stated, the order of February 19, 1972,
Annex 6, lifted the default against Lim Tanhu because
of the additional consideration that "he has a defense
(quitclaim) which renders the claim of the plaintiff
contentious," the default of Dy Ochay was
maintained notwithstanding that exactly the same
"contentions" defense as that of her husband was
invoked by her.
Such tenuous, if not altogether erroneous reasonings
and manifest inconsistency in the legal postures in
the orders in question can hardly convince Us that
the matters here in issue were accorded due and
proper consideration by respondent court. In fact,
under the circumstances herein obtaining, it seems
appropriate to stress that, having in view the rather
substantial value of the subject matter involved

together with the obviously contentious character of

plaintiff's claim, which is discernible even on the face
of the complaint itself, utmost care should have been
taken to avoid the slightest suspicion of improper
motivations on the part of anyone concerned. Upon
the considerations hereunder to follow, the Court
expresses its grave concern that much has to be
done to dispel the impression that herein petitioners
and their co-defendants are being railroaded out of
their rights and properties without due process of
law, on the strength of procedural technicalities
adroitly planned by counsel and seemingly unnoticed
and undetected by respondent court, whose orders,
gauged by their tenor and the citations of supposedly
pertinent provisions and jurisprudence made therein,
cannot be said to have proceeded from utter lack of
juridical knowledgeability and competence.
1
The first thing that has struck the Court upon
reviewing the record is the seeming alacrity with
which the motion to dismiss the case against nondefaulted defendants Lim Teck Chuan and Eng Chong
Leonardo was disposed of, which definitely ought not
to have been the case. The trial was proceeding with
the testimony of the first witness of plaintiff and he
was still under re-cross-examination. Undoubtedly,
the motion to dismiss at that stage and in the light of
the declaration of default against the rest of the
defendants was a well calculated surprise move,
obviously designed to secure utmost advantage of
the situation, regardless of its apparent unfairness. To
say that it must have been entirely unexpected by all
the defendants, defaulted and non-defaulted , is
merely to rightly assume that the parties in a judicial
proceeding can never be the victims of any
procedural waylaying as long as lawyers and judges
are imbued with the requisite sense of equity and
justice.
But the situation here was aggravated by the
indisputable fact that the adverse parties who were
entitled to be notified of such unanticipated dismissal
motion did not get due notice thereof. Certainly, the
non-defaulted defendants had the right to the threeday prior notice required by Section 4 of Rule 15.
How could they have had such indispensable notice
when the motion was set for hearing on Monday,
October 21, 1974, whereas the counsel for Lim Teck
Chuan, Atty. Sitoy was personally served with the
notice only on Saturday, October 19, 1974 and the
counsel for Eng Chong Leonardo, Atty. Alcudia, was
notified by registered mail which was posted only
that same Saturday, October 19, 1974? According to
Chief Justice Moran, "three days at least must
intervene between the date of service of notice and

the date set for the hearing, otherwise the court may
not validly act on the motion." (Comments on the
Rules of Court by Moran, Vol. 1, 1970 ed. p. 474.)
Such is the correct construction of Section 4 of Rule
15. And in the instant case, there can be no question
that the notices to the non-defaulted defendants
were short of the requirement of said provision.
We can understand the over-anxiety of counsel for
plaintiff, but what is incomprehensible is the seeming
inattention of respondent judge to the explicit
mandate of the pertinent rule, not to speak of the
imperatives of fairness, considering he should have
realized the far-reaching implications, specially from
the point of view he subsequently adopted, albeit
erroneously, of his favorably acting on it. Actually, he
was aware of said consequences, for simultaneously
with his order of dismissal, he immediately set the
case for the ex-parte hearing of the evidence against
the defaulted defendants, which, incidentally, from
the tenor of his order which We have quoted above,
appears to have been done by him motu propio As a
matter of fact, plaintiff's motion also quoted above
did not pray for it.
Withal, respondent court's twin actions of October
21, 1974 further ignores or is inconsistent with a
number of known juridical principles concerning
defaults, which We will here take occasion to
reiterate and further elucidate on, if only to avoid a
repetition of the unfortunate errors committed in this
case. Perhaps some of these principles have not
been amply projected and elaborated before, and
such paucity of elucidation could be the reason why
respondent judge must have acted as he did. Still,
the Court cannot but express its vehement
condemnation of any judicial actuation that unduly
deprives any party of the right to be heard without
clear and specific warrant under the terms of existing
rules or binding jurisprudence. Extreme care must be
the instant reaction of every judge when confronted
with a situation involving risks that the proceedings
may not be fair and square to all the parties
concerned. Indeed, a keen sense of fairness, equity
and justice that constantly looks for consistency
between the letter of the adjective rules and these
basic principles must be possessed by every judge, If
substance is to prevail, as it must, over form in our
courts. Literal observance of the rules, when it is
conducive to unfair and undue advantage on the part
of any litigant before it, is unworthy of any court of
justice and equity. Withal, only those rules and
procedure informed, with and founded on public
policy deserve obedience in accord with their
unequivocal language or words..

Before proceeding to the discussion of the default

aspects of this case, however, it should not be amiss
to advert first to the patent incorrectness, apparent
on the face of the record, of the aforementioned
order of dismissal of October 21, 1974 of the case
below as regards non-defaulted defendants Lim and
Leonardo. While it is true that said defendants are
not petitioners herein, the Court deems it necessary
for a full view of the outrageous procedural strategy
conceived by respondent's counsel and sanctioned
by respondent court to also make reference to the
very evident fact that in ordering said dismissal
respondent court disregarded completely the
existence of defendant's counterclaim which it had
itself earlier held if indirectly, to be compulsory in
nature when it refused to dismiss the same on the
ground alleged by respondent Tan that he docketing
fees for the filing thereof had not been paid by
defendants.
Indeed, that said counterclaim is compulsory needs
no extended elaboration. As may be noted in the
allegations hereof aforequoted, it arose out of or is
necessarily connected with the occurrence that is the
subject matter of the plaintiff's claim, (Section 4,
Rule 9) namely, plaintiff's allegedly being the widow
of the deceased Tee Hoon entitled, as such, to
demand accounting of and to receive the share of
her alleged late husband as partner of defendants
Antonio Lim Tanhu and Alfonso Leonardo Ng Sua in
Glory Commercial Company, the truth of which
allegations all the defendants have denied.
Defendants maintain in their counterclaim that
plaintiff knew of the falsity of said allegations even
before she filed her complaint, for she had in fact
admitted her common-law relationship with said
deceased in a document she had jointly executed
with him by way of agreement to terminate their
illegitimate relationship, for which she received
P40,000 from the deceased, and with respect to her
pretended share in the capital and profits in the
partnership, it is also defendants' posture that she
had already quitclaimed, with the assistance of able
counsel, whatever rights if any she had thereto in
November, 1967, for the sum of P25,000 duly
receipted by her, which quitclaim was, however,
executed, according to respondent herself in her
amended complaint, through fraud. And having filed
her complaint knowing, according to defendants, as
she ought to have known, that the material
allegations thereof are false and baseless, she has
caused them to suffer damages. Undoubtedly, with
such allegations, defendants' counterclaim is
compulsory, not only because the same evidence to
sustain it will also refute the cause or causes of
action alleged in plaintiff's complaint, (Moran, supra
p. 352) but also because from its very nature, it is

obvious that the same cannot "remain pending for

independent adjudication by the court." (Section 2,
Rule 17.)
The provision of the rules just cited specifically
enjoins that "(i)f a counterclaim has been pleaded by
a defendant prior to the service upon him of the
plaintiff's motion to dismiss, the action shall not be
dismissed against the defendant's objection unless
the counterclaim can remain pending for
independent adjudication by the court." Defendants
Lim and Leonardo had no opportunity to object to the
motion to dismiss before the order granting the same
was issued, for the simple reason that they were not
opportunity notified of the motion therefor, but the
record shows clearly that at least defendant Lim
immediately brought the matter of their compulsory
counterclaim to the attention of the trial court in his
motion for reconsideration of October 23, 1974, even
as the counsel for the other defendant, Leonardo,
predicated his motion on other grounds. In its order
of December 6, 1974, however, respondent court not
only upheld the plaintiffs supposed absolute right to
choose her adversaries but also held that the
counterclaim is not compulsory, thereby virtually
making unexplained and inexplicable 180-degree
turnabout in that respect.
There is another equally fundamental consideration
why the motion to dismiss should not have been
granted. As the plaintiff's complaint has been
framed, all the six defendants are charged with
having actually taken part in a conspiracy to
misappropriate, conceal and convert to their own
benefit the profits, properties and all other assets of
the partnership Glory Commercial Company, to the
extent that they have allegedly organized a
corporation, Glory Commercial Company, Inc. with
what they had illegally gotten from the partnership.
Upon such allegations, no judgment finding the
existence of the alleged conspiracy or holding the
capital of the corporation to be the money of the
partnership is legally possible without the presence
of all the defendants. The non-defaulted defendants
are alleged to be stockholders of the corporation and
any decision depriving the same of all its assets
cannot but prejudice the interests of said defendants.
Accordingly, upon these premises, and even
prescinding from the other reasons to be discussed
anon it is clear that all the six defendants below,
defaulted and non-defaulted, are indispensable
parties. Respondents could do no less than grant that
they are so on page 23 of their answer. Such being
the case, the questioned order of dismissal is exactly
the opposite of what ought to have been done.
Whenever it appears to the court in the course of a
proceeding that an indispensable party has not been

joined, it is the duty of the court to stop the trial and

to order the inclusion of such party. (The Revised
Rules of Court, Annotated & Commented by Senator
Vicente J. Francisco, Vol. 1, p. 271, 1973 ed. See also
Cortez vs. Avila, 101 Phil. 705.) Such an order is
unavoidable, for the "general rule with reference to
the making of parties in a civil action requires the
joinder of all necessary parties wherever possible,
and the joinder of all indispensable parties under any
and all conditions, the presence of those latter being
a sine qua non of the exercise of judicial power."
(Borlasa vs. Polistico, 47 Phil. 345, at p. 347.) It is
precisely " when an indispensable party is not before
the court (that) the action should be dismissed."
(People v. Rodriguez, 106 Phil. 325, at p. 327.) The
absence of an indispensable party renders all
subsequent actuations of the court null and void, for
want of authority to act, not only as to the absent
parties but even as to those present. In short, what
respondent court did here was exactly the reverse of
what the law ordains it eliminated those who by
law should precisely be joined.
As may he noted from the order of respondent court
quoted earlier, which resolved the motions for
reconsideration of the dismissal order filed by the
non-defaulted defendants, His Honor rationalized his
position thus:
It is the rule that it is the absolute prerogative of the
plaintiff to choose, the theory upon which he
predicates his right of action, or the parties he
desires to sue, without dictation or imposition by the
court or the adverse party. If he makes a mistake in
the choice of his right of action, or in that of the
parties against whom he seeks to enforce it, that is
his own concern as he alone suffers therefrom. The
plaintiff cannot be compelled to choose his
defendants, He may not, at his own expense, be
forced to implead anyone who, under the adverse
party's theory, is to answer for defendant's liability.
Neither may the Court compel him to furnish the
means by which defendant may avoid or mitigate
their liability. (Vao vs. Alo, 95 Phil. 495-496.)
This being the rule this court cannot compel the
plaintiff to continue prosecuting her cause of action
against the defendants-movants if in the course of
the trial she believes she can enforce it against the
remaining defendants subject only to the limitation
provided in Section 2, Rule 17 of the Rules of
Court. ... (Pages 6263, Record.)
Noticeably, His Honor has employed the same
equivocal terminology as in plaintiff's motion of
October 18, 1974 by referring to the action he had
taken as being "dismissal of the complaint against

them or their being dropped therefrom", without

perceiving that the reason for the evidently
intentional ambiguity is transparent. The apparent
idea is to rely on the theory that under Section 11 of
Rule 3, parties may be dropped by the court upon
motion of any party at any stage of the action, hence
"it is the absolute right prerogative of the plaintiff to
choosethe parties he desires to sue, without
dictation or imposition by the court or the adverse
party." In other words, the ambivalent pose is
suggested that plaintiff's motion of October 18, 1974
was not predicated on Section 2 of Rule 17 but more
on Section 11 of Rule 3. But the truth is that nothing
can be more incorrect. To start with, the latter rule
does not comprehend whimsical and irrational
dropping or adding of parties in a complaint. What it
really contemplates is erroneous or mistaken nonjoinder and misjoinder of parties. No one is free to
join anybody in a complaint in court only to drop him
unceremoniously later at the pleasure of the plaintiff.
The rule presupposes that the original inclusion had
been made in the honest conviction that it was
proper and the subsequent dropping is requested
because it has turned out that such inclusion was a
mistake. And this is the reason why the rule ordains
that the dropping be "on such terms as are just"
just to all the other parties. In the case at bar, there
is nothing in the record to legally justify the dropping
of the non-defaulted defendants, Lim and Leonardo.
The motion of October 18, 1974 cites none. From all
appearances, plaintiff just decided to ask for it,
without any relevant explanation at all. Usually, the
court in granting such a motion inquires for the
reasons and in the appropriate instances directs the
granting of some form of compensation for the
trouble undergone by the defendant in answering the
complaint, preparing for or proceeding partially to
trial, hiring counsel and making corresponding
expenses in the premises. Nothing of these, appears
in the order in question. Most importantly, His Honor
ought to have considered that the outright dropping
of the non-defaulted defendants Lim and Leonardo,
over their objection at that, would certainly be unjust
not only to the petitioners, their own parents, who
would in consequence be entirely defenseless, but
also to Lim and Leonardo themselves who would
naturally correspondingly suffer from the eventual
judgment against their parents. Respondent court
paid no heed at all to the mandate that such
dropping must be on such terms as are just"
meaning to all concerned with its legal and factual
effects.
Thus, it is quite plain that respondent court erred in
issuing its order of dismissal of October 21, 1974 as
well as its order of December 6, 1974 denying

reconsideration of such dismissal. As We make this

ruling, We are not oblivious of the circumstance that
defendants Lim and Leonardo are not parties herein.
But such consideration is inconsequential. The fate of
the case of petitioners is inseparably tied up with
said order of dismissal, if only because the order of
ex-parte hearing of October 21, 1974 which directly
affects and prejudices said petitioners is predicated
thereon. Necessarily, therefore, We have to pass on
the legality of said order, if We are to decide the case
of herein petitioners properly and fairly.

similar conduct on his part in the future will definitely

be dealt with more severely. Parties and counsel
would be well advised to avoid such attempts to
befuddle the issues as invariably then will be
exposed for what they are, certainly unethical and
degrading to the dignity of the law profession.
Moreover, almost always they only betray the
inherent weakness of the cause of the party resorting
to them.

The attitude of the non-defaulted defendants of no

longer pursuing further their questioning of the
dismissal is from another point of view
understandable. On the one hand, why should they
insist on being defendants when plaintiff herself has
already release from her claims? On the other hand,
as far as their respective parents-co-defendants are
concerned, they must have realized that they (their
parents) could even be benefited by such dismissal
because they could question whether or not plaintiff
can still prosecute her case against them after she
had secured the order of dismissal in question. And it
is in connection with this last point that the true and
correct concept of default becomes relevant.

Coming now to the matter itself of default, it is quite

apparent that the impugned orders must have
proceeded from inadequate apprehension of the
fundamental precepts governing such procedure
under the Rules of Court. It is time indeed that the
concept of this procedural device were fully
understood by the bench and bar, instead of being
merely taken for granted as being that of a simple
expedient of not allowing the offending party to take
part in the proceedings, so that after his adversary
shall have presented his evidence, judgment may be
rendered in favor of such opponent, with hardly any
chance of said judgment being reversed or modified.

At this juncture, it may also be stated that the

decision of the Court of Appeals of January 24, 1975
in G. R. No. SP-03066 dismissing the petition for
certiorari of non-defaulted defendants Lim and
Leonardo impugning the order of dismissal of
October 21, 1974, has no bearing at all in this case,
not only because that dismissal was premised by the
appellate court on its holding that the said petition
was premature inasmuch as the trial court had not
yet resolved the motion of the defendants of October
28, 1974 praying that said disputed order be
quashed, but principally because herein petitioners
were not parties in that proceeding and cannot,
therefore, be bound by its result. In particular, We
deem it warranted to draw the attention of private
respondent's counsel to his allegations in paragraphs
XI to XIV of his answer, which relate to said decision
of the Court of Appeals and which have the clear
tendency to make it appear to the Court that the
appeals court had upheld the legality and validity of
the actuations of the trial court being questioned,
when as a matter of indisputable fact, the dismissal
of the petition was based solely and exclusively on its
being premature without in any manner delving into
its merits. The Court must and does admonish
counsel that such manner of pleading, being
deceptive and lacking in candor, has no place in any
court, much less in the Supreme Court, and if We are
adopting a passive attitude in the premises, it is due
only to the fact that this is counsel's first offense. But

The Rules of Court contain a separate rule on the

subject of default, Rule 18. But said rule is concerned
solely with default resulting from failure of the
defendant or defendants to answer within the
reglementary period. Referring to the simplest form
of default, that is, where there is only one defendant
in the action and he fails to answer on time, Section
1 of the rule provides that upon "proof of such
failure, (the court shall) declare the defendant in
default. Thereupon the court shall proceed to receive
the plaintiff's evidence and render judgment granting
him such relief as the complaint and the facts proven
may warrant." This last clause is clarified by Section
5 which says that "a judgment entered against a
party in default shall not exceed the amount or be
different in kind from that prayed for."
Unequivocal, in the literal sense, as these provisions
are, they do not readily convey the full import of
what they contemplate. To begin with, contrary to the
immediate notion that can be drawn from their
language, these provisions are not to be understood
as meaning that default or the failure of the
defendant to answer should be "interpreted as an
admission by the said defendant that the plaintiff's
cause of action find support in the law or that plaintiff
is entitled to the relief prayed for." (Moran, supra, p.
535 citing Macondary & Co. v. Eustaquio, 64 Phil.
466, citing with approval Chaffin v. McFadden, 41
Ark. 42; Johnson v. Pierce, 12 Ark. 599; Mayden v.
Johnson, 59 Ga. 105; People v. Rust, 292 111. 328;

Ken v. Leopold 21 111. A. 163; Chicago, etc. Electric

R. Co. v. Krempel 116 111. A. 253.)
Being declared in default does not constitute a
waiver of rights except that of being heard and of
presenting evidence in the trial court. According to
Section 2, "except as provided in Section 9 of Rule
13, a party declared in default shall not be entitled to
notice of subsequent proceedings, nor to take part in
the trial." That provision referred to reads: "No
service of papers other than substantially amended
pleadings and final orders or judgments shall be
necessary on a party in default unless he files a
motion to set aside the order of default, in which
event he shall be entitled to notice of all further
proceedings regardless of whether the order of
default is set aside or not." And pursuant to Section 2
of Rule 41, "a party who has been declared in default
may likewise appeal from the judgment rendered
against him as contrary to the evidence or to the law,
even if no petition for relief to set aside the order of
default has been presented by him in accordance
with Rule 38.".
In other words, a defaulted defendant is not actually
thrown out of court. While in a sense it may be said
that by defaulting he leaves himself at the mercy of
the court, the rules see to it that any judgment
against him must be in accordance with law. The
evidence to support the plaintiff's cause is, of course,
presented in his absence, but the court is not
supposed to admit that which is basically
incompetent. Although the defendant would not be in
a position to object, elementary justice requires that,
only legal evidence should be considered against
him. If the evidence presented should not be
sufficient to justify a judgment for the plaintiff, the
complaint must be dismissed. And if an unfavorable
judgment should be justifiable, it cannot exceed in
amount or be different in kind from what is prayed
for in the complaint.
Incidentally, these considerations argue against the
present widespread practice of trial judges, as was
done by His Honor in this case, of delegating to their
clerks of court the reception of the plaintiff's
evidence when the defendant is in default. Such a
Practice is wrong in principle and orientation. It has
no basis in any rule. When a defendant allows
himself to be declared in default, he relies on the
faith that the court would take care that his rights are
not unduly prejudiced. He has a right to presume that
the law and the rules will still be observed. The
proceedings are held in his forced absence, and it is
but fair that the plaintiff should not be allowed to
take advantage of the situation to win by foul or
illegal means or with inherently incompetent

evidence. Thus, in such instances, there is need for

more attention from the court, which only the judge
himself can provide. The clerk of court would not be
in a position much less have the authority to act in
the premises in the manner demanded by the rules
of fair play and as contemplated in the law,
considering his comparably limited area of discretion
and his presumably inferior preparation for the
functions of a judge. Besides, the default of the
defendant is no excuse for the court to renounce the
opportunity to closely observe the demeanor and
conduct of the witnesses of the plaintiff, the better to
appreciate their truthfulness and credibility. We
therefore declare as a matter of judicial policy that
there being no imperative reason for judges to do
otherwise, the practice should be discontinued.
Another matter of practice worthy of mention at this
point is that it is preferable to leave enough
opportunity open for possible lifting of the order of
default before proceeding with the reception of the
plaintiff's evidence and the rendition of the decision.
"A judgment by default may amount to a positive and
considerable injustice to the defendant; and the
possibility of such serious consequences necessitates
a careful and liberal examination of the grounds upon
which the defendant may seek to set it aside."
(Moran, supra p. 534, citing Coombs vs. Santos, 24
Phil. 446; 449-450.) The expression, therefore, in
Section 1 of Rule 18 aforequoted which says that
"thereupon the court shall proceed to receive the
plaintiff's evidence etc." is not to be taken literally.
The gain in time and dispatch should the court
immediately try the case on the very day of or
shortly after the declaration of default is far
outweighed by the inconvenience and complications
involved in having to undo everything already done
in the event the defendant should justify his omission
to answer on time.
The foregoing observations, as may be noted, refer
to instances where the only defendant or all the
defendants, there being several, are declared in
default. There are additional rules embodying more
considerations of justice and equity in cases where
there are several defendants against whom a
common cause of action is averred and not all of
them answer opportunely or are in default,
particularly in reference to the power of the court to
render judgment in such situations. Thus, in addition
to the limitation of Section 5 that the judgment by
default should not be more in amount nor different in
kind from the reliefs specifically sought by plaintiff in
his complaint, Section 4 restricts the authority of the
court in rendering judgment in the situations just
mentioned as follows:

Sec. 4. Judgment when some defendants answer, and

other make difficult. When a complaint states a
common cause of action against several defendant
some of whom answer, and the others fail to do so,
the court shall try the case against all upon the
answer thus filed and render judgment upon the
evidence presented. The same proceeding applies
when a common cause of action is pleaded in a
counterclaim, cross-claim and third-party claim.
Very aptly does Chief Justice Moran elucidate on this
provision and the controlling jurisprudence
explanatory thereof this wise:
Where a complaint states a common cause of action
against several defendants and some appear to
defend the case on the merits while others make
default, the defense interposed by those who appear
to litigate the case inures to the benefit of those who
fail to appear, and if the court finds that a good
defense has been made, all of the defendants must
be absolved. In other words, the answer filed by one
or some of the defendants inures to the benefit of all
the others, even those who have not seasonably filed
their answer. (Bueno v. Ortiz, L-22978, June 27, 1968,
23 SCRA 1151.) The proper mode of proceeding
where a complaint states a common cause of action
against several defendants, and one of them makes
default, is simply to enter a formal default order
against him, and proceed with the cause upon the
answers of the others. The defaulting defendant
merely loses his standing in court, he not being
entitled to the service of notice in the cause, nor to
appear in the suit in any way. He cannot adduce
evidence; nor can he be heard at the final hearing,
(Lim Toco v. Go Fay, 80 Phil. 166.) although he may
appeal the judgment rendered against him on the
merits. (Rule 41, sec. 2.) If the case is finally decided
in the plaintiff's favor, a final decree is then entered
against all the defendants; but if the suit should be
decided against the plaintiff, the action will be
dismissed as to all the defendants alike. (Velez v.
Ramas, 40 Phil. 787-792; Frow v. de la Vega, 15 Wal.
552,21 L. Ed. 60.) In other words the judgment will
affect the defaulting defendants either favorably or
adversely. (Castro v. Pea, 80 Phil. 488.)
Defaulting defendant may ask execution if judgment
is in his favor. (Castro v. Pea, supra.) (Moran, Rules
of Court, Vol. 1, pp. 538-539.)
In Castro vs. Pea, 80 Phil. 488, one of the numerous
cases cited by Moran, this Court elaborated on the
construction of the same rule when it sanctioned the
execution, upon motion and for the benefit of the
defendant in default, of a judgment which was
adverse to the plaintiff. The Court held:

As above stated, Emilia Matanguihan, by her counsel,

also was a movant in the petition for execution
Annex 1. Did she have a right to be such, having
been declared in default? In Frow vs. De la Vega,
supra, cited as authority in Velez vs. Ramas, supra,
the Supreme Court of the United States adopted as
ground for its own decision the following ruling of the
New York Court of Errors in Clason vs. Morris, 10
Jons., 524:
It would be unreasonable to hold that because one
defendant had made default, the plaintiff should
have a decree even against him, where the court is
satisfied from the proofs offered by the other, that in
fact the plaintiff is not entitled to a decree. (21 Law,
ed., 61.)
The reason is simple: justice has to be consistent.
The complaint stating a common cause of action
against several defendants, the complainant's rights
or lack of them in the controversy have to be
the same, and not different, as against all the
defendant's although one or some make default and
the other or others appear, join issue, and enter into
trial. For instance, in the case of Clason vs. Morris
above cited, the New York Court of Errors in effect
held that in such a case if the plaintiff is not entitled
to a decree, he will not be entitled to it, not only as
against the defendant appearing and resisting his
action but also as against the one who made default.
In the case at bar, the cause of action in the
plaintiff's complaint was common against the Mayor
of Manila, Emilia Matanguihan, and the other
defendants in Civil Case No. 1318 of the lower court.
The Court of First Instance in its judgment found and
held upon the evidence adduced by the plaintiff and
the defendant mayor that as between said plaintiff
and defendant Matanguihan the latter was the one
legally entitled to occupy the stalls; and it decreed,
among other things, that said plaintiff immediately
vacate them. Paraphrasing the New York Court of
Errors, it would be unreasonable to hold now that
because Matanguihan had made default, the said
plaintiff should be declared, as against her, legally
entitled to the occupancy of the stalls, or to remain
therein, although the Court of First Instance was so
firmly satisfied, from the proofs offered by the other
defendant, that the same plaintiff was not entitled to
such occupancy that it peremptorily ordered her to
vacate the stalls. If in the cases of Clason vs. Morris,
supra, Frow vs. De la Vega, supra, and Velez vs.
Ramas, supra the decrees entered inured to the
benefit of the defaulting defendants, there is no
reason why that entered in said case No. 1318 should
not be held also to have inured to the benefit of the
defaulting defendant Matanguihan and the doctrine

in said three cases plainly implies that there is

nothing in the law governing default which would
prohibit the court from rendering judgment favorable
to the defaulting defendant in such cases. If it inured
to her benefit, it stands to reason that she had a
right to claim that benefit, for it would not be a
benefit if the supposed beneficiary were barred from
claiming it; and if the benefit necessitated the
execution of the decree, she must be possessed of
the right to ask for the execution thereof as she did
when she, by counsel, participated in the petition for
execution Annex 1.
Section 7 of Rule 35 would seem to afford a solid
support to the above considerations. It provides that
when a complaint states a common cause of action
against several defendants, some of whom answer,
and the others make default, 'the court shall try the
case against all upon the answer thus filed and
render judgment upon the evidence presented by the
parties in court'. It is obvious that under this
provision the case is tried jointly not only against the
defendants answering but also against those
defaulting, and the trial is held upon the answer filed
by the former; and the judgment, if adverse, will
prejudice the defaulting defendants no less than
those who answer. In other words, the defaulting
defendants are held bound by the answer filed by
their co-defendants and by the judgment which the
court may render against all of them. By the same
token, and by all rules of equity and fair play, if the
judgment should happen to be favorable, totally or
partially, to the answering defendants, it must
correspondingly benefit the defaulting ones, for it
would not be just to let the judgment produce effects
as to the defaulting defendants only when adverse to
them and not when favorable.
In Bueno vs. Ortiz, 23 SCRA 1151, the Court applied
the provision under discussion in the following words:
In answer to the charge that respondent Judge had
committed a grave abuse of discretion in rendering a
default judgment against the PC, respondents allege
that, not having filed its answer within the
reglementary period, the PC was in default, so that it
was proper for Patanao to forthwith present his
evidence and for respondent Judge to render said
judgment. It should be noted, however, that in
entering the area in question and seeking to prevent
Patanao from continuing his logging operations
therein, the PC was merely executing an order of the
Director of Forestry and acting as his agent.
Patanao's cause of action against the other
respondents in Case No. 190, namely, the Director of
Forestry, the District Forester of Agusan, the Forest
Officer of Bayugan, Agusan, and the Secretary of

Agriculture and Natural Resources. Pursuant to Rule

18, Section 4, of the Rules of Court, 'when a
complaint states a common cause of action against
several defendants some of whom answer and the
others fail to do so, the court shall try the case
against all upon the answer thus filed (by some) and
render judgment upon the evidence presented.' In
other words, the answer filed by one or some of the
defendants inures to the benefit of all the others,
even those who have not seasonably filed their
answer.
Indeed, since the petition in Case No. 190 sets forth a
common cause of action against all of the
respondents therein, a decision in favor of one of
them would necessarily favor the others. In fact, the
main issue, in said case, is whether Patanao has a
timber license to undertake logging operations in the
disputed area. It is not possible to decide such issue
in the negative, insofar as the Director of Forestry,
and to settle it otherwise, as regards the PC, which is
merely acting as agent of the Director of Forestry,
and is, therefore, his alter ego, with respect to the
disputed forest area.
Stated differently, in all instances where a common
cause of action is alleged against several defendants,
some of whom answer and the others do not, the
latter or those in default acquire a vested right not
only to own the defense interposed in the answer of
their co- defendant or co-defendants not in default
but also to expect a result of the litigation totally
common with them in kind and in amount whether
favorable or unfavorable. The substantive unity of
the plaintiff's cause against all the defendants is
carried through to its adjective phase as ineluctably
demanded by the homogeneity and indivisibility of
justice itself. Indeed, since the singleness of the
cause of action also inevitably implies that all the
defendants are indispensable parties, the court's
power to act is integral and cannot be split such that
it cannot relieve any of them and at the same time
render judgment against the rest. Considering the
tenor of the section in question, it is to be assumed
that when any defendant allows himself to be
declared in default knowing that his defendant has
already answered, he does so trusting in the
assurance implicit in the rule that his default is in
essence a mere formality that deprives him of no
more than the right to take part in the trial and that
the court would deem anything done by or for the
answering defendant as done by or for him. The
presumption is that otherwise he would not -have
seen to that he would not be in default. Of course, he
has to suffer the consequences of whatever the
answering defendant may do or fail to do, regardless
of possible adverse consequences, but if the

complaint has to be dismissed in so far as the

answering defendant is concerned it becomes his
inalienable right that the same be dismissed also as
to him. It does not matter that the dismissal is upon
the evidence presented by the plaintiff or upon the
latter's mere desistance, for in both contingencies,
the lack of sufficient legal basis must be the cause.
The integrity of the common cause of action against
all the defendants and the indispensability of all of
them in the proceedings do not permit any possibility
of waiver of the plaintiff's right only as to one or
some of them, without including all of them, and so,
as a rule, withdrawal must be deemed to be a
confession of weakness as to all. This is not only
elementary justice; it also precludes the concomitant
hazard that plaintiff might resort to the kind of
procedural strategem practiced by private
respondent herein that resulted in totally depriving
petitioners of every opportunity to defend
themselves against her claims which, after all, as will
be seen later in this opinion, the record does not
show to be invulnerable, both in their factual and
legal aspects, taking into consideration the tenor of
the pleadings and the probative value of the
competent evidence which were before the trial court
when it rendered its assailed decision where all the
defendants are indispensable parties, for which
reason the absence of any of them in the case would
result in the court losing its competency to act
validly, any compromise that the plaintiff might wish
to make with any of them must, as a matter of
correct procedure, have to await until after the
rendition of the judgment, at which stage the plaintiff
may then treat the matter of its execution and the
satisfaction of his claim as variably as he might
please. Accordingly, in the case now before Us
together with the dismissal of the complaint against
the non-defaulted defendants, the court should have
ordered also the dismissal thereof as to petitioners.
Indeed, there is more reason to apply here the
principle of unity and indivisibility of the action just
discussed because all the defendants here have
already joined genuine issues with plaintiff. Their
default was only at the pre-trial. And as to such
absence of petitioners at the pre-trial, the same
could be attributed to the fact that they might not
have considered it necessary anymore to be present,
since their respective children Lim and Leonardo,
with whom they have common defenses, could take
care of their defenses as well. Anything that might
have had to be done by them at such pre-trial could
have been done for them by their children, at least
initially, specially because in the light of the
pleadings before the court, the prospects of a
compromise must have appeared to be rather
remote. Such attitude of petitioners is neither

uncommon nor totally unjustified. Under the

circumstances, to declare them immediately and
irrevocably in default was not an absolute necessity.
Practical considerations and reasons of equity should
have moved respondent court to be more
understanding in dealing with the situation. After all,
declaring them in default as respondent court did not
impair their right to a common fate with their
children.
3
Another issue to be resolved in this case is the
question of whether or not herein petitioners were
entitled to notice of plaintiff's motion to drop their codefendants Lim and Leonardo, considering that
petitioners had been previously declared in default.
In this connection, the decisive consideration is that
according to the applicable rule, Section 9, Rule 13,
already quoted above, (1) even after a defendant has
been declared in default, provided he "files a motion
to set aside the order of default, he shall be
entitled to notice of all further proceedings
regardless of whether the order of default is set aside
or not" and (2) a party in default who has not filed
such a motion to set aside must still be served with
all "substantially amended or supplemented
pleadings." In the instant case, it cannot be denied
that petitioners had all filed their motion for
reconsideration of the order declaring them in
default. Respondents' own answer to the petition
therein makes reference to the order of April 3, 1973,
Annex 8 of said answer, which denied said motion for
reconsideration. On page 3 of petitioners'
memorandum herein this motion is referred to as "a
motion to set aside the order of default." But as We
have not been favored by the parties with a copy of
the said motion, We do not even know the excuse
given for petitioners' failure to appear at the pre-trial,
and We cannot, therefore, determine whether or not
the motion complied with the requirements of
Section 3 of Rule 18 which We have held to be
controlling in cases of default for failure to answer on
time. (The Philippine-British Co. Inc. etc. et al. vs. The
Hon. Walfrido de los Angeles etc. et al., 63 SCRA 50.)
We do not, however, have here, as earlier noted, a
case of default for failure to answer but one for
failure to appear at the pre-trial. We reiterate, in the
situation now before Us, issues have already been
joined. In fact, evidence had been partially offered
already at the pre-trial and more of it at the actual
trial which had already begun with the first witness of
the plaintiff undergoing re-cross-examination. With
these facts in mind and considering that issues had
already been joined even as regards the defaulted
defendants, it would be requiring the obvious to

pretend that there was still need for an oath or a

verification as to the merits of the defense of the
defaulted defendants in their motion to reconsider
their default. Inasmuch as none of the parties had
asked for a summary judgment there can be no
question that the issues joined were genuine, and
consequently, the reason for requiring such oath or
verification no longer holds. Besides, it may also be
reiterated that being the parents of the nondefaulted defendants, petitioners must have
assumed that their presence was superfluous,
particularly because the cause of action against
them as well as their own defenses are common.
Under these circumstances, the form of the motion
by which the default was sought to be lifted is
secondary and the requirements of Section 3 of Rule
18 need not be strictly complied with, unlike in cases
of default for failure to answer. We can thus hold as
We do hold for the purposes of the revival of their
right to notice under Section 9 of Rule 13, that
petitioner's motion for reconsideration was in
substance legally adequate regardless of whether or
not it was under oath.
In any event, the dropping of the defendants Lim and
Leonardo from plaintiff's amended complaint was
virtually a second amendment of plaintiffs complaint.
And there can be no doubt that such amendment
was substantial, for with the elimination thereby of
two defendants allegedly solidarily liable with their
co-defendants, herein petitioners, it had the effect of
increasing proportionally what each of the remaining
defendants, the said petitioners, would have to
answer for jointly and severally. Accordingly, notice
to petitioners of the plaintiff's motion of October 18,
1974 was legally indispensable under the rule abovequoted. Consequently, respondent court had no
authority to act on the motion, to dismiss, pursuant
to Section 6 of Rule 15, for according to Senator
Francisco, "(t) he Rules of Court clearly provide that
no motion shall be acted upon by the Court without
the proof of service of notice thereof, together with a
copy of the motion and other papers accompanying
it, to all parties concerned at least three days before
the hearing thereof, stating the time and place for
the hearing of the motion. (Rule 26, section 4, 5 and
6, Rules of Court (now Sec. 15, new Rules). When the
motion does not comply with this requirement, it is
not a motion. It presents no question which the court
could decide. And the Court acquires no jurisdiction
to consider it. (Roman Catholic Bishop of Lipa vs.
Municipality of Unisan 44 Phil., 866; Manakil vs.
Revilla, 42 Phil., 81.) (Laserna vs. Javier, et al., CAG.R. No. 7885, April 22, 1955; 21 L.J. 36, citing
Roman Catholic Bishop of Lipa vs. Municipality of
Unisan 44 Phil., 866; Manakil vs. Revilla, 42 Phil., 81.)
(Francisco. The Revised Rules of Court in the

Philippines, pp. 861-862.) Thus, We see again, from a

different angle, why respondent court's order of
dismissal of October 21, 1974 is fatally ineffective.
4
The foregoing considerations notwithstanding, it is
respondents' position that certiorari is not the proper
remedy of petitioners. It is contended that inasmuch
as said petitioners have in fact made their appeal
already by filing the required notice of appeal and
appeal bond and a motion for extension to file their
record on appeal, which motion was granted by
respondent court, their only recourse is to prosecute
that appeal. Additionally, it is also maintained that
since petitioners have expressly withdrawn their
motion to quash of January 4, 1975 impugning the
order of October 28, 1974, they have lost their right
to assail by certiorari the actuations of respondent
court now being questioned, respondent court not
having been given the opportunity to correct any
possible error it might have committed.
We do not agree. As already shown in the foregoing
discussion, the proceedings in the court below have
gone so far out of hand that prompt action is needed
to restore order in the entangled situation created by
the series of plainly illegal orders it had issued. The
essential purpose of certiorari is to keep the
proceedings in lower judicial courts and tribunals
within legal bounds, so that due process and the rule
of law may prevail at all times and arbitrariness,
whimsicality and unfairness which justice abhors may
immediately be stamped out before graver injury,
juridical and otherwise, ensues. While generally
these objectives may well be attained in an ordinary
appeal, it is undoubtedly the better rule to allow the
special remedy of certiorari at the option of the party
adversely affected, when the irregularity committed
by the trial court is so grave and so far reaching in its
consequences that the long and cumbersome
procedure of appeal will only further aggravate the
situation of the aggrieved party because other
untoward actuations are likely to materialize as
natural consequences of those already perpetrated.
If the law were otherwise, certiorari would have no
reason at all for being.
No elaborate discussion is needed to show the urgent
need for corrective measures in the case at bar.
Verily, this is one case that calls for the exercise of
the Supreme Court's inherent power of supervision
over all kinds of judicial actions of lower courts.
Private respondent's procedural technique designed
to disable petitioners to defend themselves against
her claim which appears on the face of the record
itself to be at least highly controversial seems to

have so fascinated respondent court that none would

be surprised should her pending motion for
immediate execution of the impugned judgment
receive similar ready sanction as her previous
motions which turned the proceedings into a onesided affair. The stakes here are high. Not only is the
subject matter considerably substantial; there is the
more important aspect that not only the spirit and
intent of the rules but even the basic rudiments of
fair play have been disregarded. For the Court to
leave unrestrained the obvious tendency of the
proceedings below would be nothing short of
wittingly condoning inequity and injustice resulting
from erroneous construction and unwarranted
application of procedural rules.
5
The sum and total of all the foregoing disquisitions is
that the decision here in question is legally
anomalous. It is predicated on two fatal
malactuations of respondent court namely (1) the
dismissal of the complaint against the non-defaulted
defendants Lim and Leonardo and (2) the ex-parte
reception of the evidence of the plaintiff by the clerk
of court, the subsequent using of the same as basis
for its judgment and the rendition of such judgment.
For at least three reasons which We have already
fully discussed above, the order of dismissal of
October 21, 1974 is unworthy of Our sanction: (1)
there was no timely notice of the motion therefor to
the non-defaulted defendants, aside from there being
no notice at all to herein petitioners; (2) the common
answer of the defendants, including the nondefaulted, contained a compulsory counterclaim
incapable of being determined in an independent
action; and (3) the immediate effect of such
dismissal was the removal of the two non-defaulted
defendants as parties, and inasmuch as they are
both indispensable parties in the case, the court
consequently lost the" sine qua non of the exercise of
judicial power", per Borlasa vs. Polistico, supra. This
is not to mention anymore the irregular delegation to
the clerk of court of the function of receiving
plaintiff's evidence. And as regards the ex-parte
reception of plaintiff's evidence and subsequent
rendition of the judgment by default based thereon,
We have seen that it was violative of the right of the
petitioners, under the applicable rules and principles
on default, to a common and single fate with their
non-defaulted co-defendants. And We are not yet
referring, as We shall do this anon to the numerous
reversible errors in the decision itself.
It is to be noted, however, that the above-indicated
two fundamental flaws in respondent court's

actuations do not call for a common corrective

remedy. We cannot simply rule that all the impugned
proceedings are null and void and should be set
aside, without being faced with the insurmountable
obstacle that by so doing We would be reviewing the
case as against the two non-defaulted defendants
who are not before Us not being parties hereto. Upon
the other hand, for Us to hold that the order of
dismissal should be allowed to stand, as contended
by respondents themselves who insist that the same
is already final, not only because the period for its
finality has long passed but also because allegedly,
albeit not very accurately, said 'non-defaulted
defendants unsuccessfully tried to have it set aside
by the Court of Appeals whose decision on their
petition is also already final, We would have to
disregard whatever evidence had been presented by
the plaintiff against them and, of course, the findings
of respondent court based thereon which, as the
assailed decision shows, are adverse to them. In
other words, whichever of the two apparent remedies
the Court chooses, it would necessarily entail some
kind of possible juridical imperfection. Speaking of
their respective practical or pragmatic effects, to
annul the dismissal would inevitably prejudice the
rights of the non-defaulted defendants whom We
have not heard and who even respondents would not
wish to have anything anymore to do with the case.
On the other hand, to include petitioners in the
dismissal would naturally set at naught every effort
private respondent has made to establish or prove
her case thru means sanctioned by respondent court.
In short, We are confronted with a legal paradilemma. But one thing is certain this difficult
situations has been brought about by none other
than private respondent who has quite cynically
resorted to procedural maneuvers without realizing
that the technicalities of the adjective law, even
when apparently accurate from the literal point of
view, cannot prevail over the imperatives of the
substantive law and of equity that always underlie
them and which have to be inevitably considered in
the construction of the pertinent procedural rules.
All things considered, after careful and mature
deliberation, the Court has arrived at the conclusion
that as between the two possible alternatives just
stated, it would only be fair, equitable and proper to
uphold the position of petitioners. In other words, We
rule that the order of dismissal of October 21, 1974 is
in law a dismissal of the whole case of the plaintiff,
including as to petitioners herein. Consequently, all
proceedings held by respondent court subsequent
thereto including and principally its decision of
December 20, 1974 are illegal and should be set
aside.

This conclusion is fully justified by the following

considerations of equity:
1. It is very clear to Us that the procedural maneuver
resorted to by private respondent in securing the
decision in her favor was ill-conceived. It was
characterized by that which every principle of law
and equity disdains taking unfair advantage of the
rules of procedure in order to unduly deprive the
other party of full opportunity to defend his cause.
The idea of "dropping" the non-defaulted defendants
with the end in view of completely incapacitating
their co-defendants from making any defense,
without considering that all of them are
indispensable parties to a common cause of action to
which they have countered with a common defense
readily connotes an intent to secure a one-sided
decision, even improperly. And when, in this
connection, the obvious weakness of plaintiff's
evidence is taken into account, one easily
understands why such tactics had to be availed of.
We cannot directly or indirectly give Our assent to
the commission of unfairness and inequity in the
application of the rules of procedure, particularly
when the propriety of reliance thereon is not beyond
controversy.
2. The theories of remedial law pursued by private
respondents, although approved by His Honor, run
counter to such basic principles in the rules on
default and such elementary rules on dismissal of
actions and notice of motions that no trial court
should be unaware of or should be mistaken in
applying. We are at a loss as to why His Honor failed
to see through counsel's inequitous strategy, when
the provisions (1) on the three-day rule on notice of
motions, Section 4 of Rule 15, (2) against dismissal of
actions on motion of plaintiff when there is a
compulsory counterclaim, Section 2, Rule 17, (3)
against permitting the absence of indispensable
parties, Section 7, Rule 3, (4) on service of papers
upon defendants in default when there are
substantial amendments to pleadings, Section 9,
Rule 13, and (5) on the unity and integrity of the fate
of defendants in default with those not in default
where the cause of action against them and their
own defenses are common, Section 4, Rule 18, are so
plain and the jurisprudence declaratory of their intent
and proper construction are so readily
comprehensible that any error as to their application
would be unusual in any competent trial court.
3. After all, all the malactuations of respondent court
are traceable to the initiative of private respondent
and/or her counsel. She cannot, therefore, complain
that she is being made to unjustifiably suffer the
consequences of what We have found to be

erroneous orders of respondent court. It is only fair

that she should not be allowed to benefit from her
own frustrated objective of securing a one-sided
decision.
4. More importantly, We do not hesitate to hold that
on the basis of its own recitals, the decision in
question cannot stand close scrutiny. What is more,
the very considerations contained therein reveal
convincingly the inherent weakness of the cause of
the plaintiff. To be sure, We have been giving serious
thought to the idea of merely returning this case for
a resumption of trial by setting aside the order of
dismissal of October 21, 1974, with all its attendant
difficulties on account of its adverse effects on
parties who have not been heard, but upon closer
study of the pleadings and the decision and other
circumstances extant in the record before Us, We are
now persuaded that such a course of action would
only lead to more legal complications incident to
attempts on the part of the parties concerned to
desperately squeeze themselves out of a bad
situation. Anyway, We feel confident that by and
large, there is enough basis here and now for Us to
rule out the claim of the plaintiff.
Even a mere superficial reading of the decision would
immediately reveal that it is littered on its face with
deficiencies and imperfections which would have had
no reason for being were there less haste and more
circumspection in rendering the same. Recklessness
in jumping to unwarranted conclusions, both factual
and legal, is at once evident in its findings relative
precisely to the main bases themselves of the reliefs
granted. It is apparent therein that no effort has been
made to avoid glaring inconsistencies. Where
references are made to codal provisions and
jurisprudence, inaccuracy and inapplicability are at
once manifest. It hardly commends itself as a
deliberate and consciencious adjudication of a
litigation which, considering the substantial value of
the subject matter it involves and the unprecedented
procedure that was followed by respondent's
counsel, calls for greater attention and skill than the
general run of cases would.
Inter alia, the following features of the decision make
it highly improbable that if We took another course of
action, private respondent would still be able to
make out any case against petitioners, not to speak
of their co-defendants who have already been
exonerated by respondent herself thru her motion to
dismiss:
1. According to His Honor's own statement of
plaintiff's case, "she is the widow of the late Tee Hoon
Po Chuan (Po Chuan, for short) who was then one of

the partners in the commercial partnership, Glory

Commercial Co. with defendants Antonio Lim Tanhu
(Lim Tanhu, for short) and Alfonso Leonardo Ng Sua
(Ng Sua, for short) as co-partners; that after the
death of her husband on March 11, 1966 she is
entitled to share not only in the capital and profits of
the partnership but also in the other assets, both real
and personal, acquired by the partnership with funds
of the latter during its lifetime."
Relatedly, in the latter part of the decision, the
findings are to the following effect: .
That the herein plaintiff Tan Put and her late husband
Po Chuan married at the Philippine Independent
Church of Cebu City on December, 20, 1949; that Po
Chuan died on March 11, 1966; that the plaintiff and
the late Po Chuan were childless but the former has a
foster son Antonio Nuez whom she has reared since
his birth with whom she lives up to the present; that
prior to the marriage of the plaintiff to Po Chuan the
latter was already managing the partnership Glory
Commercial Co. then engaged in a little business in
hardware at Manalili St., Cebu City; that prior to and
just after the marriage of the plaintiff to Po Chuan
she was engaged in the drugstore business; that not
long after her marriage, upon the suggestion of Po
Chuan the plaintiff sold her drugstore for
P125,000.00 which amount she gave to her husband
in the presence of defendant Lim Tanhu and was
invested in the partnership Glory Commercial Co.
sometime in 1950; that after the investment of the
above-stated amount in the partnership its business
flourished and it embarked in the import business
and also engaged in the wholesale and retail trade of
cement and GI sheets and under huge profits;
xxx xxx xxx
That the late Po Chuan was the one who actively
managed the business of the partnership Glory
Commercial Co. he was the one who made the final
decisions and approved the appointments of new
personnel who were taken in by the partnership; that
the late Po Chuan and defendants Lim Tanhu and Ng
Sua are brothers, the latter two (2) being the elder
brothers of the former; that defendants Lim Tanhu
and Ng Sua are both naturalized Filipino citizens
whereas the late Po Chuan until the time of his death
was a Chinese citizen; that the three (3) brothers
were partners in the Glory Commercial Co. but Po
Chuan was practically the owner of the partnership
having the controlling interest; that defendants Lim
Tanhu and Ng Sua were partners in name but they
were mere employees of Po Chuan .... (Pp. 89-91,
Record.)

How did His Honor arrive at these conclusions? To

start with, it is not clear in the decision whether or
not in making its findings of fact the court took into
account the allegations in the pleadings of the
parties and whatever might have transpired at the
pre-trial. All that We can gather in this respect is that
references are made therein to pre-trial exhibits and
to Annex A of the answer of the defendants to
plaintiff's amended complaint. Indeed, it was
incumbent upon the court to consider not only the
evidence formally offered at the trial but also the
admissions, expressed or implied, in the pleadings,
as well as whatever might have been placed before it
or brought to its attention during the pre-trial. In this
connection, it is to be regretted that none of the
parties has thought it proper to give Us an idea of
what took place at the pre-trial of the present case
and what are contained in the pre-trial order, if any
was issued pursuant to Section 4 of Rule 20.
The fundamental purpose of pre-trial, aside from
affording the parties every opportunity to
compromise or settle their differences, is for the
court to be apprised of the unsettled issues between
the parties and of their respective evidence relative
thereto, to the end that it may take corresponding
measures that would abbreviate the trial as much as
possible and the judge may be able to ascertain the
facts with the least observance of technical rules. In
other words whatever is said or done by the parties
or their counsel at the pre- trial serves to put the
judge on notice of their respective basic positions, in
order that in appropriate cases he may, if necessary
in the interest of justice and a more accurate
determination of the facts, make inquiries about or
require clarifications of matters taken up at the pretrial, before finally resolving any issue of fact or of
law. In brief, the pre-trial constitutes part and parcel
of the proceedings, and hence, matters dealt with
therein may not be disregarded in the process of
decision making. Otherwise, the real essence of
compulsory pre-trial would be insignificant and
worthless.
Now, applying these postulates to the findings of
respondent court just quoted, it will be observed that
the court's conclusion about the supposed marriage
of plaintiff to the deceased Tee Hoon Lim Po Chuan is
contrary to the weight of the evidence brought
before it during the trial and the pre-trial.
Under Article 55 of the Civil Code, the declaration of
the contracting parties that they take each other as
husband and wife "shall be set forth in an
instrument" signed by the parties as well as by their
witnesses and the person solemnizing the marriage.
Accordingly, the primary evidence of a marriage

must be an authentic copy of the marriage contract.

While a marriage may also be proved by other
competent evidence, the absence of the contract
must first be satisfactorily explained. Surely, the
certification of the person who allegedly solemnized
a marriage is not admissible evidence of such
marriage unless proof of loss of the contract or of any
other satisfactory reason for its non-production is
first presented to the court. In the case at bar, the
purported certification issued by a Mons. Jose M.
Recoleto, Bishop, Philippine Independent Church,
Cebu City, is not, therefore, competent evidence,
there being absolutely no showing as to
unavailability of the marriage contract and, indeed,
as to the authenticity of the signature of said
certifier, the jurat allegedly signed by a second
assistant provincial fiscal not being authorized by
law, since it is not part of the functions of his office.
Besides, inasmuch as the bishop did not testify, the
same is hearsay.
As regards the testimony of plaintiff herself on the
same point and that of her witness Antonio Nuez,
there can be no question that they are both selfserving and of very little evidentiary value, it having
been disclosed at the trial that plaintiff has already
assigned all her rights in this case to said Nuez,
thereby making him the real party in interest here
and, therefore, naturally as biased as herself.
Besides, in the portion of the testimony of Nuez
copied in Annex C of petitioner's memorandum, it
appears admitted that he was born only on March 25,
1942, which means that he was less than eight years
old at the supposed time of the alleged marriage. If
for this reason alone, it is extremely doubtful if he
could have been sufficiently aware of such event as
to be competent to testify about it.
Incidentally, another Annex C of the same
memorandum purports to be the certificate of birth
of one Antonio T. Uy supposed to have been born on
March 23, 1937 at Centro Misamis, Misamis
Occidental, the son of one Uy Bien, father, and Tan
Put, mother. Significantly, respondents have not
made any adverse comment on this document. It is
more likely, therefore, that the witness is really the
son of plaintiff by her husband Uy Kim Beng. But she
testified she was childless. So which is which? In any
event, if on the strength of this document, Nuez is
actually the legitimate son of Tan Put and not her
adopted son, he would have been but 13 years old in
1949, the year of her alleged marriage to Po Chuan,
and even then, considering such age, his testimony
in regard thereto would still be suspect.
Now, as against such flimsy evidence of plaintiff, the
court had before it, two documents of great weight

belying the pretended marriage. We refer to (1)

Exhibit LL, the income tax return of the deceased Tee
Hoon Lim Po Chuan indicating that the name of his
wife was Ang Sick Tin and (2) the quitclaim, Annex A
of the answer, wherein plaintiff Tan Put stated that
she had been living with the deceased without
benefit of marriage and that she was his "commonlaw wife". Surely, these two documents are far more
reliable than all the evidence of the plaintiff put
together.
Of course, Exhibit LL is what might be termed as pretrial evidence. But it is evidence offered to the judge
himself, not to the clerk of court, and should have at
least moved him to ask plaintiff to explain if not rebut
it before jumping to the conclusion regarding her
alleged marriage to the deceased, Po Chuan. And in
regard to the quitclaim containing the admission of a
common-law relationship only, it is to be observed
that His Honor found that "defendants Lim Tanhu and
Ng Sua had the plaintiff execute a quitclaim on
November 29, 1967 (Annex "A", Answer) where they
gave plaintiff the amount of P25,000 as her share in
the capital and profits of the business of Glory
Commercial Co. which was engaged in the hardware
business", without making mention of any evidence
of fraud and misrepresentation in its execution,
thereby indicating either that no evidence to prove
that allegation of the plaintiff had been presented by
her or that whatever evidence was actually offered
did not produce persuasion upon the court. Stated
differently, since the existence of the quitclaim has
been duly established without any circumstance to
detract from its legal import, the court should have
held that plaintiff was bound by her admission
therein that she was the common-law wife only of Po
Chuan and what is more, that she had already
renounced for valuable consideration whatever claim
she might have relative to the partnership Glory
Commercial Co.
And when it is borne in mind that in addition to all
these considerations, there are mentioned and
discussed in the memorandum of petitioners (1) the
certification of the Local Civil Registrar of Cebu City
and (2) a similar certification of the Apostolic Prefect
of the Philippine Independent Church, Parish of Sto.
Nio, Cebu City, that their respective official records
corresponding to December 1949 to December 1950
do not show any marriage between Tee Hoon Lim Po
Chuan and Tan Put, neither of which certifications
have been impugned by respondent until now, it
stands to reason that plaintiff's claim of marriage is
really unfounded. Withal, there is still another
document, also mentioned and discussed in the
same memorandum and unimpugned by
respondents, a written agreement executed in

Chinese, but purportedly translated into English by

the Chinese Consul of Cebu, between Tan Put and Tee
Hoon Lim Po Chuan to the following effect:

be parties to a fraudulent document His Honor did

right in recognizing its existence, albeit erring in not
giving due legal significance to its contents.

CONSULATE OF THE REPUBLIC OF CHINA Cebu City,

Philippines

2. If, as We have seen, plaintiff's evidence of her

alleged status as legitimate wife of Po Chuan is not
only unconvincing but has been actually overcome
by the more competent and weighty evidence in
favor of the defendants, her attempt to substantiate
her main cause of action that defendants Lim Tanhu
and Ng Sua have defrauded the partnership Glory
Commercial Co. and converted its properties to
themselves is even more dismal. From the very
evidence summarized by His Honor in the decision in
question, it is clear that not an iota of reliable proof
exists of such alleged misdeeds.

TRANSLATION
This is to certify that 1, Miss Tan Ki Eng Alias Tan Put,
have lived with Mr. Lim Po Chuan alias TeeHoon since
1949 but it recently occurs that we are incompatible
with each other and are not in the position to keep
living together permanently. With the mutual
concurrence, we decided to terminate the existing
relationship of common law-marriage and promised
not to interfere each other's affairs from now on. The
Forty Thousand Pesos (P40,000.00) has been given to
me by Mr. Lim Po Chuan for my subsistence.
Witnesses:
Mr. Lim Beng Guan Mr. Huang Sing Se
Signed on the 10 day of the 7th month of the 54th
year of the Republic of China (corresponding to the
year 1965).
(SGD) TAN KI ENG
Verified from the records. JORGE TABAR (Pp. 283-284,
Record.)
Indeed, not only does this document prove that
plaintiff's relation to the deceased was that of a
common-law wife but that they had settled their
property interests with the payment to her of
P40,000.
In the light of all these circumstances, We find no
alternative but to hold that plaintiff Tan Put's
allegation that she is the widow of Tee Hoon Lim Po
Chuan has not been satisfactorily established and
that, on the contrary, the evidence on record
convincingly shows that her relation with said
deceased was that of a common-law wife and
furthermore, that all her claims against the company
and its surviving partners as well as those against
the estate of the deceased have already been settled
and paid. We take judicial notice of the fact that the
respective counsel who assisted the parties in the
quitclaim, Attys. H. Hermosisima and Natalio Castillo,
are members in good standing of the Philippine Bar,
with the particularity that the latter has been a
member of the Cabinet and of the House of
Representatives of the Philippines, hence, absent any
credible proof that they had allowed themselves to

Of course, the existence of the partnership has not

been denied, it is actually admitted impliedly in
defendants' affirmative defense that Po Chuan's
share had already been duly settled with and paid to
both the plaintiff and his legitimate family. But the
evidence as to the actual participation of the
defendants Lim Tanhu and Ng Sua in the operation of
the business that could have enabled them to make
the extractions of funds alleged by plaintiff is at best
confusing and at certain points manifestly
inconsistent.
In her amended complaint, plaintiff repeatedly
alleged that as widow of Po Chuan she is entitled to /
3 share of the assets and properties of the
partnership. In fact, her prayer in said complaint is,
among others, for the delivery to her of such / 3
share. His Honor's statement of the case as well as
his findings and judgment are all to that same effect.
But what did she actually try to prove at the exparte hearing?
According to the decision, plaintiff had shown that
she had money of her own when she "married" Po
Chuan and "that prior to and just after the marriage
of the plaintiff to Po Chuan, she was engaged in the
drugstore business; that not long after her marriage,
upon the suggestion of Po Chuan, the plaintiff sold
her drugstore for P125,000 which amount she gave
to her husband in the presence of Tanhu and was
invested in the partnership Glory Commercial Co.
sometime in 1950; that after the investment of the
above-stated amount in the partnership, its business
flourished and it embarked in the import business
and also engaged in the wholesale and retail trade of
cement and GI sheets and under (sic) huge profits."
(pp. 25-26, Annex L, petition.)
To begin with, this theory of her having contributed of
P125,000 to the capital of the partnership by reason

of which the business flourished and amassed all the

millions referred to in the decision has not been
alleged in the complaint, and inasmuch as what was
being rendered was a judgment by default, such
theory should not have been allowed to be the
subject of any evidence. But inasmuch as it was the
clerk of court who received the evidence, it is
understandable that he failed to observe the rule.
Then, on the other hand, if it was her capital that
made the partnership flourish, why would she claim
to be entitled to only to / 3 of its assets and profits?
Under her theory found proven by respondent court,
she was actually the owner of everything, particularly
because His Honor also found "that defendants Lim
Tanhu and Ng Sua were partners in the name but
they were employees of Po Chuan that defendants
Lim Tanhu and Ng Sua had no means of livelihood at
the time of their employment with the Glory
Commercial Co. under the management of the late
Po Chuan except their salaries therefrom; ..." (p. 27,
id.) Why then does she claim only / 3 share? Is this
an indication of her generosity towards defendants or
of a concocted cause of action existing only in her
confused imagination engendered by the death of
her common-law husband with whom she had settled
her common-law claim for recompense of her
services as common law wife for less than what she
must have known would go to his legitimate wife and
children?
Actually, as may be noted from the decision itself,
the trial court was confused as to the participation of
defendants Lim Tanhu and Ng Sua in Glory
Commercial Co. At one point, they were deemed
partners, at another point mere employees and then
elsewhere as partners-employees, a newly found
concept, to be sure, in the law on partnership. And
the confusion is worse comfounded in the judgment
which allows these "partners in name" and "partnersemployees" or employees who had no means of
livelihood and who must not have contributed any
capital in the business, "as Po Chuan was practically
the owner of the partnership having the controlling
interest", / 3 each of the huge assets and profits of
the partnership. Incidentally, it may be observed at
this juncture that the decision has made Po Chuan
play the inconsistent role of being "practically the
owner" but at the same time getting his capital from
the P125,000 given to him by plaintiff and from
which capital the business allegedly "flourished."
Anent the allegation of plaintiff that the properties
shown by her exhibits to be in the names of
defendants Lim Tanhu and Ng Sua were bought by
them with partnership funds, His Honor confirmed
the same by finding and holding that "it is likewise
clear that real properties together with the

improvements in the names of defendants Lim Tanhu

and Ng Sua were acquired with partnership funds as
these defendants were only partners-employees of
deceased Po Chuan in the Glory Commercial Co. until
the time of his death on March 11, 1966." (p. 30, id.)
It Is Our considered view, however, that this
conclusion of His Honor is based on nothing but pure
unwarranted conjecture. Nowhere is it shown in the
decision how said defendants could have extracted
money from the partnership in the fraudulent and
illegal manner pretended by plaintiff. Neither in the
testimony of Nuez nor in that of plaintiff, as these
are summarized in the decision, can there be found
any single act of extraction of partnership funds
committed by any of said defendants. That the
partnership might have grown into a multi-million
enterprise and that the properties described in the
exhibits enumerated in the decision are not in the
names of Po Chuan, who was Chinese, but of the
defendants who are Filipinos, do not necessarily
prove that Po Chuan had not gotten his share of the
profits of the business or that the properties in the
names of the defendants were bought with money of
the partnership. In this connection, it is decisively
important to consider that on the basis of the
concordant and mutually cumulative testimonies of
plaintiff and Nuez, respondent court found very
explicitly that, and We reiterate:
xxx xxx xxx
That the late Po Chuan was the one who actively
managed the business of the partnership Glory
Commercial Co. he was the one who made the final
decisions and approved the appointments of new
Personnel who were taken in by the partnership; that
the late Po Chuan and defendants Lim Tanhu and Ng
Sua are brothers, the latter to (2) being the elder
brothers of the former; that defendants Lim Tanhu
and Ng Sua are both naturalized Filipino citizens
whereas the late Po Chuan until the time of his death
was a Chinese citizen; that the three (3) brothers
were partners in the Glory Commercial Co. but Po
Chuan was practically the owner of the partnership
having the controlling interest; that defendants Lim
Tanhu and Ng Sua were partners in name but they
were mere employees of Po Chuan; .... (Pp. 90-91,
Record.)
If Po Chuan was in control of the affairs and the
running of the partnership, how could the defendants
have defrauded him of such huge amounts as
plaintiff had made his Honor believe? Upon the other
hand, since Po Chuan was in control of the affairs of
the partnership, the more logical inference is that if
defendants had obtained any portion of the funds of
the partnership for themselves, it must have been

with the knowledge and consent of Po Chuan, for

which reason no accounting could be demanded from
them therefor, considering that Article 1807 of the
Civil Code refers only to what is taken by a partner
without the consent of the other partner or partners.
Incidentally again, this theory about Po Chuan having
been actively managing the partnership up to his
death is a substantial deviation from the allegation in
the amended complaint to the effect that
"defendants Antonio Lim Tanhu, Alfonso Leonardo Ng
Sua, Lim Teck Chuan and Eng Chong Leonardo,
through fraud and machination, took actual and
active management of the partnership and although
Tee Hoon Lim Po Chuan was the manager of Glory
Commercial Co., defendants managed to use the
funds of the partnership to purchase lands and
buildings etc. (Par. 4, p. 2 of amended complaint,
Annex B of petition) and should not have been
permitted to be proven by the hearing officer, who
naturally did not know any better.
Moreover, it is very significant that according to the
very tax declarations and land titles listed in the
decision, most if not all of the properties supposed to
have been acquired by the defendants Lim Tanhu and
Ng Sua with funds of the partnership appear to have
been transferred to their names only in 1969 or later,
that is, long after the partnership had been
automatically dissolved as a result of the death of Po
Chuan. Accordingly, defendants have no obligation to
account to anyone for such acquisitions in the
absence of clear proof that they had violated the
trust of Po Chuan during the existence of the
partnership. (See Hanlon vs. Hansserman and. Beam,
40 Phil. 796.)
There are other particulars which should have caused
His Honor to readily disbelieve plaintiffs' pretensions.
Nuez testified that "for about 18 years he was in
charge of the GI sheets and sometimes attended to
the imported items of the business of Glory
Commercial Co." Counting 18 years back from 1965
or 1966 would take Us to 1947 or 1948. Since
according to Exhibit LL, the baptismal certificate
produced by the same witness as his birth certificate,
shows he was born in March, 1942, how could he
have started managing Glory Commercial Co. in 1949
when he must have been barely six or seven years
old? It should not have escaped His Honor's attention
that the photographs showing the premises of
Philippine Metal Industries after its organization "a
year or two after the establishment of Cebu Can
Factory in 1957 or 1958" must have been taken after
1959. How could Nuez have been only 13 years old
then as claimed by him to have been his age in those
photographs when according to his "birth certificate",
he was born in 1942? His Honor should not have

overlooked that according to the same witness,

defendant Ng Sua was living in Bantayan until he was
directed to return to Cebu after the fishing business
thereat floundered, whereas all that the witness
knew about defendant Lim Teck Chuan's arrival from
Hongkong and the expenditure of partnership money
for him were only told to him allegedly by Po Chuan,
which testimonies are veritably exculpatory as to Ng
Sua and hearsay as to Lim Teck Chuan. Neither
should His Honor have failed to note that according
to plaintiff herself, "Lim Tanhu was employed by her
husband although he did not go there always being a
mere employee of Glory Commercial Co." (p. 22,
Annex the decision.)
The decision is rather emphatic in that Lim Tanhu and
Ng Sua had no known income except their salaries.
Actually, it is not stated, however, from what
evidence such conclusion was derived in so far as Ng
Sua is concerned. On the other hand, with respect to
Lim Tanhu, the decision itself states that according to
Exhibit NN-Pre trial, in the supposed income tax
return of Lim Tanhu for 1964, he had an income of
P4,800 as salary from Philippine Metal Industries
alone and had a total assess sable net income of
P23,920.77 that year for which he paid a tax of
P4,656.00. (p. 14. Annex L, id.) And per Exhibit GGPretrial in the year, he had a net income of P32,000
for which be paid a tax of P3,512.40. (id.) As early as
1962, "his fishing business in Madridejos Cebu was
making money, and he reported "a net gain from
operation (in) the amount of P865.64" (id., per
Exhibit VV-Pre-trial.) From what then did his Honor
gather the conclusion that all the properties
registered in his name have come from funds
malversed from the partnership?
It is rather unusual that His Honor delved into
financial statements and books of Glory Commercial
Co. without the aid of any accountant or without the
same being explained by any witness who had
prepared them or who has knowledge of the entries
therein. This must be the reason why there are
apparent inconsistencies and inaccuracies in the
conclusions His Honor made out of them. In Exhibit
SS-Pre-trial, the reported total assets of the company
amounted to P2,328,460.27 as of December, 1965,
and yet, Exhibit TT-Pre-trial, according to His Honor,
showed that the total value of goods available as of
the same date was P11,166,327.62. On the other
hand, per Exhibit XX-Pre-trial, the supposed balance
sheet of the company for 1966, "the value of
inventoried merchandise, both local and imported",
as found by His Honor, was P584,034.38. Again, as of
December 31, 1966, the value of the company's
goods available for sale was P5,524,050.87, per
Exhibit YY and YY-Pre-trial. Then, per Exhibit II-3-Pre-

trial, the supposed Book of Account, whatever that is,

of the company showed its "cash analysis" was
P12,223,182.55. We do not hesitate to make the
observation that His Honor, unless he is a certified
public accountant, was hardly qualified to read such
exhibits and draw any definite conclusions therefrom,
without risk of erring and committing an injustice. In
any event, there is no comprehensible explanation in
the decision of the conclusion of His Honor that there
were P12,223,182.55 cash money defendants have
to account for, particularly when it can be very
clearly seen in Exhibits 11-4, 11-4- A, 11-5 and 11-6Pre-trial, Glory Commercial Co. had accounts payable
as of December 31, 1965 in the amount of
P4,801,321.17. (p. 15, id.) Under the circumstances,
We are not prepared to permit anyone to predicate
any claim or right from respondent court's unaided
exercise of accounting knowledge.
Additionally, We note that the decision has not made
any finding regarding the allegation in the amended
complaint that a corporation denominated Glory
Commercial Co., Inc. was organized after the death of
Po Chuan with capital from the funds of the
partnership. We note also that there is absolutely no
finding made as to how the defendants Dy Ochay
and Co Oyo could in any way be accountable to
plaintiff, just because they happen to be the wives of
Lim Tanhu and Ng Sua, respectively. We further note
that while His Honor has ordered defendants to
deliver or pay jointly and severally to the plaintiff
P4,074,394.18 or / 3 of the P12,223,182.55, the
supposed cash belonging to the partnership as of
December 31, 1965, in the same breath, they have
also been sentenced to partition and give / 3 share
of the properties enumerated in the dispositive
portion of the decision, which seemingly are the very
properties allegedly purchased from the funds of the
partnership which would naturally include the
P12,223,182.55 defendants have to account for.
Besides, assuming there has not yet been any
liquidation of the partnership, contrary to the
allegation of the defendants, then Glory Commercial
Co. would have the status of a partnership in
liquidation and the only right plaintiff could have
would be to what might result after such liquidation
to belong to the deceased partner, and before this is
finished, it is impossible to determine, what rights or
interests, if any, the deceased had (Bearneza vs.
Dequilla 43 Phil. 237). In other words, no specific
amounts or properties may be adjudicated to the heir
or legal representative of the deceased partner
without the liquidation being first terminated.
Indeed, only time and the fear that this decision
would be much more extended than it is already
prevent us from further pointing out the inexplicable

deficiencies and imperfections of the decision in

question. After all, what have been discussed should
be more than sufficient to support Our conclusion
that not only must said decision be set aside but also
that the action of the plaintiff must be totally
dismissed, and, were it not seemingly futile and
productive of other legal complications, that plaintiff
is liable on defendants' counterclaims. Resolution of
the other issues raised by the parties albeit
important and perhaps pivotal has likewise become
superfluous.
IN VIEW OF ALL THE FOREGOING, the petition is
granted. All proceedings held in respondent court in
its Civil Case No. 12328 subsequent to the order of
dismissal of October 21, 1974 are hereby annulled
and set aside, particularly the ex-parte proceedings
against petitioners and the decision on December 20,
1974. Respondent court is hereby ordered to enter
an order extending the effects of its order of
dismissal of the action dated October 21, 1974 to
herein petitioners Antonio Lim Tanhu, Dy Ochay,
Alfonso Leonardo Ng Sua and Co Oyo. And
respondent court is hereby permanently enjoined
from taking any further action in said civil case gave
and except as herein indicated. Costs against private
respondent.
Makalintal, C.J., Fernando, Aquino and Concepcion Jr.,
JJ., concur.
G.R. No. 118904. April 20, 1998.*
ARTURIO TRINIDAD, petitioner, vs. COURT OF
APPEALS, FELIX TRINIDAD (deceased) and
LOURDES TRINIDAD, respondents.
Criminal Law; Family Code; Marriages; Circumstances
which would constitute competent evidence to prove
the fact of marriage.Pugeda vs. Trias ruled that
when the question of whether a marriage has been
contracted arises in litigation, said marriage may be
proven by relevant evidence. To prove the fact of
marriage, the following would constitute competent
evidence: the testimony of a witness to the
matrimony, the couples public and open
cohabitation as husband and wife after the alleged
wedlock, the birth and the baptismal certificates of
children born during such union, and the mention of
such nuptial in subsequent documents.
Same; Same; Paternity and Filiation; A baptismal
certificate though not a conclusive proof of filiation,
is one of the other means allowed under the Rules
of Court and special laws to show pedigree.
Although a baptismal certificate is indeed not a
conclusive

proof of filiation, it is one of the other means

allowed under the Rules of Court and special laws to
show pedigree, as this Court ruled in Mendoza vs.
Court of Appeals: What both the trial court and the
respondent court did not take into account is that an
illegitimate child is allowed to establish his claimed
filiation by any other means allowed by the Rules of
Court and special laws, according to the Civil Code,
or by evidence of proof in his favor that the
defendant is her father, according to the Family
Code. Such evidence may consist of his baptismal
certificate, a judicial admission, a family Bible in
which his name has been entered, common
reputation respecting his pedigree, admission by
silence, the testimony of witnesses, and other kinds
of proof admissible under Rule 130 of the Rules of
Court.
Same; Property; Prescription; Co-ownership; No
prescription runs in favor of a co-owner or co-heir
against his or her co-owners or co-heirs, so long as
he or she expressly or impliedly recognizes the coownership.Private respondents have not acquired
ownership of the property in question by acquisitive
prescription. In a co-ownership, the act of one
benefits all the other co-owners, unless the former
repudiates the co-ownership. Thus, no prescription
runs in favor of a co-owner or co-heir against his or
her co-owners or co-heirs, so long as he or she
expressly or impliedly recognizes the co-ownership.
Same; Same; Same; Same; A co-owner cannot
acquire by prescription the share of the other coowners absent a clear repudiation of co-ownership
duly communicated to the other co-owners.
Otherwise stated, a co-owner cannot acquire by
prescription the share of the other co-owners absent
a clear repudiation of co-ownership duly
communicated to the other co-owners (Mariano vs.
De Vega, 148 SCRA 342 [1987]). Furthermore, an
action to demand partition is imprescriptible and
cannot be barred by laches (Del Banco vs. IAC, 156
SCRA 55 [1987]). On the other hand, an action for
partition may be seen to be at once an action for
declaration of co-ownership and for segregation and
conveyance of a determinate portion of the property
involved (Roque vs. IAC, 165 SCRA 118 [1988]).
PETITION for review on certiorari of a decision of the
Court of Appeals.
The facts are stated in the opinion of the Court.
Public Attorneys Office for petitioner.
Liberato R. Ibadlit for private respondents.
PANGANIBAN, J.:

In the absence of a marriage contract and a birth

certificate, how may marriage and filiation be
proven?
The Case
This is the main question raised in this petition for
review on certiorari challenging the Court of
Appeals1 Decision promulgated on December 1,
19942 and Resolution promulgated on February 8,
19953 in CA-GR CV No. 23275, which reversed the
decision of the trial court and dismissed petitioners
action for partition and damages.
On August 10, 1978, Petitioner Arturio Trinidad filed a
complaint4 for partition and damages against Private
Respondents Felix and Lourdes, both surnamed
Trinidad, before the Court of First Instance of Aklan,
Branch I.5 On October 28, 1982, Felix died without
issue, so he was not substituted as a party.6
On July 4, 1989, the trial court rendered a twentypage decision7 in favor of the petitioner, in which it
ruled:
Considering therefore that this court is of the
opinion that plaintiff is the legitimate son of
Inocentes Trinidad, plaintiff is entitled to inherit the
property left by his deceased father which is 1/3 of
the 4 parcels of land subject matter of this case.
Although the plaintiff had testified that he had been
receiving [his] share from said land before and the
same was stopped, there was no evidence
introduced as to what year he stopped receiving his
share and for how much. This court therefore cannot
rule on that.
In its four-page Decision, Respondent Court reversed
the trial court on the ground that petitioner failed to
adduce sufficient evidence to prove that his parents
were legally married to each other and that
acquisitive prescription against him had set in. The
assailed Decision disposed:9
WHEREFORE, the Court REVERSES the appealed
decision. In lieu thereof, the Court hereby DISMISSES
the [petitioners] complaint and the counterclaim
thereto.
Without costs.
Respondent Court denied reconsideration in its
impugned Resolution which reads:10
The Court DENIES defendants-appellants motion for
reconsideration, dated December 15, 1994, for lack
of merit. There are no new or substantial matters

raised in the motion that merit the modification of

the decision.
Hence, this petition.11
The Facts
The assailed Decision recites the factual background
of this case, as follows:
On August 10, 1978, plaintiff [herein petitioner] filed
with the Court of First Instance of Aklan, Kalibo,
Aklan, an action for partition of four (4) parcels of
land, described therein, claiming that he was the son
of the late Inocentes Trinidad, one of three (3)
children of Patricio Trinidad, who was the original
owner of the parcels of land. Patricio Trinidad died in
1940, leaving the four (4) parcels of land to his three
(3) children, Inocentes, Lourdes and Felix. In 1970,
plaintiff demanded from the defendants to partition
the land into three (3) equal shares and to give him
the one-third (1/3) individual share of his late father,
but the defendants refused.
In their answer, filed on September 07, 1978,
defendants denied that plaintiff was the son of the
late Inocentes Trinidad. Defendants contended that
Inocentes was single when he died in 1941, before
plaintiffs birth. Defendants also denied that plaintiff
had lived with them, and claimed that the parcels of
land described in the complaint had been in their
possession since the death of their father in 1940
and that they had not given plaintiff a share in the
produce of the land.
Patricio Trinidad and Anastacia Briones were the
parents of three (3) children, namely, Inocentes,
Lourdes and Felix. When Patricio died in 1940,
survived by the above named children, he left four
(4) parcels of land, all situated at Barrio Tigayon,
Kalibo, Aklan.
Arturio Trinidad, born on July 21, 1943, claimed to be
the legitimate son of the late Inocentes Trinidad.
Arturio got married in 1966 to Candelaria Gaspar, at
the age of twenty three (23). Sometime after the
marriage, Arturio demanded from the defendants
that the above-mentioned parcels of land be
partitioned into three (3) equal shares and that he be
given the one-third (1/3) individual shares of his late
father, but defendants refused.
In order to appreciate more clearly the evidence
adduced by both parties, this Court hereby
reproduces pertinent portions of the trial courts
decision:

EVIDENCE FOR THE PLAINTIFF:

Plaintiff presented as his first witness, Jovita Gerardo,
77 years old, (at the time she testified in 1981) who
is the barangay captain of barrio Tigayon, Kalibo,
Aklan, since 1972. She testified that before being
elected as barrio captain she held the position of
barrio council-woman for 4 years. Also she was [a
member of the] board of director[s] of the ParentTeachers Association of Tigayon, Kalibo, Aklan. That
she knows the plaintiff because they are neighbors
and she knows him from the time of his birth. She
knows the father of the plaintiff as Inocentes Trinidad
and his mother Felicidad Molato; both were already
dead, Inocentes having died in 1944 and his wife
died very much later. Witness recalls plaintiff was
born in 1943 in Barrio Tigayon, Kalibo, Aklan, on July
21, 1943. At the time of the birth of the plaintiff, the
house of the witness was about 30 meters away from
plaintiffs parents[] house and she used to go there 2
or 3 times a week. That she knows both the
defendants as they are also neighbors. That both
Felix and Lourdes Trinidad are the uncle and aunt of
Arturio because Inocentes Trinidad who is the father
of the plaintiff is the brother of the defendants, Felix
and Lourdes Trinidad. She testified she also knows
that the father of Inocentes, Felix and Lourdes[,] all
surnamed Trinidad[,] was Patricio Trinidad who is
already dead but left several parcels of land which
are the 4 parcels subject of this litigation. That she
knows all these [parcels of] land because they are
located in Barrio Tigayon.
When asked about the adjoining owners or
boundaries of the 4 parcels of land, witness
answered and mentioned the respective adjoining
owners. That she knew these 4 parcels belonged to
Patricio Trinidad because said Patricio Trinidad was a
native also of Barrio Tigayon. Said Patricio died
before the [war] and after his death the land went to
his 3 children, namely: Inocentes, Felix and Lourdes.
Since then the land was never partitioned or divided
among the 3 children of Patricio.
A picture, Exhibit A, was shown to the witness for
identification and she identified a woman in the
picture as the defendant, Lourdes Trinidad. A man
with a hat holding a baby was identified by her as
Felix Trinidad, the defendant. The other woman in the
picture was pointed by the witness as the wife of the
plaintiff, Arturio Trinidad. When asked if Arturio
Trinidad and Lourdes Trinidad and Felix Trinidad
pointed to by her in the picture are the same Arturio,
Felix and Lourdes, who are the plaintiff and the
defendants in this case, witness answered yes.

Another picture marked as Exhibit B was presented

to the witness for identification. She testified the
woman in this picture as Lourdes Trinidad. In said
picture, Lourdes Trinidad was holding a child which
witness identified as the child Arturio Trinidad. When
asked by the court when x x x the picture [was]
taken, counsel for the plaintiff answered, in 1966.
When asked if Arturio Trinidad was baptized, witness
answered yes, as she had gone to the house of his
parents. Witness then identified the certificate of
baptism marked as Exhibit C. The name Arturio
Trinidad was marked as Exhibit C-1 and the name of
Inocentes Trinidad and Felicidad Molato as father and
mother respectively, were marked as Exhibit C-2. The
date of birth being July 21, 1943 was also marked.
The signature of Monsignor Iturralde was also
identified.
On cross-examination, witness testified that she
[knew] the land in question very well as she used to
pass by it always. It was located just near her house
but she cannot exactly tell the area as she merely
passes by it. When asked if she [knew] the
photographer who took the pictures presented as
Exhibit A and B, witness answered she does not know
as she was not present during the picture taking.
However, she can identify everybody in the picture
as she knows all of them.
At this stage of the trial, Felix Trinidad [died] without
issue and he was survived by his only sister, Lourdes
Trinidad, who is his co-defendant in this case.
Next witness for the plaintiff was ISABEL MEREN who
was 72 years old and a widow. She testified having
known Inocentes Trinidad as the father of Arturio
Trinidad and that Inocentes, Felix and Lourdes are
brothers and sister and that their father was Patricio
Trinidad who left them 4 parcels of land. That she
knew Inocentes Trinidad and Felicidad Molato who
are the parents of Arturio, the plaintiff, were married
in New Washington, Aklan, by a protestant pastor by
the name of Lauriano Lajaylajay. That she knows
Felicidad Molato and Lourdes Trinidad very well
because as a farmer she also owns a parcel of land
[and] she used to invite Felicidad and Lourdes to help
her during planting and harvesting season. That she
knows that during the lifetime of Inocentes the three
of them, Inocentes, Felix and Lourdes possessed and
usufructed the 4 parcels they inherited from their
father, Patricio. That upon the death of Inocentes,
Lourdes Trinidad was in possession of the property
without giving the widow of Inocentes any share of
the produce. As Lourdes outlived her two brothers,
namely: Felix and Inocentes, she was the one
possessing and usufructing the 4 parcels of land up

to the present. The witness testified that upon the

death of Inocentes, Lourdes took Arturio and cared
for him when he was still small, about 3 years old,
until Arturio grew up and got married. That while
Arturio was growing up, he had also enjoyed the
produce of the land while he was being taken care of
by Lourdes Trinidad. That a misunderstanding later
on arose when Arturio Trinidad wanted to get his
fathers share but Lourdes Trinidad will not give it to
him.
Plaintiff, ARTURIO TRINIDAD, himself, was presented
as witness. He testified that defendants, Lourdes and
Felix Trinidad, are his aunt and uncle, they being the
brother and sister of his father. That the parents of
his father and the defendants were Patricio Trinidad
and Anastacia Briones. That both his father,
Inocentes Trinidad, and mother, Felicidad Molato,
were already dead having died in Tigayon, his father
having died in 1944 and his mother about 25 years
ago.
As proof that he is the son of Inocentes Trinidad and
Felicidad Molato, he showed a certificate of baptism
which had been previously marked as Exhibit C. That
his birth certificate was burned during World War 2
but he has a certificate of loss issued by the Civil
Registrar of Kalibo, Aklan.
When he was 14 years old, the defendants invited
him to live with them being their nephew as his
mother was already dead. Plaintiffs mother died
when he was 13 years old. They treated him well and
provided for all his needs. He lived with defendants
for 5 years. At the age of 19, he left the house of the
defendants and lived on his own. He got married at
23 to Candelaria Gaspar and then they were invited
by the defendants to live with them. So he and his
wife and children lived with the defendants. As proof
that he and his family lived with the defendants
when the latter invited him to live with them, he
presented a picture previously marked as Exhibit B
where there appears his aunt, Lourdes Trinidad,
carrying plaintiffs daughter, his uncle and his wife. In
short, it is a family picture according to him. Another
family picture previously marked Exhibit A shows his
uncle, defendant Felix Trinidad, carrying plaintiffs
son. According to him, these 2 pictures were taken
when he and his wife and children were living with
the defendants. That a few years after having lived
with them, the defendants made them vacate the
house for he requested for partition of the land to get
his share. He moved out and looked for [a] lawyer to
handle his case. He testified there are 4 parcels of
land in controversy of which parcel 1 is an upland.
Parcel 1 is 1,000 square meters, [has] 10 coconut
trees and fruit bearing. The harvest is 100 coconuts

every 4 months and the cost of coconuts is P2.00

each. The boundaries are: East-Federico Inocencio;
West-Teodulo Dionesio; North-Teodulo Dionesio; and
South-Bulalio Briones; located at Tigayon.
Parcel 2 is an upland with an area of 500 square
meters; it has only 1 coconut tree and 1 bamboo
groove; also located in Tigayon, Kalibo, Aklan.
Adjoining owners are: East-Ambrosio Trinidad; NorthFederico Inocencio; West-Patricio Trinidad and
SouthGregorio Briones.
Parcel 3 is about 12,000 square meters and 1/4 of
that belongs to Patricio Trinidad, the deceased father
of the defendants and Inocentes, the father of the
plaintiff.
Parcel 4 is a riceland with an area of 5,000 square
meters. The harvest is 40 cavans two times a years
[sic]. Adjoining owners are: East-Gregorio Briones;
West-Bulalio Briones; South-Federico Inocencio and
North-Digna Carpio.
Parcel 1 is Lot No. 903.
Parcel 2 is Lot No. 864 of the cadastral survey of
Kalibo and only Lot 864-A with an area of 540 square
meters is the subject of litigation.
Parcel 3 is Lot No. 979 of the cadastral survey of
Kalibo covered by Tax Decl. No. 703310 with
reference to one of the owners of the land, Patricio
Trinidad married to Anastacia Briones, one-half share.
Parcel 4 is covered by Original Certificate of Title No.
22502 RO-174 covering Lot No. 863 of the cadastral
survey of Kalibo. The title is in the name of Patricio
Trinidad married to Anastacia Briones.
Parcel 1 is covered by Tax Decl. No. 11609 in the
name of Patricio Trinidad while parcel 2 is covered by
Tax Decl. No. 10626 in the name of Anastacia Briones
and another Tax Declaration No. 11637 for Parcel 3 in
the name of Ambrosio Trinidad while Parcel 4 is
covered by Tax Decl. No. 16378 in the name of
Patricio Trinidad.
On cross-examination, plaintiff testified that during
the lifetime of his mother they were getting the share
in the produce of the land like coconuts, palay and
corn. Plaintiff further testified that his father is
Inocentes Trinidad and his mother was Felicidad
Molato. They were married in New Washington,
Aklan, by a certain Atty. Lajaylajay. When asked if this
Atty. Lajaylajay is a municipal
judge of New Washington, Aklan, plaintiff answered
he does not know because he was not yet born at

that time. That he does not have the death

certificate of his father who died in 1944 because it
was wartime. That after the death of his father, he
lived with his mother and when his mother died[,] he
lived with his aunt and uncle, the defendants in this
case. That during the lifetime of his mother, it was
his mother receiving the share of the produce of the
land. That both defendants, namely Lourdes and Felix
Trinidad, are single and they have no other nephews
and nieces. That [petitioners] highest educational
attainment is Grade 3.
EVIDENCE FOR THE DEFENDANTS:
First witness for the defendants was PEDRO BRIONES,
68 years old, unemployed and a resident of Nalook,
Kalibo, Aklan. He testified having known the
defendants, Felix and Lourdes Trinidad. They being
his first cousins because the mother of Lourdes and
Felix by the name of Anastacia Briones and his father
are sister and brother. That he also knew Inocentes
Trinidad being the brother of Felix and Lourdes and
he is already dead. According to the witness,
Inocentes Trinidad [died] in 1940 and at the time of
his death Inocentes Trinidad was not married. That he
knew this fact because at the time of the death of
Inocentes Trinidad he was then residing with his aunt,
Nanay Taya, referring to Anastacia Briones who is
mother of the defendants, Felix and Lourdes Trinidad,
as well as Inocentes Trinidad. That at the time of the
death of Inocentes Trinidad, according to this witness
he stayed with his aunt, Anastacia Trinidad, and with
his children before 1940 for only 3 months. When
asked if he knew Inocentes Trinidad cohabited with
anybody before his death, he answered, That I do
not know, neither does he kn[o]w a person by the
name of Felicidad Molato. Furthermore, when asked if
he can recall if during the lifetime of Inocentes
Trinidad witness knew of anybody with whom said
Inocentes Trinidad had lived as husband and wife,
witness, Pedro Briones, answered that he could not
recall because he was then in Manila working. That
after the war, he had gone back to the house of his
aunt, Anastacia, at Tigayon, Kalibo, as he always
visit[s] her every Sunday, however, he does not know
the plaintiff, Arturio Trinidad. When asked if after the
death of Inocentes Trinidad, he knew anybody who
has stayed with the defendants who claimed to be a
son of Inocentes Trinidad, witness, Pedro Briones,
answered: I do not know about that.
On cross examination, witness testified that although
he was born in Tigayon, Kalibo, Aklan, he started to
reside in Nalook, Kalibo, as the hereditary property of their father was
located there. When asked if he was aware of the 4
parcels of land which is the subject matter of this

case before the court, witness answered that he does

not know. What he knew is that among the 3 children
of Patricio Trinidad, Inocentes is the eldest. And that
at the time of the death of Inocentes in 1940,
according to the witness when cross examined,
Inocentes Trinidad was around 65 years old. That
according to him, his aunt, Anastacia Briones, was
already dead before the war. When asked on cross
examination if he knew where Inocentes Trinidad was
buried when he died in 1940, witness answered that
he was buried in their own land because the
Japanese forces were roaming around the place.
When confronted with Exhibit A which is the alleged
family picture of the plaintiff and the defendants,
witness was able to identify the lady in the picture,
which had been marked as Exhibit A-1, as Lourdes
Trinidad, and the man wearing a hat on the said
picture marked as Exhibit 2-A is Felix Trinidad.
However, when asked if he knew the plaintiff, Arturio
Trinidad, he said he does not know him.
Next witness for the defendants was the defendant
herself, LOURDES TRINIDAD. She stated that she is
75 years old, single and jobless. She testified that
Inocentes Trinidad was her brother and he is already
dead and he died in 1941 in Tigayon, Kalibo, Aklan.
That before the death of her brother, Inocentes
Trinidad, he had gone to Manila where he stayed for
a long time and returned to Tigayon in 1941.
According to her, upon arrival from Manila in 1941 his
brother, Inocentes Trinidad, lived only for 15 days
before he died. While his brother was in Manila,
witness testified she was not aware that he had
married anybody. Likewise, when he arrived in
Tigayon in 1941, he also did [not] get married. When
asked if she knew one by the name of Felicidad
Molato, witness answered she knew her because
Felicidad Molato was staying in Tigayon. However,
according to her[,] she does not kn[o]w if her
brother, Inocentes Trinidad, had lived with Felicidad
Molato as husband and wife. When asked if she knew
the plaintiff, Arturio Trinidad, she said, Yes, but she
denied that Arturio Trinidad had lived with them.
According to the witness, Arturio Trinidad did not live
with the defendants but he stayed with his
grandmother by the name of Maria Concepcion, his
mother, Felicidad Molato, having died already. When
asked by the court if there had been an instance
when the plaintiff had lived with her even for days,
witness answered, he did not. When further asked if
Arturio Trinidad went to visit her in her house,
witness also said, He did not.
Upon cross examination by counsel for the plaintiff,
Lourdes Trinidad testified that her parents, Anastacia
Briones and Patricio Trinidad, had 3 children, namely:
Inocentes Trinidad, Felix Trinidad and herself. But
inasmuch as Felix and Inocentes are already dead,

she is the only remaining daughter of the spouses

Patricio Trinidad and Anastacia Briones. Defendant,
Lourdes Trinidad, testified that her brother, Felix
Trinidad, died without a wife and children, in the
same manner that her brother, Inocentes Trinidad,
died without a wife and children. She herself testified
that she does not have any family of her own for she
has [no] husband or children. According to her[,]
when Inocentes Trinidad [died] in 1941, they buried
him in their private lot in Tigayon because nobody
will carry his coffin as it was wartime and the
municipality of Kalibo was occupied by the Japanese
forces. When further cross-examined that I[t] could
not be true that Inocentes Trinidad died in March
1941 because the war broke out in December 1941
and March 1941 was still peace time, the witness
could not answer the question. When she was
presented with Exhibit A which is the alleged family
picture wherein she was holding was [sic] the child of
Arturio Trinidad, she answered; Yes. And the child
that she is holding is Clarita Trinidad, child of Arturio
Trinidad. According to her, she was only requested to
hold this child to be brought to the church because
she will be baptized and that the baptism took place
in the parish church of Kalibo. When asked if there
was a party, she answered; Maybe there was. When
confronted with Exhibit A-1 which is herself in the
picture carrying the child, witness identified herself
and explained that she was requested to bring the
child to the church and that the picture taken
together with her brother and Arturio Trinidad and
the latters child was taken during the time when she
and Arturio Trinidad did not have a case in court yet.
She likewise identified the man with a hat holding a
child marked as Exhibit A-2 as her brother, Felix.
When asked if the child being carried by her brother,
Felix Trinidad, is another child of the plaintiff, witness
answered she does not know because her eyes are
already blurred. Furthermore, when asked to identify
the woman in the picture who was at the right of the
child held by her brother, Felix, and who was
previously identified by plaintiff, Arturio Trinidad, as
his wife, witness answered that she cannot identify
because she had a poor eyesight neither can she
identify plaintiff, Arturio Trinidad, holding another
child in the picture for the same reason. When asked
by counsel for the plaintiff if she knows that the one
who took this picture was the son of Ambrosio Trinidad by the name of Julito Trinidad who was
also their cousin, witness testified that she does not
know.
Third witness for the defendants was BEATRIZ
TRINIDAD SAYON who testified that she knew Arturio
Trinidad because he was her neighbor in Tigayon. In
the same manner that she also knew the defendants,
Felix and Lourdes, and Inocentes all surnamed

Trinidad because they were her cousins. She testified

that a few months after the war broke out Inocentes
Trinidad died in their lolas house whose name was
Eugenia Rufo Trinidad. She further testified that
Inocentes Trinidad had lived almost in his lifetime in
Manila and he went home only when his father
fetched him in Manila because he was already sick.
That according to her, about 1 1/2 months after his
arrival from Manila, Inocentes Trinidad died. She also
testified that she knew Felicidad Molato and that
Felicidad Molato had never been married to
Inocentes Trinidad. According to her, it was in 1941
when Inocentes Trinidad died. According to her she
was born in 1928, therefore, she was 13 or 14 years
old when the war broke out. When asked if she can
remember that it was only in the early months of the
year 1943 when the Japanese occupied Kalibo, she
said she [was] not sure. She further testified that
Inocentes Trinidad was buried in their private lot
because Kalibo was then occupied by the Japanese
forces and nobody would carry his body to be buried
in the Poblacion.
For rebuttal evidence, [petitioner] presented ISABEL
MEREN, who was 76 years old and a resident of
Tigayon. Rebuttal witness testified that x x x she
knew both the [petitioner] and the [private
respondents] in this case very well as her house is
only around 200 meters from them. When asked if it
is true that according to Lourdes Trinidad, [Inocentes
Trinidad] arrived from Manila in 1941 and he lived
only for 15 days and died, witness testified that he
did not die in that year because he died in the year
1944, and that Inocentes Trinidad lived with his
sister, Lourdes Trinidad, in a house which is only
across the street from her house. According to the
said rebuttal witness, it is not true that Inocentes
Trinidad died single because he had a wife by the
name of Felicidad Molato whom he married on May 5,
1942 in New Washington, Aklan. That she knew this
fact because she was personally present when
couple was married by Lauriano Lajaylajay, a
protestant pastor.
On cross examination, rebuttal witness testified that
when Inocentes Trinidad arrived from Manila he was
in good physical condition. That she knew both
Inocentes Trinidad and Felicidad Molato to be
Catholics but that according to her, their marriage
was
solemnized by a Protestant minister and she was one
of the sponsors. That during the marriage of
Inocentes Trinidad and Felicidad Molato, Lourdes
Trinidad and Felix Trinidad were also present.
When plaintiff, ARTURIO TRINIDAD, was presented as
rebuttal witness, he was not able to present a

marriage contract of his parents but instead a

certification dated September 5, 1978 issued by one
Remedios Eleserio of the Local Civil Registrar of the
Municipality of New Washington, Aklan, attesting to
the fact that records of births, deaths, and marriages
in the municipality of New Washington were
destroyed during the Japanese time.
Respondent Courts Ruling
In finding that petitioner was not a child, legitimate
or otherwise, of the late Inocentes Trinidad,
Respondent Court ruled:14
We sustain the appeal on the ground that plaintiff
has not adduced sufficient evidence to prove that he
is the son of the late Inocentes Trinidad. But the
action to claim legitimacy has not prescribed.
Plaintiff has not established that he was recognized,
as a legitimate son of the late Inocentes Trinidad, in
the record of birth or a final judgment, in a public
document or a private handwritten instrument, or
that he was in continuous possession of the status of
a legitimate child.
Two witnesses, Pedro Briones and Beatriz Trinidad
Sayon, testified for the defendants that Inocentes
Trinidad never married. He died single in 1941. One
witness, Isabel Maren, testified in rebuttal for the
plaintiff, that Inocentes Trinidad married Felicidad
Molato in New Washington, Aklan, on May 5, 1942,
solemnized by a pastor of the protestant church and
that she attended the wedding ceremony (t.s.n. Sept.
6, 1988, p. 4). Hence, there was no preponderant
evidence of the marriage, nor of Inocentes
acknowledgment of plaintiff as his son, who was born
on July 21, 1943.
The right to demand partition does not prescribe (de
Castro vs. Echarri, 20 Phil. 23). Where one of the
interested parties openly and adversely occupies the
property without recognizing the co-ownership (Cordova vs. Cordova, L-9936, January 14, 1958)
acquisitive prescription may set in (Florenz D.
Regalado, Remedial Law Compendium, Vol. I, Fifth
Revised Edition, 1988, p. 497). Admittedly, the
defendants have been in possession of the parcels of
land involved in the concept of owners since their
father died in 1940. Even if possession be counted
from 1964, when plaintiff attained the age of
majority, still, defendants possessed the land for
more than ten (10) years, thus acquiring ownership
of the same by acquisitive prescription (Article 1134,
Civil Code of the Philippines).
The Issues

Petitioner submits the following issues for

resolution:15
1. Whether or not petitioner (plaintiff-appellee)
has proven by preponderant evidence the marriage
of his parents.
2. Whether or not petitioner (plaintiff-appellee) has
adduced sufficient evidence to prove that he is the
son of the late Inocentes Trinidad, brother of private
respondents (defendants-appellants) Felix and
Lourdes Trinidad.
3. Whether or not the Family Code is applicable to
the case at bar[,] the decision of the Regional Trial
Court having been promulgated on July 4, 1989, after
the Family Code became effective on August 3, 1988.
4. Whether or not petitioners status as a
legitimate child can be attacked collaterally by the
private respondents.
5. Whether or not private respondent (defendantsappellants) have acquired ownership of the
properties in question by acquisitive prescription.
Simply stated, the main issues raised in this petition
are:
1. Did petitioner present sufficient evidence of his
parents marriage and of his filiation?
2. Was petitioners status as a legitimate child
subject to collateral attack in the action for partition?
3. Was his claim time-barred under the rules on
acquisitive prescription?
The Courts Ruling
The merits of this petition are patent. The partition of
the late Patricios real properties requires
preponderant proof that petitioner is a co-owner or
co-heir of the decedents estate.16 His right as a coowner would, in turn, depend on whether he was
born during the existence of a valid and subsisting
marriage between his mother (Felicidad) and his
putative father (Inocentes). This Court holds that
such burden was successfully discharged by
petitioner and, thus, the reversal of the assailed
Decision and Resolution is inevitable.
First and Second Issues: Evidence of and Collateral
Attack on Filiation
At the outset, we stress that an appellate courts
assessment of the evidence presented by the parties
will not, as a rule, be disturbed because the Supreme
Court is not a trier of facts. But in the face of the
contradictory conclusions of the appellate and the
trial courts, such rule does not apply here. So, we
had to meticulously pore over the records and the
evidence adduced in this case.17

Petitioners first burden is to prove that Inocentes

and his mother (Felicidad) were validly married, and
that he was born during the subsistence of their
marriage. This, according to Respondent Court, he
failed to accomplish.
This Court disagrees. Pugeda vs. Trias18 ruled that
when the question of whether a marriage has been
contracted arises
in litigation, said marriage may be proven by relevant
evidence. To prove the fact of marriage, the following
would constitute competent evidence: the testimony
of a witness to the matrimony, the couples public
and open cohabitation as husband and wife after the
alleged wedlock, the birth and the baptismal
certificates of children born during such union, and
the mention of such nuptial in subsequent
documents.19
In the case at bar, petitioner secured a
certification20 from the Office of the Civil Registrar of
Aklan that all records of births, deaths and marriages
were either lost, burned or destroyed during the
Japanese occupation of said municipality. This fact,
however, is not fatal to petitioners case. Although
the marriage contract is considered the primary
evidence of the marital union, petitioners failure to
present it is not proof that no marriage took place, as
other forms of relevant evidence may take its
place.21
In place of a marriage contract, two witnesses were
presented by petitioner: Isabel Meren, who testified
that she was present during the nuptial of Felicidad
and Inocentes on May 5, 1942 in New Washington,
Aklan; and Jovita Gerardo, who testified that the
couple deported themselves as husband and wife
after the marriage. Gerardo, the 77-year old
barangay captain of Tigayon and former board
member of the local parent-teachers association,
used to visit Inocentes and Felicidads house twice or
thrice a week, as she lived only thirty meters
away.22 On July 21, 1943, Gerardo dropped by
Inocentes house when Felicidad gave birth to
petitioner. She also attended petitioners baptismal
party held at the same house.23 Her testimony
constitutes evidence of common reputation respecting marriage.24 It further gives rise to
the disputable presumption that a man and a woman
deporting themselves as husband and wife have
entered into a lawful contract of marriage.25
Petitioner also presented his baptismal certificate
(Exhibit C) in which Inocentes and Felicidad were
named as the childs father and mother.26
On the other hand, filiation may be proven by the
following:

ART. 265. The filiation of legitimate children is

proved by the record of birth appearing in the Civil
Register, or by an authentic document or a final
judgment.
ART. 266. In the absence of the titles indicated in the
preceding article, the filiation shall be proved by the
continuous possession of status of a legitimate child.
ART. 267. In the absence of a record of birth,
authentic document, final judgment or possession of
status, legitimate filiation may be proved by any
other means allowed by the Rules of Court and
special laws.27
Petitioner submitted in evidence a certification28
that records relative to his birth were either
destroyed during the last world war or burned when
the old town hall was razed to the ground on June 17,
1956. To prove his filiation, he presented in evidence
two family pictures, his baptismal certificate and
Gerardos testimony.
The first family picture (Exhibit A) shows petitioner
(Exhibit A-5) carrying his second daughter and his
wife (Exhibit A-4) together with the late Felix Trinidad
(Exhibit A-2) carrying petitioners first daughter, and
Lourdes Trinidad (Exhibit A-1). Exhibit B is another
picture showing Lourdes Trinidad (Exhibit B-1)
carrying petitioners first child (Exhibit B-2). These
pictures were taken before the case was instituted.
Although they do not directly prove petitioners
filiation to Inocentes, they show that petitioner was
accepted by the private respondents as Inocentes
legitimate son ante litem motam.
Lourdes denials of these pictures are hollow and
evasive. While she admitted that Exhibit B shows her
holding Clarita Trinidad, the petitioners daughter,
she demurred that she did so only because she was
requested to carry the child before she was
baptized.29 When shown Exhibit A, she recognized
her late brotherbut not petitioner, his wife and the
couples childrenslyly explaining that she could not
clearly see because of an alleged eye defect.30
Although a baptismal certificate is indeed not a
conclusive proof of filiation, it is one of the other
means allowed under the Rules of Court and special
laws to show pedigree, as this Court ruled in
Mendoza vs. Court of Appeals:31
What both the trial court and the respondent court
did not take into account is that an illegitimate child
is allowed to establish his claimed filiation by any
other means allowed by the Rules of Court and

special laws, according to the Civil Code, or by

evidence of proof in his favor that the defendant is
her father, according to the Family Code. Such
evidence may consist of his baptismal certificate, a
judicial admission, a family Bible in which his name
has been entered, common reputation respecting his
pedigree, admission by silence, the testimony of
witnesses, and other kinds of proof admissiConcededly, because Gerardo was not shown to be a
member of the Trinidad family by either
consanguinity or affinity,32 her testimony does not
constitute family reputation regarding pedigree.
Hence, it cannot, by itself, be used to establish
petitioners legitimacy.
Be that as it may, the totality of petitioners positive
evidence clearly preponderates over private
respondents self-serving negations. In sum, private
respondents thesis is that Inocentes died unwed and
without issue in March 1941. Private respondents
witness, Pedro Briones, testified that Inocentes died
in 1940 and was buried in the estate of the Trinidads,
because nobody was willing to carry the coffin to the
cemetery in Kalibo, which was then occupied by the
Japanese forces. His testimony, however, is far from
credible because he stayed with the Trinidads for
only three months, and his answers on direct
examination were noncommittal and evasive:33
Q:
At the time of his death, can you tell the Court if this
Inocentes Trinidad was married or not?
A:
Not married.
Q:
In 1940 at the time of death of Inocentes Trinidad,
where were you residing?
A:
I was staying with them.
Q:
When you said them, to whom are you referring to
[sic]?
A:

My aunt Nanay Taya, Anastacia.

xxx

xxx

xxx

Q:

Will you please tell the Court for how long did you
stay with your aunt Anastacia Trinidad and his
children before 1940?
A:
For only three months.

Q:
How often did you go to the house of your aunt?
A:
Every Sunday.
xxx

xxx

xxx

Q:
You know the plaintiff Arturio Trinidad?
A:

Q:
Now, you said at the time of his death, Inocentes
Trinidad was single. Do you know if he had cohabited
with anybody before his death?
A:
[T]hat I do not know.
Q:
You know a person by the name of Felicidad Molato?
A:
No, sir.
Q:
Can you recall if during the lifetime of Inocentes
Trinidad if you have known of anybody with whom he
has lived as husband and wife?
A:
I could not recall because I was then in Manila
working.
Q:
After the war, do you remember having gone back to
the house of your aunt Anastacia at Tigayon, Kalibo,
Aklan?
A:
Yes, sir.

I do not know him.

Q:
After the death of Inocentes Trinidad, do you know if
there was anybody who has stayed with the
defendants who claimed to be a son of Inocentes
Trinidad?
A:
I do not know about that.
Beatriz Sayon, the other witness of private
respondent, testified that, when the Japanese
occupied Kalibo in 1941, her father brought
Inocentes from Manila to Tigayon because he was
sick. Inocentes stayed with their grandmother,
Eugenia Roco Trinidad, and died single and without
issue in March 1941, one and a half months after his
return to Tigayon. She knew Felicidad Molato, who
was also a resident of Tigayon, but denied that
Felicidad was ever married to Inocentes.34
Taking judicial notice that World War II did not start
until December 7, 1941 with the bombing of Pearl
Harbor in Hawaii, the trial court was not convinced
that Inocentes died in March 1941.35 The Japanese
forces occupied Manila only on
________________
January 2, 1942;36 thus, it stands to reason that
Aklan was not occupied until then. It was only then
that local residents were unwilling to bury their dead
in the cemetery in Kalibo, because of the Japanese
soldiers who were roaming around the area.37

Furthermore, petitioner consistently used Inocentes

surname (Trinidad) without objection from private
respondentsa presumptive proof of his status as
Inocentes legitimate child.38
Preponderant evidence means that, as a whole, the
evidence adduced by one side outweighs that of the
adverse party.39 Compared to the detailed (even if
awkwardly written) ruling of the trial court,
Respondent Courts holding that petitioner failed to
prove his legitimate filiation to Inocentes is
unconvincing. In determining where the
preponderance of evidence lies, a trial court may
consider all the facts and circumstances of the case,
including the witnesses manner of testifying, their
intelligence, their means and opportunity of knowing
the facts to which they are testifying, the nature of
the facts, the probability or improbability of their
testimony, their interest or want thereof, and their
personal credibility.40 Applying this rule, the trial
court significantly and convincingly held that the
weight of evidence was in petitioners favor. It
declared:
x x x [O]ne thing sure is the fact that plaintiff had
lived with defendants enjoying the status of being
their nephew x x x before plaintiff [had] gotten
married and had a family of his own where later on
he
started demanding for the partition of the share of
his father, Inocentes. The fact that plaintiff had so
lived with the defendants x x x is shown by the
alleged family pictures, Exhibits A & B. These family
pictures were taken at a time when plaintiff had not
broached the idea of getting his fathers share. x x x
x His demand for the partition of the share of his
father provoked the ire of the defendants, thus, they
disowned him as their nephew. x x x x In this case,
the plaintiff enjoyed the continuous possession of a
status of the child of the alleged father by the direct
acts of the defendants themselves, which status was
only broken when plaintiff demanded for the partition
x x x as he was already having a family of his own. x
x x x.
However, the disowning by the defendant [private
respondent herein], Lourdes Trinidad, of the plaintiff
[petitioner herein] being her nephew is offset by the
preponderance of evidence, among them the
testimony of witness, Jovita Gerardo, who is the
barrio captain. This witness was already 77 years old
at the time she testified. Said witness had no reason
to favor the plaintiff. She had been a PTA officer and
the court sized her up as a civic minded person. She
has nothing to gain in this case as compared to the
witness for the defendants who are either cousin or
nephew of Lourdes Trinidad who stands to gain in the

case for defendant, Lourdes Trinidad, being already

75 years old, has no husband nor children.41
Doctrinally, a collateral attack on filiation is not
permitted.42 Rather than rely on this axiom,
petitioner chose to present evidence of his filiation
and of his parents marriage. Hence, there is no more
need to rule on the application of this doctrine to
petitioners cause.
Third Issue: No Acquisitive Prescription
Respondent Court ruled that, because acquisitive
prescription sets in when one of the interested
parties openly and adversely occupies the property
without recognizing the co-ownership, and because
private respondents had been in possessionin the
concept of ownersof the parcels of land in issue
since Patricio died in 1940, they acquired ownership
of these parcels.
The Court disagrees. Private respondents have not
acquired ownership of the property in question by
acquisitive prescription. In a co-ownership, the act of
one benefits all the other co-owners, unless the
former repudiates the co-ownership.43 Thus, no
prescription runs in favor of a co-owner or co-heir
against his or her co-owners or co-heirs, so long as
he or she expressly or impliedly recognizes the coownership.
In this particular case, it is undisputed that, prior to
the action for partition, petitioner, in the concept of a
co-owner, was receiving from private respondents his
share of the produce of the land in dispute. Until such
time, recognition of the co-ownership by private
respondents was beyond question. There is no
evidence, either, of their repudiation, if any, of the
co-ownership of petitioners father Inocentes over
the land. Further, the titles of these pieces of land
were still in their fathers name. Although private
respondents had possessed these parcels openly
since 1940 and had not shared with petitioner the
produce of the land during the pendency of this case,
still, they manifested no repudiation of the coownership. In Mariategui vs. Court of Appeals, the
Court held:44
x x x Corollarily, prescription does not run against
private respondents with respect to the filing of the
action for partition so long as the heirs for whose
benefit prescription is invoked, have not expressly or
impliedly repudiated the co-ownership. In the other
words, prescription of an action for partition does not
lie except when the co-ownership is properly
repudiated by the co-owner (Del Banco vs.
Intermediate Appellate Court, 156 SCRA 55 [1987]
citing Jardin vs. Hollasco, 117 SCRA 532 [1982]).

Otherwise stated, a co-owner cannot acquire by

prescription the share of the other co-owners absent
a clear repudiation of co-ownership duly
communicated to the other co-owners (Mariano vs.
De Vega, 148 SCRA 342 [1987]). Furthermore, an
action to demand partition is imprescriptible and
cannot be barred by laches (Del Banco vs. IAC, 156
SCRA 55 [1987]. On the other hand, an action for
partition may be seen to be at once an action for
declaration of co-ownership and for segregation and
conveyance of a determinate portion of the property
involved (Roque vs. IAC, 165 SCRA 118 [1988]).
Considering the foregoing, Respondent Court
committed reversible error in holding that
petitioners claim over the land in dispute was timebarred.
WHEREFORE, the petition is GRANTED and the
assailed Decision and Resolution are REVERSED and
SET ASIDE. The trial courts decision dated July 4,
1989 is REINSTATED. No costs.
SO ORDERED.
G.R. No. 116835. March 5, 1998.*
ANTONIETTA GARCIA VDA. DE CHUA, petitioner,
vs. COURT OF APPEALS (Special Eighth
Division), HON. JAPAL M. GUIANI, RTC, Branch
14, 12th Judicial Region, Cotabato City, and
FLORITA A. VALLEJO, as Administratrix of the
Estate of the late Roberto L. Chua,
respondents.
Remedial Law; Special Proceedings; Letters
Testamentary and of Administration; Jurisdictional
facts required in a petition for issuance of letters of
administration.The jurisdictional facts required in a
petition for issuance of letters of administration are:
(1) the death of the testator; (2) residence at the
time of death in the province where the probate
court is located; and (3) if the decedent was a nonresident, the fact of being a resident of a foreign
country and that the decedent has left an estate in
the province where the court is sitting.
Same; Same; Same; Only an interested person may
oppose the petition for issuance of letters of
administration.Be that as it may, petitioner has no
legal standing to file the motion to dismiss as she is
not related to the deceased, nor does she have any
interest in his estate as creditor or otherwise. x x x
Only an interested person may oppose the petition
for issuance of letters of administration. An
interested person is 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; his interest is

material and direct, and not one that is only indirect
or contingent.
Same; Due Process; Due process was designed to
afford opportunity to be heard, not that an actual
hearing should always and indispensably be held;
Denial of due process cannot be successfully invoked
by a party who has had the opportunity to be heard
on his motion for reconsideration.Due process was
designed to afford opportunity to be heard, not that
an actual hearing should always and indispensably
be held. The essence of due process is simply an
opportunity to be heard. Here, even granting that the
petitioner was not notified of the orders of the trial
court marked as Exhibits P to T, inclusive,
nonetheless, she was duly heard in her motions to
recall letters of administration and to declare the
proceedings of the court as a mistrial, which
motions were denied in the Order dated 22
November 1993. A motion for the reconsideration of
this order of denial was also duly heard by the trial
court but was denied in its Order of 13 December
1993. Denial of due process cannot be successfully
invoked by a party who has had the opportunity to be
heard on his motion for reconsideration.
Same; Appeals; Certiorari; Court agrees with the
Court of Appeals that the proper remedy of the
petitioner in said court was an ordinary appeal and
not a special civil action for certiorari.As to the last
assignment of errors, we agree with the Court of
Appeals that the proper remedy of the petitioner in
said court was an ordinary appeal and not a special
civil action for certiorari; which can be availed of if a
party has no plain, speedy and adequate remedy in
the ordinary course of law. Except for her bare
allegation that an ordinary appeal would be
inadequate, nothing on record would indicate that
extraordinary remedy of certiorari or prohibition is
warranted.
APPEAL by certiorari from a decision of the Court of
Appeals.
The facts are stated in the opinion of the Court.
The Law Firm of Rodolfo Ta-asan for petitioner.
Hermenigildo A. Delgado for movant.
Mama S. Dalandag for private respondent.
KAPUNAN, J.:
Assailed before us in this Appeal by Certiorari under
Rule 45 of the Rules of Court is the decision of the

Court of Appeals in CA-G.R. Sp. No. 33101,

promulgated on 19 April 1994 affirming the decision
of the Regional Trial Court, Branch 14, of Cotabato
City in Special Procedure Case No. 331.
As culled from the records, the following facts have
been established by evidence:

4. That Roberto Lim Chua, father of the abovementioned minors, died intestate on May 28, 1992 in
Davao City.
5. That the aforementioned deceased left
properties both real and personal worth
P5,000,000.00 consisting of the following:

During his lifetime, Roberto Lim Chua lived out of

wedlock with private respondent Florita A. Vallejo
from 1970 up to 1981. Out of this union, the couple
begot two illegitimate children, namely, Roberto
Rafson Alonzo and Rudyard Pride Alonzo.

a) Lot in Kakar, Cotabato City covered by TCT No. T1

2835 with an area of 290 sq. m. estimated at . . . . .

On 28 May 1992, Roberto Chua died intestate in

Davao City.

b) Lot in Kakar, Cotabato City covered by TCT No. T1

2834 with an area of 323 sq. m. . . . . . . . . . . . . . . . . .

On 2 July 1992, private respondent filed with the

Regional Trial Court of Cotabato City a Petition1
which is reproduced hereunder:

50,000.00

IN RE: PETITION FOR DECLARATION

OF HEIRSHIP, GUARDIANSHIP OVER
THE PERSONS AND PROPERTIES OF
MINORS ROBERT RAFSON ALONZO
and RUDYARD PRIDE ALONZO, all
surnamed CHUA and ISSUANCE OF
LETTERS OF ADMINISTRATION.

SP. PROC. NO/331

P50,000.00

c) Lot in Davao City covered by TCT No. T-126583

with an area of 303 sq.
m. . . . . . . . . . . . . . . . . . . . . . . . . . . .

50,000.00
d) Lot in Davao City covered by TCT No. T-126584
with an area of 303 sq.
m. . . . . . . . . . . . . . . . . . . . . . . . . . .

FLORITA ALONZO VALLEJO, petitioner.

x---------------------------------------------------------x
PETITION
COMES NOW the petitioner assisted by counsel and
unto this Honorable Court most respectfully states:
1. That she is of legal age, Filipino, married but
separated from her husband and residing at Quezon
Avenue, Cotabato City, Philippines;
2. That sometime from 1970 up to and until late
1981 your petitioner lived with Roberto Lim Chua as
husband and wife and out of said union they begot
two (2) children, namely, Robert Rafson Alonzo Chua
who was born in General Santos City on April 28,
1977 and Rudyard Pride Alonzo Chua who was born
in Davao City on August 30, 1978. A xerox copy of
the birth certificate of each child is hereto attached
as annex A and B, respectively.
3. That the aforementioned children who are still
minors today are both staying with herein petitioner
at her address at Quezon Avenue, Cotabato City;

50,000.00
e) Residential house in Cotabato City valued
at. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.........

300,000.00
f) Residential house in Davao City valued at. . . . . . . .
..........................................
...

h) Colt, Galant Super Saloon with Motor No. 4G37G

B0165 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

545,000.00
i) Car, Colt Galant with Motor No. 4G5252D75248 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
............

110,000.00
j) Reo Isuzu Dump Truck with Motor No. DA6408
38635 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

350,000.00
k) Hino Dump Truck with Motor No. ED100T47148 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
..........

350,000.00
l) Stockholdings in various corporations with par
value estimated
at . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3,335,000.00
TOTAL --------------------------- P 5,000,000.00
6. That deceased Roberto Lim Chua died single
and without legitimate descendants or ascendants,
hence, the above named minors Robert Rafson
Alonzo Chua and Rudyard Pride Alonzo Chua, his
children with herein petitioner shall succeed to the
entire estate of the deceased. (Article 988 of the Civil
Code of the Philippines).
7. That the names, ages and residences of the
relatives of said minors are the following, to wit:
37

600,000.00

VOL. 287, MARCH 5, 1998

g) Car, Colt Lancer with Motor No. 4G33-3

AF6393 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
..........

37

210,000.00

Vda. de Chua vs. Court of Appeals (Special Eighth

Division)

40

Names

Relationship

Ages

Residences
1.

Carlos Chua

Uncle

60

Quezon Avenue, Cotabato City

2.

Aida Chua

Auntie

55

Rosary Heights, Cotabato City

c/o Overseas Fishing Exportation Co., Inc., Matina,

Davao City
8. That considering the fact that the
aforementioned minors by operation of law are to
succeed to the entire estate of Roberto Lim Chua
under the provisions of Article 988 of the New Civil
Code of the Philippines, it is necessary that for the
protection of the rights and interest of Robert Rafson
Alonzo Chua and Rudyard Pride Alonzo Chua, both
minors and heirs of deceased Roberto Lim Chua, a
guardian over the persons and properties of said
minors be appointed by this Honorable Court.
9. That herein petitioner being the mother and
natural guardian of said minors is also competent
and willing to act as the guardian of minors Robert
Rafson Alonzo Chua and Rudyard Pride Alonzo Chua
both staying and living with her; that petitioner
possesses all the qualifications and none of the
disqualifications of a guardian.
WHEREFORE, premises considered, it is most
respectfully prayed:
1. That, upon proper notice and hearing, an order
be issued declaring minors ROBERTO RAFSON
ALONZO CHUA and RUDYARD PRIDE ALONZO CHUA
as heirs to the intestate estate of deceased ROBERTO
LIM CHUA;
2. That Letters of Administration be issued to
herein petitioner for the administration of the estate
of the deceased ROBERTO LIM CHUA;
3. That the petitioner be also appointed the
guardian of the persons and estate of minors ROBERT
RAFSON ALONZO CHUA and RUDYARD PRIDE ALONZO
CHUA;
4. That after all the property of deceased Roberto
Lim Chua have been inventoried and expenses and
just debts, have been paid, the intestate estate of
Roberto Lim Chua be distributed to its rightful heirs,
the minors in this case, pursuant to the provisions of
Article 988 of the New Civil Code of the Philippines.

3.

5. And for such other reliefs and remedies this

Honorable Court may consider fit and proper in the
premises.

Romulo Uy

Cotabato City, Philippines, June 29, 1992.

Uncle

(Sgd.) FLORITA ALONZO VALLEJO

(Petitioner)
The trial court issued an order setting the hearing of
the petition on 14 August 1992 and directed that

notice thereof be published in a newspaper of

general circulation in the province of Maguindanao
and Cotabato City and or Davao City.
On 21 July 1992, herein petitioner Antonietta Garcia
Vda. de Chua, representing to be the surviving
spouse of Roberto Chua, filed a Motion to Dismiss2
on the ground of improper venue. Petitioner alleged
that at the time of the decedents death Davao City
was his residence, hence, the Regional Trial Court of
Davao City is the proper forum.
Private respondent filed an opposition to the Motion
to Dismiss3 dated July 20, 1992 based on the
following grounds:
(1) That this petition is for the guardianship of the
minor children of the petitioner who are heirs to the
estate of the late Roberto L. Chua and under Section
1, Rule 92 of the Rules of Court the venue shall be at
the place where the minor resides;
(2) That the above-named minors are residents of
Cotabato City;
(3) That the movant in this case has no personality
to intervene nor oppose in the granting of this
petition for the reason that she is a total stranger to
the minors Robert Rafson Alonzo and Rudyard Pride
Alonzo, all surnamed Chua;
(4) That deceased Roberto L. Chua died a
bachelor. He is the father of the above-named minors
with the petitioner in this case;
(5) That movant/oppositor Antonietta Chua is not
the surviving spouse of the late Roberto L. Chua but
a pretender to the estate of the latter since the
deceased never contracted marriage with any
woman until he died.

On 6 August 1992, private respondent Vallejo filed a

Motion for Admission of an Amended Petition4 in
order that the designation of the case title can
properly and appropriately capture or capsulize in
clear terms the material averments in the body of
the pleadings; thus avoiding any confusion or
misconception of the nature and real intent and
purpose of this petition. The amended petition5
contained identical material allegations but differed
in its title, thus:
IN RE: PETITION FOR THE SETTLEMENT OF THE
INTESTATE ESTATE OF ROBERTO L. CHUA,
DECLARATION OF HEIRSHIP, GUARDIANSHIP OVER
THE PERSONS AND PROPERTIES OF MINORS ROBERT
AND RUDYARD, all surnamed CHUA and ISSUANCE OF
LETTERS OF ADMINISTRATION.
FLORITA ALONZO VALLEJO,

Petitioner.
Paragraph 4 of the original petition was also
amended to read as follows:
4. That Roberto Lim Chua, father of the
abovementioned minors is a resident of Cotabato
City and died intestate on May 28, 1992 at Davao
City.
The petition contained exactly the same prayers as
the original petition.
Petitioner opposed the motion to amend petition
alleging that at the hearing of said motion on 24 July
1992, private respondents counsel allegedly
admitted that the sole intention of the original
petition was to secure guardianship over the persons
and property of the minors.6
On 21 August 1992, the trial court issued an Order7
denying the motion to dismiss for lack of merit. The
court ruled
that Antonietta Garcia had no personality to file the
motion to dismiss not having proven her status as
wife of the decedent. Further, the court found that
the actual residence of the deceased was Cotabato
City, and even assuming that there was concurrent
venue among the Regional Trial Courts where the
decedent had resided, the R.T.C. of Cotabato had
already taken cognizance of the settlement of the
decedents estate to the exclusion of all others. The
pertinent portions of the order read:
At the hearing of the motion to dismiss on August 19,
1992, counsel for movant Antonietta G. Chua
presented 18 Exhibits in support of her allegation
that she was the lawful wife of the decedent and that
the latter resides in Davao City at the time of his
death. Exh. 1 was the xerox copy of the alleged
marriage contract between the movant and the
petitioner. This cannot be admitted in evidence on
the ground of the timely objection of the counsels for
petitioner that the best evidence is the original copy
or authenticated copy which the movant cannot
produce. Further, the counsels for petitioner in
opposition presented the following: a certification
from the Local Civil Registrar concerned that no such
marriage contract was ever registered with them; a
letter from Judge Augusto Banzali, the alleged person
to have solemnized the alleged marriage that he has
not solemnized such alleged marriage. Exhibit 2
through 18 consist among others of Transfer
Certificate of Title issued in the name of Roberto L.
Chua married to Antonietta Garcia, and a resident of
Davao City; Residence Certificates from 1988 and

1989 issued at Davao City indicating that he was

married and was born in Cotabato City; Income Tax
Returns for 1990 and 1991 filed in Davao City where
the status of the decedent was stated as married;
passport of the decedent specifying that he was
married and his residence was Davao City. Petitioner
through counsels, objected to the admission in
evidence of Exhibits 2 through 18 if the purpose is
to establish the truth of the alleged marriage
between the decedent and Antonietta Garcia. The
best evidence they said is the marriage contract.
They do not object to the admission of said exhibit if
the purpose is to show that Davao City was the
business residence of the decedent.

November 29, 1976). Even assuming that there is

concurrent venue among the Regional Trial Courts of
the places where the decedent has residences, the
Regional Trial Court first taking cognizance of the
settlement of the estate of the decedent, shall
exercise jurisdiction to the exclusion of all other
courts (Section 1, Rule 73). It was this Court which
first took cognizance of the case when the petition
was filed on July 2, 1992, docketed as Special
Proceeding No. 331 and an order of publication
issued by this Court on July 13, 1992.

Petitioner through counsels, presented Exhibit A

through K to support her allegation that the
decedent was a resident of Cotabato City; that he
died a bachelor; that he begot two illegitimate
children with the petitioner as mother. Among these
exhibits are Income Tax Returns filed in Cotabato City
from 1968 through 1979 indicating therein that he
was single; birth certificates of the alleged two
illegitimate children of the decedent; Residence
Certificates of the decedent issued in Cotabato City;
Registration Certificate of Vehicle of the decedent
showing that his residence is Cotabato City.

On 31 August 1992, upon motion of private

respondent, the trial court issued an order appointing
Romulo Lim Uy, a first

It is clear from the foregoing that the movant failed

to establish the truth of her allegation that she was
the lawful wife of the decedent. The best evidence is
a valid marriage contract which the movant failed to
produce. Transfer Certificates of Title, Residence
Certificates, passports and other similar documents
cannot prove marriage especially so when the
petitioner has submitted a certification from the
Local Civil Registrar concerned that the alleged
marriage was not registered and a letter from the
judge alleged to have solemnized the marriage that
he has not solemnized said alleged marriage.
Consequently, she has no personality to file the
subject motion to dismiss.
On the issue of the residence of the decedent at the
time of his death, the decedent as a businessman
has many business residences from different parts of
the country where he usually stays to supervise and
pursue his business ventures. Davao City is one of
them. It cannot be denied that Cotabato City is his
actual residence where his alleged illegitimate
children also reside.
The place of residence of the deceased in settlement
of estates, probate of will, and issuance of letters of
administration does not constitute an element of
jurisdiction over the subject matter. It is merely
constitutive of venue (Fule vs. CA, L-40502,

WHEREFORE, in view of the foregoing, the motion to

dismiss is hereby denied for lack of merit.

cousin of the deceased, as special administrator of

the decedents estate.8
On the same day, the trial court, likewise, issued an
Order appointing Florita Vallejo as guardian over the
persons and properties of the two minor children.9
Thereafter, petitioner filed a Motion dated 25 October
199310 praying that the letters of administration
issued to Vallejo be recalled and that new letters of
administration be issued to her. She, likewise, filed a
Motion dated 5 November 199311 to declare the
proceedings a mistrial. Both motions were denied by
the trial court in its Order dated 22 November
1993.12 Petitioners motion for reconsideration of the
order was denied by the trial court in an Order dated
13 December 1993.13
Assailing the last two orders of the trial court,
petitioner filed a petition for certiorari and prohibition
(Rule 65) with the respondent Court of Appeals,
docketed as CA G.R. No. Sp. 33101, alleging that the
trial court acted with grave abuse of discretion in:
(1) unilaterally and summarily converting, if not
treating, the guardianship proceedings into an
intestate proceeding;
(2) summarily hearing the intestate proceedings
without jurisdiction and without any notice to herein
petitioner whatsoever; and
(3) issuing the questioned order (sic) on the
alleged pretension that herein petitioner has no
personality to intervene in SPL Proc. No. 331
questioning the highly anomalous orders
precipitately issued ex-parte by the public
respondent R.T.C. without notice to the petitioners.
________________

Petitioner in the main argued that private respondent

herself admitted in her opposition to petitioners
motion to dismiss filed in the trial court and in open
court that the original petition she filed is one for
guardianship; hence, the trial court acted beyond its
jurisdiction when it issued letters of administration
over the estate of Roberto L. Chua, thereby
converting the petition into an intestate proceeding,
without the amended petition being published in a
newspaper of general circulation as required by
Section 3, Rule 79.
The Court of Appeals, in its decision promulgated on
19 April 1994,14 denied the petition ratiocinating
that the original petition filed was one for
guardianship of the illegitimate children of the
deceased as well as for administration of his
intestate estate. While private respondent may have
alleged in her opposition to the motion to dismiss
that petition was for guardianship, the fact remains
that the very allegations of the original petition
unmistakably showed a twin purpose: (1)
guardianship; and (2) issuance of letters of
administration. As such, it was unnecessary for her to
republish the notice of hearing through a newspaper
of general circulation in the province. The amended
petition was filed for the only reason stated in the
motion for leave: so that the case title can properly
and appropriately capture or capsulize in clear terms
the material averments in the body of the pleadings;
thus avoiding any confusion or misconception of the
nature and real intent and purpose of this petition,
which was for guardianship over the persons and
properties of her minor children and for the
settlement of the intestate estate of the decedent
who was their father. In other words, there being no
change in the material allegations between the
original and amended petitions, the publication of
the first in a newspaper of general circulation
sufficed for purposes of compliance with the legal
requirements of notice.
Moreover, the appellate court ruled that the
petitioners remedy is appeal from the orders
complained of under Section
1(f), Rule 109 of the Rules of Court, not certiorari and
prohibition.
Not satisfied with the decision of the Court of
Appeals, petitioner comes to this Court contending
that the appellate court committed the following
errors:
I

THE PUBLIC RESPONDENT COURT OF APPEALS

GRAVELY AND SERIOUSLY ERRED IN HOLDING THAT
THE ORIGINAL PETITION (Annex F, Petition) WAS FOR
A TWIN PURPOSE, TO WIT: FOR GUARDIANSHIP AND
FOR INTESTATE ESTATE PROCEEDINGS;
II
THE PUBLIC RESPONDENT COURT OF APPEALS
SERIOUSLY ERRED IN HOLDING THAT THERE IS NO
NEED TO PUBLISH THE AMENDED PETITION FOR
ADMINISTRATION OF THE INTESTATE ESTATE
THEREBY CONTRAVENING THE RULES OF COURT AND
THE RULINGS OF THE SUPREME COURT.
III
THE PUBLIC RESPONDENT COURT OF APPEALS
SERIOUSLY ERRED IN NOT NULLIFYING THE ORDERS
(Annex P to T) PRECIPITATELY ISSUED EX-PARTE
BY THE PUBLIC RESPONDENT REGIONAL TRIAL
COURT IN THE INTESTATE PROCEEDINGS WITHOUT
PRIOR HEARING OR NOTICE TO HEREIN PETITIONER
THEREBY DEPRIVING THE LATTER (ANTONIETTA
GARCIA VDA. DE CHUA) OF DUE PROCESS AND
OPPORTUNITY TO BE HEARD.
IV
THE PUBLIC RESPONDENT COURT OF APPEALS
GRAVELY ERRED IN SWEEPINGLY HOLDING THAT
PETITIONERS REMEDY IS APPEAL.15

92 of the Rules of Court the venue shall be at the

place where the minor resides.16
as well as to the statements made by counsel for the
private respondent during the 24 July 1992 hearing
on the motion to dismiss:
ATTY. RENDON:
We filed our opposition to the motion to dismiss the
petition because this is a petition for guardianship of
minors, not for intestate proceedings. So this is a
case where the mother wanted to be appointed as
guardian because she is also the litigant here.
Because whenever there is an intestate proceedings,
she has to represent the minors, and under the Rules
of Court in any guardianship proceedings, the venue
is at the place where the minor is actually residing.17
The petition is devoid of merit.
The title alone of the original petition clearly shows
that the petition is one which includes the issuance
of letters of administration. The title of said petition
reads:
IN RE: PETITION FOR DECLARATION OF HEIRSHIP,
GUARDIANSHIP OVER THE PERSON AND PROPERTIES
OF MINORS ROBERTO ALONZO AND RUDYARD
ALONZO, all surnamed CHUA and ISSUANCE OF
LETTERS OF ADMINISTRATION.18
Likewise, the prayer of the petition states:

In support of her first assignment of error, petitioner

submits that the Court of Appeals conclusion that
the original petition was one for guardianship and
administration of the intestate estate is contradicted
by the evidence on hand, asserting that the original
petition failed to allege and state the jurisdictional
facts required by the Rules of Court in petitions for
administration of a decedents estate, such as: (a)
the last actual residence of the decedent at the time
of his death; (b) names, ages and residences of the
heirs; and (c) the names and residences of the
creditors of the decedent. Petitioner also reiterates
her argument regarding private respondents alleged
admission that the original petition was one for
guardianship and not for issuance of letters of
administration, pointing to the Opposition to the
Motion to Dismiss dated 20 July 1992, where the
private respondent alleged:
1. That this petition is for guardianship of the minor
children of the petitioner who are heirs to the estate
of the late Roberto L. Chua and under Section 1, Rule

2. That Letters of Administration be issued to herein

petitioner for the administration of the estate of the
deceased ROBERTO LIM CHUA.
The original petition also contains the jurisdictional
facts required in a petition for the issuance of letters
of administration. Section 2, Rule 79 of the Rules of
Court reads:
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, so far as known to the petitioner:
(a) Jurisdictional facts;
(b) The names, ages, and residences of the heirs
and the names and residences of the creditors, of the
decedent;
(c) The probative value and character of the
property of the estate;
(d) The name of the person for whom letters of
administration are prayed;

But no defect in the petition shall render void the

issuance of letters of administration. (italics ours).
The jurisdictional facts required in a petition for
issuance of letters of administration are: (1) the
death of the testator; (2) residence at the time of
death in the province where the
probate court is located; and (3) if the decedent was
a nonresident, the fact of being a resident of a
foreign country and that the decedent has left an
estate in the province where the court is sitting.19
While paragraph 4 of the original petition stating:
(4) That Roberto Lim Chua, father of the above
mentioned minors, died intestate on May 28, 1992 in
Davao City.
failed to indicate the residence of the deceased at
the time of his death, the omission was cured by the
amended petitions wherein the same paragraph now
reads:
(4) That Roberto Lim Chua, father of the
abovementioned minors is a resident of Cotabato
City and died intestate on May 28, 1992 at Davao
City.20 (Italics in the original.)
All told the original petition alleged substantially all
the facts required to be stated in the petition for
letters of administration. Consequently, there was no
need to publish the amended petition as petitioner
would insist in her second assignment of errors.
Be that as it may, petitioner has no legal standing to
file the motion to dismiss as she is not related to the
deceased, nor does she have any interest in his
estate as creditor or otherwise. The Rules are explicit
on who may do so:
Sec. 4. Opposition to petition for administration.
Any interested person, may by filing a written
opposition, contest the petition on the ground of
incompetency of the person for whom letters of
administration are prayed therein, or on the ground
of the contestants own right to the administration,
and may pray that letters issue to himself, or to any
competent person or persons named in the
opposition.
Only an interested person may oppose the petition
for issuance of letters of administration. An
interested person is 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; his interest is
material and direct, and not one that is only indirect
or contingent.21

Petitioner was not able to prove her status as the

surviving wife of the decedent. The best proof of
marriage between man and wife is a marriage
contract which Antonietta Chua failed to produce.
The lower court correctly disregarded the photostat
copy of the marriage certificate which she presented,
this being a violation of the best evidence rule,
together with other worthless pieces of evidence.
The trial court correctly ruled in its 21 August 1992
Order that:
x x x Transfer Certificates of Title, Residence
Certificates, passports and other similar documents
cannot prove marriage especially so when the
petitioner has submitted a certification from the
Local Civil Registrar concerned that the alleged
marriage was not registered and a letter from the
judge alleged to have solemnized the marriage that
he has not solemnized said alleged marriage. x x x22
Under her third assignment of error, petitioner claims
that the trial court issued its orders, Annexes P to
T without prior hearing or notice to her, thus,
depriving her of due process.
The orders referred to by petitioner are: Order dated
31 August 1992 appointing Romulo Lim Uy, first
cousin of the deceased, as special administrator of
the estate; Order dated 31 August 1992 appointing
private respondent as guardian over the person and
property of the minors; Order dated 5 August 1993,
directing the transfer of the remains of the deceased
from Davao City to Cotabato City; Order dated 6
September 1993 directing petitioner to turn over a
Mitsubishi Gallant car owned by the estate of the
deceased to the special
administrator; and Order dated 28 September 1993,
authorizing the sheriff to break open the deceaseds
house for the purpose of conducting an inventory of
the properties found therein, after the sheriff was
refused entry to the house by the driver and maid of
petitioner.
Apart from the fact that petitioner was not entitled to
notice of the proceedings of the trial court, not being
able to establish proof of her alleged marriage to the
deceased, or of her interest in the estate as creditor
or otherwise, petitioner categorically stated in the
instant petition that on 25 October 1993 she filed a
motion praying for the recall of the letters of
administration issued by the trial court and another
motion dated 5 August 1993 praying that the
proceedings conducted by the trial court be declared
as a mistrial and the court orders relative thereto be
set aside and nullified. Petitioner further stated that
her motions were denied by the trial court in its

Order dated 22 November 1993 and that on 30

November 1993 she filed a motion for
reconsideration of the order of denial which in turn
was denied by the trial court on 13 December 1993.
Due process was designed to afford opportunity to be
heard, not that an actual hearing should always and
indispensably be held.23 The essence of due process
is simply an opportunity to be heard.24 Here, even
granting that the petitioner was not notified of the
orders of the trial court marked as Exhibits P to
T, inclusive, nonetheless, she was duly heard in her
motions to recall letters of administration and to
declare the proceedings of the court as a mistrial,
which motions were denied in the Order dated 22
November 1993.25 A motion for the reconsideration
of this order of denial was also duly heard by the trial
court but was denied in its Order of 13 December
1993.26
Denial of due process cannot be successfully invoked
by a party who has had the opportunity to be heard
on his motion for reconsideration.27
As to the last assignment of errors, we agree with the
Court of Appeals that the proper remedy of the
petitioner in said court was an ordinary appeal and
not a special civil action for certiorari; which can be
availed of if a party has no plain, speedy and
adequate remedy in the ordinary course of law.
Except for her bare allegation that an ordinary
appeal would be inadequate, nothing on record
would indicate that extraordinary remedy of
certiorari or prohibition is warranted.
Finally, petitioner further argues as supplement to
her memorandum that the ruling of the Court of
Appeals treating the Special Proceeding No. 331 as
one for both guardianship and settlement of estate is
in contravention of our ruling in Gomez vs.
Imperial,28 which the petitioner quotes:
The distribution of the residue of the estate of the
deceased is a function pertaining properly not to the
guardianship proceedings, but to another proceeding
which the heirs are at liberty to initiate.
Petitioners reliance on said case is misplaced. In the
Gomez case, the action before the lower court was
merely one for guardianship. Therefore said court did
not have the jurisdiction to distribute the estate of
the deceased. While in the case at bar, the petition
filed before the court was both for guardianship and
settlement of estate.

IN VIEW OF THE FOREGOING, the petition of

petitioner Antonietta Chua is hereby denied.

preserve their privacy and exempt them from that

requirement.

SO ORDERED. [Vda. de Chua vs. Court of Appeals

(Special Eighth Division), 287 SCRA 33(1998)]

Same; Same; Same; The five-year common-law

cohabitation period, which is counted back from the
date of celebration of marriage, should be a period of
legal union had it not been for the absence of the
marriage.Working on the assumption that Pepito
and Norma have lived together as husband and wife
for five years without the benefit of marriage, that
five-year period should be computed on the basis of
a cohabitation as husband and wife where the only
missing factor is the special contract of marriage to
validate the union. In other words, the five-year
common-law cohabitation period, which is counted
back from the date of celebration of marriage, should
be a period of legal union had it not been for the
absence of the marriage. This 5-year period should
be the years immediately before the day of the
marriage and it should be a period of cohabitation
characterized by exclusivitymeaning no third party
was involved at any time within the 5 years and
continuitythat is unbroken. Otherwise, if that
continuous 5-year cohabitation is computed without
any distinction as to whether the parties were
capacitated to marry each other during the entire
five years, then the law would be sanctioning
immorality and encouraging parties to have common
law relationships and placing them on the same
footing with those who lived faithfully with their
spouse. Marriage being a special relationship must
be respected as such and its requirements must be
strictly observed. The presumption that a man and a
woman deporting themselves as husband and wife is
based on the approximation of the requirements of
the law. The parties should not be afforded any
excuse to not comply with every single requirement
and later use the same missing element as a preconceived escape ground to nullify their marriage.
There should be no exemption from securing a
marriage license unless the circumstances clearly fall
within the ambit of the exception. It should be noted
that a license is required in order to notify the public
that two persons are about to be united in matrimony
and that anyone who is aware or has knowledge of
any impediment to the union of the two shall make it
known to the local civil registrar.

G.R. No. 133778. March 14, 2000.*

ENGRACE NIAL for Herself and as Guardian ad
Litem of the minors BABYLINE NIAL, INGRID
NIAL, ARCHIE NIAL & PEPITO NIAL, JR.,
petitioners, vs. NORMA BAYADOG, respondent.
Civil Law; Family Code; Marriages; A valid marriage
license is a requisite of marriage under Article 53 of
the Civil Code, the absence of which renders the
marriage void ab initio pursuant to Article 80 (3) in
relation to Article 58.A valid marriage license is a
requisite of marriage under Article 53 of the Civil
Code, the absence of which renders the marriage
void ab initio pursuant to Article 80(3) in relation to
Article 58. The requirement and issuance of marriage
license is the States demonstration of its
involvement and participation in every marriage, in
the maintenance of which the general public is
interested. This interest proceeds from the
constitutional mandate that the State recognizes the
sanctity of family life and of affording protection to
the family as a basic autonomous social institution.
Specifically, the Constitution considers marriage as
an inviolable social institution, and is the
foundation of family life which shall be protected by
the State. This is why the Family Code considers
marriage as a special contract of permanent union
and case law considers it not just an adventure but
a lifetime commitment.
Same; Same; Same; There are several instances
recognized by the Civil Code wherein a marriage
license is dispensed with.There are several
instances recognized by the Civil Code wherein a
marriage license is dispensed with, one of which is
that provided in Article 76, referring to the marriage
of a man and a woman who have lived together and
exclusively with each other as husband and wife for a
continuous and unbroken period of at least five years
before the marriage. The rationale why no license is
required in such case is to avoid exposing the parties
to humiliation, shame and embarrassment
concomitant with the scandalous cohabitation of
persons outside a valid marriage due to the
publication of every applicants name for a marriage
license. The publicity attending the marriage license
may discourage such persons from legitimizing their
status. To preserve peace in the family, avoid the
peeping and suspicious eye of public exposure and
contain the source of gossip arising from the
publication of their names, the law deemed it wise to

Same; Same; Same; Any marriage subsequently

contracted during the lifetime of the first spouse
shall be illegal and void.This is the same reason
why our civil laws, past or present, absolutely
prohibited the concurrence of multiple marriages by
the same person during the same period. Thus, any
marriage subsequently contracted during the lifetime
of the first spouse shall be illegal and void, subject
only to the exception in cases of absence or where

the prior marriage was dissolved or annulled. The

Revised Penal Code complements the civil law in that
the contracting of two or more marriages and the
having of extramarital affairs are considered felonies,
i.e., bigamy and concubinage and adultery. The law
sanctions monogamy.
Same; Same; Same; The subsistence of the marriage
even where there was actual severance of the filial
companionship between the spouses cannot make
any cohabitation by either spouse with any third
party as being one as husband and wife.Even
assuming that Pepito and his first wife had separated
in fact, and thereafter both Pepito and respondent
had started living with each other that has already
lasted for five years, the fact remains that their fiveyear period cohabitation was not the cohabitation
contemplated by law. It should be in the nature of a
perfect union that is valid under the law but rendered
imperfect only by the absence of the marriage
contract. Pepito had a subsisting marriage at the
time when he started cohabiting with respondent. It
is immaterial that when they lived with each other,
Pepito had already been separated in fact from his
lawful spouse. The subsistence of the marriage even
where there was actual severance of the filial
companionship between the spouses cannot make
any cohabitation by either spouse with any third
party as being one as husband and wife.
Same; Same; Same; Void marriages can be
questioned even after the death of either party but
voidable marriages can be assailed only during the
lifetime of the parties and not after death of either, in
which case the parties and their offspring will be left:
as if the marriage had been perfectly valid.The
Code is silent as to who can file a petition to declare
the nullity of a marriage. Voidable and void
marriages are not identical. A marriage that is
annulable is valid until otherwise declared by the
court; whereas a marriage that is void ab initio is
considered as having never to have taken place and
cannot be the source of rights. The first can be
generally ratified or confirmed by free cohabitation or
prescription while the other can never be ratified. A
voidable marriage cannot be assailed collaterally
except in a direct proceeding while a void marriage
can be attacked collaterally. Consequently, void
marriages can be questioned even after the death of
either party but voidable marriages can be assailed
only during the lifetime of the parties and not after
death of either, in which case the parties and their
offspring will be left as if the marriage had been
perfectly valid. That is why the action or defense for
nullity is imprescriptible, unlike voidable marriages
where the action prescribes. Only the parties to a

voidable marriage can assail it but any proper

interested party may attack a void marriage.
Same; Same; Same; No judicial decree is necessary
in order to establish the nullity of a marriage.
Jurisprudence under the Civil Code states that no
judicial decree is necessary in order to establish the
nullity of a marriage. A void marriage does not
require a judicial decree to restore the parties to their
original rights or to make the marriage void but
though no sentence of avoidance be absolutely
necessary, yet as well for the sake of good order of
society as for the peace of mind of all concerned, it is
expedient that the nullity of the marriage should be
ascertained and declared by the decree of a court of
competent jurisdiction.
Same; Same; Same; Other than for purposes of
remarriage, no judicial action is necessary to declare
a marriage an absolute nullity.Other than for
purposes of remarriage, no judicial action is
necessary to declare a marriage an absolute nullity.
For other purposes, such as but not limited to
determination of heirship, legitimacy or illegitimacy
of a child, settlement of estate, dissolution of
property regime, or a criminal case for that matter,
the court may pass upon the validity of marriage
even in a suit not directly instituted to question the
same so long as it is essential to the determination of
the case. This is without prejudice to any issue that
may arise in the case. When such need arises, a final
judgment of declaration of nullity is necessary even if the purpose is
other than to remarry. The clause on the basis of a
final judgment declaring such previous marriage
void in Article 40 of the Family Code connotes that
such final judgment need not be obtained only for
purpose of remarriage.
PETITION for review on certiorari of a decision of the
Court of Appeals.
The facts are stated in the opinion of the Court.
Roldan R. Mangubat for petitioners.
Daryll A. Amante for private respondent.
YNARES-SANTIAGO, J.:
May the heirs of a deceased person file a petition for
the declaration of nullity of his marriage after his
death?
Pepito Nial was married to Teodulfa Bellones on
September 26, 1974. Out of their marriage were born
herein petitioners. Teodulfa was shot by Pepito

resulting in her death on April 24, 1985. One year

and 8 months thereafter or on December 11, 1986,
Pepito and respondent Norma Badayog got married
without any marriage license. In lieu thereof, Pepito
and Norma executed an affidavit dated December
11, 1986 stating that they had lived together as
husband and wife for at least five years and were
thus exempt from securing a marriage license. On
February 19, 1997, Pepito died in a car accident.
After their fathers death, petitioners filed a petition
for declaration of nullity of the marriage of Pepito to
Norma alleging that the said marriage was void for
lack of a marriage license. The case was filed under
the assumption that the validity or invalidity of the
second marriage would affect petitioners
successional rights. Norma filed a motion to dismiss
on the ground that petitioners have no cause of
action since they are not among the persons who
could file an action for annulment of marriage
under Article 47 of the Family Code.
Judge Ferdinand J. Marcos of the Regional Trial Court
of Toledo City, Cebu, Branch 59, dismissed the
petition after finding that the Family Code is rather
silent, obscure, insufficient to resolve the following
issues:
(1) Whether or not plaintiffs have a cause of action
against defendant in asking for the declaration of the
nullity of marriage of their deceased father, Pepito G.
Nial, with her specially so when at the time of the
filing of this instant suit, their father Pepito G. Nial is
already dead;
(2) Whether or not the second marriage of
plaintiffs deceased father with defendant is null and
void ab initio;
(3) Whether or not plaintiffs are estopped from
assailing the validity of the second marriage after it
was dissolved due to their fathers death.1
Thus, the lower court ruled that petitioners should
have filed the action to declare null and void their
fathers marriage to respondent before his death,
applying by analogy Article 47 of the Family Code
which enumerates the time and the persons who
could initiate an action for annulment of marriage.2
Hence, this petition for review with this Court
grounded on a pure question of law.
This petition was originally dismissed for noncompliance with Section 11, Rule 13 of the 1997
Rules of Civil Procedure, and because the
verification failed to state the basis of petitioners
averment that the allegations in the petition are true
and correct. It was thus treated as an unsigned
pleading which produces no legal effect under
Section 3, Rule 7, of the 1997 Rules.3 However, upon

motion of petitioners, this Court reconsidered the

dismissal and reinstated the petition for review.4
The two marriages involved herein having been
solemnized prior to the effectivity of the Family Code
(FC), the applicable law to determine their validity is
the Civil Code which was the law in effect at the time
of their celebration.5 A valid marriage license is a
requisite of marriage under Article 53 of the Civil
Code,6 the absence of which renders the marriage
void ab initio pursuant to Article 80(3)7 in relation to
Article 58.8 The requirement and issuance of
marriage license is the States demonstration of its
involvement and participation in every marriage, in
the maintenance of which the general public is
interested.9 This interest proceeds from the
constitutional mandate that the State recognizes the
sanctity of family life and of affording protection to
the family as a basic
__________________
4 Minute Resolution dated October 7, 1998; Rollo, p.
50.
5 Tamano v. Ortiz, 291 SCRA 584 (1998).
6 Now Article 3, Family Code. Art. 53. No marriage
shall be solemnized unless all the requisites are
complied with:
(1) Legal capacity of the contracting parties; their
consent, freely given;
(2) Authority of the person performing the
marriage; and
(3) A marriage license, except in a marriage of
exceptional character.
7 Now Article 4, Family Code. Art. 80. The following
marriages shall be void from the beginning:
xxx

xxx

xxx

(3) Those solemnized without a marriage license,

save marriages of exceptional character.
xxx

xxx

xxx

8 Art. 58. Save marriages of an exceptional character

authorized in Chapter 2 of this Title, but not those
under article 76, no marriage shall be solemnized
without a license first being issued by the local civil
registrar of the municipality where either contracting
party habitually resides.
autonomous social institution.10 Specifically, the
Constitution considers marriage as an inviolable

social institution, and is the foundation of family life

which shall be protected by the State.11 This is why
the Family Code considers marriage as a special
contract of permanent union12 and case law
considers it not just an adventure but a lifetime
commitment.13
However, there are several instances recognized by
the Civil Code wherein a marriage license is
dispensed with, one of which is that provided in
Article 76,14 referring to the marriage of a man and
a woman who have lived together and exclusively
with each other as husband and wife for a continuous
and unbroken period of at least five years before the
marriage. The rationale why no license is required in
such case is to avoid exposing the parties to
humiliation, shame and embarrassment concomitant
with the scandalous cohabitation of persons outside
a valid marriage due to the publication of every
applicants name for a marriage license. The publicity
attending the marriage license may discourage such
persons from legitimizing their status.15 To preserve
peace in the family, avoid the peeping and
suspicious eye of public exposure and contain the
source of gossip arising from the publication of their
names, the law deemed it wise to preserve their
privacy and exempt them from that requirement.
There is no dispute that the marriage of petitioners
father to respondent Norma was celebrated without
any marriage license. In lieu thereof, they executed
an affidavit stating that they have attained the age
of majority, and, being unmarried, have lived
together as husband and wife for at least five years,
and that we now desire to marry each other.16 The
only issue that needs to be resolved pertains to what
nature of cohabitation is contemplated under Article
76 of the Civil Code to warrant the counting of the
five year period in order to exempt the future
spouses from securing a marriage license. Should it
be a cohabitation wherein both parties are
capacitated to marry each other during the entire
five-year continuous period or should it be a
cohabitation wherein both parties have lived
together and exclusively with each other as husband
and wife during the entire five-year continuous
period regardless of whether there is a legal
impediment to their being lawfully married, which
impediment may have either disappeared or
intervened sometime during the cohabitation period?
Working on the assumption that Pepito and Norma
have lived together as husband and wife for five
years without the benefit of marriage, that five-year
period should be computed on the basis of a
cohabitation as husband and wife where the only
missing factor is the special contract of marriage to

validate the union. In other words, the five-year

common-law cohabitation period, which is counted
back from the date of celebration of marriage, should
be a period of legal union had it not been for the
absence of the marriage. This 5-year period should
be the years immediately before the day of the
marriage and it should be a period of cohabitation
characterized
by exclusivitymeaning no third party was involved
at any time within the 5 years and continuitythat is
unbroken. Otherwise, if that continuous 5-year
cohabitation is computed without any distinction as
to whether the parties were capacitated to marry
each other during the entire five years, then the law
would be sanctioning immorality and encouraging
parties to have common law relationships and
placing them on the same footing with those who
lived faithfully with their spouse. Marriage being a
special relationship must be respected as such and
its requirements must be strictly observed. The
presumption that a man and a woman deporting
themselves as husband and wife is based on the
approximation of the requirements of the law. The
parties should not be afforded any excuse to not
comply with every single requirement and later use
the same missing element as a preconceived escape
ground to nullify their marriage. There should be no
exemption from securing a marriage license unless
the circumstances clearly fall within the ambit of the
exception. It should be noted that a license is
required in order to notify the public that two persons
are about to be united in matrimony and that anyone
who is aware or has knowledge of any impediment to
the union of the two shall make it known to the local
civil registrar.17 The Civil Code provides:
Article 63: x x x. This notice shall request all persons
having knowledge of any impediment to the
marriage to advise the local civil registrar thereof. x x
x.
Article 64: Upon being advised of any alleged
impediment to the marriage, the local civil registrar
shall forthwith make an investigation, examining
persons under oath. x x x
This is reiterated in the Family Code thus:
Article 17 provides in part: x x x. This notice shall
request all persons having knowledge of any
impediment to the marriage
Article 18 reads in part: x x x.In case of any
impediment known to the local civil registrar or
brought to his attention, he shall note down the
particulars thereof and his findings thereon in the
application for a marriage license. x x x.

This is the same reason why our civil laws, past or

present, absolutely prohibited the concurrence of
multiple marriages by the same person during the
same period. Thus, any marriage subsequently
contracted during the lifetime of the first spouse
shall be illegal and void,18 subject only to the
exception in cases of absence or where the prior
marriage was dissolved or annulled. The Revised
Penal Code complements the civil law in that the
contracting of two or more marriages and the having
of extramarital affairs are considered felonies, i.e.,
bigamy and concubinage and adultery.19 The law
sanctions monogamy.
In this case, at the time of Pepito and respondents
marriage, it cannot be said that they have lived with
each other as husband and wife for at least five
years prior to their wedding day. From the time
Pepitos first marriage was dissolved to the time of
his marriage with respondent, only about twenty
months had elapsed. Even assuming that Pepito and
his first wife had separated in fact, and thereafter
both Pepito and respondent had started living with
each other that has already lasted for five years, the
fact remains that their five_______________
18 Article 83, Civil Code provides Any marriage
subsequently contracted by any person during the
lifetime of the first spouse of such person with any
person other than such first spouse shall be illegal
and void from its performance, unless:
(1) the first marriage was annulled or dissolved; or
(2) the first spouse had been absent for seven
consecutive years . . .
Article 41 of the Family Code reads: A marriage
contracted by any person during the subsistence of a
previous marriage shall be null and void, unless
before the celebration of the subsequent marriage,
the prior spouse had been absent for four
consecutive years . . .
19 Arts. 333 and 334, Revised Penal Code.
year period cohabitation was not the cohabitation
contemplated by law. It should be in the nature of a
perfect union that is valid under the law but rendered
imperfect only by the absence of the marriage
contract. Pepito had a subsisting marriage at the
time when he started cohabiting with respondent. It
is immaterial that when they lived with each other,
Pepito had already been separated in fact from his
lawful spouse. The subsistence of the marriage even
where there was actual severance of the filial

companionship between the spouses cannot make

any cohabitation by either spouse with any third
party as being one as husband and wife.
Having determined that the second marriage
involved in this case is not covered by the exception
to the requirement of a marriage license, it is void ab
initio because of the absence of such element.
The next issue to be resolved is: do petitioners have
the personality to file a petition to declare their
fathers marriage void after his death?
Contrary to respondent judges ruling, Article 47 of
the Family Code20 cannot be applied even by
analogy to petitions
_________________
20 Art. 47. The action for annulment of marriage
must be filed by the following persons and within the
periods indicated herein:
(1) For causes mentioned in number 1 of Article 45
by the party whose parent or guardian did not give
his or her consent, within five years after attaining
the age of twenty-one; or by the parent or guardian
or person having legal charge of the minor, at any
time before such party has reached the age of
twenty-one;
(2) For causes mentioned in number 2 of Article
45, by the sane spouse, who had no knowledge of
the others insanity; or by any relative or guardian or
person having legal charge of the insane, at any time
before the death of either party, or by the insane
spouse during a lucid interval or after regaining
sanity;
(3) For causes mentioned in number 3 of Article
45, by the injured party, within five years after the
discovery of the fraud;
for declaration of nullity of marriage. The second
ground for annulment of marriage relied upon by the
trial court, which allows the sane spouse to file an
annulment suit at any time before the death of
either party is inapplicable. Article 47 pertains to
the grounds, periods and persons who can file an
annulment suit, not a suit for declaration of nullity of
marriage. The Code is silent as to who can file a
petition to declare the nullity of a marriage. Voidable
and void marriages are not identical. A marriage that
is annulable is valid until otherwise declared by the
court; whereas a marriage that is void ab initio is
considered as having never to have taken place21
and cannot be the source of rights. The first can be
generally ratified or confirmed by free cohabitation or
prescription while the other can never be ratified. A
voidable marriage cannot be assailed collaterally

except in a direct proceeding while a void marriage

can be attacked collaterally. Consequently, void
marriages can be questioned even after the death of
either party but voidable marriages can be assailed
only during the lifetime of the parties and not after
death of either, in which case the parties and their
offspring will be left as if the marriage had been
perfectly valid.22 That is why the action or defense
for nullity is imprescriptible, unlike voidable
marriages where the action prescribes. Only the
parties to a voidable marriage can assail it but any
proper interested party may attack a void marriage.
Void marriages have no legal effects except those
declared by law concerning the properties of the
alleged spouses, regarding co-ownership (4) For
causes mentioned in number 4 of Article 45, by the
injured party, within five years from the time the
force, intimidation or undue influence disappeared or
ceased; For causes mentioned in numbers 5 and 6 of
Article 45, by the injured party, within five years after
the marriage.
or ownership through actual joint contribution,23 and
its effect on the children born to such void marriages
as provided in Article 50 in relation to Articles 43 and
44 as well as Articles 51, 53 and 54 of the Family
Code. On the contrary, the property regime
governing voidable marriages is generally conjugal
partnership and the children conceived before its
annulment are legitimate.
Contrary to the trial courts ruling, the death of
petitioners father extinguished the alleged marital
bond between him and respondent. The conclusion is
erroneous and proceeds from a wrong premise that
there was a marriage bond that was dissolved
between the two. It should be noted that their
marriage was void hence it is deemed as if it never
existed at all and the death of either extinguished
nothing.
Jurisprudence under the Civil Code states that no
judicial decree is necessary in order to establish the
nullity of a marriage.24 A void marriage does not
require a judicial decree to restore the parties to their
original rights or to make the marriage void but
though no sentence of avoidance be absolutely
necessary, yet as well for the sake of good order of
society as for the peace of mind of all concerned, it is
expedient that the nullity of the marriage should be
ascertained and declared by the decree of a court of
competent jurisdiction.25 Under ordinary
circumstances, the effect of a void marriage, so far
as concerns the conferring of legal rights upon the
parties, is as though no marriage had ever taken
place. And therefore, being good for no legal
purpose, its invalidity can be maintained in any

proceeding in which the fact of marriage may be

material, either direct or collateral, in any civil court
between any parties at any time, whether before or
after the death of either or both the husband and the
wife, and upon mere proof
of the facts rendering such marriage void, it will be
disregarded or treated as non-existent by the
courts. It is not like a voidable marriage which
cannot be collaterally attacked except in direct
proceeding instituted during the lifetime of the
parties so that on the death of either, the marriage
cannot be impeached, and is made good ab initio.26
But Article 40 of the Family Code expressly provides
that there must be a judicial declaration of the nullity
of a previous marriage, though void, before a party
can enter into a second marriage27 and such
absolute nullity can be based only on a final
judgment to that effect.28 For the same reason, the
law makes either the action or defense for the
declaration of absolute nullity of marriage
imprescriptible.29 Corollarily, if the death of either
party would extinguish the cause of action or the
ground for defense, then the same cannot be
considered imprescriptible.
However, other than for purposes of remarriage, no
judicial action is necessary to declare a marriage an
absolute nullity. For other purposes, such as but not
limited to determination of heirship, legitimacy or
illegitimacy of a child, settlement of estate,
dissolution of property regime, or a criminal case for
that matter, the court may pass upon the validity of
marriage even in a suit not directly instituted to
question the same so long as it is essential to the
determination of the case. This is without prejudice
to any issue that may arise in the case. When such
need arises, a final judgment of declaration of nullity
is necessary even if the purpose is other than to
remarry. The clause on the basis of a final judgment
declaring such previous marriage void in Article 40
of the Family Code connotes that such final judgment
need not be obtained only for purpose of remarriage.
Heirs of Alberto Suguitan vs. City of Mandaluyong
WHEREFORE, the petition is GRANTED. The assailed
Order of the Regional Trial Court, Toledo City, Cebu,
Branch 59, dismissing Civil Case No. T-639, is
REVERSED and SET ASIDE. The said case is ordered
REINSTATED.
SO ORDERED.
Davide, Jr. (C.J., Chairman), Puno and Kapunan, JJ.,
concur.
Pardo, J., On official business abroad.

Petition granted, order reversed and set aside. Case

ordered reinstated.

Note.Per current jurisprudence, a marriage though

void still needs a judicial declaration of such fact
before any party thereto can marry again; otherwise,

the second marriage will also be void. (Apiag vs.

Cantero, 268 SCRA 47 [1997])
[Nial vs. Bayadog, 328 SCRA 122(2000)]