[G.R. No. 119602. October 6, 2000]
filed a suit with the
WILDVALLEY SHIPPING CO., LTD. petitioner, vs. COURT OF APPEALS and
PHILIPPINE PRESIDENT LINES INC., respondents.
DECISIOn
BUENA, J.:
This is a petition for review on certiorari seeking to set aside the decision
of the Court of Appeals which reversed the decision of the lower court in CA-
G.R. CV No. 36821, entitled "Wildvalley Shipping Co., Ltd., plaintiff-appellant,
versus Philippine President Lines, Inc., defendant-appellant."
The antecedent facts of the case are as follows:
Sometime in February 1988, the Philippine Roxas, a vessel owned by
Philippine President Lines, Inc., private respondent herein, arrived in Puerto
Ordaz, Venezuela, to load iron ore. Upon the completion of the loading and
when the vessel was ready to leave port, Mr. Ezzar del Valle Solarzano
Vasquez, an official pilot of Venezuela, was designated by the harbour
authorities in Puerto Ordaz to navigate the Philippine Roxas through the
Orinoco River.[1] He was asked to pilot the said vessel on February 11,
1988[2] boarding it that night at 11:00 p.m.[3]
The master (captain) of the Philippine Roxas, Captain Nicandro Colon,
was at the bridge together with the pilot (Vasquez), the vessel's third mate
(then the officer on watch), and a helmsman when the vessel left the port [4] at
1:40 a.m. on February 12, 1988.[5] Captain Colon left the bridge when the
vessel was under way.[6]
The Philippine Roxas experienced some vibrations when it entered the
San Roque Channel at mile 172.[7] The vessel proceeded on its way, with the
pilot assuring the watch officer that the vibration was a result of the
shallowness of the channel.[8]
Between mile 158 and 157, the vessel again experienced some
vibrations.[9] These occurred at 4:12 a.m.[10] It was then that the watch officer
called the master to the bridge.[11]
The master (captain) checked the position of the vessel[12] and verified
that it was in the centre of the channel.[13] He then went to confirm, or set down,
the position of the vessel on the chart.[14] He ordered Simplicio A. Monis, Chief
Officer of the President Roxas, to check all the double bottom tanks. [15]
At around 4:35 a.m., the Philippine Roxas ran aground in the Orinoco
River,[16] thus obstructing the ingress and egress of vessels.
As a result of the blockage, the Malandrinon, a vessel owned by herein
petitioner Wildvalley Shipping Company, Ltd., was unable to sail out of Puerto
Ordaz on that day.
Subsequently, Wildvalley Shipping Company, Ltd.
Regional Trial Court of Manila, Branch III against Philippine President Lines,
Inc. and Pioneer Insurance Company (the underwriter/insurer of Philippine
Roxas) for damages in the form of unearned profits, and interest thereon
amounting to US $400,000.00 plus attorney's fees, costs, and expenses of
litigation. The complaint against Pioneer Insurance Company was dismissed
in an Order dated November 7, 1988.[17]
At the pre-trial conference, the parties agreed on the following facts:
"1. The jurisdictional facts, as specified in their respective pleadings;
"2. That defendant PPL was the owner of the vessel Philippine Roxas at the time of
the incident;
"3. That defendant Pioneer Insurance was the insurance underwriter for defendant
PPL;
"4. That plaintiff Wildvalley Shipping Co., Inc. is the owner of the vessel
Malandrinon, whose passage was obstructed by the vessel Philippine Roxas at Puerto
Ordaz, Venezuela, as specified in par. 4, page 2 of the complaint;
"5. That on February 12, 1988, while the Philippine Roxas was navigating the
channel at Puerto Ordaz, the said vessel grounded and as a result, obstructed
navigation at the channel;
"6. That the Orinoco River in Puerto Ordaz is a compulsory pilotage channel;
"7. That at the time of the incident, the vessel, Philippine Roxas, was under the
command of the pilot Ezzar Solarzano, assigned by the government thereat, but
plaintiff claims that it is under the command of the master;
"8. The plaintiff filed a case in Middleburg, Holland which is related to the present
case;
"9. The plaintiff caused the arrest of the Philippine Collier, a vessel owned by the
defendant PPL;
"10. The Orinoco River is 150 miles long and it takes approximately 12 hours to
navigate out of the said river;
"11. That no security for the plaintiff's claim was given until after the Philippine
Collier was arrested; and
"12. That a letter of guarantee, dated 12-May-88 was issued by the Steamship Mutual
Underwriters Ltd."[18]
The trial court rendered its decision on October 16, 1991 in favor of the
petitioner, Wildvalley Shipping Co., Ltd. The dispositive portion thereof reads
as follows:
"WHEREFORE, judgment is rendered for the plaintiff, ordering defendant
Philippine President Lines, Inc. to pay to the plaintiff the sum of U.S. $259,243.43,
as actual and compensatory damages, and U.S. $162,031.53, as expenses incurred
abroad for its foreign lawyers, plus additional sum of U.S. $22,000.00, as and for
attorney's fees of plaintiff's local lawyer, and to pay the cost of this suit.
"Defendant's counterclaim is dismissed for lack of merit.
"SO ORDERED."[19]
Both parties appealed: the petitioner appealing the non-award of interest
with the private respondent questioning the decision on the merits of the case.
After the requisite pleadings had been filed, the Court of Appeals came
out with its questioned decision dated June 14, 1994, [20] the dispositive portion
of which reads as follows:
"WHEREFORE, finding defendant-appellant's appeal to be meritorious, judgment is
hereby rendered reversing the Decision of the lower court. Plaintiff-appellant's
Complaint is dismissed and it is ordered to pay defendant-appellant the amount of
Three Hundred Twenty-three Thousand, Forty-two Pesos and Fifty-three Centavos
(P323,042.53) as and for attorney's fees plus cost of suit. Plaintiff-appellant's appeal
is DISMISSED.
"SO ORDERED."[21]
Petitioner filed a motion for reconsideration[22] but the same was denied
for lack of merit in the resolution dated March 29, 1995.[23]
Hence, this petition.
The petitioner assigns the following errors to the court a quo:
1. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN
FINDING THAT UNDER PHILIPPINE LAW NO FAULT OR
NEGLIGENCE CAN BE ATTRIBUTED TO THE MASTER NOR
THE OWNER OF THE "PHILIPPINE ROXAS" FOR THE
GROUNDING OF SAID VESSEL RESULTING IN THE
BLOCKAGE OF THE RIO ORINOCO;
2. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN
REVERSING THE FINDINGS OF FACTS OF THE TRIAL
COURT CONTRARY TO EVIDENCE;
3. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN
FINDING THAT THE "PHILIPPINE ROXAS" IS SEAWORTHY;
4. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN
DISREGARDING VENEZUELAN LAW DESPITE THE FACT
THAT THE SAME HAS BEEN SUBSTANTIALLY PROVED IN
THE TRIAL COURT WITHOUT ANY OBJECTION FROM
PRIVATE RESPONDENT, AND WHOSE OBJECTION WAS
INTERPOSED BELATEDLY ON APPEAL;
5. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN
AWARDING ATTORNEY'S FEES AND COSTS TO PRIVATE
RESPONDENT WITHOUT ANY FAIR OR REASONABLE BASIS
WHATSOEVER;
6. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN
NOT FINDING THAT PETITIONER'S CAUSE IS MERITORIOUS
HENCE, PETITIONER SHOULD BE ENTITLED TO
ATTORNEY'S FEES, COSTS AND INTEREST.
The petition is without merit.
The primary issue to be determined is whether or not Venezuelan law is
applicable to the case at bar.
It is well-settled that foreign laws do not prove themselves in our
jurisdiction and our courts are not authorized to take judicial notice of
them. Like any other fact, they must be alleged and proved.[24]
A distinction is to be made as to the manner of proving a written and an
unwritten law. The former falls under Section 24, Rule 132 of the Rules of
Court, as amended, the entire provision of which is quoted hereunder. Where
the foreign law sought to be proved is "unwritten," the oral testimony of expert
witnesses is admissible, as are printed and published books of reports of
decisions of the courts of the country concerned if proved to be commonly
admitted in such courts.[25]
Section 24 of Rule 132 of the Rules of Court, as amended, provides:
"Sec. 24. Proof of official record. -- The record of public documents referred to in
paragraph (a) of Section 19, when admissible for any purpose, may be evidenced by
an official publication thereof or by a copy attested by the officer having the legal
custody of the record, or by his deputy, and accompanied, if the record is not kept in
the Philippines, with a certificate that such officer has the custody. If the office in
which the record is kept is in a foreign country, the certificate may be made by a
secretary of the embassy or legation, consul general, consul, vice consul, or consular
agent or by any officer in the foreign service of the Philippines stationed in the
foreign country in which the record is kept, and authenticated by the seal of his
office." (Underscoring supplied)
The court has interpreted Section 25 (now Section 24) to include
competent evidence like the testimony of a witness to prove the existence of a
written foreign law.[26]
In the noted case of Willamette Iron & Steel Works vs. Muzzal,[27] it was
held that:
" Mr. Arthur W. Bolton, an attorney-at-law of San Francisco, California, since the
year 1918 under oath, quoted verbatim section 322 of the California Civil Code and
stated that said section was in force at the time the obligations of defendant to the
plaintiff were incurred, i.e. on November 5, 1928 and December 22, 1928. This
evidence sufficiently established the fact that the section in question was the law of
the State of California on the above dates. A reading of sections 300 and 301 of our
Code of Civil Procedure will convince one that these sections do not exclude the
presentation of other competent evidence to prove the existence of a foreign law.
"`The foreign law is a matter of fact You ask the witness what the law is; he may,
from his recollection, or on producing and referring to books, say what it is.' (Lord
Campbell concurring in an opinion of Lord Chief Justice Denman in a well-known
English case where a witness was called upon to prove the Roman laws of marriage
and was permitted to testify, though he referred to a book containing the decrees of
the Council of Trent as controlling, Jones on Evidence, Second Edition, Volume 4,
pages 3148-3152.) x x x.
We do not dispute the competency of Capt. Oscar Leon Monzon, the
Assistant Harbor Master and Chief of Pilots at Puerto Ordaz, Venezuela, [28] to
testify on the existence of the Reglamento General de la Ley de
Pilotaje (pilotage law of Venezuela)[29]and the Reglamento Para la Zona de
Pilotaje No 1 del Orinoco (rules governing the navigation of the Orinoco
River). Captain Monzon has held the aforementioned posts for eight
years.[30] As such he is in charge of designating the pilots for maneuvering and
navigating the Orinoco River. He is also in charge of the documents that come
into the office of the harbour masters.[31]
Nevertheless, we take note that these written laws were not proven in the
manner provided by Section 24 of Rule 132 of the Rules of Court.
The Reglamento General de la Ley de Pilotaje was published in
the Gaceta Oficial[32]of the Republic of Venezuela. A photocopy of the Gaceta
Oficial was presented in evidence as an official publication of the Republic of
Venezuela.
The Reglamento Para la Zona de Pilotaje No 1 del Orinoco is published
in a book issued by the Ministerio de Comunicaciones of Venezuela.[33] Only a
photocopy of the said rules was likewise presented as evidence.
Both of these documents are considered in Philippine jurisprudence to be
public documents for they are the written official acts, or records of the official
acts of the sovereign authority, official bodies and tribunals, and public officers
of Venezuela.[34]
For a copy of a foreign public document to be admissible, the following
requisites are mandatory: (1) It must be attested by the officer having legal
custody of the records or by his deputy; and (2) It must be accompanied by a
certificate by a secretary of the embassy or legation, consul general, consul,
vice consular or consular agent or foreign service officer, and with the seal of
his office.[35] The latter requirement is not a mere technicality but is intended to
justify the giving of full faith and credit to the genuineness of a document in a
foreign country.[36]
It is not enough that the Gaceta Oficial, or a book published by
the Ministerio de Comunicaciones of Venezuela, was presented as evidence
with Captain Monzon attesting it. It is also required by Section 24 of Rule 132
of the Rules of Court that a certificate that Captain Monzon, who attested the
documents, is the officer who had legal custody of those records made by a
secretary of the embassy or legation, consul general, consul, vice consul or
consular agent or by any officer in the foreign service of the Philippines
stationed in Venezuela, and authenticated by the seal of his office
accompanying the copy of the public document. No such certificate could be
found in the records of the case.
With respect to proof of written laws, parol proof is objectionable, for the
written law itself is the best evidence. According to the weight of authority,
when a foreign statute is involved, the best evidence rule requires that it be
proved by a duly authenticated copy of the statute.[37]
At this juncture, we have to point out that the Venezuelan law was not
pleaded before the lower court.
A foreign law is considered to be pleaded if there is an allegation in the
pleading about the existence of the foreign law, its import and legal
consequence on the event or transaction in issue.[38]
A review of the Complaint[39] revealed that it was never alleged or invoked
despite the fact that the grounding of the M/V Philippine Roxas occurred within
the territorial jurisdiction of Venezuela.
We reiterate that under the rules of private international law, a foreign law
must be properly pleaded and proved as a fact. In the absence of pleading and
proof, the laws of a foreign country, or state, will be presumed to be the same
as our own local or domestic law and this is known as processual
presumption.[40]
Having cleared this point, we now proceed to a thorough study of the
errors assigned by the petitioner.
Petitioner alleges that there was negligence on the part of the private
respondent that would warrant the award of damages.
There being no contractual obligation, the private respondent is obliged
to give only the diligence required of a good father of a family in accordance
with the provisions of Article 1173 of the New Civil Code, thus:
Art. 1173. The fault or negligence of the obligor consists in the omission of that
diligence which is required by the nature of the obligation and corresponds with the
circumstances of the persons, of the time and of the place. When negligence shows
bad faith, the provisions of articles 1171 and 2201, paragraph 2, shall apply.
If the law or contract does not state the diligence which is to be observed in the
performance, that which is expected of a good father of a family shall be required.
The diligence of a good father of a family requires only that diligence
which an ordinary prudent man would exercise with regard to his own
property. This we have found private respondent to have exercised when the
vessel sailed only after the "main engine, machineries, and other auxiliaries"
were checked and found to be in good running condition; [41] when the master
left a competent officer, the officer on watch on the bridge with a pilot who is
experienced in navigating the Orinoco River; when the master ordered the
inspection of the vessel's double bottom tanks when the vibrations occurred
anew.[42]
The Philippine rules on pilotage, embodied in Philippine Ports Authority
Administrative Order No. 03-85, otherwise known as the Rules and
Regulations Governing Pilotage Services, the Conduct of Pilots and Pilotage
Fees in Philippine Ports enunciate the duties and responsibilities of a master
of a vessel and its pilot, among other things.
The pertinent provisions of the said administrative order governing these
persons are quoted hereunder:
Sec. 11. Control of Vessels and Liability for Damage. -- On compulsory pilotage
grounds, the Harbor Pilot providing the service to a vessel shall be responsible for
the damage caused to a vessel or to life and property at ports due to his negligence or
fault. He can be absolved from liability if the accident is caused by force majeure or
natural calamities provided he has exercised prudence and extra diligence to prevent
or minimize the damage.
The Master shall retain overall command of the vessel even on pilotage grounds
whereby he can countermand or overrule the order or command of the Harbor Pilot
on board. In such event, any damage caused to a vessel or to life and property at
ports by reason of the fault or negligence of the Master shall be the responsibility and
liability of the registered owner of the vessel concerned without prejudice to recourse
against said Master.
Such liability of the owner or Master of the vessel or its pilots shall be determined by
competent authority in appropriate proceedings in the light of the facts and
circumstances of each particular case.
xxx
Sec. 32. Duties and Responsibilities of the Pilots or Pilots Association. -- The duties
and responsibilities of the Harbor Pilot shall be as follows:
xxx
f) A pilot shall be held responsible for the direction of a vessel from the time he
assumes his work as a pilot thereof until he leaves it anchored or berthed safely;
Provided, however, that his responsibility shall cease at the moment the Master
neglects or refuses to carry out his order."
The Code of Commerce likewise provides for the obligations expected of
a captain of a vessel, to wit:
Art. 612. The following obligations shall be inherent in the office of captain:
xxx
"7. To be on deck on reaching land and to take command on entering and leaving
ports, canals, roadsteads, and rivers, unless there is a pilot on board discharging his
duties. x x x.
The law is very explicit. The master remains the overall commander of
the vessel even when there is a pilot on board. He remains in control of the
ship as he can still perform the duties conferred upon him by law[43] despite the
presence of a pilot who is temporarily in charge of the vessel. It is not required
of him to be on the bridge while the vessel is being navigated by a pilot.
However, Section 8 of PPA Administrative Order No. 03-85, provides:
Sec. 8. Compulsory Pilotage Service - For entering a harbor and anchoring thereat, or
passing through rivers or straits within a pilotage district, as well as docking and
undocking at any pier/wharf, or shifting from one berth or another, every vessel
engaged in coastwise and foreign trade shall be under compulsory pilotage.
xxx.
The Orinoco River being a compulsory pilotage channel necessitated the
engaging of a pilot who was presumed to be knowledgeable of every shoal,
bank, deep and shallow ends of the river. In his deposition, pilot Ezzar
Solarzano Vasquez testified that he is an official pilot in the Harbour at Port
Ordaz, Venezuela,[44] and that he had been a pilot for twelve (12) years.[45] He
also had experience in navigating the waters of the Orinoco River. [46]
The law does provide that the master can countermand or overrule the
order or command of the harbor pilot on board. The master of the Philippine
Roxas deemed it best not to order him (the pilot) to stop the vessel, [47] mayhap,
because the latter had assured him that they were navigating normally before
the grounding of the vessel.[48] Moreover, the pilot had admitted that on
account of his experience he was very familiar with the configuration of the
river as well as the course headings, and that he does not even refer to river
charts when navigating the Orinoco River.[49]
Based on these declarations, it comes as no surprise to us that the master
chose not to regain control of the ship. Admitting his limited knowledge of the
Orinoco River, Captain Colon relied on the knowledge and experience of pilot
Vasquez to guide the vessel safely.
Licensed pilots, enjoying the emoluments of compulsory pilotage, are in a different
class from ordinary employees, for they assume to have a skill and a knowledge of
navigation in the particular waters over which their licenses extend superior to that of
the master; pilots are bound to use due diligence and reasonable care and skill. A
pilot's ordinary skill is in proportion to the pilot's responsibilities, and implies a
knowledge and observance of the usual rules of navigation, acquaintance with the
waters piloted in their ordinary condition, and nautical skill in avoiding all known
obstructions. The character of the skill and knowledge required of a pilot in charge of
a vessel on the rivers of a country is very different from that which enables a
navigator to carry a vessel safely in the ocean. On the ocean, a knowledge of the
rules of navigation, with charts that disclose the places of hidden rocks, dangerous
shores, or other dangers of the way, are the main elements of a pilot's knowledge and
skill. But the pilot of a river vessel, like the harbor pilot, is selected for the
individual's personal knowledge of the topography through which the vessel is
steered."[50]
We find that the grounding of the vessel is attributable to the pilot. When
the vibrations were first felt the watch officer asked him what was going on,
and pilot Vasquez replied that "(they) were in the middle of the channel and
that the vibration was as (sic) a result of the shallowness of the channel." [51]
Pilot Ezzar Solarzano Vasquez was assigned to pilot the vessel Philippine
Roxas as well as other vessels on the Orinoco River due to his knowledge of
the same. In his experience as a pilot, he should have been aware of the
portions which are shallow and which are not. His failure to determine the
depth of the said river and his decision to plod on his set course, in all
probability, caused damage to the vessel. Thus, we hold him as negligent and
liable for its grounding.
In the case of Homer Ramsdell Transportation Company vs. La
Compagnie Generale Transatlantique, 182 U.S. 406, it was held that:
x x x The master of a ship, and the owner also, is liable for any injury done by the
negligence of the crew employed in the ship. The same doctrine will apply to the
case of a pilot employed by the master or owner, by whose negligence any injury
happens to a third person or his property: as, for example, by a collision with another
ship, occasioned by his negligence. And it will make no difference in the case that
the pilot, if any is employed, is required to be a licensed pilot; provided the master is
at liberty to take a pilot, or not, at his pleasure, for in such a case the master acts
voluntarily, although he is necessarily required to select from a particular class. On
the other hand, if it is compulsive upon the master to take a pilot, and, a fortiori,
if he is bound to do so under penalty, then, and in such case, neither he nor the
owner will be liable for injuries occasioned by the negligence of the pilot; for in
such a case the pilot cannot be deemed properly the servant of the master or the
owner, but is forced upon them, and the maxim Qui facit per alium facit per se does
not apply." (Underscoring supplied)
Anent the river passage plan, we find that, while there was none, [52] the
voyage has been sufficiently planned and monitored as shown by the following
actions undertaken by the pilot, Ezzar Solarzano Vasquez, to wit: contacting
the radio marina via VHF for information regarding the channel, river
traffic,[53] soundings of the river, depth of the river, bulletin on the buoys.[54] The
officer on watch also monitored the voyage.[55]
We, therefore, do not find the absence of a river passage plan to be the
cause for the grounding of the vessel.
The doctrine of res ipsa loquitur does not apply to the case at bar because
the circumstances surrounding the injury do not clearly indicate negligence on
the part of the private respondent. For the said doctrine to apply, the following
conditions must be met: (1) the accident was of such character as to warrant
an inference that it would not have happened except for defendant's
negligence; (2) the accident must have been caused by an agency or
instrumentality within the exclusive management or control of the person
charged with the negligence complained of; and (3) the accident must not have
been due to any voluntary action or contribution on the part of the person
injured.[56]
 As has already been held above, there was a temporary shift of control
over the ship from the master of the vessel to the pilot on a compulsory pilotage
channel. Thus, two of the requisites necessary for the doctrine to apply, i.e.,
negligence and control, to render the respondent liable, are absent.
As to the claim that the ship was unseaworthy, we hold that it is not.
The Lloyds Register of Shipping confirmed the vessels seaworthiness in
a Confirmation of Class issued on February 16, 1988 by finding that "the above
named ship (Philippine Roxas) maintained the class "+100A1 Strengthened
for Ore Cargoes, Nos. 2 and 8 Holds may be empty (CC) and +LMC" from
31/12/87 up until the time of casualty on or about 12/2/88."[57] The same would
not have been issued had not the vessel been built according to the standards
set by Lloyd's.
Samuel Lim, a marine surveyor, at Lloyd's Register of Shipping testified
thus:
"Q Now, in your opinion, as a surveyor, did top side tank have any
bearing at all to the seaworthiness of the vessel?
"A Well, judging on this particular vessel, and also basing on the class
record of the vessel, wherein recommendations were made on the
top side tank, and it was given sufficient time to be repaired, it means
that the vessel is fit to travel even with those defects on the ship.
"COURT
What do you mean by that? You explain. The vessel is fit to travel even
with defects? Is that what you mean? Explain.
"WITNESS
"A Yes, your Honor. Because the class society which register (sic) is the
third party looking into the condition of the vessel and as far as their
record states, the vessel was class or maintained, and she is fit to
travel during that voyage."
xxx
"ATTY. MISA
Before we proceed to other matter, will you kindly tell us what is (sic) the
'class +100A1 Strengthened for Ore Cargoes', mean?
"WITNESS
"A Plus 100A1 means that the vessel was built according to Lloyd's rules
and she is capable of carrying ore bulk cargoes, but she is
particularly capable of carrying Ore Cargoes with No. 2 and No. 8
holds empty.
xxx
"COURT
The vessel is classed, meaning?
"A Meaning she is fit to travel, your Honor, or seaworthy."[58]
It is not required that the vessel must be perfect. To be seaworthy, a ship
must be reasonably fit to perform the services, and to encounter the ordinary
perils of the voyage, contemplated by the parties to the policy.[59]
As further evidence that the vessel was seaworthy, we quote the
deposition of pilot Vasquez:
"Q Was there any instance when your orders or directions were not
complied with because of the inability of the vessel to do so?
"A No.
"Q. Was the vessel able to respond to all your commands and orders?
"A. The vessel was navigating normally.[60]
Eduardo P. Mata, Second Engineer of the Philippine Roxas submitted an
accident report wherein he stated that on February 11, 1988, he checked and
prepared the main engine, machineries and all other auxiliaries and found
them all to be in good running condition and ready for maneuvering. That same
day the main engine, bridge and engine telegraph and steering gear motor
were also tested.[61] Engineer Mata also prepared the fuel for consumption for
maneuvering and checked the engine generators.[62]
Finally, we find the award of attorneys fee justified.
Article 2208 of the New Civil Code provides that:
"Art. 2208. In the absence of stipulation, attorney's fees and expenses of litigation,
other than judicial costs, cannot be recovered, except:
xxx
"(11) In any other case where the court deems it just and equitable that attorney's fees
and expenses of litigation should be recovered.
xxx
Due to the unfounded filing of this case, the private respondent was
unjustifiably forced to litigate, thus the award of attorneys fees was proper.
 WHEREFORE, IN VIEW OF THE FOREGOING, the petition is
DENIED and the decision of the Court of Appeals in CA G.R. CV No. 36821 is
AFFIRMED.
SO ORDERED.
G.R. No. 80116 June 30, 1989
IMELDA MANALAYSAY PILAPIL, petitioner,
vs.
HON. CORONA IBAY-SOMERA, in her capacity as Presiding Judge of
the Regional Trial Court of Manila, Branch XXVI; HON. LUIS C. VICTOR,
in his capacity as the City Fiscal of Manila; and ERICH EKKEHARD
GEILING, respondents.
REGALADO, J.:
An ill-starred marriage of a Filipina and a foreigner which ended in a foreign
absolute divorce, only to be followed by a criminal infidelity suit of the latter
against the former, provides Us the opportunity to lay down a decisional rule
on what hitherto appears to be an unresolved jurisdictional question.
On September 7, 1979, petitioner Imelda Manalaysay Pilapil, a Filipino
citizen, and private respondent Erich Ekkehard Geiling, a German national,
were married before the Registrar of Births, Marriages and Deaths at
Friedensweiler in the Federal Republic of Germany. The marriage started
auspiciously enough, and the couple lived together for some time in Malate,
Manila where their only child, Isabella Pilapil Geiling, was born on April 20,
1980. 1
Thereafter, marital discord set in, with mutual recriminations between the
spouses, followed by a separation de facto between them.
After about three and a half years of marriage, such connubial disharmony
eventuated in private respondent initiating a divorce proceeding against
petitioner in Germany before the Schoneberg Local Court in January, 1983.
He claimed that there was failure of their marriage and that they had been
living apart since April, 1982. 2
Petitioner, on the other hand, filed an action for legal separation, support and
separation of property before the Regional Trial Court of Manila, Branch
XXXII, on January 23, 1983 where the same is still pending as Civil Case No.
83-15866. 3
On January 15, 1986, Division 20 of the Schoneberg Local Court, Federal
Republic of Germany, promulgated a decree of divorce on the ground of
failure of marriage of the spouses. The custody of the child was granted to
petitioner. The records show that under German law said court was locally
and internationally competent for the divorce proceeding and that the
dissolution of said marriage was legally founded on and authorized by the
applicable law of that foreign jurisdiction. 4
On June 27, 1986, or more than five months after the issuance of the divorce
decree, private respondent filed two complaints for adultery before the City
Fiscal of Manila alleging that, while still married to said respondent, petitioner
"had an affair with a certain William Chia as early as 1982 and with yet
another man named Jesus Chua sometime in 1983". Assistant Fiscal Jacinto
A. de los Reyes, Jr., after the corresponding investigation, recommended the
dismissal of the cases on the ground of insufficiency of evidence. 5 However,
upon review, the respondent city fiscal approved a resolution, dated January
8, 1986, directing the filing of two complaints for adultery against the
petitioner. 6 The complaints were accordingly filed and were eventually raffled
to two branches of the Regional Trial Court of Manila. The case
entitled "People of the Philippines vs. Imelda Pilapil and William
Chia", docketed as Criminal Case No. 87-52435, was assigned to Branch
XXVI presided by the respondent judge; while the other case, "People of the
Philippines vs. Imelda Pilapil and James Chua", docketed as Criminal Case
No. 87-52434 went to the sala of Judge Leonardo Cruz, Branch XXV, of the
same court. 7
On March 14, 1987, petitioner filed a petition with the Secretary of Justice
asking that the aforesaid resolution of respondent fiscal be set aside and the
cases against her be dismissed. 8 A similar petition was filed by James Chua,
her co-accused in Criminal Case No. 87-52434. The Secretary of Justice,
through the Chief State Prosecutor, gave due course to both petitions and
directed the respondent city fiscal to inform the Department of Justice "if the
accused have already been arraigned and if not yet arraigned, to move to
defer further proceedings" and to elevate the entire records of both cases to
his office for review. 9
Petitioner thereafter filed a motion in both criminal cases to defer her
arraignment and to suspend further proceedings thereon. 10 As a
consequence, Judge Leonardo Cruz suspended proceedings in Criminal
Case No. 87-52434. On the other hand, respondent judge merely reset the
date of the arraignment in Criminal Case No. 87-52435 to April 6, 1987.
Before such scheduled date, petitioner moved for the cancellation of the
arraignment and for the suspension of proceedings in said Criminal Case No.
87-52435 until after the resolution of the petition for review then pending
before the Secretary of Justice. 11 A motion to quash was also filed in the
same case on the ground of lack of jurisdiction, 12 which motion was denied
by the respondent judge in an order dated September 8, 1987. The same
order also directed the arraignment of both accused therein, that is, petitioner
and William Chia. The latter entered a plea of not guilty while the petitioner
refused to be arraigned. Such refusal of the petitioner being considered by
respondent judge as direct contempt, she and her counsel were fined and
the former was ordered detained until she submitted herself for
arraignment. 13 Later, private respondent entered a plea of not guilty. 14
On October 27, 1987, petitioner filed this special civil action for certiorari and
prohibition, with a prayer for a temporary restraining order, seeking the
annulment of the order of the lower court denying her motion to quash. The
petition is anchored on the main ground that the court is without jurisdiction
"to try and decide the charge of adultery, which is a private offense that
cannot be prosecuted de officio (sic), since the purported complainant, a
foreigner, does not qualify as an offended spouse having obtained a final
divorce decree under his national law prior to his filing the criminal
complaint." 15
On October 21, 1987, this Court issued a temporary restraining order
enjoining the respondents from implementing the aforesaid order of
September 8, 1987 and from further proceeding with Criminal Case No. 87-
52435. Subsequently, on March 23, 1988 Secretary of Justice Sedfrey A.
Ordoñez acted on the aforesaid petitions for review and, upholding
petitioner's ratiocinations, issued a resolution directing the respondent city
fiscal to move for the dismissal of the complaints against the petitioner. 16
We find this petition meritorious. The writs prayed for shall accordingly issue.
Under Article 344 of the Revised Penal Code, 17 the crime of adultery, as well
as four other crimes against chastity, cannot be prosecuted except upon a
sworn written complaint filed by the offended spouse. It has long since been
established, with unwavering consistency, that compliance with this rule is a
jurisdictional, and not merely a formal, requirement. 18 While in point of strict
law the jurisdiction of the court over the offense is vested in it by the Judiciary
Law, the requirement for a sworn written complaint is just as jurisdictional a
mandate since it is that complaint which starts the prosecutory
proceeding 19 and without which the court cannot exercise its jurisdiction to
try the case.
Now, the law specifically provides that in prosecutions for adultery and
concubinage the person who can legally file the complaint should be the
offended spouse, and nobody else. Unlike the offenses of seduction,
abduction, rape and acts of lasciviousness, no provision is made for the
prosecution of the crimes of adultery and concubinage by the parents,
grandparents or guardian of the offended party. The so-called exclusive and
successive rule in the prosecution of the first four offenses above mentioned
do not apply to adultery and concubinage. It is significant that while the State,
as parens patriae, was added and vested by the 1985 Rules of Criminal
Procedure with the power to initiate the criminal action for a deceased or
incapacitated victim in the aforesaid offenses of seduction, abduction, rape
and acts of lasciviousness, in default of her parents, grandparents or
guardian, such amendment did not include the crimes of adultery and
concubinage. In other words, only the offended spouse, and no other, is
authorized by law to initiate the action therefor.
Corollary to such exclusive grant of power to the offended spouse to institute
the action, it necessarily follows that such initiator must have the status,
capacity or legal representation to do so at the time of the filing of the
criminal action. This is a familiar and express rule in civil actions; in fact, lack
of legal capacity to sue, as a ground for a motion to dismiss in civil cases, is
determined as of the filing of the complaint or petition.
The absence of an equivalent explicit rule in the prosecution of criminal
cases does not mean that the same requirement and rationale would not
apply. Understandably, it may not have been found necessary since criminal
actions are generally and fundamentally commenced by the State, through
the People of the Philippines, the offended party being merely the
complaining witness therein. However, in the so-called "private crimes" or
those which cannot be prosecuted de oficio, and the present prosecution for
adultery is of such genre, the offended spouse assumes a more predominant
role since the right to commence the action, or to refrain therefrom, is a
matter exclusively within his power and option.
This policy was adopted out of consideration for the aggrieved party who
might prefer to suffer the outrage in silence rather than go through the
scandal of a public trial. 20 Hence, as cogently argued by petitioner, Article
344 of the Revised Penal Code thus presupposes that the marital
relationship is still subsisting at the time of the institution of the criminal
action for, adultery. This is a logical consequence since the raison d'etre of
said provision of law would be absent where the supposed offended party
had ceased to be the spouse of the alleged offender at the time of the filing
of the criminal case. 21
In these cases, therefore, it is indispensable that the status and capacity of
the complainant to commence the action be definitely established and, as
already demonstrated, such status or capacity must indubitably exist as of
the time he initiates the action. It would be absurd if his capacity to bring the
action would be determined by his status beforeor subsequent to the
commencement thereof, where such capacity or status existed prior to but
ceased before, or was acquired subsequent to but did not exist at the time of,
the institution of the case. We would thereby have the anomalous spectacle
of a party bringing suit at the very time when he is without the legal capacity
to do so.
To repeat, there does not appear to be any local precedential jurisprudence
on the specific issue as to when precisely the status of a complainant as an
offended spouse must exist where a criminal prosecution can be commenced
only by one who in law can be categorized as possessed of such status.
Stated differently and with reference to the present case, the inquiry ;would
be whether it is necessary in the commencement of a criminal action for
adultery that the marital bonds between the complainant and the accused be
unsevered and existing at the time of the institution of the action by the
former against the latter.
American jurisprudence, on cases involving statutes in that jurisdiction which
are in pari materia with ours, yields the rule that after a divorce has been
decreed, the innocent spouse no longer has the right to institute proceedings
against the offenders where the statute provides that the innocent spouse
shall have the exclusive right to institute a prosecution for adultery. Where,
however, proceedings have been properly commenced, a divorce
subsequently granted can have no legal effect on the prosecution of the
criminal proceedings to a conclusion. 22
In the cited Loftus case, the Supreme Court of Iowa held that —
'No prosecution for adultery can be commenced except on
the complaint of the husband or wife.' Section 4932,
Code. Though Loftus was husband of defendant when the
offense is said to have been committed, he had ceased to be
such when the prosecution was begun; and appellant insists
that his status was not such as to entitle him to make the
complaint. We have repeatedly said that the offense is
against the unoffending spouse, as well as the state, in
explaining the reason for this provision in the statute; and we
are of the opinion that the unoffending spouse must be such
when the prosecution is commenced. (Emphasis supplied.)
We see no reason why the same doctrinal rule should not apply in this case
and in our jurisdiction, considering our statutory law and jural policy on the
matter. We are convinced that in cases of such nature, the status of the
complainant vis-a-vis the accused must be determined as of the time the
complaint was filed. Thus, the person who initiates the adultery case must be
an offended spouse, and by this is meant that he is still married to the
accused spouse, at the time of the filing of the complaint.
In the present case, the fact that private respondent obtained a valid divorce
in his country, the Federal Republic of Germany, is admitted. Said divorce
and its legal effects may be recognized in the Philippines insofar as private
respondent is concerned 23 in view of the nationality principle in our civil law
on the matter of status of persons.
Thus, in the recent case of Van Dorn vs. Romillo, Jr., et al., 24 after a divorce
was granted by a United States court between Alice Van Dornja Filipina, and
her American husband, the latter filed a civil case in a trial court here alleging
that her business concern was conjugal property and praying that she be
ordered to render an accounting and that the plaintiff be granted the right to
manage the business. Rejecting his pretensions, this Court perspicuously
demonstrated the error of such stance, thus:
There can be no question as to the validity of that Nevada
divorce in any of the States of the United States. The decree
is binding on private respondent as an American citizen. For
instance, private respondent cannot sue petitioner, as her
husband, in any State of the Union. ...
It is true that owing to the nationality principle embodied in
Article 15 of the Civil Code, only Philippine nationals are
covered by the policy against absolute divorces the same
being considered contrary to our concept of public policy and
morality. However, aliens may obtain divorces abroad, which
may be recognized in the Philippines, provided they are valid
according to their national law. ...
Thus, pursuant to his national law, private respondent is no
longer the husband of petitioner. He would have no standing
to sue in the case below as petitioner's husband entitled to
exercise control over conjugal assets. ... 25
Under the same considerations and rationale, private respondent, being no
longer the husband of petitioner, had no legal standing to commence the
adultery case under the imposture that he was the offended spouse at the
time he filed suit.
The allegation of private respondent that he could not have brought this case
before the decree of divorce for lack of knowledge, even if true, is of no legal
significance or consequence in this case. When said respondent initiated the
divorce proceeding, he obviously knew that there would no longer be a family
nor marriage vows to protect once a dissolution of the marriage is decreed.
Neither would there be a danger of introducing spurious heirs into the family,
which is said to be one of the reasons for the particular formulation of our law
on adultery, 26 since there would thenceforth be no spousal relationship to
speak of. The severance of the marital bond had the effect of dissociating the
former spouses from each other, hence the actuations of one would not
affect or cast obloquy on the other.
The aforecited case of United States vs. Mata cannot be successfully relied
upon by private respondent. In applying Article 433 of the old Penal Code,
substantially the same as Article 333 of the Revised Penal Code, which
punished adultery "although the marriage be afterwards declared void", the
Court merely stated that "the lawmakers intended to declare adulterous the
infidelity of a married woman to her marital vows, even though it should be
made to appear that she is entitled to have her marriage contract declared
null and void, until and unless she actually secures a formal judicial
declaration to that effect". Definitely, it cannot be logically inferred therefrom
that the complaint can still be filed after the declaration of nullity because
such declaration that the marriage is void ab initio is equivalent to stating that
it never existed. There being no marriage from the beginning, any complaint
for adultery filed after said declaration of nullity would no longer have a leg to
stand on. Moreover, what was consequently contemplated and within the
purview of the decision in said case is the situation where the criminal action
for adultery was filed beforethe termination of the marriage by a judicial
declaration of its nullity ab initio. The same rule and requisite would
necessarily apply where the termination of the marriage was effected, as in
this case, by a valid foreign divorce.
Private respondent's invocation of Donio-Teves, et al. vs.
Vamenta, hereinbefore cited, 27 must suffer the same fate of inapplicability. A
cursory reading of said case reveals that the offended spouse therein had
duly and seasonably filed a complaint for adultery, although an issue was
raised as to its sufficiency but which was resolved in favor of the
complainant. Said case did not involve a factual situation akin to the one at
bar or any issue determinative of the controversy herein.
WHEREFORE, the questioned order denying petitioner's motion to quash
is SET ASIDE and another one entered DISMISSING the complaint in
Criminal Case No. 87-52435 for lack of jurisdiction. The temporary
restraining order issued in this case on October 21, 1987 is hereby made
permanent.
SO ORDERED.
Melencio-Herrera, Padilla and Sarmiento, JJ., concur.
Separate Opinions
PARAS, J., concurring:
It is my considered opinion that regardless of whether We consider the
German absolute divorce as valid also in the Philippines, the fact is that the
husband in the instant case, by the very act of his obtaining an absolute
divorce in Germany can no longer be considered as the offended party in
case his former wife actually has carnal knowledge with another, because in
divorcing her, he already implicitly authorized the woman to have sexual
relations with others. A contrary ruling would be less than fair for a man, who
is free to have sex will be allowed to deprive the woman of the same
privilege.
In the case of Recto v. Harden (100 Phil. 427 [1956]), the Supreme Court
considered the absolute divorce between the American husband and his
American wife as valid and binding in the Philippines on the theory that their
status and capacity are governed by their National law, namely, American
law. There is no decision yet of the Supreme Court regarding the validity of
such a divorce if one of the parties, say an American, is married to a Filipino
wife, for then two (2) different nationalities would be involved.
In the book of Senate President Jovito Salonga entitled Private International
Law and precisely because of the National law doctrine, he considers the
absolute divorce as valid insofar as the American husband is concerned but
void insofar as the Filipino wife is involved. This results in what he calls a
"socially grotesque situation," where a Filipino woman is still married to a
man who is no longer her husband. It is the opinion however, of the
undersigned that very likely the opposite expresses the correct view. While
under the national law of the husband the absolute divorce will be valid, still
one of the exceptions to the application of the proper foreign law (one of the
exceptions to comity) is when the foreign law will work an injustice or injury to
the people or residents of the forum. Consequently since to recognize the
absolute divorce as valid on the part of the husband would be injurious or
prejudicial to the Filipino wife whose marriage would be still valid under her
national law, it would seem that under our law existing before the new Family
Code (which took effect on August 3, 1988) the divorce should be considered
void both with respect to the American husband and the Filipino wife.
The recent case of Van Dorn v. Romillo, Jr. (139 SCRA [1985]) cannot apply
despite the fact that the husband was an American can with a Filipino wife
because in said case the validity of the divorce insofar as the Filipino wife is
concerned was NEVER put in issue.
Separate Opinions
PARAS, J., concurring:
It is my considered opinion that regardless of whether We consider the
German absolute divorce as valid also in the Philippines, the fact is that the
husband in the instant case, by the very act of his obtaining an absolute
divorce in Germany can no longer be considered as the offended party in
case his former wife actually has carnal knowledge with another, because in
divorcing her, he already implicitly authorized the woman to have sexual
relations with others. A contrary ruling would be less than fair for a man, who
is free to have sex will be allowed to deprive the woman of the same
privilege.
In the case of Recto v. Harden (100 Phil. 427 [1956]), the Supreme Court
considered the absolute divorce between the American husband and his
American wife as valid and binding in the Philippines on the theory that their
status and capacity are governed by their National law, namely, American
law. There is no decision yet of the Supreme Court regarding the validity of
such a divorce if one of the parties, say an American, is married to a Filipino
wife, for then two (2) different nationalities would be involved.
In the book of Senate President Jovito Salonga entitled Private International
Law and precisely because of the National law doctrine, he considers the
absolute divorce as valid insofar as the American husband is concerned but
void insofar as the Filipino wife is involved. This results in what he calls a
"socially grotesque situation," where a Filipino woman is still married to a
man who is no longer her husband. It is the opinion however, of the
undersigned that very likely the opposite expresses the correct view. While
under the national law of the husband the absolute divorce will be valid, still
one of the exceptions to the application of the proper foreign law (one of the
exceptions to comity) is when the foreign law will work an injustice or injury to
the people or residents of the forum. Consequently since to recognize the
absolute divorce as valid on the part of the husband would be injurious or
prejudicial to the Filipino wife whose marriage would be still valid under her
national law, it would seem that under our law existing before the new Family
Code (which took effect on August 3, 1988) the divorce should be considered
void both with respect to the American husband and the Filipino wife.
The recent case of Van Dorn v. Romillo, Jr. (139 SCRA [1985]) cannot apply
despite the fact that the husband was an American can with a Filipino wife
because in said case the validity of the divorce insofar as the Filipino wife is
concerned was NEVER put in issue.
G.R. No. L-45144 April 3, 1939
M. E. GREY, plaintiff-appellant,
vs.
INSULAR LUMBER COMPANY, defendant-appelle.
C. H. Van Hoven and Harvey and O'Brien for appellant.
Ross, Lawrence, Selph and Carrascoso for appellee.
CONCEPCION, J.:
The only question of law raised in this appeal is whether the plaintiff-
appellant is entitled, as stockholder of the defendant-appellee Insular Lumber
Company, to inspect and examine the books records of the transactions of
said defendant.
The parties submitted a stipulation of facts on which the lower court based its
judgment denying the mandamusagainst the defendant and absolving it from
the complaint.
According to the stipulation of facts, the defendants was and is a corporation
organized and existing under the laws of the State of New York, licensed to
engage in business in the Philippines, with offices in the City of Manila, in
Fabrica, Occidental Negros, in New York and in Philadelphia. The plaintiff
was and is the owner and possessor of 57 shares of the capital stock of the
defendant corporation, registered in his name in the books thereof; that he
does not own three per cent of the total capital stock of the corporation, nor
does he represent stockholders who own three per cent of its capital; that
during the years 1932 and 1933, the plaintiff asked the offices of the
defendant in Manila and in Fabrica to permit him to examine the books and
records of the business of said defendant, but he was not allowed to do so;
that under the law of New York, the right of a stockholder to examine the
books and records of a corporation organized under the laws of that State,
have been, during the entire period material to this action, only those
provided in section 77 of the Stock Corporation Law, which reads as follows:
Financial Statement to Stockholders: Stockholders owning three per
centum of the shares of any corporation other than a moneyed
corporation may make a written request to the treasurer or other
fiscal officer thereof for a statement of its affairs, under oath,
embracing a particular account of all its assets and liabilities, and the
treasurer shall make such statement and deliver it to the person
making the request within thirty days thereafter, and keep on file in
the office of the corporation for twelve months thereafter a copy of
such statement, which shall at all times during business hours be
exhibited to any stockholders demanding an examination thereof; but
the treasurer shall not be required to deliver more than one such
statement in any one year. The Supreme Court, or any justice
thereof, may upon application, for good cause shown, extend the
time for making and delivering such statement. For every neglect or
refusal to comply with the provisions of this section the corporation
shall and pay to the person making such request the sum of Fifty
Dollars, and the further sum of ten dollars for every twenty-four hours
thereafter until such statement shall be furnished. (S. C. L., sec. 77.)
That neither the plaintiff nor any other stockholder of the defendant
corporation has asked its treasurer or any of its officers for a statement of its
affairs, as provided in the statutes of New York; neither did the plaintiff ask to
be allowed to examine any of the statements prepared by the defendant
corporation and existing in its files, as provided by the statutes of New York.
In the light of the foregoing facts agreed upon by the parties and in
accordance with section 77 of the Stock Corporation Law of New York which
is conceded to be the law that governs the right of a stockholder to examine
the books and papers of a corporation, it is a question fully settled that the
plaintiff not being a stockholder owning at least three per cent of the capital
stock of the defendant corporation, has no right to examine the books and
records of the corporation nor to require a statement of its affairs embracing
a particular account of its assets and liabilities.
Plaintiff-appellant contends, however, that, in accordance with our
Corporation Law, under which the defendant company was registered to do
business in the Philippines, the plaintiff, as stockholder, is entitled to inspect
the record of the transactions of the defendant corporation (sec. 51, Act No.
1459, and this right, which is recognized in the common law, has not been
altered by section 77 of the Stock Corporation Law of New York quoted in the
stipulation of facts, and can be enforced by mandamus.
To this, defendant corporation answers, in the first place, that stipulation of
facts is finding upon both parties and cannot be altered by either of them. (25
R. C. L., 1104, 1105.) In the second place, on the strength of this principle,
plaintiff-appellant is bound to adhere to the agreement made by him with the
defendant corporation in paragraph four of the stipulation of facts, to the
effect that the rights of a stockholder, under the law of New York, to examine
the books and records of a corporation organized under the laws of said
State, and during the entire period material to this action, are only those
provided in section 77 Stock Corporation Law of New York. Under this law,
plaintiff has the right to be furnished by the treasurer or other fiscal officer of
the corporation with statement of its affairs embracing a particular account of
all its assets and liabilities. In the third place, inasmuch as plaintiff, either at
the hearing or in his motion for new trial, did not ask to have the stipulation of
facts altered or changed, he cannot now, for the first time on appeal, raise
the question that aside from the right conferred upon him by section 77 of the
Stock Corporation Law of New York, he also entitled under the common law
to examine and inspect the books and records of the defendant corporation.
In the fourth place, neither can this right under the common law be granted
the defendant in the present case, since the same can only be granted at the
discretion of the court, under certain conditions, to wit:
(a) That the stockholder of a corporation in New York has the right to
inspect its books and records if it can be shown that he seeks
information for an honest purpose (14 C. J., 853), or to protect his
interest as stockholder. (In re Steinway, 159 N. Y., 250; 53 N. E.,
1103; 45 L. R. A., 461 [aff. 31 App. Div., 70; 52 N. Y. S., 343]).
(b) That said right to examine and inspect the books of the
corporation must be exercised in good faith, for a specific and honest
purpose, and not to gratify curiosity, or for speculative or vexatious
purposes. (14 C. J., 854, 855.)
The appellant has made no effort to prove or even allege that the information
he desired to obtain through the examination and inspection of defendant's
books was necessary to protect his interests as stockholder of the
corporation, or that it was for a specific and honest purpose, and not to
gratify curiosity, nor for speculative or vexatious purposes.
In view of the foregoing, we affirm the judgment of the lower court, with costs
against the appellant. So ordered.
Avanceña, C.J., Villa-Real, Imperial, Diaz, and Laurel, JJ., concur.